Remote Arbitration: is it the future?

原文始发于微信公众号(瑞中法协):Remote Arbitration: is it the future?

The Covid-19 pandemic has had a huge impact on the world of dispute resolution,whether litigation, mediation or arbitration. Since the global shutdown, international arbitration hearings have hadto be conducted online rather than in person. Whether you call it ‘virtual’, ‘remote’ or ‘online’, it comes to thesame thing: all parties involved attend through one of the many platformsavailable on the internet, such as Zoom, Teams or BlueJeans.  Many arbitral institutions have issuedprotocols or updated their rules to help make remote arbitration (includingelectronic rather than ‘wet ink’ signature) the norm.

 

Thereis considerable discussion whether remote arbitration will replace physical meetingsonce the pandemic is over.  Remotearbitration has several advantages; the most striking being cost.  The main cost benefits are:

·  The huge saving in airline fares and hotel expenses for allparties involved in international arbitration.

·      The saving in travelling time.

· The saving in printing, with almost everything doneelectronically.

 

Theresult of this is that fixed hearing dates are likely to be arranged more quickly.  Various platforms have a shared screenfunction, and showing the relevant document on screen will make for moreefficient hearings.  Online hearingsgenerally have one, agreed, electronic bundle, which saves time. 

 

TheKaplan Opening – named after the distinguished arbitrator, Neil Kaplan CBE, QC,SBS – is a hearing after the first round of written submissions and witnessstatements, but before the substantive hearing. It enables counsel to outline their respective positions to thetribunal, thus helping the tribunal in its preparation, and can result in ashorter main hearing. A platform like Zoom makes this session more attractiveto the parties because of the savings from not having to travel. It also makesit easier for the tribunal to meet and discuss the case before the main hearing(the so-called “Reed Retreat”).

 

Onlinearbitration is also likely to make submissions more focussed, cross-examinationshorter, and hearings quicker.

 

What are the downsides?

 

Thereare, however, significant disadvantages to online arbitration.  The first is the cyber-security risk ofonline hearings.  It is essential thataccess to the hearings be controlled, and that the storage and transmission ofpersonal data be limited.  To this end,it is vital to consider the platform’s terms and conditions.  Parties will have to be careful with the useof breakout rooms.  Recently, a HighCourt judge in London was embarrassed when she made a disparaging comment aboutone of the parties to a case before her, wrongly thinking that her microphone wasswitched off.

 

Another disadvantage to online hearings is the cross-examination of witnesses, whetherexpert or factual. That is because it is difficult to assess a witness’s bodylanguage when all you can see is their face. There is also the risk of a witness being coached by someone in the sameroom, or receiving information by email or messaging. That risk can, however,be mitigated by a neutral person in the witness’s room, or by a 360 degreecamera and a mirror behind the witness, as well as the witness having an emptydesk. Nonetheless, online cross-examination deprives the cross-examiner ofseeing the effect on both the tribunal and the opposing lawyers of points madein cross-examination. Furthermore, technological disruption might adversely affect what might otherwise be powerful cross-examination. In any event, onlinecross-examination via an interpreter can cause problems.

 

Thereare various technical matters that need to be dealt with for onlinehearings.  Thus parties will needmultiple screens: one to see the other parties or witnesses, one for thedocument bundle, and one for the transcript. There will need to be testing sessions, and backup facilities in case ofa technological failure. Teams must have ways of communicating with each other:if a lay client is in one country, a solicitor is in another, and lead counselis in a third, they will need something like WhatsApp to be able to communicate.Participants will have to speak clearly, and avoid over-speaking.  Non-active participants will need to rememberto mute themselves.

 

Mostpeople who arbitrate online find it much more exhausting than being in aroom.  For that reason, daily hearingswill have to be shorter, and will need regular breaks.  Tribunals will also have to be careful thatone side is not at a disadvantage because of its country’s weaker technology,such as narrower broadband width. Moreover, differing time zones will have to be taken intoconsideration.  One side might complainthat it has not had a fair hearing if the arbitral hearing times are late atnight where it is, as opposed to mid-morning for the other side.

 

Theremight be problems of enforceability of awards resulting from online hearingswhere one party opposes such a hearing and wants a physical hearing.  But that is a topic for another day.

 

Insummary, online arbitral hearings are likely to be particularly helpful inshort hearings. In long hearings, theydo have advantages but here significant disadvantages also stand out.


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