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Virtual arbitration hearings are here to stay.
Many reading the above statement may think it a little stark, too premature, or should be framed as a question. However, when one brings together not only the advantages of virtual hearings (for example, cost savings, reduced environmental impact, etc), but also their necessity, at least in the medium term, due to the coronavirus pandemic, it could well be that in the not-too-distant future, fully in-person arbitral hearings become the exception rather than the rule.
The arbitration community has for some time considered how best arbitration can evolve to meet the challenges of practice and the modern world. For example, emergency arbitrator provisions grew out of a desire that arbitration attempt to plug a gap in the availability of interim arbitral relief before the constitution of the tribunal, the Equal Representation in Arbitration Pledge provided a much-needed focal point for improving, on an equal opportunities basis, the representation of women on tribunals, and, more recently, in the face of increasing concern about the carbon footprint that some arbitrations can leave, Lucy Greenwood’s ‘Green Pledge’ has been positively received and many well-known practitioners have signed up. The same has been true of the challenges brought forth with the global pandemic. One needs only to turn to the new Virtual Arbitration platform, established by Ben Knowles (Clyde & Co), Jonathan Wood (RPC) and a number of other highly-regarded individuals, to see just how much has been contributed by arbitral organisations and the community to the ‘new-normal’.
That there are advantages to virtual arbitration hearings does not mean that they are free from challenges, or that they will be appropriate in all cases. Far from it. While these challenges will likely reduce in time as people become used to working in a socially distanced manner, for the time being preparation for and the delivery of advocacy in the virtual setting is most certainly in the ‘learning on the job’ category. This article seeks to provide the reader with an assessment of some of the practical considerations that should be taken into account at the earliest possible stage to help ensure that the only thing to worry about at your virtual hearing is that errant three year old or excitable puppy running in during the climax of closing submissions.
In discussing this broad subject, the authors recognise that: virtual hearings are not new to all practitioners and tribunals; different considerations may be relevant depending on the type of hearing (for example, procedural or merits); fully (as opposed to partially) virtual hearings may be less frequently encountered over time; hearings do not always form part of every arbitration (for example, documents-only arbitrations); and, there is no paradigm arbitration proceeding.
For arbitrations commencing in the middle of the pandemic, it is likely that chairs/sole arbitrators will have the possibility of a virtual hearing at the forefront of their respective draft procedural order no 1s. Indeed, arbitral institutions were exceedingly quick to offer guidance to parties and arbitrators in this regard (for example, the AAA-ICDR Model Order and Procedures for a Virtual Hearing via Videoconferenceand
ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic).
However, the position may be different either with inexperienced arbitrators or arbitrations that commenced before coronavirus had entered the global psyche. To ensure that all parties, not only the tribunal, are aware of and acknowledge the requirements of virtual hearings, we recommend that issues such as those detailed below are considered by all and addressed in a procedural order from the tribunal. Not only is this good practice and likely to be of practical utility, but ultimately it may well alleviate the risk of a party faced with an unfavourable award using the fact of a virtual hearing as a basis to challenge that award and delay enforcement (regardless of the what the merits of such a challenge might otherwise be).
Addressing hearing bundles so early on in an article about advocacy may seem a little dull. However, while few court-room TV drama sub-plots are dedicated to the compilation and use of bundles during a hearing, and while the advocate will not often be in the trenches in terms of the preparation of the hearing bundle, the bundle is of vital importance to the hearing. Producing bundles which are comprehensive and user-friendly for arbitrators, advocates and witnesses alike, and distributing them to all who need them, is a critical consideration.
Socially distanced working practices are a particular challenge for the preparation of hearing bundles. Arbitration teams within law firms are often well-oiled machines when it comes to hearing bundles. Associates know the pleadings and documents inside out and paralegals, trainees and print room staff can often prepare perfect bundles in their sleep. However, place every component in this machine in a remote setting (often without access to heavy-duty printers and copiers) and a new set of challenges presents itself.
Timings can often be tight in terms of hearing bundles, and greater physical distance means that additional time needs to be devoted to the task. With limited staff able to work in print rooms, it is not simply the compilation of the master copy that requires extra time but the physical printing as well and the distribution of these to the tribunal, both parties’ legal teams, and witnesses. The same consideration needs to be given to the printing and delivery of additional inserts/replacement pages for existing bundles already provided by the parties. Depending in the preferences of the tribunal and both sides’ advocates, it may be possible to dispense with hard copy bundles altogether in favour of electronic bundles.
