As COVID-19 swept the world, and face-to-face meetings have diminished, the legal profession was forced to adapt. For arbitration, this has resulted in a new way of virtually conducting oral hearings.
Although lockdown measures are slowly beginning to lift in many jurisdictions, many of us by now will have either taken part in or watched a virtual hearing, or at least watched a webinar about virtual hearings. A whole host of organisations have released guidance and protocols in respect of virtual hearings. Most are useful, some more so than others. Across two blogs, I will endeavour to summarise their provisions, commenting on what I have found to be the most useful.
When it comes to virtual hearings, I do not think that there is much utility in distinguishing between virtual court hearings and virtual arbitration hearings. The proper and reasonable considerations are often interchangeable in either context. The obvious exception is often confidentiality.
When considering virtual hearings in arbitration, there are a number of matters which require discreet consideration beyond that of an ordinary face-to-face hearing. For ease, I would put those into five categories, the first and second of which I will address below, with an analysis of the remaining categories in a second part:
- Hearing platform.
- Document presentation.
- Confidentiality and security.
- Witness examination.
Before considering these categories, parties and tribunals should first determine whether a virtual hearing is necessary. Are there other reasonable alternatives, such as a decision on papers only?
In my view, COMBAR’s guidance note on remote hearings helpfully distinguishes interlocutory hearings from trials. Although each hearing must be considered on a case-by-case basis, the reality is that interlocutory hearings are more likely than trials to be viable and appropriate for virtual hearings. That is especially true in complex arbitrations involving a high volume of documents, parties, witnesses and experts. DELOS’ checklist on holding arbitration and mediation hearings in times of COVID-19 is useful when considering that initial decision.
As an arbitrator, I have used a series of questions to decide how appropriate it may be to proceed in the context of the temporary nature of the status quo. Wherever you are in the world, a tribunal is under a positive duty to render an enforceable award. That primary duty can often be broken down into subsidiary duties. Under English law, these are found under section 33 of the English Arbitration Act 1996. The risk of ordering a hearing to proceed virtually, against one or more of the party’s choice, is that any award may be set aside on the basis that one or more of those subsidiary duties have been breached.
I therefore propose that, at the very least, the following points are considered by tribunals faced with that question:
- What is the position of the parties?
- Is the objection to proceeding virtually reasonable?
- Does the tribunal have the power to order that the hearing proceed virtually?
- What is the effect of any relevant applicable laws?
- What is the position of the chamber or arbitration institution?
If upon proper consideration of the issues a hearing is to proceed virtually, I would highly recommend scheduling a pre-hearing review to discuss and, where possible, agree, the five categories. COMBAR’s guide provides a pre-hearing review checklist. From the anecdotal evidence available, the reality is that many parties object to substantive trials proceeding in this way and tribunals have been adjourning them until next year. It is firmly believed that face-to-face hearings will become possible again by then. However, if a second or third wave of COVID-19 strikes, such adjournments may become less frequent.
Helpfully, both Practical Law Arbitration (Procedural Order for Video Conference Arbitration Hearings) and the International Institute for Conflict Prevention and Resolution (Model annotated model procedural order for remote video arbitration proceedings) have published model procedural orders for this purpose.
I suspect that many reading this had never heard of Zoom before COVID-19. It has, however, been one of very few enterprises to thrive during the pandemic. Like Zoom, many other platforms are often used for virtual hearings. Anyone involved with the Vis Moot will be familiar with Immediation, the platform adopted by the organisers. There are, of course, many others. I personally have experienced Zoom, Immediation, Microsoft Teams, Blue Jeans and Starleaf.
Several issues regarding usability and security have been raised by a number of parties. As far as I am aware, issues that arise generally do so because of “human error”. In other words, either users have not taken proper advantage of the available security settings, or they have failed to devote enough time to familiarise themselves with the technology. In truth, it comes down to personal preference rather than any justified objection.
Where a platform is agreed, parties and the tribunal must decide who will operate the software at the hearing. Although the tribunal is traditionally in charge of directing the hearing process, this is not always practicable in virtual hearings. Firstly, this is because many, if not most, arbitrators simply do not have the technical ability. Secondly, to avoid delay and excessive costs, it is probably best to have an IT professional. Finally, a question which to me has remained unanswered to date, is who will be liable if it all goes wrong on the day? The best solution I am aware of is for the appointment of such a person or organisation to be recorded in a procedural order, with costs liability for technical failure to be shared between the parties.
A further consideration is to ensure that all participants have appropriate hardware, software and bandwidth. What I mean by that is mainly video, audio and internet connection. Most computers and laptops work perfectly well for a video conference lasting a few hours. However, for a virtual hearing that may last days or weeks, you should take into account the robustness of your webcam, microphone, internet service provider, Wi-Fi, backup 4/5G, battery life and more. I have found that annex 1 of the Seoul Protocol on Video Conferencing in International Arbitration to be particularly helpful in setting out minimum requirements. Having said this, everyone should be aware of Moore’s Law, which provides that computer processing power doubles every 18 months. Today’s recommendations can become redundant quickly.
It is highly recommended that, in anticipation of potential issues, dummy runs and connection “triage” are carried out wherever possible to avoid disappointment. In other words, it is helpful to have someone knowledgeable check the hardware, software and connection, and make recommendations for change beforehand.
It may be that documents are available in hard copy. However, at times documents are all in electronic format, or more commonly, a hybrid is used.
I do not know of any virtual hearing where documents have been in electronic format in their entirety. In my personal experience, someone has always wanted some documents in hard copy. Often that person is me. However, that does not negate the possibility of an all e-document arbitration, especially with a younger, more technologically savvy generation coming up the ranks.
There are some organisations, such as Opus 2 or Caselines, who will provide a tailored solution. Depending on the value and cost of the arbitration, these can be prohibitively expensive or disproportionate to parties who must foot the bill. For example, many shipping arbitrations will be low value comparated to LCIA, ICC, SCC or ICSID arbitrations. Doubtless, in these circumstances, such a system would not be deployed. Helpfully, the SCC, together with HighQ (part of Thomson Reuters) has launched its Platform for ad hoc arbitrations, which includes document management aimed at ad hoc arbitrations, such as many shipping arbitrations.
A popular alternative has been the humble PDF. An electronic bundle in PDF format requires no more than a PDF editing tool, which allows for ordering, paginating and indexing of bundles. It also allows for highlighting, adding notes, hyperlinking pages and searching for terms within documents. It is, on any view and without exception, a versatile and affordable tool for any party to an international arbitration.
However, there are some caveats:
- Beware of document editing. Words in a clause or contract can be changed by dishonest parties and users must be vigilant of the integrity of documents.
- Too many PDF files should be avoided where possible. The right balance must be struck between a workable file that does not freeze or takes too long to scroll through, and the need to avoid so many separate documents that time is wasted trying to locate the correct one.
- Much like hard copy bundles, scanned documents can often cut out sections, or come out blank or illegible. Care must be taken to ensure that all documents are properly legible and not corrupted.
- Virtual hearings do not permit documents to be handed up to the tribunal at the hearing. Parties must ensure that all necessary documents are included in the bundle in advance, especially in light of the flurry of last minute exchanges, which are common and sometimes inevitable.