The use of virtual hearings is not a novel phenomenon in the international arbitration sphere. Debates surrounding the benefits associated with a shift from a physical to a digital space, however, have only started to be seriously discussed with the sudden outbreak of the COVID-19 pandemic, necessitating and accelerating this transition. As the rate of infections continues to surge and the demand of businesses for faster and more efficient access to justice grows, traditional notions that claim virtual hearings to be a subprime alternative to in-person proceedings, have become obsolete. Courts, tribunals and legal practitioners alike are now tasked with re-thinking the format and structure that thus far has dominated their practice and how, beyond the protocols and logistics of a virtual hearing, the latter may be integrated in arbitral procedures or litigation processes to maximise its benefits.

This is an account providing insight on the growing momentum of remote hearings as an opportunity to reinvent not merely reconstitute past arbitration and litigation practices. The information presented in this article have been sourced from a webinar held on 22 September 2020 that Oblin Rechtsanwälte GmbH took part in. Drawing on the experience shared and predictions made by participants of the event, contributors departed recognizing the considerable opportunity offered by the current transition to both revisit and streamline current practices as well as considering how to carry them forward into the future.

The Webinar

In a recent three-segment interactive webinar, organised in the context of the Canada Arbitration Week 2020 by Arbitration Place and the International Centre for Dispute Resolution Canada, participants were asked to analyse, predict and discuss a vast number of issues pertaining to the evolution and long-term future of dispute resolution beyond the COVID-19 pandemic. Following debates in a moderated small group setting centring on one of five assigned questions, views would subsequently be exchanged in an open forum and subsequently assessed in conjunction with information gathered from polling results. The event concluded with a segment delivered by keynote speaker Mr. Jeffrey Leon, suggesting that virtual aspects of proceedings are here to stay and an increased exposure to new optimisation tools must be met by the legal community with a general preparedness to adapt, accept and embrace virtual technology.

In-Person Hearings

In the first segment, participants were asked to identify the merits of physical over virtual hearings. In response, the following factors were raised on a number of occasions:

• The practitioner’s familiarity with and ease of navigating witnesses through a physical proceeding;
• The convenience of tribunal interaction during the deliberation process;
• The opportunity for informal discussion between counsel and their clients or witnesses;
• Logistical efficiency allowing for a vast array of evidence and legal matters to be discussed and analysed over a limited number of consecutive days/within a shorter time span.

Disadvantages mentioned, however, included the following:

• Administrative and scheduling difficulties encountered in setting aside a sufficient block of time to allow relevant evidence to be heard and the attendance of all participants to be ensured (this was considered to potentially prove difficult for business clients by taking away time from other work obligations);
• The required physical presence of participants and its associated costs of repeat travel, accommodation and catering;
• Greater burden in terms of costs and logistical management to arrange for a number of physical hearings potentially causing preliminary issues to be postponed until the main proceeding;
• The increased risk of evidentiary hearings being delayed due to the limited availability of participants;
• The density of legal issues making it difficult to be effectively absorbed or assessed by tribunals during the limited time frame of an in-person hearing.

Virtual Hearings

The second question of debate turned on the challenges, opportunities and misconceptions surrounding the procedural shift from a physical to a virtual legal setting for the adjudication of arbitral and litigation disputes. There was an overwhelming consensus among participants regarding the benefits virtual hearings may offer over those conducted in person, namely:

• Reduced logistical difficulties and lower costs leading to greater time efficiency and a broadening of the volume of work that can be attended to irrespective of location or time zone;
• Lack of physical restrictions allowing for a higher number of attendees and increased access to justice;
• The ability to move hearings forward without delay due to the ease of scheduling that is tailored to the availability of participants and irrespective of geographical location or ability to pay;
• Reduction in environmental externalities;
• Flexibility over the organisation and management of the hearing, broader powers to determine the procedure best suited to the purposes and goals of the relevant case, e.g. splitting proceeding into multiple sub-hearings to distinguish between legal issues or disciplines of expert witnesses;
• Approval of virtual hearings by arbitral institutions and national courts, increased support offered through guidance notes (e.g. ICC Guidance Notes on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, CIArb Guidance Note on Remote Dispute Resolution Proceedings, Seoul Protocol of Video Conferencing in International Arbitration etc.);
• Video cameras creating a more immediate impressions of witnesses’ body language and demeanour, wider camera view used as an option to discourage witness coaching;
• Recording playback options allowing participants to re-visit particular moments and focus on witnesses’ facial expressions/demeanour without reliance on transcripts;
• Ability to adopt a more paced approach to allow for sufficient preparation time (e.g. scheduling recess days), to counteract zoom fatigue and increase the attention span of parties (e.g. higher number of hearings each of shorter duration), to narrow the scope of hearings (e.g. by focusing on specific aspects of the case and allowing tribunals to offer more targeted guidance);
• Leading industry providers such as Epiq, Law In Order and Opus 2 offering features like multiple meeting or break-out rooms as well as a wide array of services and tools (e.g. transcription services, electronic bundles or electronic presentation of evidence to direct parties to magnified/highlighted excerpts as well as translated texts or exhibits etc.);
• Safeguarding privacy of communication and facilitating teamwork between counsel and client through mute option.