But it is not just old-school paper bundles that require extra thought, so too do electronic hearing bundles. Associates in charge of bundling will often have experienced Information Technology (IT) professionals on hand to assist with tasks such as hyperlinking pleadings, witness statements and expert reports to other documents in the hearing bundle. In a world where that safety net is removed, at least in-person, associates need to learn fast in order to avoid the dreaded stare from advocates, partners and the tribunal when an error message appears when clicking on a link.
For many years now, the prevalence of electronic hearing bundles has meant that certain attendees at the hearing will use a laptop/tablet to view documents, whereas others will go the ‘old-fashioned’ paper route. During an in-person hearing it is often fairly simple to know if all interested parties have the relevant document to which the advocate is referring; in a virtual setting this is far harder. It is important that an advocate ensures that everyone is ready with the correct document in order for points to land and with certain normal visual clues being more difficult to spot in the virtual setting, an advocate may be well advised to leave slightly more time for participants to flick through bundles to locate documents.
Another consideration if electronic bundles are utilised is the level of functionality they can offer. Manual PDF bundles (appropriately sub-divided and bookmarked) are fine for many but, in a virtual setting especially, others may look to more sophisticated solutions such as Opus 2 or other virtual hearing bundle providers, where a single hearing bundle can be uploaded for use by all participants and updated to include inserts, etc. The earlier the exact format of an electronic hearing bundle can be agreed, the better, especially when working remotely. An advocate can never receive a full hearing bundle too early.
There are a number of virtual meeting platforms available, of which Zoom seems to be gaining widespread acceptance (including among those involved in virtual arbitration hearings) as the most reliable, although there are a number of other factors to consider when selecting a preferred platform and seeking to agree with the other side which to use and why (although we understand that some institutions are prescriptive as to what platform will be used, such as ICSID’s use of Webex):
functionality offered by the platform beyond basic video conferencing, including features such as virtual breakout rooms, the ability to share screen views with other participants, separate audio channels for use by translators, messaging functions, and document sharing functions
user interface, including in particular issues concerning the ability to control how many participants, and which participants, it is possible to view on screen
security may also be a concern, both the security of the hearing itself, and also potential security risks to which that platform software may expose users
Whichever platform is chosen, having a dedicated third-party virtual hearing manager or moderator with IT expertise and substantial experience of the platform can be invaluable. A dedicated hearing manager can perform numerous tasks that contribute to the smooth-running of the hearing and avoid delays and distractions, acting as a gatekeeper to ensure that only authorised participants are allowed into meetings, setting up virtual breakout rooms for use during adjournments, providing guidance on using the platform’s functionality, and providing a focal point to deal with any IT issues. Some arbitration venues (including the International Dispute Resolution Centre and International Arbitration Centre in London and Maxwell Chambers in Singapore) can provide such a virtual hearing manager, as can service providers such as Opus 2.
It is crucial for any advocate to ensure that they are familiar with and have practiced using the virtual hearing platform in advance of the hearing, particularly any functions and features that they may want to make use of during the hearing, such as screen sharing. Being distracted by fumbling with unfamiliar technology in the midst of making submissions or examining a witness may be distracting for the tribunal as much as for the advocate and other members of the legal team. Anyone who will be participating as an advocate needs to have worked out how they want their screens and camera set up, so that they have a view of the participants that they are happy with while also being able to access their notes, any documents they may need (which may include an electronic hearing bundle), potentially a live transcript, and probably also email or a messaging service such as WhatsApp. Consensus among those we have spoken to seems to be that at least two large screens or four smaller screens are needed, although our recommendation would be for even more than this for those intending to use electronic bundles and a live transcript, to ensure enough virtual desk space to have ready access to all necessary documents. Working from home in the virtual setting and backlogs in the ordering of such equipment means that this may not always be possible for every advocate.
While the tribunal may recognise that the fact that an advocate or witness appears to be looking away from them does not necessarily mean they are not paying attention to the proceedings, psychologically it can still be very distracting addressing someone, or being addressed by someone, who appears to be looking at something else. Advocates’ webcams and screens should therefore ideally be arranged in a way that allows them to appear to be looking into the camera—and therefore at the tribunal or the witness—while in fact looking at their notes, or at the screen on which the witness or tribunal appears. A good way of achieving this can be by having have two screens arranged one above the other, with the webcam positioned between them.
