In this article, the first of our series of articles on arbitration's adaption to the effects of COVID-19, we provide tips and guidance on how to conduct virtual hearings.
The ramifications of COVID-19 have made holding in-person hearings difficult. In response to this problem, virtual hearings have emerged as an increasingly popular means of progressing disputes, especially in international arbitration.
As a party led, consent based method of dispute resolution, international arbitration has been well placed to adapt quickly and ensure that parties wishing to hold substantive hearings remotely are able to do so as efficiently and securely as possible.
Arbitral institutions have produced guidance setting out how the relevant institutional rules can be interpreted to permit virtual hearings,1 and a number of institutions and other arbitral bodies have also issued helpful guidance on conducting a virtual hearing.2
We list below the key considerations for parties in conducting a virtual hearing and useful tips based on our experience:
- The choice of platform for an online hearing is important. Some institutions offer customised online platforms, for example, the Stockholm Chamber of Commerce, the International Arbitration Centre and the International Dispute Resolution Centre.3 Other video-conferencing platforms such as Skype, WebEx, GoToMeeting, BlueJeans, Microsoft Teams or Zoom might also be used. Each platform will have slightly different features and considerations. It is therefore important that parties properly test and explore their options before deciding which is best for their particular dispute.
- It is usually preferable for a neutral third party to operate the online platform to mitigate the risk of parties using technology failures as a basis for allegations of prejudice against another party. Using a third party to arrange a virtual hearing also allows parties to focus on the substance of the hearing rather than being distracted by technological problems.
- Parties should consider employing a separate platform for internal communications within their respective teams. This reduces the risk of accidently sending an internal message to the other side or the tribunal on the shared platform. For example, the parties might choose to conduct the hearing on Zoom but use Skype or WhatsApp for internal instant messaging.
- Confidentiality and security in relation to any online hearing is crucial. Parties should be alive to any potential cyber-security risks in relation to particular platforms and agree how liability for any breach should be apportioned. Cyber-security guidance and protocols have been published by the arbitration community which are helpful for parties to consider (see for example, the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, the IBA Presidential Task Force’s Guidelines on Cyber Security and the ICC's Note on Information Technology in International Arbitration).
- Parties should agree an efficient means of document presentation. This is usually achieved by way of an electronic hearing bundle. Depending on the size of the case, this might be prepared and operated by a third party provider, or by the parties themselves. Parties might also choose to have an online document management system with a detailed folder structure.
- Whatever method is chosen, it is important that everything is clearly referenced so as to avoid any confusion during the hearing. Hyperlinking is very useful, especially if the parties are able to hyperlink the submission documents and witness evidence to documents they refer to. It is also prudent to agree, in advance, a method for uploading any additional documents which might be referred to in the hearing but which are not in the bundle – for example by way of a file sharing website. A filing sharing website might also be useful for the provision of post-hearing briefs, questions from the Tribunal, and the award.
- As with in-person hearings, real time transcription may also be useful for an online hearing.
- Before agreeing to any platform or method, the parties should ensure that all participants, including the tribunal, have adequate hardware and sufficient training to work the technology so that no one is left at a disadvantage, and that the hearing runs efficiently. A full rehearsal with the tribunal, advocates and any witnesses is recommended.
- Furthermore, it is often worth agreeing a "back-up protocol" to cover what happens should anything go wrong. This might be as simple as agreeing to a short adjournment while problems are fixed, or having an alternative phone dial-in set up for the hearing to continue via teleconference if required. If it is necessary to move the hearing to teleconference, it is important that there is agreement between the parties that the award is not compromised because of that transition (i.e. because one party argues that it was not accorded due process).
Authors: Myfanwy Wood, Lucy McKenzie, and Benjamin Gourgey.
- See for example, ICC Guidance Note; SIAC COVID-19 FAQs; and SCC hearings note.
- See for example, Seoul Protocol on Video Conferencing in International Arbitration; ACICA Online Arbitration Guidance Note; CIArb Guidance Note on Remote Dispute Resolution Proceedings; HKIAC Guidance for Virtual Hearings; AAA-ICDR Virtual Hearing Guide; Africa Arbitration Academy Protocol on Virtual Hearings in Africa; and ISTAC Online Hearing Rules and Procedures.
- ICSID virtual hearings offering; SCC platform to support virtual hearings.
