Technologies are changing the area of dispute resolution and legal services market in arbitration. Conservative arbitration community forced to become more opened to people and technologies; a large number of online seminars are held to adapt arbitration to new conditions and circumstances.
We cannot ignore the fact that virtual hearings in arbitration are one of the most discussable issues today. Why is that happening?
Virtual hearings and online arbitration in general will be more popular, particularly for low-cost and not complicated cases with a small amount of parties and witnesses. For such cases virtual hearings may reduce time and costs of the parties to arbitration. The quality of virtual hearings is growing, we have more and more opportunities to choose between various providers arranging virtual hearings.
Some international arbitration institutions had already realized the need of the community to have special regulations and instructions for arranging virtual hearings. For example, the ICC issued the Guidance Note on the Organization of Virtual Hearings, the American Arbitration Association issued best-practices training guides to ensure smooth virtual hearings, the LMAA started special Working Group in order to analyze the difficulties of remote hearings and to organize training on these issues.
Such activity is important, because the virtual way of hearings may impact the enforceability of the arbitral award. Any complications or impossibility of the party to be heard or to be present at hearings may be used as the ground not to enforce the award.
International arbitration institutions organize webinars and consultations devoted to virtual hearings and online arbitration more often today. It might be useful to participate in those webinars in order to be on top of the things.
On 6 May 2020 I participated in the webinar How Shipping Law Has Responded to the Covid-19 Crisis arranged by the LMAA. For example, at this webinar, Mark Lloyd, Kennedys & Chairman, Admiralty Solicitors Group, reported that the dispute resolution shall be just, and the parties are expected to be honest and transparent and to work in a cooperative way. I may share the view that it is necessary to support the fundamental ideas of the dispute resolution system and to control that they are complied with whatever means for hearing are used. Indeed, it would be just if we assist each other to go through the technical challenges.
At the webinar, it was recommended to ensure that more than one participant or all participants join the remote hearings. That requirement responds the fundamental principles of the arbitration.
These principles, for instance, may be found in Paragraph 1 of Article 17 of the UNCITRAL Arbitration Rules (as adopted in 2013): “the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute”.
To develop these ideas in virtual hearings the ICC recommended to ensure that “parties are treated equally and given full opportunity to present their case during a virtual hearing, the tribunal should consider several issues, such as the different time zones in fixing the hearing dates, logistics of the location of participants, use of real-time transcript and interpreters, identification of all participants, use of demonstratives and electronic hearing bundles. Furthermore, parties and arbitrators need to agree on the selection of platforms for videoconferencing and document sharing” (Offline or Online? Virtual Hearings or ODR?/Mirèze Philippe/April 26, 2020, http://arbitrationblog.kluwerarbitration.com/.../offl.../... ).
It will be good to check that all participants are technically ready for virtual hearings: whether they have installed the required equipment, whether they have required amount of displays to see each other and to see the documents or presentations, good internet connection speed, cameras and microphones and so on. And for this it may be helpful to use the assistance and experience of legal technology specialists like, for example, Opus 2, or best practices that are published online (for example, AAA-ICDR®️ Virtual Hearing Guide for Arbitrators and Parties: https://go.adr.org/.../AAA268_AAA%20Virtual%20Hearing...).
Also before hearing it is anticipated to consider how party and its attorney will communicate during the hearing, what kind of separate online channels they might use in order to discuss the confidential questions. It is desirable to think in advance, whether the party or witness needs an assistant in its location to help with technical issues or to control the procedure; how to look like, what requirements are to the rooms sounds and lights, what speed of the speech to use in order to be heard; and to think over special etiquette during the hearing. As, for example, not to shout, not to interrupt, to give time for searching the references in electronic documents, not to overwhelm the arbitrator with amount of disputable issues or evidences.
Thus, I share the view that we need to pay special attention to virtual hearings arrangements, to study best practices and to learn instructions and consultations devoted to virtual hearings in order to be prepared to this kind of hearings.