09 Oct 2020
Anthony Connerty
This article looks at the impact of COVID -19 on international arbitration: its impact at the time of writing in the Spring /Summer of 2020 and its possible impact on the conduct of international arbitration in the future. The article is based in part on the author’s article published in New Law Journal on 19 June 2020: “A Hybrid Future?”
By way of comparison the article considers the effect of the virus on both litigation and international arbitration.
But first, a look at the impact of the virus generally. Few areas of commerce are unscathed.
According to a survey published by The Art Newspaper in May 2020, art galleries around the world are expecting to lose more than 70 % of their revenue as a result of the pandemic. Around one third of the galleries do not expect to survive. The May edition of the Newspaper reported that the New York Met is forecasting a $100 million loss.
The FT Weekend of 2-3 May says that theatres closed as a result of lockdown are looking at ways of re-opening: Milan’s Teatro Franco Parenti is considering limiting its 500 seats to 65-70, with eight free seats surrounding each member of the audience.
The world of fashion has ground to a halt: “Stores are closed, orders cancelled, factories shut or repurposed to make PPE…No question, the Covid -19 epidemic has ushered in a reckoning for the £2.2tn fashion and luxury industries…”
The property market has been badly affected: according to Zoopla, some 373,000 transactions were on hold in the UK with a total value of £82 billion.
And the potential impact on the working lives of those employed in the world of finance is demonstrated by the announcement that Schroders has decided to allow staff to work “largely from home, forever- so long as their bosses agree and the clients aren’t inconvenienced.” Barclays has said that the big office block, such as its 7.000-seater in Canary Wharf, could be “a thing of the past”. And PWC has announced that the majority of its 22,000 workers can work from home after the pandemic: The Times, 18 August, 2020.
Effect on lawyers
The legal editor of The Times reported on 2 May that high street solicitors are “on the brink of collapse”: 71 per cent of community law firms said that reduced incomes during the coronavirus lockdown had put them at risk of collapse. Nearly 800 firms responded to a Law Society survey. The president of the Society stated that there are widespread concerns over liquidity “as firms face a dramatic plunge in income with work falling away”.
A similar plight is reported at the Bar. Many barristers say that they face financial ruin because of the coronavirus lockdown, which has closed more than half of the courts. A Bar Council survey has indicated that without financial help during the lockdown “55 per cent of chambers would not survive six months”: The Times April 18, 2020.
The impact of the pandemic on lawyers is one which affects the economy of the UK. David Lammy, the Shadow Secretary of State for Justice, says that getting lawyers back to work is crucial for restarting the economy and beginning the recovery after months in lockdown:
“The UK has the second largest legal sector in the world, second only to the US. It contributes almost £60 billion in gross value added to the UK economy each year and supports around 552,000 full time employees…English law is one of our strongest global exports, used in commercial contracts internationally, making London the top choice seat for arbitration. In this crisis, it has been a world -leading innovator in using remote technology.” [Financial Times 15 August 2020]
Effect on the Civil Courts: Protocol Regarding Remote Hearings
But the courts are adapting. In the civil courts, a Protocol was issued on 20 March 2020 by the Master of the Rolls and others. The Protocol deals with remote hearings:
“The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.
This Protocol seeks to provide basic guidance as to the conduct of remote hearings. Whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19…”
Effect on the Criminal Courts
In a letter from HM Courts & Tribunal Service of 27 March it was announced that a temporary change was being made:
“…to the way in which courts and tribunals will operate during the coronavirus (COVID-19) pandemic.
As a result of the unprecedented challenges we are facing, we have significantly increased capacity for phone and video hearings to provide alternatives to face-to-face hearings. These will be used wherever this is suitable for the participants and for justice to be served. We have also implemented arrangements to ensure that essential work is prioritised.
In order to maintain a core justice system through the next months of the current public health emergency we are now taking further action to consolidate the work of our courts and tribunals into fewer buildings for the duration of the crisis.
