The coronavirus pandemic is requiring the arbitration community to adapt rapidly to a reality that will be with us for the medium or long term – with virtual hearings as the new normal. Canadian arbitrator Janet Walker considers whether it can rise to the challenge.
We are just beginning to appreciate the potentially catastrophic effect of covid-19 on a core feature of the arbitral procedure – the in-person hearing. Disruption to travel at first seemed likely to be brief and geographically limited, but the reality is that it will now be impossible for some time to conduct hearings in-person in many parts of the world.
Fortunately, international arbitration is flexible and innovative and can adapt.
We are familiar with remote participation for in-person hearings where it is impossible or impractical for one or more of the witnesses or participants to attend in person. However, the challenge in the coming months will be different: it will be impossible or imprudent in most arbitrations for any of the participants to be in the same room, even if some are in the same city.
The question, therefore, is not one of conducting a video conference; it is one of conducting a virtual hearing. This presents difficulties that are different not just in degree, but in kind from those we have faced before.
It also requires a shift of focus on our part: from balancing logistical and forensic issues to decide whether to permit remote participation by a particular witness who cannot, or will not, attend a hearing in person to considering how we can best meet forensic needs and ensure procedural fairness in the context of a virtual hearing.
Fortunately, technology is advancing and there are service providers, programmes and apps that will facilitate virtual hearings. The arbitration’s community recent experience of mass deployment of these technologies has been promising. For the first time, owing to covid-19, the 2020 Vis Moots are taking place by video link, and initial reports from pre-moots have been very positive.
Significant diplomatic meetings have also taken place virtually. G7 leaders recently held a meeting on the response to covid-19 by video conference, as did the foreign ministers of South Korea, Japan and China.
Are the perceived shortcomings of virtual hearings still a problem?
Most arbitrators are unfamiliar with virtual hearings – the Queen Mary University of London 2018 International Arbitration Survey found that 78% had never or only rarely used them. They may have experienced cloud-based document sharing and video conferencing, but not hearings in which all participants are in different locations.
Moreover, their experience is often marred by technological failures, making them wary of increasing their dependence on technology. What if the video link fails or is of poor quality? What if the access to the documents is cut off without warning? Who will address these technical aspects when everyone is in separate locations?
Another challenge that may concern arbitrators is how to manage a virtual hearing with participants from different time zones. Those who have served in arbitrations with counsel teams located around the globe will be familiar with the difficulty of finding times for even brief tele-conferences that fall within the waking hours of the participants. Arbitrators who draw the short straw (typically those from Australasia) may soon expect to find themselves in hearings scheduled during the “business hours” of the parties and their counsel on a nightly basis.
Many arbitrators may also be concerned that the loss of in-person observation of witness testimony, particularly given under cross-examination, will impair their ability to form an opinion of the credibility and strength of the evidence. It may be difficult to capture the “look and feel” of the witness’s evidence onscreen and for the tribunal members to discern body language, facial expressions and tonal changes.
There is furthermore the concern that the witness may be being coached off-camera or reading from a script hidden from the tribunal’s view.
Technological service providers such as Epiq and Opus, working in conjunction with hearing centres such as Maxwell Chambers and the International Arbitration Centre in London, have made great strides in addressing these perceived challenges of virtual hearings. As part of their services, they offer dedicated technology operators, who participate in hearings remotely to manage the video link and deploy documents from electronic hearing bundles.
As a result, participants in a hearing are able to see the documents on which a witness is being examined or to which counsel is referring far quicker than in traditional hearings, where everyone has to thumb through bound volumes of evidence. Technological glitches are addressed promptly and efficiently.
Such service providers also offer real-time transcripts of the hearing, with options including onscreen captioning to promote aural comprehension. Rotating cameras, which can be controlled by the arbitrators, allow them to assess the witness’s physical environment and address concerns of witness coaching or behind-the-scenes collusion by showing that he or she is alone in the room or accompanied only by an approved assistant. There is also scope for breakout discussions involving just some of the participants in the case. All this is a significant advance on conventional videocalls.
Mobile video-conferencing apps such as Zoom and Bluejeans, which are fast becoming a mainstay of business meetings and distance learning, can also be used for virtual hearings, and are a great improvement on previous technologies. In the past, a key advantage of holding an in-person hearing was that arbitrators were able to scan the room and observe several participants in rapid succession. But the audio-visual technology in these new apps permits users to observe up to 25 or 49 participants in a grid of thumbnail images, with the option to expand the image of particular participants, such as those speaking.
To be sure, arbitrators and counsel will need to have computer monitors of sufficient size and quality to make the best use of these features; and, for very large hearings, counsel will need to develop protocols to determine which members of their teams are displayed onscreen as core participants. Nevertheless, the Zoom and Bluejeans displays remove a traditional advantage of the in-person hearing. It is probably fair to say that, even in the largest of these, the tribunal is rarely able to closely observe more than 49 participants at once.
