The last year has been extraordinary. However, the rollout of the COVID-19 vaccines gives fresh hope that there may soon be a transition to a new state of affairs (a “new normal”, as it is often called). What that will look like is difficult to see, especially because the perceptions of office life appear to have shifted. A period of over a year working from home has led many to question whether office life should be resumed at all, or at least whether it should be resumed in the same manner as immediately before the pandemic (when the majority of office workers spent the majority of their working days in the office). Further, economic decisions have been taken in the last year that will affect working patterns in the next few years: in particular, companies have given up office space, and have invested in new remote working technology, and have established new management patterns. While those decisions are not irreversible, they give a strong motive to maintain some form of remote or hybrid working, at least in the near future.
My own arbitration practice has evolved on similar lines. When the pandemic first hit everything was shifted online. I have completed whole cases now that have been entirely or almost entirely online. I have worked for clients and I have heard submissions from parties that I have only ever seen on a screen and have not encountered in person. As we transition to a new normal, the decisions that have been taken about cases in the last year will have an ongoing impact in the immediate future. While some of the cases that I am involved in might move back quickly to in-person meetings and hearings, several cases have been set up in such a way online as to strongly suggest that they will continue in the same manner in the future.
For example, I am currently sitting as arbitrator in a case with fellow arbitrators based in Singapore and Australia. While such a geographic spread is not unheard of in international arbitration (the first case in which I was appointed arbitrator, when I was living in Singapore, involved co-arbitrators in Paris and Houston), it has been notable that the whole case has been conducted over MS Teams. Where in the past there would have been procedural hearings over the phone, and discussions between arbitrators over the phone, now everything is done through a computer screen. This means that the contrast in previous cases between doing something on the phone and doing something in person has given way to the contrast between seeing each other face-to-face on screen and seeing each other face-to-face in the same room. While doing things virtually is not the same as meeting in person, there is less of a gap between the two ways of operating, and there will be a closer examination in future of the reasons for getting together, with all the time and cost that involves. Is it worth having a physical hearing if an online hearing is good enough? My feeling is that, having established this pattern, we will continue with cases such as this mostly (and perhaps entirely) online, even after the risks of the pandemic have subsided.
What of the future? Each arbitral tribunal starts afresh and establishes its own working patterns to fit the characteristics of the case. It is possible that tribunals in the future will function very much like tribunals in the past, with telephone conferencing for the first part of the case followed by in-person hearings towards the end. But the reflex towards video conferencing will remain, as well as the technology installed on every person’s computer. The chances are we will continue to speak with each other via a screen, and that will mean the narrowed gap between video conferencing and in person hearings will remain. It is likely that, just as office working may shift to a pattern in which people spend a large proportion of their time working from home, international arbitration will shift to a mode of operating that involves virtual hearings as standard. The COVID-19 pandemic may have brought to an end the use of the telephone as a means of group communication in international arbitration, and it may have made virtual hearings the default setting for the future.
Ben Giaretta, Partner, Fox Williams