Virtual Hearings: Arbitral Flexibility and a Pandemic Necessity
By John Judge
The COVID-19 pandemic and world-wide lockdowns have forced counsel and tribunals in arbitration cases to develop the appropriate procedures to hold online hearings instead of in-person hearings. In this article, the author shares his recent experience with virtual hearings and offers a few tips to improve the quality of virtual hearings. He also reflects on the relative merit of in-person hearings compared to virtual hearings, which he ultimately concludes represent a valuable tool to ensure a flexible arbitral procedure and an efficient and cost-effective dispute process.
The flexibility of the arbitral process has, yet again, proven its essential worth as a superior dispute resolution process. While necessity may be the mother of invention, in the case of arbitration, necessity triggered by the COVID-19 pandemic and world-wide lockdowns has provided another opportunity to showcase the flexibility of arbitration to adapt and to the meet the urgent needs of parties during an unprecedented emergency.
I recently faced this very challenge while chairing a large international arbitration seated in New York City during what was to have been a three week hearing involving parties from Brazil and the Netherlands. During the first week of the hearing, which started on March 9, 2020, the pandemic was declared by the World Health Organization and both the United States and Canada started to invoke emergency measures, including a partial closing of the border. After a full week of evidence to complete all fact witnesses, the arbitration was adjourned just before borders closed. During the next week, counsel and the tribunal developed the appropriate procedures and provided the necessary directions to complete the case by a Zoom virtual hearing, starting again on March 23, 2020. During that virtual hearing, my tribunal heard complex evidence from seven different experts and conducted three lengthy expert witness conferences to complete all of the expert evidence over five full days of virtual hearings. Closing arguments were held a few weeks later, also by a Zoom virtual hearing. There were certain challenges for each counsel team to co-ordinate amongst themselves while observing self-isolation. However, it was also clear to both counsel and the tribunal that the virtual hearing proved to be as efficient as an in person hearing, and in some respects superior. More importantly, proceeding virtually saved the clients both time and a significant amount of money by avoiding an indefinite delay to complete the case. Since then, I have conducted numerous virtual hearings, in one case with participants spread across four continents and six time zones, saving the clients an enormous amount of money and time, without sacrificing the quality of the hearing.
There is no doubt that arbitrators have the power and jurisdiction to order a virtual hearing under the applicable arbitral rules. For example, the ADRIC Arbitration Rules expressly provide for videoconferencing (Rule 4.1.2), though the general power of a tribunal to conduct the arbitration in an appropriate manner (Rule 4.7.1) would also ground that jurisdiction.
Following the declaration of the COVID-19 pandemic, a few arbitral hearing centres have advanced the technology, customizing the video-conferencing platforms such as Zoom to provide the look and feel of an actual hearing room. Arbitration Place in Toronto, www.arbitrationplace.com, has become a leader in Canada and internationally in providing the necessary technology and services for a glitch free virtual hearing. So too has the International Arbitration Centre, London UK, www.int-arb.com, for international arbitration. The conferencing platforms facilitate the easy use of documentary evidence through links to commonly used e-document management systems. These hearing centres also provide useful technology support to ensure a seamless use of the electronic documentary evidence throughout a hearing.
Since March 2020, there has been a proliferation of tools and know how on the effective preparation for and conduct of a virtual hearing. Advocacy must also adapt to a virtual hearing. It is beyond the scope of this brief article to address those techniques. I can offer a few tips which may improve the quality of the virtual hearing:
- Co-operation of counsel will improve the experience, though not critical
- Consider use of a proven platform from a hearing centre to provide independence and impartiality in controlling the video system
- Conduct a pre-hearing test run to work out any bugs and provide some working experience for counsel, particularly with the e-document management system and, if available, separate secure break out rooms
- The use of two or three computer screens by each counsel and arbitrator is extremely helpful for various functions during the online hearing
- Ensure that each witness has appropriate technology (high speed internet access, computers, camera etc.) and has a quiet room with good lighting to provide a clear image of face and shoulders
- For counsel, keep questions short and slow down the pacing to ensure that counsel and witness do not talk over one another, allowing the reporter to accurately transcribe
- For each witness, organize a separate e-bundle of documents for ease of use
- Build in periodic breaks to provide relief from screen fatigue
Much more can be said. However, one can consult a variety of sources like Virtual Arbitration, www.virtualarbitration.info, which hosts a wealth of information and articles from arbitral institutions, hearing centres, law firms and individual counsel and arbitrators with valuable insight and useful practices for the productive and efficient use of virtual hearings.
Some counsel may argue that an in-person hearing, with all participants in the same physical room, is still superior to the virtual hearing. However, that does not answer the immediate need to avoid indefinite delays for pending cases. There is little doubt that the virtual hearing has effectively met the needs of parties in ongoing cases. Counsel should not let the best be the enemy of the good. If and when the threat of COVID-19 is over, many clients will prefer the cost savings of the virtual hearing without any loss of efficacy, particularly when parties and witnesses may be at a great distance from a hearing room. The virtual hearing may also further adapt to provide a hybrid process, with counsel and the tribunal in a hearing room while witnesses are “called” virtually. In any event, virtual hearings, in one form or another, are here to stay and represent a valuable tool to ensure a flexible arbitral procedure and an efficient and cost-effective dispute process.
John Judge is an independent arbitrator at Int-Arb Arbitrators, London, and is a resident Arbitrator at Arbitration Place, Toronto. He is experienced in international and domestic arbitration as counsel and as arbitrator.