Virtual hearings were, however, considered less preferable in the following regards:

• Greater administrative obligations placed on parties and tribunals (e.g. agreeing on hearing timetables/deciding on whose time zone prevails, security protocols, operation and delivery of electronic and hardcopy bundles, access to required and properly functioning equipment);
• Rapport between counsel and clients being interrupted and impacting the ability to settle the case;
• Difficulty of interacting and supporting witnesses or experts;
• Inability to pass notes quickly and discretely with fellow counsel or clients;
• Scepticism concerning the confidentiality and fairness of proceedings as well as the truthfulness and quality of testimony due to significant reliance on technology (e.g. lack of knowledge who is in the room; lack of trust regarding set-up).

When asked about the most prevalent misconceptions arising in line with the recent developments, it was agreed that unlike initially anticipated, both arbitration participants (including arbitral institutions and hearing centres) as well as the courts have moved quickly to introduce, adapt and use virtual technology, albeit the former having done so in a more rapid and seamless manner. Lastly, it was argued that virtual hearings have proved a true testament to the ability and receptiveness of legal practitioners to reconfigure the practice of in-court hearings.

The effects on Arbitration and their longevity

The third segment of the webinar turned upon how the COVID-19 pandemic has affected arbitration and whether these changes will have a lasting impact. When asked, participants stated that the rapid pace of change has given rise to a number of novel issues:

• Scheduling concerns have been alleviated;
• Familiarity with using online facilities has allowed a younger generation of legal practitioners or those that had previously lacked the necessary financial means to attend in-person hearings, to partake in the arbitral process;
• Issues such as witness tampering, cybersecurity and confidentiality have become more pressing considerations;
• The modification of voices due to equipment has diminished their impact as compared to the effect created by witness testimony during physical hearings;
• Deciding on the seat of the arbitration has proven to be a complex endeavour, one that has to be dealt with through rules or arbitration agreements.

New Practices, Strategies and Considerations of dispute resolution participants

Participants opened this part of the debate with general observations on how the practice of virtual hearings has amplified the blur between the professional and personal life of practitioners as well as the untold adjustments flowing from it. It was further argued that the more staggered approach to hearings has led the overall number of hearing days to increase, while their durations had been significantly shortened to avoid ‘zoom fatigue’.

Managing the logistics of technology has become more labour intensive. Nevertheless, this was jointly considered a price worth taking in light of the overall improved results, e.g. tribunals being able to offer effective and targeted guidance on distinct issues that require elaboration; parties having the opportunity to adapt their case strategies or agree on partial/full settlements as the hearing progresses.

Attending arbitrators and legal practitioners also shared that they found it increasingly difficult to interact with and support inexperienced witnesses or other non-legal participants that thus far have been unfamiliar with procedural protocols. Inhibited internet access or other technological disruptions have also raised concerns with respect to the potential disregard and oversight of factual discrepancies or misunderstandings.

The more pressing issue raised on numerous occasions throughout the webinar centred on the expected surge of due process claims. To ensure parties are afforded an equal opportunity and treatment in presenting their case, insincere strategies to postpone hearings should be discouraged while sufficient time should be set aside to put in place well-drafted arbitration clauses.

Ways in which client-counsel relationships have changed

While virtual hearings may have brought with them inevitable trade-offs, they have also provided arbitrators and legal practitioners with an opportunity to become more familiar with new practices. While the demystification surrounding the formality of ADR and court hearings has been welcomed by attendees of the webinar, it was also agreed that the respect for and sincerity of such proceedings ought not to be eroded. The increased diversity along geographical background, gender and socio-economic lines, was singled out as one of the most significant and pertinent collateral effects of the recent developments.

In his closing statement, Mr. Jeffrey Leon, stated that predicting the future of virtual hearings and their impact beyond the current health crisis is a hazardous endeavour. Suffice it to say, dispute resolution in both court litigation and arbitration can and should continue to have elements of the process conducted virtually. Notwithstanding the significance of in-person human contact and interaction entailed in dispute resolution, he encouraged the legal community to embrace new digital mechanisms for reasons of cost, efficiency, inclusivity and expedience.

Moreover, he emphasised that with current changes arise new challenges such as the risk of confidentiality and privacy infringements, awards being challenged and set aside (e.g. due to the continuance of virtual hearings in spite of party objections) as well as due process claims potentially hindering the expedient resolution of disputes. Mitigating these risks is likely to increase parties’ recourse to third party funding arrangements and increase exposure to security for costs applications. Mr. Leon closed his remarks by reinforcing the importance of parties and counsel keeping these consequences in mind during the negotiation process and to direct greater attention to opportunities for prior settlement.

The increase in virtual platform use will undoubtedly continue to be a reality in the years following the COVID-19 pandemic and an emerging preference for partial/hybrid digital hearings is to be expected. By recognizing that ‘one size does not fit all’ and developing a greater understanding and appreciation of the challenges as well as benefits accompanying such hearings, remote justice can be made more accessible without minimising the sincerity of proceedings or diminishing the integrity of justice systems globally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.