Remote Hearings – factors to consider
One of the main reasons cited by parties as to why they opt for international arbitration to resolve their disputes is the speed and flexibility that can be brought to bear in such proceedings, as opposed to court proceedings (particularly in some jurisdictions).
Among the options in the arbitration practitioner’s ’toolbox’ to assist in this regard is the ability for remote hearings to be held. This gained much greater attention during the Covid-19 pandemic when, often, for there to be timely (or any) progress in proceedings due to restrictions on gatherings and travel etc., a remote hearing was a necessity.
What is a remote hearing?
At the outset, it is important to clarify that remote hearings are not an invention of the last few years, borne out of the Covid-19 pandemic. A vast number of arbitration proceedings have had remote elements to them, such as procedural conferences (albeit these may have more usually been held by telephone conference pre-pandemic) or the cross examination of a witness or expert using videoconferencing technology during a final hearing. However, since the Covid-19 pandemic, fully remote hearings have entered the ‘mainstream’ and, for some, they may have even become a preference going forward.
A remote hearing is commonly understood to refer to a hearing that is conducted using technology to bring together participants in multiple locations. A hearing may be fully remote, whereby all the participants are in different locations, including arbitral tribunal members (albeit counsel and/or client teams will still likely be together if possible) or partly remote (or hybrid) where, for example, the arbitral tribunal, counsel and parties are assembled together in person, but only certain witnesses or experts provide their evidence remotely.
Choosing between in-person and remote hearings (or hybrid)
One of the fundamental principles in international arbitration is a party’s right to a hearing. What form that hearing should take requires careful consideration. Chief among the considerations will be: (i) whether a particular form of hearing is mandatory or can be insisted upon; (ii) due process; and (iii) efficiency. If there is a dispute, the arbitrators should check the arbitration agreement, and applicable arbitration rules and law. But parties should also consider whether opting for a remote hearing may cause difficulties on enforcement: there is no point in insisting on a remote hearing if, ultimately, a favourable award may be at risk of not being enforced due to concerns that a party may not have had a reasonable opportunity to present its case.
Factors to consider
Time efficiencies
A remote hearing can potentially be slotted into the diaries of all participants more readily, and thus arguably allows for greater flexibility, perhaps enabling a potentially greater pool of arbitrators, experts and counsel to be considered. If international travel time is removed, as well as accommodation and venue costs, there are not only potential time and cost savings but also potential carbon savings which are an ever-increasing consideration given the increasing awareness of ESG issues and obligations.
As regards the hearings themselves, with the right amount of detailed preparation their duration can be cut. It is commonly observed that remote hearings are more tiring than in-person hearings, which is suggestive not only of shorter hearings, or at the very least shorter hearing days, but also perhaps more of a reliance on written submissions rather than lengthy submissions or cross-examination at a hearing.
Due process and procedural fairness
It is critical to ensure that due process and procedural fairness (i.e. ensuring that a party has an opportunity fairly to present its case) is maintained to ensure the legitimacy of the proceedings. Arbitrators, and indeed parties, will need carefully to consider any points raised by a party as to why a remote hearing may not be appropriate. There may be many such reasons, including the impact of time zones. For instance, if the arbitrators and the claimant are based in Western Europe, with the respondent and its counsel in, say, Singapore, starting any remote hearing at 10am CET would seemingly place an undue burden on the Singaporean respondent, where the clock will be striking 5pm SGT as the hearing day starts. That does not mean a remote hearing is an impossibility: it may be that some accommodation on start times, longer breaks or shorter hearing days can be made.
Practical considerations
There are other practical considerations, for example, how an oath or affirmation will be administered effectively remotely, and how witness testimony will be given: Will the witness be alone? Is a 360-degree camera required? How will documents be put to the witness, and when? And how might the witness be able to access those documents? Will they be provided in hard copy to be opened only at the start of testimony, will the witness be taken to them electronically as part of the remote cross-examination or will there be a core bundle? Detailed planning and preparation is required when considering how a remote hearing will run in order to derive maximum benefit.
Cybersecurity and confidentiality
Other prime considerations are issues of cybersecurity and confidentiality. Remote hearings with participants spread across multiple jurisdictions raise a number of such issues, all of which need to be managed carefully bearing in mind the circumstances of the particular case. That can perhaps be done alongside the utilisation of an institutional (where available) or third-party secure platform, with appropriate levels of encryption and protection, but it will need careful consideration, as will the costs of such infrastructure to enable the remote hearing to run seamlessly.
Time to rehearse
It is also crucial to factor in ‘rehearsal’ time to ensure that all participants, and particularly counsel and arbitrators, are technologically adept in order that the remote hearing goes smoothly. For any in-person hearing it is common practice for counsel and parties to familiarise themselves with the venue, if they are not already familiar with it, before the hearing commences. For a remote hearing, it is imperative that all participants factor in multiple test sessions to ensure that they have sufficient connectivity, can access the chosen platform and navigate it. There are other considerations, like the need for virtual break-out rooms, means of secure communication among counsel/client teams and an agreed protocol of how the remote hearing is to proceed to ensure that it is user-friendly and effective. There can be other considerations, such as detailed schematics or spreadsheets that need to be displayed effectively, a live transcript, translation services and/or the recording of the hearing and the subsequent distribution thereof. All of these are additional factors that must be considered when setting up a remote hearing to ensure that the hearing runs effectively.
Change in advocacy style
Advocates may need to be ready to adapt, perhaps quite significantly, their advocacy style for a remote hearing. Lengthy submissions, with regular visits to documents in the record, may not translate as readily to the remote hearing format, and many of the ‘normal’ physical prompts and hints of a hearing room can be lost. As a result, an increased reliance on written submissions may be necessitated.
Conclusion
Remote hearings are here to stay, certainly for procedural hearings and, most likely, for emergency arbitrator and interim hearings too. Whether or not they will be a permanent (or increasing) fixture for final/merits hearings (as opposed to elements of those hearings) will depend, in large part, on the parties themselves, and the rules and laws at play in their particular arbitration. However, the option of a remote hearing, particularly in smaller cases where the efficiency upsides may outweigh concerns as to the remote hearing process itself, is certainly one for parties to consider if they are seeking to accelerate their proceeding. For the right matter and with the attendant preparation they can be a very meaningful tool while also potentially bringing cost efficiencies, as well as environmental benefits. However, it will always be for all participants to ensure that they are fully familiar with what a remote hearing entails and how it relates to the matter in hand to ensure its suitability, not least by meeting some of the factors to consider mentioned above head on.
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