2021 ICC rules of arbitration: towards making arbitration even more attractive
COVID-19 has caused virtually all businesses to adapt their operating models. In some cases, COVID restrictions have accelerated changes which were already afoot, while in others entirely new ways of working have developed. In arbitration and litigation specifically, the duration of governmental lockdown measures particularly in the UK and Europe, combined with restrictions on international travel, have forced the use of virtual, or semi-virtual, hearings instead of hearings in person.
The authors of this, and the following, article have represented clients in numerous virtual (and semi-virtual) hearings over the past twelve months, in arbitration and in the English courts. This article looks at some of the broad considerations when undertaking a virtual hearing and considers the future of the phenomenon, while the second article looks at virtual hearings from the perspective of a more junior lawyer and contains a host of tips for preparing for virtual hearings.
The most obvious difference between an in-person hearing and a virtual one, particularly if there is an international dimension, is probably felt in the wallet. When the travel and accommodation costs of the hearing participants are stripped from the budget, significant savings can be realised. Similarly, where physical bundles are not feasible or desirable because of the logistics of providing and updating those documents, the parties may save hefty photocopying costs. Those who are concerned about the environment—as everyone should be—will welcome these changes on environmental grounds, too.
However travel savings may be offset, at least in part, by document hosting charges, particularly if it is necessary to change platforms as one progresses from level to level of the English Courts. (The Supreme Court, for instance, will generally only use bundles made of a single (or multiple) page numbered .pdfs, while lower courts may be more amenable to trial hosing software, such as Opus2). Smaller matters can be undertaken effectively using widely available conferencing platforms (such as Zoom, Teams, or (a particular recent favourite) BlueJeans) and bookmarked .pdf documents for submissions and cross examination. However larger, more document-heavy matters, are likely to require dedicated solutions.
The differences in the oral element of the hearing itself are probably more balanced. Connection delays and sound quality difficulties can make it difficult to build momentum in cross-examination. Meanwhile the addition of translation—particularly if simultaneous translation is required—can be a technical challenge, as well as producing a disjointed (or even unusable) result. This leads to what can be a less confrontational, but possibly a more frustrating, environment for all involved.
There are benefits, however, in the semi-virtual hearing environment for a legal team assembled in the same room. Careful use of the muting function allows legal teams to confer more readily than they might be able to in an in-person hearing. This is even more pronounced where the agreed practice is to turn off opposing counsel’s video feeds for cross examination. In a similar vein, it is certainly arguable that a virtual hearing is a better starting point for the junior advocate, because facing a row of opposing leading practitioners in person can be daunting.
Set against that—and notwithstanding the mid-afternoon lull which can affect even the most exciting in-person hearing—anecdotal evidence suggests that sustained concentration is more difficult over a video link. Building in breaks, and shorter days, could be an answer, as could visual aids to assist the advocate in getting the point across. An engaging delivery is perhaps more important than ever.
In international cases, if parties are not travelling, it may only be possible to conduct the hearing for a few hours every day. In those circumstances, more sitting days may be required than would be for an in-person hearing. Asynchronous hearings—where different elements of the hearing take place at different times, and possibly only with some participants—may form part of the solution. In a London-based hearing, for instance, cross examination of a fact witness based in Australia could take place first thing in the morning, with less time-sensitive elements of the hearing taking place at other times (and maybe on different days). Witness examination could be de-coupled from oral submissions, with cross-examination taking place in person, perhaps. There are many variations.
The forced reliance on technology at all stages of proceedings has demonstrated that virtual hearings are not only achievable, but in some cases commercially preferable. Remote hearings present a host of new opportunities. However, the transition away from physical documentation and in person hearings is not necessarily a smooth one, and there are new challenges to be faced. As can be seen from the next article, virtual hearings can require more logistical preparation on top of the same amount of substantive legal work compared to physical hearings and a significant amount of preparation and planning, especially from the junior members of the team, is critical to ensure virtual success.