COVID-19 has caused the postponement of many hearings. That, in turn, has caused a very great deal of discussion about alternative hearing arrangements. Counsel and parties alike have been forced to make virtual hearings—in one guise or another—a reality. Particularly in international proceedings, it seems inevitable that virtual hearings are here to stay. But that is only scratching the surface of some of the possible changes that the impact of Covid might bring to the arbitration community.
In this article we consider some of the variety of strategies and steps clients and counsel can take to get the most effective results at a time when there is considerable uncertainty both in terms of how disputes can be run and how hearings can take place. We address some of the issue around virtual hearings but these are also issues that are of more general application in relation to the effective running of your dispute.
Those who suggest that virtual hearings are likely to become the norm point to numerous benefits. They cite, for instance, cost savings on travel and hotels, an acceleration of the slow journey of arbitration to a paperless world, a greater ease in fixing hearing dates and greater flexibility on timing and duration of hearings, and environmental benefits. There are undeniable benefits.
On the other hand, those of a more cautious disposition point primarily to a total reliance on IT systems, where one weak link can stop progress completely, and the absence so far of reliable standardised technology. They cite the added complexities of marshalling different languages, and the associated translations required, remotely. Indeed, the authors of this article have been involved in arbitration proceedings where simultaneous interpretation was required but the hearing centre agreed on by the parties had insufficient bandwidth to accommodate the necessary connections.
Additionally, virtual hearings raise questions of confidentiality (how do we make sure who is in the room with each participant, and how do we know this connection is secure?) and practical considerations such as marshalling the timings to fit with time zones.
It seems likely that virtual hearings require an adaptation of style and tone from the advocates. What might be impressive in person could well leave a less positive impression virtually. The effect of cross-examination, which can depend on maintaining a rhythm, seems very likely to be different.
At least until the technology is perfected, parties may be required out of necessity to reach agreement on more and different matters before the hearing takes place, in order to permit it to run smoothly. This agreement is likely to go far beyond a simple video-conferencing protocol and extend to such issues as documentation, witness examination (in terms of format and timing, as well as asking whether it will assist the tribunal at all) and even whether more complex arguments should be pursued in the same manner (if at all).
Simplicity is likely to be the key if virtual hearings are to be effective. But it also seems likely that increased simplicity will require a greater measure of agreement between the parties than might have been the case in the past. To give the best chance of agreement, and therefore of a successful virtual hearing, start planning as early as possible in the procedure and explore options with your counterparty and the tribunal (who should assist the parties to reach agreement on such issues).
Taking some of the above points into consideration, and putting aside the practicalities of actually running the hearing, you may wish to explore the following as early as possible in order to help make a success of it:
Time will tell how well the disputes world responds to the challenges of COVID-19, but these authors consider there is a real opportunity to effect change to make the process much more efficient and effective for all users.
If you would like to discuss any of the points or issues raised in this article please contact us.