Further Guidance on Conflicts of Interest in International Arbitration: The Role of Experts
Virtual arbitrations present a host of new opportunities for clients, firms and junior lawyers. Virtual hearings allow junior members of the team to gain greater exposure and responsibility throughout the hearing process and demonstrate their value to the team. However, successfully transitioning to a virtual setting is not straightforward. It will require a significant amount of planning, preparation and proactivity from junior lawyers.
As the pandemic is not going away anytime soon, we thought we would share our international arbitration team’s recent experience of two virtual hearings. The arbitrations remotely spanned six jurisdictions with the legal teams in their respective European offices, tribunal members sitting in separate locations and with clients, witnesses, translators and court reporters all attending from different places.
To offer junior lawyers a practical guide to preparing for virtual arbitrations, we will explore a number of key considerations that parties should take into account in advance of the hearing. We have broken down these into key topics each accompanied by a recommended checklist.
If you plan on assembling your legal team in the office to enjoy the benefits of in person collaboration and hardcopy documents, then the first port of call is to ensure that you book a suitable room well in advance. This booking should cover the lead up period to the hearing to allow you to confirm that the layout matches your specified requirements as this can take several variations and test runs.
In terms of layout, the primary step is complying with the requirements of the Tribunal’s procedural order and if this is not possible then collaborating with the other side to amend it. Our procedural order required everyone participating in the hearing room to be visible. To achieve this we opted for the classroom set up with a main screen and microphone at the front. This focused the attention on the advocates sitting at the front and allowed the rest of the team to sit behind with dual screens allowing them to easily communicate and pass notes. By using a trainee to control the laptop linked to one screen, it minimised feedback and reduced the number of cameras connected to the call to avoid cluttering the shared screen platform.
On top of this you need to make sure that standard hearing preparation takes place, such as organising the hardcopy bundles, stationery, food and drinks. Equally important to the layout of the room is ensuring the technical aspects of the hearing have been chosen, set up and tested.
The parties and the Tribunal will need to determine which platform is the most appropriate for the hearing. In choosing a platform, the parties should take a number of factors into consideration, including audio visual quality, video capabilities, the number of participants that can be seen at once, messaging functionality, file handling and screen sharing capabilities. For both our hearings Bluejeans was chosen as the system of hosting as it was a secure platform, worked in all six jurisdictions and was easiest platform to use for our witnesses.
Once the platform has been sorted, internal testing of the equipment is fundamental. Early practice sessions, such as running through the opening statement might reveal flaws or inconsistencies with the technology. These tests will also help the team anticipate what could go wrong and arrange for viable back up plans. Additionally, it is important to walk through and test the technology with your witnesses, experts and transcribers to ensure that they are comfortable and know what to expect.
A test hearing with the Tribunal is fundamental and in both cases the Tribunal were flexible and accommodating to the parties’ suggestions. At the test hearing we checked the visibility and sound of the attendees, demonstrated the sharing of documents, and had a walkthrough of the platform’s functions. If your party is the host of the platform, then you should be prepared to guide the parties and the Tribunal through the workings of the platform and we suggest that you send circulate basic instruction and FAQs.
Once this is established, it is important to agree ground rules of the hearing. The key rule in both our hearings was that everyone should be on mute with cameras off save when they were speaking. This is as an approach we recommend as it minimised feedback and maintained focus on the lead advocates, witnesses and Tribunal.
It is critical that all key documents from the hearing bundle and the opening presentation are accessible and easy to locate as you will be required to quickly share documents following the Tribunal’s question. For the cross examination it was particularly helpful to collate all the referenced exhibits into one bookmarked document as it allows you to react to what the advocate is saying and minimise the delay on retrieving documents.
[On platforms such as Bluejeans and Zoom, there is a “pause” function that will effectively freeze your screen. After you hit pause, scroll to the point in the document to which you want to take the arbitrator or witness and once you arrive, hit “play”. This will minimise the distraction of scrolling through pages of a document.]
A noticeable difference in virtual hearings is being reduced to one small panel video. Reading people is much more difficult and you lose the panorama of your vision. Not only do people tend to be more reserved when they are in a virtual setting but you no longer have the ability to see counsel, the arbitrators and witnesses all at once. However, the ability to go visually and audibly dark was one of the major benefits of a hybrid hearing. We found that working in this way allowed the whole team to be effectively deployed. As opposed to the restrictions of a physical hearing, associates had the ability to actively participate by preparing for re-examination and addressing questions from the Tribunal.
It is important to establish the communication links that you will use in the hearing with your team. This requires some thought and testing. As we operated in a hybrid setting we favoured passing notes and deliberating while on mute over instant messaging. Platforms such as WhatsApp were too slow and caused distraction by either being swamped with messages or by being unnoticed by the team.
Finally, conducting hearings virtually is more tiring than in person so short breaks should also be accommodated in the timetable. As a rule of time, we recommend you schedule a short break every hour and accommodate the different time zones that witnesses are working in.
Realistically we are only a year into virtual hearings becoming common and they have already enjoyed notable success. Having this in mind, as the technology improves, support increases and we build on our expertise, the process can only become more effective. As long as you have the key ingredients for virtual success: good preparation, a reliable broadband connection, and an understanding from the Tribunal, the experience is overwhelmingly familiar. Therefore, we hope sharing our virtual experience from a junior lawyer’s perspective will help support a smooth transition to remote hearings.