Virtual Hearings: Appreciate the Credibility of Witness at Remote Examination – WriteToLearn Notes

The COVID-19 pandemic has necessitated, and accelerated the transformation from in-person hearings to virtual hearings of the court proceedings. With travel bans and physical distancing policy in place, the in-person hearing is becoming the exception rather than the norm in 2020. While an increasing number of court hearings are conducted remotely in some jurisdictions, some litigants and lawyers still object to a videoconference examination because they maintain that it is more difficult to appreciate the credibility of witness, especially witness’ demeanour remotely. The opponents argue that the remote examination reduces the chemistry that may develop between the counsel and the witness and further, it reduces the solemnity of the court proceeding (para. 39 of Arconti v. Smith2020 ONSC 2782).

Continue reading “Virtual Hearings: Appreciate the Credibility of Witness at Remote Examination – WriteToLearn Notes”

Virtual/Remote Arbitration Hearings Part III Points for Attention during the Virtual Arbitration Hearings

“The turning point in the lives of those who succeed, usually comes at the moment of some crisis, through which they are introduced to their ‘other selves’” – Napolean Hill

Q: During the hearing, can the participants turn on and off their microphones or their cameras randomly?

A: According to the arrangement of the tribunal, the participants could turn on and off their microphones in turns. For some hearings which involve more than 9 participants, the tribunal may consider to discuss with the participants to seek the agreement on turning off the non-speaking participants’ cameras in order to reduce the technical issue and to protect the tribunal’s concentration from unnecessary interruption. On the other hand, the tribunal assistant, the IT consultant and the court reporter may turn off their cameras with the consent of all parties during the hearing.

Continue reading “Virtual/Remote Arbitration Hearings Part III Points for Attention during the Virtual Arbitration Hearings”

Virtual/Remote Arbitration Hearings Part II – Pre-Hearing Preparation for the Virtual Arbitration Hearing

Q: How does the tribunal ensure that all the participants are familiar with the functions of the videoconferencing software?

A: Without a doubt, a great amount of time for preparation is required for virtual arbitral hearing.

First, the tribunal may make procedural orders, upon the agreement of the parties, on the following issues: (a) identifying which issues can be dealt with on “documents only” and which issues must be dealt with on virtual hearing; (b) issues of confidentiality for virtual hearing; (c) requirements of virtual caucus rooms for the tribunal members and each side in the case; (d) the minimum system specifications (such as document display, raise hand, mute, private chat functions etc.) and technical requirements for smooth connectivity, adequate visibility and lighting in each location; (e) the requirements of the equipment, such as computing devices, screens, webcams, headphones, microphones and internet capacity; (f) the preferred videoconferencing platform; (g) a list and the number of authorized participants and their time zones; (h) hearing procedure, especially the recording issue, the issue of witness and expert testimony (See Chandra v. CBC, 2015 ONSC 5385 and 9087-1195 Québec inc. (Développement Olicon) c. Syndicat de copropriété le Vénitien sur Rive2020 QCCS 1458); (i) the retainment of a single tribunal assistant or IT consultant to coach the participants on how to deal with the technical issues before and during the hearing; (j) the contingency measures to be implemented in case of technical failures; (k) timetable of the hearings; (l) how to make and deal with objections during the examination and cross-examination;

Continue reading “Virtual/Remote Arbitration Hearings Part II – Pre-Hearing Preparation for the Virtual Arbitration Hearing”

Virtual/Remote Arbitration Hearings Part I – Definition and Application Scope of the Virtual Arbitration Hearing

“Grace is that turning point from feeling hopeless to becoming empowered.” – Deborah Brodie

COVID-19 is a public health crisis that is massively disrupting the pending dispute resolution proceedings and generating new disputes that may be more difficult to resolve due to the safety concerns and public health restrictions imposed by the governments. The arbitral institutions of different jurisdictions are taking practical measures to provide guidance and procedural tools to the parties, counsels and tribunals to mitigate the delays generated by the pandemic. It is acknowledged that the parties, counsels, tribunals and the institutions have shared common goal to make every effort to conduct the arbitration proceedings in a fair, expeditious and cost-effective manner. While the videoconference and the audioconference have been employed as a practical technological alternative in the resolution of trans-jurisdictional disputes for many years, more and more hearings for domestic disputes are being performed by videoconferencing these days due to the COVID-19 pandemic. However, there is no doubt that some practitioners and disputants insist on in-person hearings and that the virtual hearing is not always the most appropriate alternative in some specific circumstances.

Continue reading “Virtual/Remote Arbitration Hearings Part I – Definition and Application Scope of the Virtual Arbitration Hearing”