Arbitration Hearings… and the Corona ‘New Normal’ Ten Golden Rules: or the easy path to your Virtual Hearing

Simon Rainey QC and Gaurav Sharma

The Covid-19 pandemic places enormous challenges on every aspect of life. Arbitration hearings, almost always with a mixture of parties, representatives, witnesses and tribunal members attending from far and wide and with complex dovetailed ‘availability’ issues, face particular challenges, both from national lockdowns and the disappearance of international (and much domestic) travel.

The initial and immediate reaction, from personal experience and much anecdotal evidence, has been for many parties and tribunals simply to adjourn hearings fixed in the likely affected period. While perhaps understandable as the crisis suddenly changed its perceived severity and impact within hours, we are now in for the long haul, and arbitration hearings (unlike sporting events, music festivals, walking with friends or going to the pub) are in fact very well placed to adapt and ‘carry on’.

Simon Rainey QC and Gaurav Sharma of Quadrant Chambers propose ten easy rules for keeping the current international arbitration diary on the road as much as possible.

Here they are, to cut and paste to your Desktop. For more detail, read on below.

  1. Adjournment should now be the last resort.
  2. Arbitration embraces tools and technology: let’s build on what we already do well.
  3. More realism, please, about ‘seeing the witness’ (etc.)
  4. Using the existing wide procedural powers firmly and creatively
  5. Remember: many useful ‘video-protocols’ are already out there.
  6. Embrace technology as your friend (a.k.a. ‘Use Zoom’)
  7. Electronic hearing bundles really do work.
  8. A new Tribunal Secretary: the Technical Assistant?
  9. Flexibility, flexibility, and more flexibility, in timetabling and everything else…
  10. … including how we handle new disputes in our brave new world.

In more detail, here are our key points to try to make your path to your Virtual Hearing, whether as counsel, in-house adviser or arbitrator an easier one.

  1. Adjournment should be the last resort.

Adjournment simply pushes off the problem. With different jurisdictions on different epidemiological timetables and with second outbreaks wholly unpredictable, let alone ‘resumption of normal services’, never has the term sine die (without a new date being fixed) had such appalling resonance! The norm can and should be, save in the most exceptional cases, to hold the hearing date and to avoid the waste of costs and time which adjournment entails (and the difficulties in rescheduling ‘after Corona’ … whenever that will be). As banking, insurance, legal services and other sectors move over to remote and home-working, it requires a very good explanation why an arbitration hearing cannot take place virtually. If international governmental meetings can do it this way, so can we. The 27th Vis Moot, with 248 teams, is taking place ‘as normal’, online and on Vienna time and in the usual Vienna timeslots (https://vismoot.pace.edu/)  The London Business and Property Court has set the lead of ‘business as usual’ wherever possible and by and by whatever virtual means available (see :https://www.judiciary.uk/publications/civil-court-guidance-on-how-to-conduct-remote-hearings ). For a recent example, see Teare J’s robust case management of a two-week trial: https://www.law360.com/articles/1255010/kazakh-row-over-530m-bny-funds-faces-virtual-trial . So, Golden Rule No. 1? Adjournment should now be the absolute exception, not a default option.

  1. Arbitration embraces tools and technology: let’s build on what we already do well.

Is the challenge, while hugely different in scale and complexity, really so different from the day-to-day practical challenges of international arbitration and what we, as counsel and arbitrators, do now, and do well to address those challenges? Arbitration already makes routine and highly effective use of (at least) two virtual tools to cope with dispersed participants and the logistical impossibility of live attendance: (1) the telephone (or video-link) procedural hearing and (2) the taking of witness evidence by video-link. If the hearing is mostly legal argument or part of it is to be taken up with oral addresses or submissions (with or without an accompanying PowerPoint), then why is not (1) just as effective as it is for a hard-fought and important procedural or disclosure battle? And if the hearing is a heavy evidential one, why is (2) not a perfectly acceptable option? If an arbitration may already turn on the evidence by video-link of a key witness, why is it really so different to run the whole hearing in this way?

  1. More realism, please, about ‘seeing the witness’ (etc.)

This is not the time or place to debate the Anglo-Saxon predilection for ‘seeing the witness’ and belief in assessing his or her veracity and credibility based on the tribunal’s acute psychological insight and unerring ability to read every gesture and passage of emotion across a witness’ face. But if the option is to hold off the hearing until better times (when?) and when the matter can be refixed (think of the rescheduling logjam), we need to assess critically whether the importance of this ‘advantage of seeing the witness’ is not very much overstated, when balanced against postponing a hearing indefinitely. Where a good or even passable video-link takes place, the discomfiture or arrogance of a witness (or whatever it is that we as counsel or tribunal members are supposed to be looking for) is almost always readily apparent. Take the example of a politician in a television interview. Other concerns about who is in the room with the witness etc (if he or she is not self-isolating!) can be dealt with either by the nature of the camera used, or just (as in a recent case) asking the witness to rotate his laptop to show the whole of the room in which he is sitting.