These plans have been developed in close partnership with the judiciary and others in the justice system.”
Advice to advocates on remote hearings
The Inns of Court College of Advocacy has issued advice on “Principles for Remote Advocacy”:
“The COVID-19 epidemic has forced courts and advocates to adapt at pace. Fortunately, we already have some experience to draw on. In civil and criminal courts, "paperless" working has already been taking place, so that advocates have begun to learn some of its challenges. In other areas such as arbitration and international litigation, there is already experience of remote hearings and cross-examination of distant witnesses by video. Courts and advocates have been building on these experiences, and rapidly gaining experience of the skills required to deal effectively with remote hearings….
“Judges and advocates who already have experience with this practice consistently remark that effective remote advocacy depends not on new skills. It rewards the bedrock skills; a clearly articulated and logical case, supported by selective use of authority and documents, and focussed examination of witnesses. With careful preparation and attention to those core skills, it is possible to make remote hearings, in appropriate cases, highly effective…”
Reaction of the Civil Courts:
Court Hearings- examples from the Daily Cause List
An indication of how remote hearings are being dealt with can be seen from the Royal Court of Justice Cause List. For example, on 4 May a remote hearing were listed before Mr Justice Morgan [https://www.justice.gov.uk/courts/court-lists/list-cause-rolls2]:
Before MR JUSTICE MORGAN – Remotely via Sparq
Monday 4 May 2020 At 10:30 AM
Chancery Trial
HC-2017-001399 Lloyds Banking Group Pensions Trustees Limited v Lloyds Bank PLC and others
Reaction of the Criminal Courts
It is obviously more difficult for the criminal courts to react to the effect of COVID-19. The problem for jury trials stands out: in addition to judges, lawyers, witnesses, police and defendants is the jury: twelve people who by the nature of their duty as jurors require special treatment during a court hearing.
Jury trials were suspended on the outbreak of the coronavirus epidemic in late March 2020. In mid-May the decision was made to restart jury trials in a number of courts. The Courts and Tribunals Judiciary announced that:
“The practice of trial by jury sits at the heart of our criminal justice system.
New Jury trials were suspended on 23 March due to the public health crisis caused by coronavirus. Since then, intensive work has been underway through the Jury Trials Working Group chaired by Mr Justice Edis to establish ways in which a small number of jury trials may be commenced safely, in line with regulations allowing all participants in criminal trials to travel from home to court.
The Lord Chief Justice of England and Wales, Lord Burnett of Maldon, following discussion with the Lord Chancellor, has now decided that new jury trials may be started in a few courts in the week commencing May 18 under special arrangements to maintain the safety of all participants and the jury in line with Public Health England and Public Health Wales guidelines. The LCJ similarly continues to support the resumption of adjourned trials where this can be done safely…."
This section of the article looks at:
(a) Existing procedures
(b) Arbitral Institutions - Provisions for remote processes
(c) Guidance Notes
(d) Webinars on Virtual Arbitration: Suggestions from Institutions
(e) Platforms for virtual hearings
(a) Existing procedures
The impact of the pandemic on litigation in the civil and criminal courts in England and Wales has been considerable: those courts are geared for face- to- face hearings. That is especially so in the case of criminal trials before a jury.
The effect of coronavirus on international arbitration is likely to have less impact: international arbitration is already familiar with remote hearings in one form or another. The writers experience as counsel and arbitrator in the conduct of an international arbitration – whether institutional or ad hoc- is that various procedures are already used which may be labelled “remote”.