Thought also needs to be given to lighting and the background that the tribunal will be able to see behind an advocate or witness. For example, if an advocate or witness has a window or bright light behind them then they are likely to appear only as a dark silhouette; a striking piece of artwork behind them may be a distraction; while a morass of personal belongings may appear unprofessional. Artificial backgrounds are not ideal to conceal such things, as frequently parts of the advocate will appear to fade in and out of existence which may itself be distracting.
Although participants may well be joining the hearing from home, that does not mean that they should not dress as if they were attending the hearing in person. While this may seem obvious, there are stories (albeit perhaps apocryphal) of advocates attending virtual hearings shirtless, or even from bed. On the other hand, we have heard reports of tribunals (quite rightly) being sympathetic to issues that come with the territory of working from home, such as interruptions by children or pets, although where this is a possibility it is likely to be best to forewarn the tribunal.
Not only do the advocates need to be familiar with the hearing platform and know how they want their screens, webcam, etc set up, it is important to ensure that all members of the legal team are similarly prepared if they are to be best-placed to participate in the hearing and assist as needed. Witnesses also need to be properly prepared and familiar with the platform, if perhaps not to quite the same extent, if they are to be able to give their evidence to best effect without being put off by the technology (or any unfamiliarity with it). At least one ‘in-house’ test attended by all witnesses and members of the legal team is advisable to ensure that they are prepared in relation to the basic technical and practical features of a virtual hearing.
Similarly, if time and resources allow, and the significance of the hearing justifies it, it is very useful to have a full test of the hearing platform, attended by all parties and the tribunal, in advance of the substantive hearing to ensure that the technology operates smoothly and that all participants (and perhaps most importantly the tribunal) are familiar with it and with the use of relevant features such as, for example, virtual breakout rooms. Not only does this assist with avoiding delays and distractions during the hearing (in particular at the start of the first day) it also gives the witnesses an opportunity to meet the tribunal and to get a sense of the virtual environment in which they will be giving evidence. This is an advantage to the virtual setting that those attending in-person hearings do not often experience.
If any witness will be giving evidence via a translator, then ideally the translator too should be involved in any tests of the technology to ensure that they are familiar with the platform and its functionality; a translator who struggles with using the virtual hearing platform can present even more of a difficulty and a distraction than a witness who is unfamiliar with it. Of course, care needs to be taken not to involve a translator in any discussion of the substantive case in advance of the hearing, although the likelihood is that it will be necessary to provide them with access to an electronic bundle or a physical copy of the hearing bundle in advance of the hearing.
A test-run involving all parties may also be an appropriate time for the tribunal to give further directions, or to amend any prior directions or protocol, in relation to particular details of how the virtual hearing will operate. One important question is which attendees should have their webcams and microphones switched on or disabled at any time. It is often convenient to have video participants limited to the tribunal and the lead advocate from each side and whichever witness is giving evidence, which will ensure that the tribunal’s and advocates’ screens are not filled with multiple attendees who are not playing a direct role at the hearing, although different tribunals may take different views. For example, some may also prefer the non-speaking advocate to turn off their camera.
A matter the tribunal may well want to deal with (and which should be dealt with internally in any case) is the question of contingency planning in the event that an advocate or witness experiences computer or connection issues. Ideally, witnesses and advocates should have a second computer available and, if possible, an alternative means of connecting to the internet (for example via mobile internet connection, or just by phone). A list of telephone numbers should be circulated in advance of the hearing so that any witness or advocate whose connection drops can be contacted quickly to find out what the problem is and whether they will be able to re-join.
A further practical issue that will require prior consideration is how your team will communicate among themselves during the hearing, with the traditional method of passing notes no longer available. Using the chat function within the virtual hearing platform itself is not a popular option: it reduces the fraction of the screen devoted to video and does not always allow for easy selection of recipients for the message, while carrying the risk of potentially sending a message to an unintended recipient or even to all participants (the thought of which keeps at least one of the authors up at night during a hearing). The general preference seems to be to use a separate messaging program such as WhatsApp, with the possibility of multiple groups being set up so as to readily allow messages to be shared (for example) among just the legal team or both the legal team and clients. An added advantage is that this also allows for messages to be exchanged outside of the hearing, and that messages are stored and not lost at the end of the day. From the perspective of the advocate, it is likely to be most convenient if messages can be sent and received via computer, rather than by phone, and many messaging services (including WhatsApp) can be accessed and used via computer.
