The COVID-19 pandemic is not going away anytime soon. Businesses have to adapt the best they can, and the practice of international arbitration is no exception. Due to travel restrictions and various social distancing constraints posed by the pandemic, we anticipate that most international commercial arbitration hearings scheduled to take place in the foreseeable future are likely to be virtual. Indeed, a number of institutions (e.g., Hong Kong International Arbitration Centre (HKIAC); International Court of Arbitration of the International Chamber of Commerce (ICC)) have already introduced guidelines to support the conduct of virtual hearings.
There are various factors and interests to balance when designing a virtual hearing protocol. While tribunals generally have powers to adopt procedures that ensure efficiency and minimize delays, the procedures must also account for the need to protect the parties’ right to reasonably present their cases. Drawing from our own experience, we outline below practical tips to successfully hold a virtual hearing and to avoid pitfalls that may give rise to challenges.
- Pretrial considerations: Engage the other parties to the arbitration and the tribunal as early as possible to work out the hearing logistics. There are more logistical issues to consider for virtual hearings than in-person hearings. These include, to name a few, sitting hours (especially important where parties are based in different time zones), whether to engage a virtual hearing service provider, and ensuring that the systems used by any stenographer and/or interpreters are compatible with the virtual hearing service provider’s.
- Clear video and audio connection: The virtual hearing setup should be thoroughly tested before the hearing. Technical difficulties, such as a faulty camera, microphone, or internet connection, could disrupt or even jeopardize the hearing schedule.
If it is revealed during testing that some participants have slow or unstable internet connections, these participants should consider renting alternative locations with strong and stable internet connections for the period of the hearing (e.g., hotel meeting room or conference center).
- Presentation of documentary evidence: Parties should prepare an agreed e-hearing bundle that is properly hyperlinked so that documents can be easily called up and presented via screen share during the hearing. Trial technology support vendors provide such service, although this can also be done by your legal representatives in-house.
- Witness evidence: Ensure that witnesses have a clear video connection to allow counsel and the tribunal to observe their manner and demeanor during witness examination. The clarity of audio connections is also vital for witness testimony to be accurately transcribed and interpreted (where applicable).
Additional measures should be considered to ensure the integrity of the witness examination by foreclosing opportunities for witness coaching afforded in a virtual setting. These measures include, for example and where possible, (i) the use of “hubs” or an otherwise neutral venue for witnesses to testify remotely; (ii) appointment of a neutral invigilator to ensure that the testifying witness is not being coached; or (iii) setting up the cameras in such a way that the tribunal can have both a “speaker” view and a “gallery” view of the room where the testifying witness is located.
Contingency plans should be made for potential technical glitches or internet downtime as these can happen notwithstanding rigorous testing. For example, the tribunal and the parties might agree to have the witness testify via video on their handset or through teleconference if the primary virtual hearing platform does not work. Where possible, physical hearing bundles should also be delivered in advance to witnesses testifying remotely in case of any issue presenting documentary evidence via video link.
- Communication during the virtual hearing: Counsel and end clients should coordinate to make sure that there is a channel of communication open at all times during the hearing. This can be achieved via in-built features of the virtual hearing platform (e.g., a separate virtual breakout room) or by conventional means, such as email or instant communication applications. Ensure that the line of communication is constantly monitored to avoid any unnecessary delay.
- Preserving confidentiality: Users of international commercial arbitration expect proceedings to be confidential. Indeed, confidentiality is specifically provided for in certain institutional rules (e.g., London Court of International Arbitration, HKIAC, Singapore International Arbitration Centre) and jurisdictions (e.g., Hong Kong, Singapore). To preserve confidentiality, parties and the tribunal should agree in advance to a list of approved participants with access to the virtual hearing room. Measures should be taken to ensure that only approved participants have access to the virtual hearing room. These include, for example, securing the virtual hearing room via preassigned log-ins and passwords and requiring participants to turn on their cameras at all times to ensure that no unauthorized personnel are listening in.
The parties and the tribunal should also agree in advance the extent of recording to be permitted of the virtual hearing. Unless the parties agree otherwise, recordings are typically only made for the benefit of the stenographers and should not be released in any way except by consent of the parties and approval of the tribunal.
We hope you find these practical tips helpful. For any further query, please feel free to contact us.