Acting as Arbitrator and Counsel in international arbitrations under the Rules of the LCIA, ICC, AAA/ICDR, CIETAC, CIArb, SCC (Stockholm), RCICAL (Lagos), LME (London Metal Exchange), ICA (International Cotton Association) and in ad hoc arbitrations under the UNCITRAL Rules and CIArb Rules, his experience is that the procedure at an arbitration is likely to involve matters such as:
- the use of telephone conferences: for example, in a preliminary meeting where the Tribunal and the parties plan the future conduct of the arbitration. The AAA/ICDR Rules state that a Tribunal may conduct a preparatory conference with the parties for the purpose of organizing, scheduling, and agreeing to procedures. Telephone conferences maybe used at later stages of the arbitration in order to deal with interlocutory matters;
- the use of emails throughout the course of the arbitration in communications between the parties and the Tribunal;
- the service by the parties – by email- of written submissions on issues arising during the course of the arbitration;
- the issue by the Tribunal of Procedural Orders dealing with matters arising in the arbitration: for example in relation to pleadings, document disputes, Redfern schedules, factual witnesses and expert witnesses; and directions on matters leading to a hearing such as pre-hearing submissions, agreed bundles, witnesses, the order of speeches by advocates and post-hearing submissions.
International arbitral institutions already make provision for remote procedures. These range from documents-only arbitrations to institutional Rules which make provision for the use of remote processes within an arbitration. With parties in different countries and in different time zones, such remote procedures are of considerable help in the conduct of international arbitrations.
There are many examples. I select a few.
(b) Arbitral Institutions - Provisions for remote processes
CIArb
The Chartered Institute of Arbitrators has issued a Guide to Documents-Only Arbitration Procedures:
This Guideline sets out the current best practice in international commercial arbitration on documents-only procedures. It provides guidance on:
i. factors that arbitrators should take into account in determining whether an arbitration or certain issues within an arbitration are suitable for documents-only procedures (Article 1); and
ii. the manner in which to conduct such procedures (Articles 2 and 3).
ICC
The Arbitration Rules of the International Chamber of Commerce- like many of the international institutions- give a wide discretion to arbitrators as to how they conduct an arbitration. Article 22 states that, in order to ensure effective case management, “the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.” Article 24 provides that, when drawing up the Terms of Reference, the arbitral tribunal shall convene a case management conference to consult the parties on procedural measures that may be adopted pursuant to Article 22(2). Such measures may include one or more of the case management techniques described in Appendix IV.
That Appendix gives examples of case management techniques. These include:
c) Identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal argument at a hearing.
f) Using telephone or video conferencing for procedural and other hearings where attendance in person is not essential and use of IT that enables online communication among the parties, the arbitral tribunal and the Secretariat of the Court.
CIETAC
The China International Economic and Trade Arbitration Commission, like the ICC, gives an arbitral tribunal considerable discretion as to the manner in which it is to conduct a CIETAC arbitration: oral hearings may be unnecessary. Article 35 states that the tribunal shall:
“…examine the case in any way it deems appropriate unless otherwise agreed by the parties. Under all circumstances, the arbitral tribunal shall act impartially and fairly and shall afford a reasonable opportunity to both parties to present their case.
The arbitral tribunal shall hold oral hearings when examining the case. However, the arbitral tribunal may examine the case on the basis of documents only if the parties so agree and the arbitral tribunal consents or the arbitral tribunal deems that oral hearings are unnecessary and the parties so agree.”
AAA/ICDR
The International Arbitration Rules of the American Arbitration Association’s International Centre for Dispute Resolution give a similarly broad discretion to a tribunal, and expressly provide for the use of electronic communications. Article 20 dealing with the conduct of an arbitration provides that an arbitral tribunal:
“…may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.
The tribunal shall conduct the proceedings with a view to expediting the resolution of the dispute. The tribunal may, promptly after being constituted, conduct a preparatory conference with the parties for the purpose of organizing, scheduling, and agreeing to procedures, including the setting of deadlines for any submissions by the parties. In establishing procedures for the case, the tribunal and the parties may consider how technology, including electronic communications, could be used to increase the efficiency and economy of the proceedings.”
