Thomas Walsh, Sofia Klot, Tim Chen, and Matheus Bastos Oliveira
Freshfields Bruckhaus Deringer US LLP
Our team participated in one of the first virtual merits hearings held under the auspices of the ICC due to the COVID-19 pandemic. The arbitration was seated in Brazil and involved parties, counsel and arbitrators based in Brazil, the United States, Spain, the United Kingdom, Austria, China and Singapore. The hearing was scheduled to be in person in Brazil when the WHO declared the pandemic, at which point the parties, the witnesses, and the arbitral tribunal returned to their home countries. During the remaining four days of the hearing, our team examined and cross-examined five expert witnesses located remotely.
The examination of expert witnesses during the virtual hearing went smoothly. At the outset of each examination, after the witness was put under oath, counsel typically confirmed that the witness was alone in the room where they were located and was not receiving any assistance with their testimony. The virtual hearing format presented some advantages, including that it was easier (i) to see and read the arbitrators’ and the experts’ facial expressions during examinations and cross-examinations, and (ii) for counsel to confer among themselves via email or telephone without interrupting the proceeding.
Virtual hearings may nonetheless raise additional concerns, such as the regulation of expert-attorney or witness-attorney communications during the examinations, cross-examinations or breaks. In addition, it can be more difficult to explain complex subjects via video, and to gauge witness credibility when the arbitrators can only see the witness’ face. Attorneys should be fully prepared to address some of the issues that arise in this new environment, which can be dealt with in one or more procedural calls and should be reflected in the pre-hearing procedural order. Parties can agree, for instance, to have witnesses install 360-degree cameras and turn their phones off during examination or cross-examination, among other measures that have been proposed to prevent improper communications. In addition, to the extent that clients and attorneys are not sharing the same room during the hearing, a clear, confidential and reliable channel of communication must be established, whether through individual virtual breakout rooms or messaging platforms.
Virtual hearings will likely become more common going forward, although a careful analysis should precede any decision in this regard. One of the advantages of arbitration is the flexibility to tailor the procedure to the dispute. Virtual hearings should be a further tool available to achieve this goal.
During the pandemic restrictions, virtual hearings proved to be a handy tool in maintaining access to justice for participants involved in both litigation and arbitration proceedings. As the number of virtual hearings grew significantly in the past few months – apart from being efficient, timely, and cost-effective – a need for a new feature of arbitration hearings emerged: health.
Based on participants’ experience and scientific research conducted so far, it seems that long hours of videoconferencing can feel challenging on a physical and psychological level. Physically, participants tend to feel more tired in a virtual hearing, as a result of the limited ability to move and prolonged starring at the screen, which causes eye fatigue. On-screen, small moves and shift of eye focus are easily disruptive and perceived as a sign of disengagement in the conversation. In addition, at a mental level, participants put in an extra effort to perceive and transmit information. Perceiving information can prove demanding as the participants experience a cognitive overload due to the increased number of eye stimuli, which is amplified by an extra focus to read non-verbal clues, as the camera often focuses on the upper body. Similarly, transmitting information is less smooth and engaging in a video context, as online communication tends to be a single channel conversation with reduced room for bonding and more difficult when it comes to coordinating with other participants.
The purpose of highlighting the above challenges is not to deter practitioners from holding virtual hearings, but rather to bring awareness and encourage them to seek ways to adapt and conduct virtual hearings in an efficient, timely, cost-effective and healthy manner.
The above note is based on the article “Healthy Virtual Hearings” co-authored with Sophie Nappert and published on Kluwer Arbitration Blog.
Christopher M. Campbell
In the early days of the pandemic (in fact, it was the same week that Boris Johnson declared a national emergency in the U.K.) I found myself having just completed an “In-person-virtual mediation” administered by the ICC. A regular forum of dispute resolution for our company.
Opposing counsel required that we disclose recent travel of ourselves and immediate family prior to attending the in-person mediation in their offices. Although we had disclosed the information some days earlier, they attempted to de-rail the mediation by prohibiting one of our co-counsels from joining the day before the proceedings began. So, although I had flown to London for the mediation, I now headed a couple hours north to our New Castle offices to be in the same place as our team.
Over the course of 24 hours, our team arranged to conduct the mediation entirely online on a continuous video link. Our team maintained one moderate sized conference room, and the mediator along with the opposing party met at the opposing counsel’s offices.
The day began with us all in the same room giving our respective statements, and whenever the mediator needed to privately discuss something with a party, (i) either the other side would leave the room with the mediator, or (ii) the mediator would stay and talk with us. It was a seamless experience. The institution left it up to the parties to figure out how we wanted to conduct the proceedings.
(1) mediations and arbitrations can and will be done like this in the future to save on costs, especially in situations where it is difficult for people to travel;
(2) the “deal making” element is diminished because it is harder to have informal side conversations in between sessions or over lunch—basically the process becomes a bit more stilted and rigid; and
(3) gaps exist with the comfort and ability to technology to its maximum capability and advocacy skills in a video only format (because it varies greatly from traditional oration), but more subtly how evidence is prepared and presented to the neutrals.
After the world returns to “normal” my prediction is that for more expensive or complex matters, in-person mediations and arbitrations will continue, but for low value or simpler claims these types of situations will be more standard and accepted now that people see that they can and do work, and importantly, they save time and costs.