  1. Use the wide existing procedural powers firmly and creatively

As with any potentially disruptive event, Covid-19 may regrettably be fastened onto by the party who wants to derail the procedural timetable, put off the hearing timetable and ‘game’ the practical difficulties for perceived tactical advantage. “Seeing the witness in a serious case of this nature is vital”, “the importance of live interaction between counsel and the tribunal and between tribunal members themselves cannot be overstated” are already submissions which are being made. Under all of the main institutional rules (e.g. ICC 2017 Rules, Article 22(2); LCIA 2014 Rules, Article 14.4(ii) etc) and under the general statutory powers in most seats (e.g. sections 33 and 34 of the Arbitration Act 1996) the tribunal will have effective carte blanche to make the hearing happen and counsel and parties must be expected to cooperate (or be made to do so). Cf. the recent approach of the London Commercial Court (cited above): “The court has to be optimistic rather than hesitant. It is a duty of all the parties to seek to cooperate, to ensure that a remote hearing is possible. […] The default position now in all jurisdictions is that hearings must be conducted with one, more than one, or all parties attending remotely.”  A watch-word for all of us engaged in arbitration.

  1. Remember: many useful ‘video-protocols’ are already out there.

Building on the video-conferencing of witnesses, there exists an impressive and very useful (but in our experience rather underused) body of protocols and guides to best practice, all recent and topical. These have already grappled with almost all of the practical problems inherent in taking evidence by video-link (including dealing with documentary evidence) and provide excellent templates on which to build in drawing up the procedural format for a virtual hearing with multiple participants. First is the ICC’s Commission Report on Information Technology in International Arbitration of October 2017. Then the ever comprehensive CIArb series of guidelines was joined in April 2019 by the CIArb Guidelines for Witness Conferencing in International Arbitration, with many useful insights. But the Hague Conference Draft Guide to Good Practice on the Use of Video-Links Under the Evidence Convention (March 2019) is outstanding in its foresight and coverage and cannot be too highly recommended. These and other resources (e.g. the Seoul Protocol on Video Conferencing in International Arbitration) all make the tasks of counsel and arbitrators in formulating a virtual hearing protocol for a particular case so much easier. The wheel has already been invented and it is just a case of fitting it to size (and adding one or two more if need be). Here are some of the relevant links:

ICC: https://iccwbo.org/publication/information-technology-international-arbitration-report-icc-commission-arbitration-adr/

CIArb: https://www.ciarb.org/news/ciarb-s-new-guidelines-for-witness-conferencing-in-international-arbitration/

Hague: https://assets.hcch.net/docs/e0bee1ac-7aab-4277-ad03-343a7a23b4d7.pdf

Seoul: www.kcabinternational.or.kr

  1. Embrace technology as your friend (a.k.a. ‘Use Zoom’)

A virtual hearing is only ever going to be as good as the platform which is used to host it. Cometh the hour, cometh the platform! The new home-working environment has been the proving-ground of Zoom (www.zoom.us). Its selling-point, apart from being fantastically easy to use and adaptable (see Golden Rule 7) is that it will “Bring HD video and audio to your meetings with support for up to 1000 video participants and 49 videos on screen”. And what it says, it delivers (see Golden Rule 10). It looks set to be the mainstay of arbitration life, just as it is fast becoming the go-to solution for any virtual meeting, congregation, class or any other ‘socially distanced’ interaction. It can be used really effectively for all procedural steps in arbitration, including witness interviews, drafting sessions, work with experts, preparation for hearing, as well as all aspects of the hearing itself. Coupled with setting up parallel “chat” groups for the various counsel and tribunal teams and their internal communication, a virtual hearing in real time is readily achievable, with appropriate flexibility (see Golden Rule 9), including for example frequent planned breaks. Many other options are available. Skype for Business we have of course grown up with and it is working well so far in the Business and Property Court. The Vis Moot will be run on the virtual mediation / dispute resolution platform Immediation (https://www.immediation.com). But the popularity of Zoom may see it becoming an everyday arbitration tool. See for example: https://www.cnbc.com/2020/03/21/why-zoom-has-become-darling-of-remote-workers-amid-covid-19-outbreak.html

  1. Electronic hearing bundles really do work.

For most of us as counsel (or arbitrator), the electronic bundle is, with apologies to Trollope, “The way we live now”. Epiq and Opus2 have revolutionised document heavy hearings in court and arbitration, in venues around the world. The key (as cross-examiners know) is the Olympian operator who seems, even as one is uttering the runic incantation “[B2/16/ page 345]”or some such, to be already bringing it up telepathically on the multiple screens. Normally present in the room, the main providers have already developed the use of remote operators, themselves using the live video-link and managing the electronic hearing bundle: further developments are under way: https://www.epiqglobal.com/en-us/about/news; and Opus2 has already created new offsite case and technical managers: https://cdn2.hubspot.net/hubfs/5553909/New%20remote%20accessw%20brochure%20-%20vFinal.pdf?hsCtaTracking=2d70e7e7-a694-4dbc-91ba-d0abf96ab4d9%7C68ea0924-808d-41ab-9225-9fd372b8ef85 But there are simpler options for less document heavy cases or where there is only a shared electronic bundle and no Epiq or Opus2 document management in place. Zoom (yes again) allows one to exhibit documents on the shared screen by clicking on a document open on your second screen. And there are other portals and providers, all gearing up for the challenge presented by the disruption to the ‘normal way of doing things’.