LCIA
The LCIA has updated its Arbitration Rules to take effect from 1 October 2020. The updated Rules contain revisions relating to the use of technology and the conduct of hearings “virtually”- for example:
Article 14.3 The parties and the Arbitral Tribunal shall make contact (whether by a hearing in person or virtually by conference call, videoconference or using other communications technology or exchange of correspondence) as soon as practicable but no later than 21 days from receipt of the Registrar’s written notification of the formation of the Arbitral Tribunal.
Article 14.6 The Arbitral Tribunal’s power under Article 14.5 includes the making of any procedural order with a view to expediting the procedure to be adopted in the arbitration by:
(iii) employing technology to enhance the efficiency and expeditious conduct of the arbitration (including any hearing)
Article 19.2 The Arbitral Tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have the fullest authority under the Arbitration Agreement to establish the conduct of a hearing, including its date, duration, form, content, procedure, time-limits and geographical place (if applicable). As to form, a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form). As to content, the Arbitral Tribunal may require the parties to address specific questions or issues arising from the parties’ dispute. The Arbitral Tribunal may also limit the extent to which questions or issues are to be addressed.
Article 26.2 now expressly provides that “any award may be signed electronically and/or in counterparts and assembled into a single instrument”.
(c) Guidance Notes
A number of the international arbitral institutions have produced Guidance Notes on virtual hearings.
CIArb
The Chartered Institute of Arbitrators has issued a Guidance Note on Remote Dispute Resolution Proceedings. The section of the Guidance Note dealing with virtual proceedings states:
3.1. Virtual hearing rooms are the preferred way to conduct hearings remotely. These are organised via the use of commercial digital platforms and can be equipped to create an atmosphere approximating face-to-face proceedings. All participants should be visible and audible in the chosen virtual hearing room. Simultaneous access to shared documentation through means such as screen sharing should also be provided.
3.2. A breakout room, or a separate meeting from the virtual hearing room, can be used for caucus proceedings. The other party should not have the ability to hear or view muted caucus proceedings as body language of participants, as well as their reaction might negate the whole idea of confidentiality of caucus meetings. This is particularly important in mediation proceedings.
3.3 In arbitration proceedings, separate virtual breakout rooms for tribunal deliberations and caucusing by parties are recommended. However, party breakout rooms should never be visible or audible to neutrals to prevent the possibility of inadvertent ex parte communication. Likewise, tribunal deliberations should never be visible or audible to parties. Should a neutral or party find that they are able to hear a separate caucus within a breakout room, they should report this to all participants immediately and sever the connection.
3.4 In mediation proceedings, parties should allow for neutrals to participate in their caucuses as necessary. However, neutrals in mediation should follow 3.3 above in the event they find they have been given access to a caucus untimely or unwittingly.
ICC
The ICC has published a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic: “to mitigate the adverse effects of the COVID-19 pandemic on ICC arbitrations… COVID-19 is a health catastrophe that is massively disrupting the global economy. It will both disrupt many pending ICC arbitrations and generate new disputes that may themselves be more difficult to progress due to safety concerns and public health restrictions imposed to limit or slow the virus’s spread.”
The Guide Note contains a Checklist for a Protocol on Virtual Hearings. The Pre-Hearing Plan, Scope and Logistics lists 7 matters for consideration:
(i) Identifying whether and which issues are essential to be on a hearing agenda and which can be dealt with on "documents only";
(ii) Agreeing the number and list of participants (arbitrators, parties, counsel, witnesses, experts, administrative secretaries, interpreters, stenographers, technicians, etc.);
(iii) Agreeing the number of participants per virtual room and whether a 360º view for all participating rooms is required or necessary;
(iv) Agreeing regarding virtual rooms that will permit the arbitrators, and each side in the case, to confer privately amongst themselves during the hearing;
(v) Identifying all log-in locations and points of connection;
(vi) Agreeing that each individual present in each virtual room will be identified at the start of the videoconference; and
(vii) In light of the above, consulting and agreeing among parties and tribunal on the hearing date, duration and daily timetable taking into account the different time zones
The section on Online Etiquette and Due Process lists 4 matters for consideration:
(i) Consultation between the tribunal and the parties on the practices needed to safeguard the rights and obligations of participants in a virtual environment. This includes: identifying lead speakers, non-interruption, observing reasonable and responsible use of the platform and bandwidth, avoiding use of equipment that interferes with connectivity or allows illicit recording, agreeing a procedure for objections, etc.;
(ii) Obtaining written statements from the parties/counsel that the tested platform and technology are adequate as tested by the parties;
(iii) Confirming the parties’ agreement on proceeding with a virtual hearing or identifying the legal basis for proceeding with a virtual hearing absent such agreement by the parties; and
(iv) Advising the parties on their duty to cooperate on technical matters prior to and during the virtual hearing.
