Remote arbitration hearings: advantages, challenges and participant considerations

December 2020  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

December 2020 Issue

Remote hearings are not a novel concept in the context of arbitration. The technology required to conduct remote hearings has been available for years and has been leveraged to conduct portions of proceedings, such as cross-examining a witness via videoconference. However, prior to the onset of COVID-19, conducting an entirely remote hearing in an international arbitration context was relatively rare. But, given the ongoing confinement measures imposed by many jurisdictions, an increasing number of arbitration hearings are now proceeding via online video platforms in order to mitigate the effects of COVID-19 and ensure that cases are heard without undue delay. This article will provide a basic guide to remote arbitration hearings through consideration of the advantages and disadvantages associated with a remote hearing and key considerations in preparing for a remote hearing.

Advantages and disadvantages of remote arbitration

The advantages of remote arbitration hearings are numerous. While lengthy testimony does not translate as well in an online format, this promotes more time-efficient, focused hearings, which will result in cost reductions for parties. The novelty of an online format also allows for a more flexible dispute resolution process where parties can tailor the proceedings according to their requirements. Arbitration, particularly international arbitration, often involves significant travel and presents scheduling challenges which can delay the expeditious hearing of proceedings. A remote forum allows proceedings to be scheduled in a timelier manner and avoids the costs associated with travel and accommodation. In addition to the cost and time efficiencies that can be realised through a remote forum, some participants may feel that their experience is enhanced as they are able to participate on equal terms with the tribunal and the counsel team, rather than only engaging from the back row of a hearing room.

One significant drawback of remote hearings is the requirement for counsel to develop new skillsets, such as technological proficiency. Counsel will also have to learn to adapt their advocacy skills, swapping long submissions for digital presentations and graphics that convey ideas more effectively via a screen. Body language and other visual and audio cues that counsel typically rely on may be lost in an on-screen format and alternative ways of presenting evidence, such as increased reliance on written submissions, may be required. In its ‘Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic’, the ICC International Court of Arbitration suggested that parties should identify “whether the entirety of the dispute or discrete issues may be resolved on the basis of documents only, with no evidentiary hearing”. Reliance on written submissions, while not ideal, or even possible in all situations, is consistent with arbitration’s emphasis on efficiency.

In addition to efficiency, privacy is also highly emphasised in the context of international arbitration. Incidents such as ‘Zoombombing’, where uninvited attendees were able to access and disrupt Zoom meetings during the spring of 2020, highlight privacy issues that may arise if the parties do not take steps to ensure the security of their online connection. However, privacy concerns can be addressed and mitigated through appropriate security measures.

Preparing for remote arbitration

Remote hearings present a host of new opportunities; however, adequate preparation is required in order to ensure their success. There are a number of key considerations that parties should take into account in advance of the hearing, including agreements to arbitrate remotely, choosing an appropriate host and platform, taking steps to ensure security, addressing evidentiary issues and other administrative matters.

First, parties should draft an agreement to arbitrate remotely. Remote hearings are generally provided for within the rules of arbitral institutions. Absent any specific institutional rules, parties may wish to develop a written agreement that the arbitration will take place remotely. In drafting the agreement, consideration should be given to issues such as whether the participants or the arbitrator may record any of the proceedings, and how the parties will address any technical problems that arise during the hearing. The agreement should also specifically address the fact that the hearing being conducted remotely will not be grounds upon which to later challenge the result of the arbitration.

The parties must also consider who will be appointed to act as the host of the meeting. The host’s responsibilities will include coordinating the meeting platform that is selected, troubleshooting any technical issues that arise, and managing and reminding the parties of proper meeting conduct as necessary. Often, the host of a remote arbitration will be the arbitrator, panel, neutral or the relevant arbitral institution. However, this may create a challenge if the arbitrator is not familiar with the technology or remote practices. If no appropriate third-party host is available, counsel for one of the parties may facilitate the meeting, but caution should be taken to maintain a high degree of transparency.

Participants will need to address the technological requirements of the hearing and determine which platform is the most appropriate. In choosing a platform, the parties should take a number of factors into consideration, including audio visual quality, video capabilities, including the number of participants that can be seen at once, messaging functionality, and whether it should be disabled during the hearing, and, if any files will be shared during the session, file handling and screen sharing capabilities. Participants must also ensure that their audio and visual setups are suitable for the proceeding and will require, at a minimum, a webcam, microphone, monitor and speakers. While these are all standard features on most laptops or smartphones, they may not be included on all desktop computers.

When making choices regarding the technology for a remote hearing, participants must also consider both internal and external security. Internal security may be breached by unauthorised recording or broadcasting. The parties should consider obtaining written undertakings from each attendee that no unauthorised recordings will be made of the proceedings. External security is primarily concerned with unauthorised access. The meeting host should consider employing security measures such as password protecting meetings and using a waiting room so that only valid participants are admitted to the meeting. Where an arbitration involves highly public or contentious subject matter, the host should consult their IT department about instituting additional security measures, such as encryption and active network monitoring.

Regardless of which technology and security measures are selected, the host should ensure that IT support is readily available. It is advisable that parties use a professional virtual proceedings service with dedicated specialists to handle any technological issues that may arise. Counsel should also inform their respective IT departments when the proceedings will be taking place in case there is an issue, such as firm security software, that the host’s organisation is unable to mitigate.

Participants will also have to take evidentiary issues, such as the reliability of testimony, into consideration. Parties must determine whether the applicable law or rules allow the arbitrator to remotely administer oaths or affirmations to witnesses and, if not, whether there is another process that could be used to ensure the reliability of the testimony. Some mechanisms that participants may consider implementing include: requiring witnesses to be alone when they testify; requiring witnesses to give their evidence while seated at an empty desk or table with their hands visible to ensure that they are not relying on notes or other documents; and, if hard copy documents must be sent to the witness, sealing them with coloured tape so that the witness must open them on camera immediately prior to testifying, or alternatively, sending password protected documents to witnesses in advance and revealing the password once cross-examination begins.

Finally, there are several other administrative considerations that participants should contemplate. When scheduling the arbitration, the parties should consider relevant time zones when selecting start and finish times and breaks during the proceedings. Parties should agree to set aside a specific amount of time during which they will not be interrupted and will be available to fully participate in the hearing. Parties should also agree on how the costs associated with the hearing, for example technical support, will be shared. The parties may agree to split the costs equally upfront or may permit the arbitrator to allocate the costs in favour of the successful party upon issuance of the arbitral award.

While the sudden popularity of remote arbitrations can be attributed to COVID-19, it is unlikely that they will be abandoned in the future. Anecdotal evidence from institutions such as the ICC International Court of Arbitration indicate that numerous tribunals have adopted protocols to replace in-person arbitration hearings with remote proceedings. As we move forward and become increasingly comfortable with the technology, a growing number of hearings will likely take place in this more flexible and efficient format. It is important for arbitrators and other participants to familiarise themselves with the requirements of remote hearings and the advantages and challenges that they present. While not always ideal, remote arbitrations are often capable of yielding adequate results while resulting in cost savings to parties.

 

Timothy St. John Ellam QC is a litigation partner, Nicole Fitz-Simon is an associate and Britt Morrow is an articling student at McCarthy Tétrault. Mr Ellam can be contacted on +1 (403) 260 3533 or by email: tellam@mccarthy.ca. Ms Fitz-Simon can be contacted on +1 (403) 260 3713 or by email: nfitzsimon@mccarthy.ca.

© Financier Worldwide

BY

Timothy St. John Ellam, Nicole Fitz-Simon and Britt Morrow

McCarthy Tétrault

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