This article was first published in Practical Law Arbitration Blog, Thomson Reuters, see here: http://arbitrationblog.practicallaw.com/the-hitchhikers-guide-to-virtual-hearings-part-2/
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 addressed in Part 1, with an analysis of the remaining categories in this second blog:
- Hearing platform
- Document presentation
- Confidentiality and security
- Witness examination
Confidentiality and security
The moment a virtual hearing is considered, issues of confidentiality and security must also be considered. Beyond the inherent confidential nature of an arbitration, attention must also be given to data protection, hacking of electronic document depositories and cloud storage, distribution of hearing recordings, and what has been termed as Zoom-bombing, that is, external parties high-jacking video or audio.
A number of protocols have been issued on this. I am familiar with ICDR’s Best Practices Guide for Maintaining Cybersecurity and Privacy, the IBA’s Cybersecurity Guidelines, ICCA-IBA’s Joint Task Force on Data Protection in International Arbitration Proceedings and the ICCA-NY State Bar-CPR’s Protocol on Cybersecurity in International Arbitration. Together, they provide a comprehensive checklist of matters to be considered for virtual hearings.
One solution to these problems is to adjust the security settings on the hearing platform. Most paid services allow users to increase security measures to avoid any issues. As far as I am aware, this is certainly true in respect of the Zoom-bombing issue. In anticipation of any issues, it is advisable that someone oversees the operation of the software. Separate breakout rooms can also be created for claimants, respondents and the tribunal to meet and hold discussions in private. Those participating should be identified in advance, and steps should be taken to ensure that they are the only ones present in the virtual hearing venue. Measures such as logging into a waiting room prior to being given access to the main hearing room have proven effective.
The issue of witnesses is another relevant consideration. The problems vary from jurisdiction to jurisdiction and are case sensitive. Some of the concerns include:
- Whether parties are being coached.
- The legality of virtual evidence in the law of the seat/witness location.
- Taking the oath or affirmation.
- Hardware and connection.
- Documents and translation/interpretation.
Many references to matters to be considered, as far as witness examination goes, tend to be included with general guidelines. For example, they can be found within the African Arbitration Academy’s Protocol on Virtual Hearings in Africa, COMBAR’s guidance note on remote hearings and DELOS’ checklist on holding arbitration and mediation hearings in times of COVID-19 and HKIAC’s Guidelines for Virtual Hearings.
Many of the guides suggest that witnesses attend a neutral physical venue for examination. This could be the office of a law firm or a local arbitral institution’s facilities. An alliance of arbitral institutions has been formed for this specific purpose (International Arbitration Centre Alliance). Other suggestions include having a lawyer from the opposing party present on two or more cameras, one pointing at the witness and others at the rest of the room. These suggestions tend to mitigate rather than eliminate all risks.
Many advocates have been forced to carry out their advocacy from home. Many of us have seen first-hand the potential difficulties of working from home during a video call (we all remember Professor Robert Kelly’s unfortunate family interruptions during an interview with the BBC). Of course, some difficulties are unavoidable, but there are some factors to consider.
I will not repeat matters I have dealt with already, suffice to say that many are also applicable to advocates. However, counsel must be alert to certain realities of virtual hearings that simply are not an issue in face-to-face settings. Perhaps the most obvious is the fact that there is no feel for the hearing room, tribunal, opposing counsel or witnesses. The physical separation makes the whole experience a little surreal. The simple fact of being at home or in your office can give the illusion of informality. Remember, the same care and respect should be given to the virtual hearing as if it had been face-to-face. You should dress appropriately, have a neutral background, ensure that no confidential documents or information are visible, and make sure that you are unlikely to suffer any unwanted interruption.
Steps should be taken to make sure that you can see the tribunal at all times, as well as witnesses during examination-in-chief and cross-examination. Microphones should be muted when not speaking. Advocates need to think about how they will communicate mid-hearing with others, in particular with their own legal team, with due regard paid to confidentiality. If documents will be available in electronic format, who will display them to everyone? If you share your screen, ensure that nothing else is shared inadvertently.
As highlighted in Part 1, it is not possible to hand up papers to your opponents. Extra caution is necessary to ensure that everything is ready well in advance. There is simply less room for unforeseen or last minute eventualities.
I have found the Inns of Court College of Advocacy’s Principles for Remote Advocacy useful in this regard:
- Liaise in advance.
- Understand the technology.
- Make sure that all parties can be seen and heard.
- Know how to handle the documents.
- Make the best use of written arguments.
- Be prepared, then be brief and to the point.
- Avoid over-speaking.
- Maintain confidentiality.
As can be seen across these two blogs, there is a whole host of information and guidance available. I have touched upon some of my personal experiences, although I am certain there are many more topics. Two websites especially created to address virtual hearings are Remote Courts and Virtual Arbitration. NYIAC has also helpfully collated resources from its founding firms with links available from its COVID-19 updates.
When reviewing the different guidance and protocols, two, in particular, are most comprehensive and useful. If you do not have the time or disposition to go through them all, I would recommend without hesitation CIArb’s Guidance Note on Remote Dispute Resolution Proceedings (the checklist at appendix 1 is especially helpful), and the ICC’s Guidance Note on Possible Measures Aimed at Mitigating the Effects of COVID-19 (annex 1 to that document is equally noteworthy). An older note from 2017 is UNCITRAL’s Technical Notes on Online Dispute Resolution, which sets out general considerations for online dispute resolution.
I, therefore, conclude by observing that fully virtual hearings bring with them many challenges which most of us have not been accustomed to addressing. However, we are lucky to live in an age where the technology exists to allow us to continue working and resolving disputes, even in the direst of circumstances. As a common law barrister, I am not sure it would be my preference to maintain oral trials in a virtual format in a post-COVID-19 world. However, I am sure that some of the adaptations will survive this period. As a father of an infant son, I hope the reduction of paper and international travel endure to reduce our environmental impact. But only time will tell how much of all of this is here to stay.