In this article we provide an insight into the mechanics of how a virtual arbitration works, some practical considerations for parties preparing for and attending a virtual arbitration and some of the benefits associated with them.
How do they work?
A virtual arbitration is, at its most simple, an arbitration hearing which takes place remotely. The format can differ depending on the specific type of case. Telephone calls are used for simpler hearings and video conference calls are used for more complex matters and hearings.
Institutions, such as the Chartered Institute of Arbitrators, have published guidance on how to conduct virtual hearings and their response to COVID-19. If applicable, each institution's guidance on remote proceedings should be consulted in preparing for and attending any hearing.
Prior to the hearing, counsel will submit their views on how they wish to conduct the arbitration to the tribunal. A procedural order, directing the parties, for the virtual arbitration hearing will set out all of the required information such as timings, the digital platform to be used and the documents to be provided.
The procedural order will usually contain a reference to a pre-hearing test for video calls. The pre-hearing test allows each of the participants to trial the platform with test mock procedures such as cross examination of the witnesses and the display of exhibits.
On the day of the hearing, each party will need to log into the dedicated digital platform in sufficient time. At the start of each hearing, the tribunal may ask each individual to confirm their presence before proceeding with the hearing. Whilst the current technologies and processes are not perfect, the list below sets out practical steps that each individual can take to ensure that a virtual arbitration runs as smoothly as possible.
Practical Considerations
- Parties - Ensure every party has the same access to the technology.
- Identification – Identify an individual who will address the tribunal. The speaker would identify themselves each time before speaking.
- Testing – Test each line of communication. For example, ensure that each party's zoom-link has sufficient bandwidth to hold a virtual arbitration with multiple parties. This may also involve testing break-out rooms; how you will communicate with counsel, such as through WhatsApp; as well as access to documents.
- Agreement – This needs to be obtained to confirm that each party is happy to proceed with a virtual arbitration and the associated timetabling, with consideration for simple elements such as time zones. There also needs to be acceptance on the form of platform that is to be used for the virtual arbitration.
- Recording – If the arbitration is to be recorded, confirm which individual will be responsible for the recording. This could be video or orally recorded and discuss the option of a real-time transcript.
- Technical support – It is also suggested that the parties have an individual, who has an understanding of the technology in use, during the pre-hearing test and hearing.
- An individual's settings - (1) Putting yourself on mute if you are not speaking; (2) if you are aware of poor Wi-Fi, then connect to the internet using an Ethernet cable and (3) disable any pop-ups and close any unnecessary tabs.
Benefits
The elimination of travel and its associated costs has resulted in hearings becoming more cost and time effective. The environment also benefits from the lack of travel by reducing emissions produced by each party and encouraging parties to adopt paper light bundles or e-bundles.
Online hearings are generally quicker and can be assisted with online document review platforms or e-bundles. This enables parties to retain focus, speeding up the process and consequently reducing costs (albeit, modestly).
Some consideration should also be given to the potential to reduce anxiety and stress amongst clients or witnesses by allowing individuals to work in a home environment.
Conclusion
Virtual arbitrations provide parties with additional elements to grapple with. As experience in the process grows, parties may become more comfortable with the nuances associated with it. The benefits of virtual arbitrations may even ensure that the process is here to stay.
As a further resource, Clyde & Co's co-chair of international arbitration, Ben Knowles, has helped form Virtual Arbitration, a website which provides further guidance on remote arbitrations.
This article was written by Mary Anne Roff and Lydia John
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