Virtual Hearing

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Virtual Hearing

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PALAK

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Prior to the year 2019 in international arbitration virtual or remote hearings were not

completely an unknown phenomenon but were restricted to a large extent. The interim
procedural hearings, in the form of telephonic conferences, were relatively common.
Similarly, sometimes witnesses might join a hearing by video link. Nevertheless, to
maximum arbitration practitioners, the idea of a practical hearing being completely heard by
video link would have been an innovation. Due to the COVID-19 pandemic, and related
limitations on assembly and travel, that has all altered, as it has for proceedings before the
court. Undeniably, the nature of international arbitration where the disputes are cross-border
and the arbitrators, the parties and their counsellors are usually situated in different countries
has made the option to technology unavoidable if the resolution of disputes was not to grind
to a stop and be put off until further notice. Initially on in the pandemic, the arbitral
foundations recognised the want for a fundamental re-imagining of how hearings were going
to be directed. In April 2020, the International Chamber of Commerce published
its Supervision Note on Probable Measures Intended at Justifying the Effects of the COVID-
19 Pandemic. The Note well-thought-out the three options open to parties who were due to
have a hearing: arranging in a sole physical setting, this being essential to the resolution of
the argument and possible in spite of the circumstances of the pandemic, delaying the
hearing, because assembling in a single physical location was crucial yet was not possible
due to the circumstances and a virtual hearing. “The Note refers to the procedural rule in
international arbitration that, if the parties agree between themselves on a way forward, then
that is adopted. However, if the parties disagree, then the tribunal decides. Since 2020, the
third option, that is, either a fully virtual hearing or a hybrid solution where some participants
attend in person whilst others attend remotely, has become the optimal solution in the
pandemic conditions. There has, of course, been some resistance to the use of virtual
solutions. This has been framed in terms of principle and practicalities. Some parties have
argued that there is a right to a physical hearing and opposed a virtual hearing on that basis.
However, from the reported cases, it seems that arbitrators have taken a robust approach,
directing that a virtual hearing should be held when the only alternative is postponement. The
various arbitral rules, even in their pre-2020 versions, have given enough flexibility to
arbitrators to make a ruling in favour of a virtual hearing. The arbitrators are also able to
point to the parties’ duties, for example, to make every effort to conduct the arbitration in an
expeditious and cost-effective matter. It is not consistent with this duty for a party to insist on
a physical hearing which will inevitably cause delay. The International Council for
Commercial Arbitration has recently published a series of reports finding that, in the seventy-
seven counties examined, there is in fact no express right to a physical hearing. In terms of
practicalities, there have been concerns regarding the reliability of virtual hearings. These
include concerns over the risk of interruption to internet connection, confidentiality and data
protection, and the difficulty of maintaining the integrity of a process where the participants
are in different countries. These are real challenges but are capable of being addressed if the
parties engage constructively early on. Arbitral institutions and litigation support consultants
provide a variety of digital platforms for the hosting of virtual hearings. Various protocols
and checklists have now been published by interested organisations which set out the
technical and practical requirements for a virtual hearing. Best practice recommends the use
of a number of dry-run sessions with all participants before the hearing to check the efficacy
of the system. The author has had recent experience of a major arbitration hearing which was
fully remote. Over two weeks, the Kennedys team with its clients and counsel participated
from London, whilst the arbitrators were in continental Europe, the other party and its
lawyers were in Asia, and some of the expert witnesses were in North America. On a couple
of days during the examination of witnesses, the virtual hearing spanned thirteen time zones.
Whilst there were some early starts for people in North America, and late finishes for those in
Asia, there were no technical glitches to speak of and the hearing went on for its scheduled
length without interruption.”
Therefore, 2020-21 has seen a thorough shift in the understanding of possibility of hearings
in international arbitration. As the pandemic retreats, there might be some coming back to the
longstanding familiarity of physical in-person hearings. Nevertheless, the thought has
changed. With the accessibility of new knowhows and procedures, it will be less often heard
that a physical hearing is essential.