The pandemic has affected us all but whatever deprivations we have each suffered, the pandemic has changed, and possibly for the better, arbitration procedure.
The pandemic has shown the arbitration community that life can go on much as it did before albeit with virtual, rather than in-person, conferences and hearings. After an initial thought of whether hearings could simply be adjourned until ‘better times’ it became apparent that these better times were some way off and we ought simply to get on with things.
I have had the honour and privilege of being appointed by the London Chamber of Arbitration, ICC, and LCIA as arbitrator during the pandemic. During the pandemic, I have held many procedural conferences and evidentiary hearings with both factual and expert evidence and oral openings and closings. The evidentiary hearings have had transcribers and have even used the recording function in Zoom when transcribers were not available (at short notice) and the recording file was subsequently made available to transcribers who produced a good transcript.
I have also had interpreters who likewise coped well in the online environment.
These conferences and hearings have been held either on MS Teams or Zoom. Both have functioned well and generally, internet connections have held up well for all participants (including connections from Canada, England, France, Italy, Malta, and Uzbekistan).
The breakout room function is especially useful during hearings and even in procedural conferences to enable counsel to take instructions from clients and for things explained to clients who may not have English as their mother tongue. Although I think it took most of us some time to understand and learn to trust the breakout room function, it has proved invaluable.
The functionality that, arguably, is still missing is how to communicate amongst party teams while proceedings are taking place. Gone is the era of passing a post-it note around but how we replace that sharing of information is not evident through Zoom or MS Teams, or at least not a way where disastrous human error is avoided. From my experience, most people resort to tools outside of MS Teams or Zoom, usually to Whatsapp.
Time zones have been a relatively minor issue. Advance thought needs to be given to local times for all participants. The most extreme example I have experienced has been a 13-hour time difference between participants on an evidentiary hearing. The hearing would have been 1-day in a normal in-person hearing but due to the extreme time zone differences, we split into two 3-hour sessions over two days with the participants at the extreme differences sitting 6 am to 9 am and the other extreme 7 pm to 10 pm. In fact, it worked well, perhaps even better than one full-day, as it enabled me, as arbitrator, to ask various questions which could be researched and answered between the two half-days. For longer hearings with big-time zone differences, I know that some people are training themselves to adjust time zones whilst not leaving their home by adjusting their body clock.
Remote or virtual procedural conferences have, I think, been more efficient. Obviously, there is a saving in any travel time or expense but I think that there is a further factor that now that people are used to conversing by MS Teams or Zoom, there is less padding and more to the point conversations. Counsel seems to get to the point more quickly or be more concise: there is less theatre.
As establishing a short conference or hearing is so easy, I tend to encourage that over written submissions. Simultaneous written submissions can often leave things unsaid whereas a short Zoom call can ensure that all issues are fully ventilated.
Witnesses, both factual and expert, have worked well remotely although to be fair I have not (yet) had an evidentiary hearing where the result turned on contested evidence. We all have our own protocols for seeking to ensure that the process of taking evidence is as rigorous as possible: checking that the witness is alone, has no mode of communication or prompting (e.g. no smartphone), and has only an unmarked bundle. In any event, it is, in my experience, rare that oral testimony changes that much. It usually serves to fill in gaps in the documentary record and in so far as it is inconsistent with contemporaneous documents is usually not accepted.
For myself, I think the huge time, financial and environmental savings that remote hearings have given us will mean that in at least some cases, and I would hope the majority, they are here to stay in international cases.
Peter Ashford FCIArb, Partner, Fox Williams