  1. A new Tribunal Secretary: the Technical Assistant?

In these times, it may well be necessary to add a new face to the arbitral personnel. The arbitral secretary and his or her role is a familiar one (and continues to give rise to optimistic challenges: as in the recent Yukos case before the Hague Court of Appeal. But understandably the challenges to putting in place and then conducting an effective virtual hearing will in reality be technological and logistical (as much as, for some, an inbuilt adherence to traditional ways of doing things or to a preference for the comfort blanket of the cut-and-paste ten or more page procedural order detailing the minutiae of, and preparatory, for the oral hearing: cf. Golden Rule 9). The leading document management platforms will have this ‘built in’ (as with Opus2’s Virtual Hearing Manager, Case Manager and the somewhat forbidding-sounding “EPE [electronic presentation of evidence] Officer”). But while that may be available and appropriate for larger cases, engaging technical advice and a technical advisor should be a priority in every case in order to avoid the tribunal and/or counsel having to grapple with what will be the inevitable breakdowns, non-compatibilities, sound without vision and vice versa etc. And, pragmatically, why should parties not agree (or be directed to agree) on the use of the IT expertise of one or other firm of lawyers, billed at cost as a cost of the arbitration?  In very many cases, any incremental cost will be a very small fraction of the value in dispute. And if that may raise hackles, why not pool or combine the law firms’ IT expertise, or rotate it?

  1. Flexibility, flexibility, and more flexibility in timetabling and everything else…

The demands will initially seem great and, perhaps to some, too difficult. But the alternative of postponing the proceedings indefinitely in the pursuit of some unquantifiable conception of perfection does not serve the interests of the parties who have entrusted the timely and effective resolution of their dispute to the counsel teams they have chosen and the tribunal they have empanelled. The traditional features of a hearing (such as hearing length; the hearing day: its length; its timetabling, order of submissions and witnesses etc) are already handled flexibly by most tribunals with the active support of most arbitration practitioners. The ‘New Normal’ is going to call for even more flexibility and a pragmatic realisation that things will not be the same for an undefined future time. So: hearings and hearing days may have to be shorter; with witness evidence pruned and focused on the things that really matter to make it more manageable to assimilate and test virtually; with greater use of pre-reading in relation to witness evidence with, possibly, counsel showing their hand so that the tribunal can see in advance what the main challenges to a witness’ evidence are, before the live ‘show’ of cross-examination when the documents are put to the witness with a flourish; with the use of telephone only hearings for parts of the arbitration main hearing as appropriate; and timetabling hearings in portions and at mutually uncomfortable times to spread the pain of linking up widely distant participants. If arbitration is anything, it is inherently flexible from a procedural perspective, so as to achieve effective and efficient resolution of the parties’ dispute.

  1. … including how we handle new disputes in our brave new world.

Arbitration serves business needs, not the other way around. As businesses find ways of adjusting their practices to suit the new environment and operate without disruption or interruption, they need to know that their business partners who handle the resolution of their commercial disputes are equally adaptable and ready, and are learning from the challenges we’re all facing together. That includes changing the way in which we handle new disputes arising now, in real time. Counsel should assume that their disputes will be born and live their lives in a world where expensive and diary challenging in-person hearings are neither the norm nor necessarily desirable as a default. We should think carefully about the way in which we draft pleadings, focusing on the issues that really matter, rather than assuming for example that there will be time, utility and patience for the examination of peripheral witnesses on largely immaterial issues. The same goes for an appropriate and judicious evaluation of the evidence – for example, the number and nature of witnesses and experts to be presented or called; the documentary burden to be placed on the tribunal; or the scope and focus of document requests, knowing that any interlocutory applications may not be heard by the tribunal in person. Procedural timetables might similarly assume that hearings and meetings will be conducted by video-conference, and accordingly provide the logistical and technical details in advance. Indeed, all of these things could and should result in shorter overall timetables and lead to quicker awards. If handled responsibly, then who knows: when happier times return we may emerge having all learnt to do things better, more efficiently and more cost-effectively, with long-term advantages for the streamlining and simplification of arbitration hearings.

Virtual hearings will at first undoubtedly have more than their fair share of frustrations and mishaps. But with us all pooling our experiences and knowledge and building on the lead already taken by the major arbitral institutions and venues (and with more from them to come), international arbitration will strengthen and improve its position, where other dispute resolution options may not be able to match its flexibility. 

Leave a Reply