The Guidance Note makes suggestions on the presentation of evidence and the examination of witnesses and experts:
(ii) Identifying whether counsel will be using multi-screens for online pleadings, presentation of evidence and agreeing the modalities for submitting and showing demonstrative exhibits in a virtual environment;
(iii) Consultation between the tribunal and the parties on the examination of witnesses and experts (order of calling and examining witnesses/experts, connection time and duration of availability, virtual sequestration, the permission/prohibition of synchronous or asynchronous communications between witnesses and parties/counsel in chat rooms or through concealed channels of communications, interaction between the examiner and the witness/expert in an online environment, etc.) …
CIETAC
The China International Economic and Trade Arbitration Commission has issued “Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic (Trial)”.
Article 2.6 deals with oral hearings:
Virtual hearing is considered as a specific way of oral hearing which is in accordance with the Arbitration Rules. During the pandemic, for cases to be examined with oral hearings, the arbitral tribunal is advised to first consider the possibility of holding virtual hearings.
--When deciding whether to hold a virtual hearing, the arbitral tribunal shall take into comprehensive consideration a variety of factors such as the parties’ opinions, the complexity of the case, the volume of evidence, any witness to be present, the justification of the party’s reasons against holding a virtual hearing, and the convenience and equality of the participants to access to the virtual hearing facilities. Where a virtual hearing is conducted, the arbitral tribunal shall fully protect the procedural rights of the parties, afford a reasonable opportunity to both parties to present their case, and treat both parties equally, so as to ensure the enforceability of the arbitral award under the applicable procedural law. The parties and their representatives as well as other participants of a virtual hearing shall follow CIETAC Provisions on Virtual Hearings (Trial) as attached and other relevant requirements.
--After consulting with the parties, the arbitral tribunal may adopt one of the following means of virtual hearings based on the specific circumstances of the case: (1) where the arbitrator(s), the parties and their representatives, and other participants are located in different parts of mainland China, a virtual hearing maybe conducted via CIETAC smart oral hearing platform (https://kt.cietac.org/portal/main/domain/index.htm); (2) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, or the language of the oral hearing is not Chinese, a virtual hearing may be conducted via other video conferencing platforms agreed by the parties and approved by the CIETAC headquarters or its sub-commissions/centers; (3) after the office facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, the arbitrator(s), the parties and their representatives, and other participants at different localities of the CIETAC headquarters or any of its sub-commissions/centers may participate in a virtual hearing by using the nearest CIETAC facilities; (4) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, a virtual hearing may also be conducted through the joint platforms between CIETAC and other foreign arbitration institutions (CIETAC has cooperation agreements with major arbitration institutions in the world with arrangements for mutual assistance in oral hearings. If needed, please contact CIETAC case managers).
--After the office facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, oral hearings may be conducted by physical presence with the necessary anti-epidemic measures in place.
--No matter an oral hearing is conducted virtually or by physical presence, the parties are advised to limit the number of participants and avoid the attendance of unnecessary witnesses under the premise of ensuring their legitimate rights.
