Virtual hearings in international arbitration: is this the death knell for physical hearings?

Oct 2021

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When the COVID-19 pandemic hit the world, restrictions on movement forced the legal sector to consider its options for hearings without diluting the inviolability of an award.  Stopping or delaying legal proceedings for a physical hearing in the future was not a palatable option in many circumstances.  Indeed, in the recent International Arbitration Survey conducted by Queen Mary University (see our post on that here), 79% of respondents said they would choose to proceed with a virtual hearing rather than postponement.  It is against that background that technology came to the rescue. Thanks to technological advancements, the international arbitration industry was able to adopt virtual hearings, as an effective alternative approach to physical hearings.

The industry has supported the use of technology for some time, with electronic bundles and immediate online transcripts widely used by many, but the technology to facilitate a fully remote hearing is being utilised by many for the first time.  Many have found comfort in existence of technology to provide efficient, affordable and generally reliable tools for audio-visual access to virtual hearing rooms.

 

VIRTUAL HEARINGS – A PRACTICAL SOLUTION

As a general rule, provided proceedings are well organised, with the relevant digital infrastructure in place, a virtual hearing could be “a practical and viable alternative” to a physical hearing, where appropriate.

In terms of practicality, remote hearings have their advantages. They can be convened at short notice as the hearing participants are not required to travel. During the proceedings, parties have access to electronic bundles on a single platform and screen sharing allows the advocate or tribunal to direct all participants to a designated document, without parties needing to sift through voluminous hard copy bundles.

From a cost perspective, virtual hearings do not require parties to incur costs for airfare, visas, printing and venue booking.  However, the costs for platform engagement and data protection are added to the mix.

Whilst it is still to be seen, virtual hearings could have a positive impact on the dispute landscape, in particular where a number of parties (witnesses, experts, counsel, and tribunals) and documents are involved.

 

ARE VIRTUAL HEARINGS SAFE AND SECURE

Migrating proceedings to an online platform addresses the increased need for safety and security.  Matters, such as data protection, safeguarding electronic documents, as well as cloud storage, must be taken into consideration to avoid the possibility of hacking of documents, audio or video files.

Guidance can be taken on these matters from the protocols put together by several international organisations to ensure the safety and security of data. By way of example, The International Bar Association (IBA) Cyber Security Guidelines has developed a checklist to which legal representatives should refer when conducting virtual hearings to comply with data privacy and security.

The other matters the parties should consider to ensure a safe and secure hearing include:

  1. Platform – The protocols also include checklists for the type of platform being used to conduct a virtual hearing. It is generally recommended that engaging with a high-level, single platform mitigates the risks involved to a large extent.
  2. Lawyer responsibility – There is a greater responsibility for lawyers to ensure links to documents, hearings rooms and virtual party discussion rooms are appropriately circulated and adequate instructions and training is provided to all involved.
  3. Password management – Each component of a virtual hearing, including electronic folders and virtual spaces, should be fully password protected with passwords changed daily, and provided only to those who need access on any given day.

 

CHALLENGES ON THE WAY

While virtual hearings have many benefits, they do not come without challenges.

  1. Dealing with witness testimony – Common law courts, and the vast majority of arbitrations follow the adversarial system, where the cross-examination of witnesses is a fundamental part of delivering justice. Safeguarding the integrity of the cross examination process is essential to ensuring the integrity of the proceedings so all parties receive a fair trial.
  2. Diminished impact – Concerns have been expressed that the gravitas of a hearing, in particular, cross examination is diminished when the witness is sat in a comfortable home environment, behind the screen.
  3. Selection of an appropriate advocate – It is key that the advocate conducting the oral advocacy is able to adopt and use the technology effectively and efficiently.
  4. Additional preparation – Virtual hearings require additional preparation, including reaching agreements with legal technology providers and agreeing on protocols in relation to witness testimony. Such measures might include reaching an agreement with regard to whether any designated lawyer should be present with the witness during testimony, who can confirm to all concerned that appropriate procedures are being followed.

 

FUTURE OF VIRTUAL HEARINGS

The future of virtual hearing is a hotly debated topic in the current circumstances – will remote hearings survive in the era following the pandemic.  Whilst it is to be seen how matters pan out, in general, Tribunals and parties are becoming more comfortable with remote hearings, all concerned the increased confidence that the system can be effective.  A number of arbitration institutions and courts adopting technology as a means to conduct hearings.

However, it needs to be borne in mind that it’s not a one-size-fits-all solution. There will remain many cases where it is not appropriate to convene a virtual hearing in place of a physical hearing, including a lack of buy-in to the process from those concerned and/or due to other circumstances relevant to the case. This is particularly relevant in arbitration which, in contradistinction to coercive court processes, is and must be, a consensual process.  There have also been reports prepared as to the right to a physical hearing, including by the ICCA to provide jurisdiction specific information on the core legal questions posed by the increased use of remote arbitral hearings due to the COVID pandemic.

We consider that while the industry will see more virtual hearings, we haven’t seen the death of the physical hearing.

 

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