Richard C Levin
Richard Levin Arbitration LLC
My experience in virtual proceedings has been in three different arbitrations, but only as arbitrator (two as sole arbitrator, one as member of a three-person tribunal). The cases are fairly large and the virtual hearings were only case management conferences. The experiences are all positive and to me, just as robust as a live proceeding, if not more so. The camera provides a close-up view of the participants and I find that helpful, and I think it will work especially well on hearing testimony. We are discussing the merits hearing in one of the cases and the need for multiple monitors (break out room, documents, hearing room).
I just published a note on why this may be a moment in time to upgrade the process.
Bryan Cave Leighton Paisner LLP
In arbitration, deliberations refer to a tribunal’s exchange of views and collective examination of all matters in dispute. Diligent and collegial deliberation is essential to every multi-party tribunal’s decision-making process, as a function of due process and guarantee of a credible and fair award.
Most proceedings will be conducted virtually for the foreseeable future. Consequently, tribunal deliberations that would have typically been done in-person pre- or post-hearing, and real-time exchanges during hearing sessions, will no longer be possible. Most deliberations will have to be done in virtual space.
Arbitrators will need to adapt the logistics and organizational needs of the deliberations process, to ensure that disputes continue to be administered with fairness and efficiency. It is important that the communication platforms and tools employed are cyber-secure, and meet arbitrators’ duties prescribed by the relevant institutional rules / supervisory jurisdiction’s legislation, such as:
- The expectation that every member of the tribunal participates in deliberations and is consulted on all decisions relating to the case, and preparation of the award;
- The strict requirement to keep the tribunal’s deliberation process and all information disclosed during the arbitration confidential;
- Less commonly, but notably, the language in some jurisdictions / institutional rules that stipulate / recommend that the tribunal “personally meet” to deliberate. One might argue that teleconference calls should be deemed to satisfy such stipulations in the current travel-restrictive climate.
It will be interesting to see how the community refashions their approach to maintain effective, diligent and collegial deliberations in this new normal.
Gujarat National Law University, India
The present field note gives an account of the discussions of the 1st Working Group Session on Digital Arbitration of Swiss Chinese Law Association (SCLA) which is trying to identify global challenges in digital/online arbitration through a global survey. All arbitration lawyers, practitioners/professionals and arbitration institutions and law firms are invited to join/sponsor the survey by contacting SCLA.
One participant observed that, under the SIAC Rules, digital arbitration works quite well. This person reported that in a SIAC Arbitration he was concerned that a witness had been coached. He raised the question on experts and witness protocols and another question on what happens if one party wants a virtual hearing and the other Party does not; should the Arbitral Tribunal proceed with the virtual hearing?
Another participant drew the group’s attention to the need for model clauses for virtual arbitration proceedings. Someone else mentioned that the Prague Rules has a checklist on how to handle the online procedure and filing systems.
The group also discussed the issue of data security and privacy in digital arbitration proceedings as well as the question of how to make the participation of developing countries in digital Arbitration more effective? These are some of the practical issues faced by practitioners from around the globe.
Considerations for a virtual hearing:
Stable internet connection and adequate technology are essential when it comes to virtual hearings. Familiarity with the platform and a test call sufficiently in advance of the hearing are also highly advisable.
Staying focused and taking notes may be harder for some in a virtual setting, therefore sharing skeleton arguments in advance of the hearing will enable the arbitrators to stay focused and prepare any questions. Counsel should pay particular attention to the structure of their presentations and be prepared to re-establish the flow of their arguments in case of a technical interruption. A virtual hearing bundle (with hyperlinks) that all participants can get familiarized with in advance of the hearing is also helpful.
The arbitrators’ main task is to provide a clear and predictable structure for a virtual hearing and to take care of any genuine due process concerns, without giving in to due process paranoia.
4. Advocacy Skills
Certain advocacy skills are particularly important in the context of virtual hearings, such as:
- controlling the pitch, pace and tone of one’s voice;
- leaving sufficient time for questions;
- maintaining “virtual” eye contact; and
- maintaining a professional appearance on the screen.
5. “Feeling” the room
Body language, which arguably constitutes 85% of human communication, does not play a significant role in a virtual hearing. Therefore, it is essential to “feel” the room and to maintain a “hearing-like” atmosphere in the virtual environment, with the same level of energy, focus and adrenaline as in real life, for counsel, witnesses and arbitrators alike.
Hogan Lovells International LLP
I participated in a three-day virtual hearing for a Dispute Board proceeding in a construction case. The hearing was fully virtual: both parties’, their counsel, experts, as well as the Dispute Board were all seated in various countries and dialled-in virtually.
We conducted cross-examination over video, which worked well. Although the feeling we got from such cross examinations was not exactly the same as normally in a cross-examination conducted in person, we were satisfied with the result and the answers we got.
Generally, it became clear that we were spending more time than scheduled. This was caused by technical issues, such as internet, microphone, muting, etc. Schedules should foresee longer cross examination times, longer times for opening/closing statements than in in-person hearings precisely due to such issues.
One of the key issues in virtual hearings is agreeing on a schedule that fits everyone’s availability based on where they are located. This is more complicated than in in-person hearings, because participants often are located in various time zones.
Clients expect that the lawyers are technically up-to-date, flexible with different platforms, schedules based on different time zones and make sure that we bring across our points (in opening and closing statements, cross examinations) as good as in in-person hearings.
When we are back to “normal”, we might make use of possibilities of virtual hearings more, such as experts and/or witnesses being cross examined virtually. However, I expect that mostly we will be back to “normal” in terms of hearings – mostly the hearings will again take place in person, particularly in longer hearings. Virtual hearings might become more frequent in “short” jurisdiction or merits hearings.
We are grateful for the assistance of several organizations and individuals who helped promoted the field note, in particular, Transnational Dispute Management/OGEMID.