AAA-ICDR
The American Arbitration Association’s International Centre for Dispute Resolution has produced a Model Order and Procedures for a Virtual Hearing via Videoconference. The document is a template which the arbitrator and the parties can modify to fit the specific needs of their specific case. Provisions for an Order for a Videoconference Hearing include the following:
A. The arbitrator/panel hereby orders that the hearing in this case be conducted via [Platform Name] videoconference in accordance with the procedures set forth below. This confirms that the hearing will be deemed to have taken place in [locale/place of arbitration].
B. The arbitrator/panel notes the [claimant’s/respondent’s/other parties’] objections to holding the hearing via [Platform Name]. The arbitrator/panel finds, however, that conducting the hearing via videoconference is a reasonable alternative to an in-person hearing in light of the COVID-19 pandemic, stay-at-home orders, and travel limitations. Videoconferencing technology will provide the parties a fair and reasonable opportunity to present their case and will allow the hearing to move forward on the dates previously scheduled instead of postponing the hearing to a future date.
Section D sets out provisions dealing with the difficult problem of cross-examination of witnesses remotely:
iii. Each attendee of the virtual hearing shall disclose at the start of each hearing session all people in the room with the attendee. Should an individual join the attendee after the hearing session has begun, that individual should be identified to counsel and the panel/arbitrator at the earliest opportunity.
iv. During the videoconference, the participants [or the witness] shall always be in view of the camera. If two or more people are attending the hearing together in a room, they shall use a single camera, which shall be placed to provide a view of a reasonable part of, if not the entire, room.
v. At the Chair’s/arbitrator’s request, unknown participants shall identify themselves by showing a piece of identification to the camera or by responding to the panel’s/arbitrator’s questions regarding their identity.
LCIA
As mentioned earlier, the LCIA’s updated Rules contain provisions dealing with remote hearings.
(d) Webinars on Virtual Arbitration: Suggestions from Institutions
A number of the international arbitral institutions have issued suggestions on how deal with the effect of COVID -19 by setting up “virtual hearings”. I mention three: ICC (UK), LCIA and NAI.
ICC UNITED KINGDOM
In April 2020 ICC United Kingdom staged a series of four webinars on “virtual hearings”.
In the webinar of 28 April Damian Hickman, CEO of the International Arbitration Centre based in Fleet Street, London EC4, spoke of the IDRC’s collaboration with Opus 2 to provide facilities for virtual hearings by way of Opus 2’s cloud – based Electronic Hearing Platform.
In the webinar of 30 April Ali Malek QC and Tom Sprague QC gave an example of how a virtual international arbitration hearing might look by referring to the hearing in the case of National Bank of Kazakhstan v Bank of New York Mellon SA/NV: Claim No FL-2018-000007, High Court of Justice - Business and Property Courts of England and Wales - Financial List (QBD).
The hearing ran from 26 March 2020 before Mr Justice Teare. The hearing took place remotely and was broadcast by YouTube. Stewarts law firm provided the transcript of the 4- day hearing.
On 26 March 2020, the Judge stated that he had already directed that the proceedings were to be conducted wholly as video proceedings and that they were to be broadcast for the purpose of enabling members of the public to see and hear the proceedings. He said [transcript, p 4-5, Day 1 of hearing, 26 3 20]:
“ I have already directed that the proceedings are to be conducted wholly as video proceedings, and in those circumstances I direct that the proceedings are to be broadcast for the purpose of enabling members of the public to see and hear the proceedings…
It is also necessary for the court to direct that a recording of the proceedings is to be made. As I understand it, in this case that recording will be made by or under the auspices of Zoom, whose software is enabling this video hearing to take place. It may also be that to the extent that these proceedings are being screened in Court 26, the ordinary court transcription service will also be recording the proceedings.”