A widely-reported issue is that virtual hearings can be more tiring for participants than oral hearings. This experience seems to vary between individuals, perhaps depending on how accustomed they are to spending long periods staring at a computer screen. For longer hearings, we understand that participants may find that they get used to the new setup and that working via video link becomes less tiring as the hearing goes on. Nevertheless, the possibility that participants may need more frequent breaks, in addition to the risk of technical interruptions, does seem to militate in favour of the parties and the tribunal being more generous when it comes to time estimates and how long may be required for a hearing—particularly those expected to last more than a day or two.
For the legal team, arbitral hearings are not simply about undermining the case of your opponent and its witnesses/experts. At least equal consideration needs to be given to the case of you own client and this means ensuring that your own witnesses and experts are fully prepared, including being as comfortable as possible with what is in store for them at the virtual hearing. We understand that witness familiarisation trainers, such as Assurety and Bond Solon, now offer virtual training for witnesses.
English-qualified solicitors are prohibited from coaching witnesses. However, it has long been a vital part of hearing preparation to ensure that witnesses and experts have as close to an encyclopaedic knowledge of their statements and documents (and those of the other side) as possible. Pre-global pandemic, this would often be achieved by having witnesses and/or experts attend solicitors’ offices to run through the evidence without distraction. This is clearly far more difficult via telephone/video conferencing where the distractions of life can conspire to interrupt. It is critical for the legal team to ensure that each witness/expert devotes their uninterrupted attention to the preparation process to get the best result at the (virtual) hearing. This can be achieved by putting in place a pre-planned timetable addressing the elements to be covered in any given time session, with breaks included as they would be for a full hearing.
For a virtual hearing each witness is likely to need access to their own copy of the bundle, whether electronic or in hard copy. Each possibility brings its own considerations: will the witness be willing and able to navigate an electronic bundle? How to get a faithful reproduction of the hard copy hearing bundle to the witness, and will the witness be able to effectively navigate hard copy bundles if they are voluminous? In pre-pandemic days, where a witness gave remote evidence these concerns could often be overcome through the attendance of a junior member of the legal team at the remote location. In days of social distancing this is simply not going to be possible. Therefore, an added layer of preparation is essential to ensure frustrations with bundle navigation don’t impact upon the performance of your witnesses (or the cross examination of the other side’s witnesses).
A consideration that is likely to arise in the context of international arbitrations is that of witnesses, and perhaps also advocates and members of the tribunal, being located in different time zones. So far as witnesses are concerned, it may be possible to manage this by calling witnesses in an order that allows each witness to give evidence at a time within usual business hours where they are based, but that is obviously dependent on factors such as how many witnesses are based in different time zones, and how long the examination of each witness is expected to take. While tribunals will generally endeavour to avoid witnesses having to give evidence at antisocial hours, and will often be flexible with the hours they are willing to sit, there may well be limits to this where accommodating witnesses in this way risks lengthening the hearing or resulting in a case going part-heard. (Even in pre-COVID days, one of the authors recalls an expert almost having to give video evidence in the middle of the night in North America due to issues with travel, an arbitrator’s diary clash and the hearing taking place in Paris.) Location of witnesses (and of the legal team) is therefore something that requires consideration when it comes to fixing a timetable for the hearing, and perhaps even when fixing the number of days required. As ever, the earlier these issues are considered, the better for all concerned.
As alluded to above, when cross-examining a witness by video link it is much harder to tell whether a witness has actually successfully found the document to which they are being referred. Indeed, we have seen instances where a witness has revealed, several questions in to a line of questioning, that they actually have not found the relevant document and do not have it in front of them. Extra care may therefore need to be taken in ensuring that references given are clear, and that the witness has successfully found the document they are being referred to.
While screen sharing may allow for a witness to be shown any page that an advocate wishes to take them to, if this is the intended approach then this needs to be catered for appropriately in preparation, in terms of both of how this will work practically, and perhaps also whether the tribunal will be content with such an approach.
Just as it is hard to see whether a witness is looking at the correct page in the hearing bundle, so it is hard to tell whether a witness is looking at a clean copy of the bundle, whether they have notes in front of them, or even whether they are communicating electronically with others while giving evidence. One possible safeguard against this is for the witness giving evidence to set up a second camera behind themselves, giving a view of what the witness is looking at, although tribunals may be reticent to direct this (and so to imply that a witness might not be trustworthy) unless pressed to do so.
