疫情加速网上庭审时代来临,参与模拟仲裁庭炼就网上庭辩技能 — 记加拿大资深仲裁员Daniel Urbas和Julie Hopkins组织的模拟网上仲裁庭系列活动 – #45

从爆发到蔓延全球,新冠疫情已持续了将近一年。全球各地的法院,为了维护司法秩序,避免延期审理导致诉讼案件积压和司法不公,陆续开设互联网法院,又称云法院。另外,各大仲裁机构也开始设立并完善网上仲裁庭审规则。例如,将于2021年生效的《国际商会仲裁规则》第26条授予仲裁庭更大的权限,允许仲裁庭根据案件的有关事实和情况决定庭审形式。换言之,仲裁庭有权决定利用电视会议推进案件审理进程。可见,疫情加速了网上庭审时代的来临。古人云,祸兮福之所倚,福兮祸之所伏。笔者认为,网上庭审将在一定程度上提高纠纷解决的效率,降低纠纷解决律师的执业成本。然而,网上庭审也存在许多技术难题。

2020年4月至10月期间,笔者协助加拿大资深仲裁员Daniel Urbas律师和Julie Hopkins律师组织了模拟网上仲裁庭系列活动。这个系列活动旨在锻炼网上庭辩技能,了解参与网上庭审所需设备和注意事项,找寻将视讯软件(videoconference platforms)各项功能与法律执业传统技能融合的办法。该系列活动吸引了来自温哥华,多伦多,蒙特利尔,卡尔加里,渥太华,休斯顿,纽约,芝加哥,波士顿,华盛顿等资深仲裁员和律师参加。他们都是各自法域里的律界翘楚,他们都熟练掌握律师执业传统技能,如法律文书写作,庭审开庭陈词,结案陈词,盘问证人等。通过该系列活动,我也有幸与Daniel Urbas仲裁员和Julie Hopkins仲裁员一同,观摩,探讨,学习,锻炼网上庭辩技能。

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The CISG Governs the Sale of Computer Graphic Cards Contract While the Quebec Law Determines the Weight to be Given to Evidence by the Court – #38

The China International Economic and Trade Arbitration Commission (CIETAC) is hosting the 18th CIETAC Cup Commercial Arbitration Moot Competition in November 2020. I am going to participate in this online arbitration competition as an arbitrator. This year, the Problem concerns the applicability of United Nations Convention on Contracts for the International Sale of Goods (“CISG”) on the purchase and license agreement on the viral sectors for the production of vaccines against respiratory diseases, such as COVID-19. Out of curiosity, I have read a recent decision of Superior Court of Quebec to learn how the Quebec courts use CISG and domestic laws to decide “whether or not to award damages and, if so, for what amount” in the disputes arising out of a sale contract of the computer graphic cards between the multinational companies. The Court notes that while the CISG governs the sale of computer graphic cards contract, the rules applicable to evidence in this case are in the Book Seven of the Civil Code of Quebec.

Key Facts

In early 1998, the Plaintiff purchased the Defendant’s graphic cards for new Kayak and Vectra personal computers. The worldwide Business Desktop Division (“BDD”) of the Plaintiff operates primarily in Grenoble, France.

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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).

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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.

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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;

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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.

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