Mr Malek, acting for the Claimant, said that “we have agreed a protocol in terms of how we operate it, and in particular there is no question of overspeaking, and if you are not speaking, please could everybody switch off their microphones. Hopefully, on that basis we should be able to work.” [transcript. p 5-6]
In the webinar, Mr Malek made the point that virtual hearings in international arbitrations will inevitably proceed at a slower pace than in face -to -face hearings. And, given the constraints of virtual hearings, counsel must be well prepared. Submissions must be succinct and the questioning of witnesses short and to the point.
Whilst the Rules of the arbitral institutions referred to earlier contain provisions which assist virtual hearings, one area of potential difficulty was raised in the webinars: the examination of witnesses. Video conferencing is available. But is there someone in the room with the witness being cross-examined remotely? Someone coaching the witness?
LCIA
The London Court of International Arbitration staged a webinar on 12 May: Roundtable: The pathology of arbitration proceedings – what longer-term effects and solutions will this crisis yield?
The webinar was subject to the Chatham House Rule. I will therefore simply mention some of the points made by the speakers. Issues raised were similar to those considered in the ICC series of webinars:
- The parties must be treated fairly at virtual arbitration hearings. There must be a level playing field.
- The nature of a virtual hearing is such that submissions should be short and it may be necessary to consider whether it is always necessary to cross-examine a witness.
- Cross -examination raised concerns as to whether a witness giving evidence remotely might be assisted off-camera by a third party.
- Reactions felt in an actual hearing- body language and the like- are missed in a virtual hearing.
- Virtual hearings are more tiring than face-to-face hearings. Four hours may be a maximum per day, with breaks.
- Hybrid hearings likely post-coronavirus.
- As to litigation: the Commercial Court adapted quickly and effectively to the switch to virtual hearings. All hearings except for committals are currently virtual.
As mentioned earlier, since the May webinar, the LCIA has issued its updated Rules which now make specific provisions for virtual hearings.
NAI
On 27 August the Netherlands Arbitration Institute staged a webinar on the topic “The Examination of Fact Witnesses and Expert Witnesses Through Virtual Means”. Speakers were Juan Fernandez Armesto and Albert Jan van den Berg, with Moderator Camilla Perera de Wit, Secretary General / Director General, NAI.
The examination of witnesses of fact remotely is one of the major issues raised in relation to virtual hearings. The usual concern is that another person may be in the room coaching the witness. Suggestions for dealing with the problem included:
-Ensuring that only the witness statement is available to the witness
-One other person to be in the room with the witness: probably a lawyer. That person would be available to assist the witness in locating documents
-Possibly two cameras. One camera to be 360 degrees and sited behind the witness
Article 28 of the NAI Rules deals with witnesses and experts. Article 28(3) states that, if an oral examination of witnesses or experts takes place, “the arbitral tribunal shall determine the time, place and order for the oral examination and the manner in which the examination will be conducted.”
The view of Professor van den Berg was that “oral examination” must now include remote examination at a virtual hearing.
I mention two examples of problems in examining witnesses- and how problems might be overcome:
i. Sitting as chairman of a Tribunal in Lagos with two Nigerian lawyers: counsel for one of the parties objected that a witness he was cross-examining was constantly looking at another person in the hearing room before he answered. We ordered that person to be seated out of sight of the witness.
ii. Sitting as a party – appointed arbitrator in a hearing in Stockholm: an English barrister cross-examined a Russian – speaking witness over the telephone through an interpreter.
(e) Platforms for virtual hearings
In mid- May, announcements were made by two organisations offering the use of platforms for virtual hearings.
International Arbitration Centre Alliance -IACA
Three international arbitration and alternative dispute resolution hearing centres have joined forces to form the International Arbitration Centre Alliance -IACA. The alliance firms are Arbitration Place of Toronto and Ottawa, Canada; the International Dispute Resolution Centre (IDRC) of London; and Maxwell Chambers of Singapore.
CEOs of the three founding centres, Damian Hickman, Katherine Yap and Kimberley Stewart, stated:
“The alliance breaks barriers and builds international bridges, providing the platform for our partners to connect globally, allowing a seamless and smooth dispute resolution experience. This is something the dispute resolution world desperately needs right now because of COVID- 19 travel and assembly restrictions. We also firmly believe it’s the way of the future.
