Jessica Sabbath and Brianna E. Kostecka | The Dispute Resolver
Two King & Spalding attorneys were one week into a two-week arbitration hearing when New York City shut down due to the coronavirus pandemic. They learned valuable lessons from continuing the hearing via video and share their experience and some tips.
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Most businesses must now connect virtually, due to the coronavirus pandemic, and arbitration hearings are no exception. We were one week into a two-week arbitration hearing when New York City shut down, forcing the hearing to conclude via video. Video hearings may be the future of arbitration—at least in the short term.
Attorneys need to think about important considerations and best practices for conducting a hearing via video. This article also addresses applicable arbitral institution rules (or lack thereof) and discusses why this area is ripe for consideration by these institutions.
Technology Considerations
• Zoom vs. Alternatives: Zoom, a highly-popular video conference platform, is an inexpensive and effective means of conducting virtual hearings. It allows many individuals to participate, and the arbitral tribunal and speakers are visible to all participants. Screen sharing can be used to display exhibits, demonstratives, and PowerPoint presentations. Note, however, that the party initiating the meeting must have an upgraded Zoom account to utilize many features, included organizing extended meetings and virtual break-out rooms. Moreover, there have been security and privacy concerns about Zoom that are currently being investigated. Many court reporting services offer alternative platforms that provide similar features, but are generally more expensive than Zoom subscriptions.
• Transcription Services: Most court reporting services can provide transcription services via an online platform, including access to live transcription during the hearing for a daily fee.
• Translation Issues: One potentially complicating factor when conducting remote hearings is the need for translation. While many translators can provide services remotely, such translation would likely need to be sequential rather than simultaneous and would require speakers to be particularly careful not to speak over each other.
• Test the Technology: To ensure a smooth first day of the hearing, the parties, witnesses, tribunal, and court reporter should test the technology in advance. Witnesses will need to ensure they have cameras on their computers. Most importantly, everyone will need strong and reliable internet connections—particularly the tribunal, witnesses, court reporter, attorneys, and client representatives directly involved in the proceedings.
Agreed-Upon Protocol
• Implement a Written Protocol: Parties can minimize potential disputes by reaching an agreement on a detailed written protocol, including details about the schedule, exchange of exhibits, pre- and post-hearing deadlines, and other logistical matters.
• Exchange of Exhibits: The parties should outline how and when they will exchange documents and demonstratives in the written protocol, including the means for providing exhibits to be used during cross-examination to witnesses, opposing counsel, the tribunal, and the court reporter. It may be easier to exchange documents electronically, particularly during the coronavirus pandemic when many firms and document vendors have reduced onsite staffing.
• Reliability of Testimony: Possible safeguards to ensure the reliability of testimony include requiring witnesses to be alone when they testify and to affirm that they will not look at email or smartphones during the examination. If hard copy documents are sent to witnesses before they testify, the documents can be sealed in a box wrapped in colored tape that the witness must open on camera in the presence of opposing counsel and the tribunal immediately before testifying. Additional safeguards can be put in place by not providing cross examination bundles to opposing counsel until about 30 minutes before an examination is set to begin.
Presentation Considerations
• Displaying Documents: It is important to make sure the online platform chosen to host the video hearing includes a mechanism to display documents on the screen so all participants can see them. Most online video platforms, including Zoom, have this feature. It is helpful to pinpoint specific pages or sections of documents so that the process is as seamless as possible.
• Effective Cross Exam: The obvious difference when conducting a cross-examination via video is the loss of in-person, face-to-face contact with the witness, the tribunal, and opposing counsel. The witness should be positioned close enough to the camera to gauge facial expressions and other silent cues.
Arbitral Institution Rules
Most of the various arbitral institutions do not have rules in place specifically addressing videoconference hearings, or more generally, addressing what to do in times of local, national, or global crises.
For example, both the American Arbitration Association’s construction and commercial rules provide that an arbitrator may “allow for the presentation of evidence by alternative means including video conferencing.”
Similarly, pursuant to the JAMS arbitration rules, “[t]he Hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the Arbitrator.”
The International Institute for Conflict Prevention & Resolution is silent about videoconference hearings, providing only that unless the parties agree on the place for the arbitration, the tribunal shall decide “based upon the contentions of the parties and the circumstances of the arbitration.”
Rules promulgated by the International Chamber of Commerce , the London Court of International Arbitration, and the Singapore International Arbitration Centre provide for videoconferencing for emergency procedures. But none of these institutions appear to contemplate full merits hearings by video, much less provide specific rules for how such video hearings should proceed.
Although arbitral rules are aimed at providing individual arbitrators and parties significant control over hearing procedures, it would be helpful to have specific, consistent guidance from these institutions on how virtual hearings should be conducted.
More generally, parties would benefit from institutional guidance about how matters should proceed in the face of natural disasters or catastrophes. The Covid-19 pandemic hit the U.S. hard and fast. With many hearings already in progress, arbitrators, lawyers, and clients alike were faced with difficult decisions about whether to continue in-progress hearings in person or whether to adjourn hearings without any idea about when a live hearing could resume and no existing rules or protocols in place for continuing by video.
Although arbitrators generally have discretion to conduct a merits hearing as they see fit, explicit guidance about adjourning hearings during a global health crisis, national disaster, or other widespread catastrophe would be valuable for parties and arbitrators alike.