In these apps too, relevant documents can be displayed along with the images of the participants in a suitable place onscreen – provided someone is calling them up. The integration of PowerPoint or multimedia presentations is, in principle, seamless, ensuring users enjoy synchronised sound, video footage and observation of documents.
In general, the technology available is simple to operate and offers high definition images and sound, alleviating arbitrators’ concerns that they may not be able to discern participants’ facial expressions, body language, voice tone and subtle non-verbal cues. It is almost as if they are in the same room.
The improved quality of internet connections in many locations has, meanwhile, largely eliminated the time lag that has plagued long-distance communications over the years.
Adapting to the new normal
The covid-19 pandemic means that virtual hearings are no longer just an option for unusual circumstances but a reality of daily practice that we must all embrace. An encouraging side effect is the significant financial benefit to be expected if such hearings become the norm in the long term, resulting in reduced global travel. The necessary technologies are available sometimes at minimal expense and at a fraction of the cost of travel and accommodation for multiple participants in distant hearings.
One must also consider the reduced harm to the environment that will result from less long-distance travel.
Of course, technology is not the answer in all cases. For those in places with poor internet connectivity, the quality and reliability of the sound and picture will lag behind that in better-serviced areas. But internet connectivity is likely to be given greater priority by governments as a result of covid-19 and as remote working increases across a range of businesses. And, like any new technologies, virtual hearing technologies are bound to improve still further in reliability, ease of use and overall quality with increased deployment.
Understanding the technological possibilities is only one aspect of embracing the new reality. Who can we expect to take the lead in advancing the use and availability of these technologies? Who will show leadership in establishing protocols for conducting hearings in these new formats to ensure they are both efficient and procedurally fair?
As already mentioned, some of the leading arbitral centres have been stepping up and, in some cases, partnering with major technological service providers to facilitate virtual hearings. While much of their business, traditionally, has been in the management of physical space, their core expertise is the logistical management of hearings and they are eager to include virtual hearing facilities among the services they provide.
For example, Arbitration Place in Canada has recently started offering Arbitration Place Virtual, an e-hearing dispute resolution format, as has the Australian Disputes Centre. The services can be used for any type of dispute resolution proceeding and provide both software and hardware video-conferencing capabilities, live document display and sharing, transcription services and technological support.
Multiple domestic courts have also shifted to using remote hearings. For example, the Business and Property Courts in the UK have produced a protocol which states that it will normally be possible for all short, interlocutory, or non-witness applications to be heard remotely. Certain cases involving witnesses may also be suitable for remote hearings.
Recently, a trial in a UK Court of Protection case was conducted solely over Skype, with great success. And in Australia, the Supreme Court of New South Wales has directed in response to covid-19 that the registrar’s lists are to be conducted remotely, by the online court, telephone link or video conference.
As for the practices and protocols, there is an important role to be played by the institutions. Most institutional rules grant the tribunal the power to direct the procedure as it wishes. Where there are objections to virtual hearings, the onus should be on the party which raised the objection to explain why a virtual hearing would be untenable under exigent circumstances such as those we currently face.
Beyond this, though, will come a host of refinements and adjustments needed to tailor traditional procedural safeguards to the virtual hearing setting. How will we address the concern about real-time witness coaching; will the debate echo traditional discussions of the standards for witness preparation? How will we ensure that witnesses are sequestered where this is appropriate? Will we need to adjust the typical daily hearing schedule now that participants are expected to sit for long periods focused on their monitors? What should be done in the event of technical failures?
These are among the host of practical issues which the international arbitration community will now be considering and on which the pro-active contributions of arbitral institutions will be welcome.
In developing these new approaches, a number of existing soft law instruments will assist, including the Chartered Institute of Arbitrators Guidelines for Witness Conferencing in International Arbitration, promulgated in 2019; the Hague Conference Draft Guide to Good Practice on the Use of Video-Links under the Evidence Convention, also from 2019; the ICC Commission Report on Information Technology in International Arbitration, produced in 2018; and the 2010 Commentary on the IBA Rules on the Taking of Evidence in International Arbitration.
Although these soft law instruments do not deal directly with virtual hearings, they offer helpful guidance on examining witnesses by videoconference. For example, the Hague Conference Draft Guide provides an exhaustive discussion of best practice in relation to video-link witness evidence, considering time differences and operating outside regular business hours; introducing documentary evidence via video link; a protocol for speaking and interruptions where there is a delay between the picture and the sound; and advice on room layout, access, acoustics and lighting.
The ICC Commission Report, meanwhile, provides sample wording for a pre-hearing order for testimony to be given via video conference that could be adapted to virtual hearings and to approaching technological breakdown.
With their genius for innovation, members of the international arbitration community must work together to further advance the technologies at their disposal and develop protocols needed to meet the challenges ahead.