Arbitration: the virtual hearing is the new normal

Abstract: the world of international arbitration responds to the challenge launched by Covid-19 and works to replace the hearing in presence with that held in virtual mode.

The remote hearing however cannot be fully compared to a normal virtual meeting: in order to lead the arbitration courts in this new reality, the most important international arbitration chambers have adopted ad hoc protocols and guidance notes.

Also thanks to the use of new cutting-edge technologies, specifically designed to meet the peculiarities of virtual hearing, such new hearing is proving to be a good solution, likely to be used even after the emergency period. However, despite the best precautions, it does not seem that this method can overcome the traditional one. The hope therefore is that, although in exceptional circumstances and with due precautions, the hearing in presence remains a possible alternative.

The commercial arbitral world has quickly adapted to the spread of the COVID-19 virus and considered the virtual hearings as the new normal.

The current impossibility of bringing together several people in the same room, or simply of traveling, affects one of the characteristics of the arbitration; the hearing in personal presence. That hearing that is not only an exchange of written documents, but also of looks, eyelashes that move, bodily movements that make us perceive nervous tics and veracity of texts, experts and experienced lawyers. However, the arbitral world reacts quickly and adapting to reality, instead of the traditional face-to-face hearing, uses the tool of videoconferencing.

The more subtle question however concerns the possibility of conducting a virtual hearing, with ad hoc rules and procedural sets, different from those of a normal videoconference. The topic caught the attention of the major institutions of the arbitration mode, which issued protocols and models to guide operators in carrying out the hearings remotely.

As acutely observed by fellow international arbitrators (Janet Walker in “Global Arbitration Review”, March 27, 2020), this is a change of perspective: from a logistical method to overcome temporary difficulties of one participant in the process, we move on to the need to define rules that make virtual hearing fair and correct.

In the case of a virtual hearing, especially in the discovery, one of the main concerns for all participants is, in addition to a certain widespread diffidence towards new technologies, the loss of control of the environment surrounding the witness or the expert in video connection. This with the risk that the statements made may not be genuine as they are somehow “influenced” by subjects in the room who have however escaped the webcam’s field of vision. As said, another fear is that the audio and video connection makes, especially in the cases of so-called cross examination, a filter for the emotions and attitudes of the witness, compromising the judges’  ability to evaluate the credibility of the statements made and the evidence.

This can partly be overcome thanks to the advent of new cutting-edge platforms, designed to meet these needs (see the services provided by Epiq https://www.epiqglobal.com/en-us and Opus https: // www. opus2.com/). Some features of these software are already present in instruments such as TEAMS or Skypebusiness, already used by the writers of this article, so it is possible to share video documents among the participants, who can then instantly see – for example – the documents on which it is examined the witness or to whom the expert refers (In some versions of Teams it is possible to proceed with the transcription of the hearing, with the possibility of displaying the dialogues between the parties as “subtitles” as well as translating them into different languages) . In the most advanced solutions there are devices with cameras capable of capturing 360 ° images, remotely controlled directly by the referees, which allow you to view the environment in which the witness or expert is placed. This instrumentation allows to overcome the concern that other subjects present in the room suggest the answers during the examination.

Moreover, important international Arbitration Bodies have recently issued regulatory notes to give a practical response to the needs just described, as an alternative to the adoption of more complete technological platforms and to respond to the immediate needs determined by Covid-19.

For example, the AAA – American Arbitration Association – has issued a model ordinance for use by the Arbitral Tribunals, containing some useful information for conducting videoconference hearings, with the possibility of adapting its content to the specific needs of the specific case. The document gives the arbitrators the power to indicate which is the best procedure to follow, placing the burden of providing a just reason why this solution would be unsustainable on the party opposing the virtual hearing. The AAA also provides that parties and the board can agree on the methods for transcribing / recording the hearing, prohibiting the parties and their counselors from using any other method of registration other than that agreed. Parties and lawyers will also have to make sure that any third party present in the connected audio-video room accepts the ban on recording the meeting. When it comes to how to execute the texts, the AAA identifies good precautionary rules to follow, also providing for the possibility for the college to inspect, through the webcam of the witness, the room in which it is physically located.

In line with the AAA, the ICC – International Chamber of Commerce – incentives 1) the adoption of all the measures that are deemed appropriate and / or the modification of the calendar of the procedure, after hearing (remotely) the parties; 2) identification of all issues that can only be dealt with on a documentary basis; 3)  the identification of issues that can be resolved without the oral hearing of witnesses or experts or on the basis of affidavits.

In the fast phase of adaptation of the institutions and of all of us to the new reality, for the time being it can be said that the virtual hearing cannot be considered completely overlapping with that in presence. For example, the institute of the cross examination – in which the witness, in a public hearing, is blocked by the strict logic of the lawyer who interrogates him before the College ready to grasp any slightest disturbance of his soul – could be emptied of meaning; it is clear that an interrogation “remotely”, where the witness is far from his examiner and conveniently placed in the home, would not have the same effect.

It appears inescapable that the virtual hearing, carried out in the manner indicated by the members of the international refereeing community, replaces, at least in the near future, the hearing in presence, becoming, especially in the context of international arbitration proceedings, the new normal.

However, we hope, always with due caution, to find ourselves in the same courtroom to better solve complex disputes, in other words,  at human arm’s length.