While virtual hearings have been available to the field of law for quite some time now, it is perhaps fair to say that the COVID-19 outbreak was the real instigator in terms of widespread use of such technology. Not surprisingly, a multitude of seminars, discussion and writings were available to interested eyes and ears not long after the beginning of the outbreak. Such texts and discussions also speculated on the perceived difficulties related to virtual hearings, especially those with an international connection. These speculations also inspired me to revisit the subject now, nearly a year later, to assess experiences from online hearings associated with international arbitration proceedings, to evaluate whether online hearings indeed are the way of the future, and to see whether those initial fears related to hosting online hearings actually materialised.
Why might one wish to avoid virtual hearings?
Especially during times like these, the benefits of online hearings, as opposed to physical ones, are apparent and evident. First and foremost, there is no risk of viral transmission between parties presenting their arguments from different physical locations, nor is there a need to prevent droplet or aerosol infections via the use of masks, which, in turn, muffle the voices of the speakers. Beyond those reasons, there are, of course, a multitude of cost and efficiency related benefits, even ones related to preserving the environment.
Naturally, while hosting online hearings come with distinct advantages, certain disadvantages can also be distinguished. The first potential challenge is of a technological nature. Not all connections are created equal and, especially with intercontinental connections, latency issues can vary to a significant extent. Connection issues may cause drop offs, pixelated video feeds, audio issues, or even a total inability to connect to the conference call. Similar issues may also be caused by the quality of the hardware used. Such issues could easily create a less-than-equal footing for the parties to the arbitration.
When the reason behind the decision to arrange virtual hearings is something akin to the on-going global pandemic, one also has to recognise the reality that countries may have imposed different measures to curb the spread of the infection, which may consequently affect the way in which the legal teams of the parties are able to co-operate. To this effect, it is self-evident that if a team of advocates cannot present their arguments from the same physical location, their ability to work together is impacted.
Valid concerns have also been raised with respect to receiving witness testimonials and especially the cross-examination of witnesses. Can one truly assess the credibility of a witness or attempt to discredit one if one cannot completely and in real time see and evaluate all the facial cues, nervous ticks etc. that a witness may show? How can one ensure that the witness is not being coached by someone off-camera? These issues become increasingly more difficult to address if the audio or video connection is less than perfect when cross-examination is to take place.
Genuine experiences with virtual hearings
Not surprisingly, attorneys in the dispute resolution practice at Merilampi Attorneys have already participated in multiple arbitration proceedings wherein the hearings were held online rather than offline. In order to get a broader perspective of the experiences with virtual hearings related to international arbitration proceedings, I chose to focus on a few anecdotal international experiences in addition to the experiences from within my own firm.
Mr. David Pliener, a barrister from the United Kingdom, details his experiences with virtual hearings brilliantly in this article, as he explains how conducting virtual hearings – especially from one’s own private residence – can create some rather unexpected issues. One’s client, or the arbitrators for that matter, may for instance not appreciate the sight of a newly woken family member in pyjamas at the beginning of opening remarks. Naturally, such comments are made tongue-in-cheek, recognising that, much like with offline arbitrations, arranging virtual hearings successfully is all about appropriate preparation.
As posited above, it is not entirely surprising that as Mr. Pliener and his team were not attending the hearings from the same physical location, some challenges arose with respect to teamwork. Mr Pliener describes that multiple conversation threads on different messaging platforms were utilised to accommodate effective messaging, which could certainly be confusing. However, at the same time, it must be noted that the use of such messaging platforms enables a vastly more discreet way of communicating with your legal team than what would be possible in an offline setting.
On a general level, Mr. Pliener states that, in his experience, “the similarities to a live hearing far outweighed the differences.” Oral submissions appear to have gone smoothly as appears to have been the case with cross-examination as well. In fact, Mr. Pliener’s experience was that he actually had a more detailed view of both the arbitrators as well as the witnesses when close-up shots were utilised. When electronic bundles and a “hearings manager” is used, one can also ensure that each participant is eyeing the same document, which also has value in and off itself.
Ms. Lauren Coote’s recommendations for running online hearings are similar to those of Mr. Pliener’s, in that she, for example, also recommends the use of a third-party moderator whose task it is to ensure that the hearings run smoothly. You can find her article detailing her experiences with virtual hearings here. In her article, she describes one multi-million-dollar arbitration wherein the participants were located in “ten different geographical locations – and spread across four different timezones” and, nevertheless, the hearings were conducted successfully and seamlessly. Ms. Coote’s depiction of the cross-examination is again noteworthy, as she explains that she noticed no real difference between online and offline cross-examination. To ensure that no coaching took place, all witnesses had to confirm that no advisors were in the same room, off-camera or in communication with them while testimony was given. Naturally, if further confirmation is needed, the advocates could also agree to have the witnesses spin their camera around the room and be asked to show that no earpieces are being worn.
These experiences reflect and resemble the experiences of the attorneys at Merilampi who have taken part in virtual hearings. In our experience, hearings have been amazingly smooth and both Microsoft Teams and Zoom have shown themselves to be excellent platforms for conducting virtual hearings. Much like in Mr. Pliener’s experience, witnesses have typically used their own devices where their faces have been in close-up range – this has enabled the evaluation of the reactions of the witnesses even better than what would have been possible in offline hearings. Meanwhile, presenting opening and closing statements as well as the utilisation of PowerPoint slideshows has been seamless. In fact, our experiences with virtual hearings have been almost exclusively positive.
There is no doubt that the challenges raised in the introduction text still exist even if they did not necessarily materialise in the cases cited above. Still, one must also appreciate the fact that perhaps the biggest original question mark related to virtual hearings – cross-examination – is not actually categorically impossible and may even, in some instances, be better conducted in a virtual environment where close-up high definition camera views can be used to capture every micro-movement of a facial muscle. While connection inequalities will continue to exist, and while certain witnesses will be better questioned live and in person, it does appear that virtual hearings have already found their place in the world of international arbitration, even beyond the reach of the on-going global pandemic.