International arbitration practitioners are becoming comfortable with virtual hearings. Longer term, even when global travel restrictions are eased, virtual will be used regularly to reduce travel time and cost.”
Stockholm Chamber of Commerce
In a joint initiative to support the online administration of proceedings, the Stockholm Chamber of Commerce (SCC) and Thomson Reuters offer the SCC Platform to ad hoc arbitrations globally, starting in May. Use of the Ad Hoc Platform will be free of charge for arbitrations commenced during the COVID-19 outbreak. The SCC says that, in addition to webinars and practices, solutions to facilitate virtual hearings are emerging. In April, the Stockholm International Hearing Centre (SIHC) announced the launch of a virtual platform for digital hearings. The solution consists of a series of stand-alone solutions and services that have been merged to a unified platform where the SICH’s staff are available for support and where needed to actively curate what is being presented to the participants.
Other Platforms
Mention was made earlier of the London – based IDRC collaboration with Opus 2, CIETAC’s oral hearing platform and the AAA/ICDR’s Model Order which require that the platform to be used should be specified.
The conduct of international arbitration is likely to be very different following COVID-19. The use of virtual hearings of one kind or another is bound to continue.
Leaving aside documents – only arbitrations, there are various procedures already in place to assist virtual hearings. The major international arbitral bodies give a wide discretion to arbitrators as to how an arbitration is to be conducted. The ICC and LCIA Rules, for example, specifically authorise video and telephone conferences. The arbitral procedures are therefore already available for the conduct of virtual hearings. The facilities to conduct such virtual hearings are now also available: various organisations are providing oral hearing Platforms.
Will the virtual hearing take over? Not completely. It is probably inevitable that more use will be made of remote processes. The costs implications are obvious, particularly given that parties in international arbitrations tend to be based in different parts of the world and operate in different time zones. The provision of hearing Platforms supports the view that virtual hearings will become more commonplace.
But if nothing else there will always be cases where one party in an international arbitration wants its “day in court”.
Time will tell what the picture of international arbitration will look like after the coronavirus epidemic: the hybrid hearing- part face- to -face and part remote- seems to be a likely possibility.
This article has sought to look at the effect of COVID-19 generally and on litigation and international arbitration. The immediate effect on the courts in England and Wales has been considerable. Not so much on the civil courts, which have adapted to remote hearings. But more so on the criminal courts, particularly in the case of jury trials.
There is less immediate effect on international arbitration: arbitrators and practitioners are already used to remote processes, and the Rules of various arbitral institutions give a wide discretion to tribunals as to the conduct of arbitrations. Additionally, a number of the major international dispute resolution institutions have issued Guidelines on the conduct of remote proceedings. In the case of the LCIA, the recent updating of its arbitration Rules has included specific provisions dealing with remote hearings.
As to the future, it seems reasonably certain that more use will be made of virtual hearings, both purely virtual and hybrid.
Anthony Connerty
Anthony Connerty is Head of the IDR Group and is a member of the Chambers of Stephen Hockman QC at 6 Pump Court, Temple, London EC4.
He has acted as Counsel, Arbitrator and Mediator in international arbitrations and mediations in Abu Dhabi, Beijing, Lagos, London, New York, Shanghai, Singapore, Stockholm and Washington D.C. under the Rules of various international institutions including the LCIA, ICC, AAA/ICDR, CIETAC, CIArb, SCC (Stockholm), RCICAL (Lagos), LME (London Metal Exchange), ICA (International Cotton Association) and in ad hoc arbitrations under the UNCITRAL Rules.
He has acted as Counsel in arbitration- related litigation in the English courts and in courts of foreign jurisdiction.
anthonyconnerty@idrgroup.org
anthony.connerty@6pumpcourt.co.uk