While one might normally advise a witness to look at the advocate while being asked a question and at the tribunal while answering it, in a virtual hearing, the advice must instead be to look at the camera. As discussed above, notwithstanding that consciously the tribunal may appreciate that the witness may not be looking at the camera because they are instead looking at their screen, the effect of this can nevertheless still feel unnatural and create the impression that the witness is avoiding meeting the viewer’s eye. The better approach, if possible, is to ensure that the focal point of the witness’s screen is as close to the camera as possible.
The impression of eye contact is just one aspect of judging a witness’s responses. Depending on the position of the camera, the chances are that one will not get the same sense of the witness’s body language, or indeed of their facial expressions, as at a live hearing. This may be particularly true if, for example, the witness’s camera is badly-placed or the witness has a poor internet connection. It is therefore harder to judge a witness’s reaction to questions via video link. Almost inevitably it must be easier for a witness to deliver a false answer with a straight face where that answer is delivered to a camera rather than to the tribunal in-person, while common tells of a lie include fidgeting, looking away from the questioner, gesticulation (especially after speaking), change in complexion or sweating, and speaking more loudly, all of which are likely to be harder to pick up on via video link. On the other hand, a witness’s strength of feeling as to the truth of their account of events may also be hard to read.
The fact that it is harder to read a witness’s reactions can make cross-examination more difficult. Some further issues may come from difficulty in judging the tribunal’s reactions to the witness, or indeed whether they are following the line of questioning. Indeed, as an advocate it is easy to find oneself focused entirely on the video of the witness and not paying sufficient attention to the tribunal. Equally it is impossible to tell whether members of the tribunal are making careful notes of the witness’s answers, or comparing those answers to what appears in their witness statement or contemporaneous documents, or whether they are instead checking their emails. In this respect, it can be helpful to assign the task of observing the tribunal’s reactions to a another member of the legal team to ensure an advocate does not have to try to do everything at once (although the advocate will still need to keep an eye out for and react to messages warning them if the tribunal seems not to be fully engaged).
Cross-examination may also be interrupted by technology or internet connectivity issues, with questions or answers being inaudible, or connections dropping out altogether, which can interrupt the flow and pace of examination and will generally be hard to guard against.
Perhaps a more pervasive problem can be a lag in the connection, which can lead to an advocate and witness speaking over one another. Leaving a pause between questions may reduce this to some extent but it may be hard to eliminate altogether.
For these reasons it can be more difficult to cross examine effectively, or to gauge how a witness’s evidence has been received by the tribunal. Feelings thus seem to be much more mixed about virtual hearings involving witness evidence, and in particular where oral evidence is likely to be of crucial importance—for example where there is a dearth of documentary evidence on a key issue, or where a witness’s honesty is in issue.
Some of the same difficulties with reading a tribunal may apply when it comes to making submissions. It can be difficult to read reactions to arguments and to assess whether one is leaving them sufficient time to make notes. This may make it good practice to err on the side of saying more on paper and relying less on the ability to identify which points the tribunal is interested in during the course of oral submissions and concentrating fire accordingly. Of course, the extent to which this is an issue is likely to depend on the tribunal: if the tribunal actively engages with submissions then there may be little problem in identifying which points interest them and which don’t while, at the other end of the spectrum, some tribunals may be hard to read even in person just as much as via video link. To an extent, this is more likely to be an issue at final hearings or substantial applications, and less so at more procedural-type hearings (eg directions hearings) where the tribunal will want or need to make an immediate decision.
Overall, the experience of virtual hearings seems to have been positive. In any event, given the likelihood of virtual hearings becoming more commonplace, even after the pandemic has subsided, undue negativity and resistance to them may not be the best way forward for arbitration practitioners.
While there are invariably differences in the experience compared to in-person hearings, these should not cause serious problems, in most cases, provided advocates and the wider legal team plan for all eventualities (ideally, bringing the tribunal with them in such planning). This said, where hearings will involve factual witness evidence, and in particular where that evidence is likely to be of critical importance, this may make a virtual hearing less satisfactory, although it should still be possible to hold an effective hearing by video link if necessary.
As indicated at the outset of this analysis, the arbitration community has been quick to adapt to this new world and advocates must (and doubtless will) continue to develop new practices and ways of working that allow them to be as effective in virtual hearings as in traditional in-person hearings. Of course, there will likely be teething problems and a degree of trial and error, but as time goes by and as more hearings take place via virtual means, greater learning will no doubt be absorbed and shared to make the process even more satisfactory and able to meet the needs of parties seeking to resolve their disputes by arbitration.
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