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;

(See ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, 9 April 2020 and paras. 6 to 9 of What virtual arbitrations can teach courts, June 1, 2020)

Second, according to the procedural orders of the tribunal, the tribunal assistant may provide specific operating instructions, guidelines and tutorials to the participants if required by the participants. The tribunal assistant may run a minimum of two mock sessions within the month prior to the hearing to test functionality of software (sharescreen, breakout rooms, pin, mute, messaging, separate audio channels, join in and sign out etc.) and devices of each participant. The tribunal assistant could ask each participant to practice all activities that they would undertake during the hearing. The tribunal assistant may even conduct a short, mock examination with the participants, including presenting exhibits and objections by opposing counsel during the mock sessions. During the second mock session, the participants are expected to use the same device, camera angle, background, and lighting that will be used at the hearing.

The tribunal assistant should report to the tribunal with the issues raised during the mock sessions and the different levels of familiarity to the videoconferencing software of the participants. The tribunal assistant should provide related resolutions to ensure that the hearing proceeds smoothly in timely manner.

(See Covid-19: tips for arbitrating during the pandemic)

Third, with the permission of the tribunal, the tribunal assistant could be responsible for the functional operations of the virtual hearing to ensure that the arbitrators and the participants can focus on the substantive procedures during the hearing. The tribunal assistant should have the email address and cellphone numbers of all the participants.

Q: How should the parties prepare for the virtual hearing?

A: First, according to the procedural orders of the tribunal, the parties should be equipped with the devices and software for the virtual hearing at least two months preceding the hearing. Moreover, the counsels may want to have a second device for private communications during the hearing, such as a separate tablet or mobile phone.

Second, according to the procedural orders of the tribunal, the counsels should instruct and prepare their clients and witnesses, if applicable, as to appropriate behaviour and etiquette in the remote hearing, and any specific requirements imposed by the tribunal.

Third, the counsels should take steps to familiarize their clients and witnesses, if applicable, with the technology and software before the hearing. The counsels should notify the tribunal assistant in timely manner if/when their clients or their witnesses encounter technical issues that may undermine the integrity of the arbitral proceeding.

Fourth, the counsels may recommend their clients and witnesses, if applicable, to have copies of all relevant documents to which they may refer to during the virtual hearing.

Fifth, if witnesses are concerned about using their own personal devices and private space to participate in the remote hearing or have connectivity issues, counsels should notify the tribunal assistant as soon as practical before the hearing. In some circumstances, the tribunal may contact the arbitration institution/centre for support. Ideally, the witness could go to the arbitration institution/centre physically to testify in the virtual hearing. The tribunal will notify the parties in advance regarding the additional costs incurred for this matter.

Sixth, the counsels of the parties should work together to prepare electronic hearing bundles (both exhibits and authorities) for the virtual hearing so that the parties and the tribunal would share the identical electronic bundles, paginated consecutively from the beginning to the end during the virtual hearing. Some arbitration institutions are using Opus 2 case management system to conduct international arbitration hearings remotely.

(See Best Practices for Remote Hearings, May 13, 2020)

(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. 😊)