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Reluctant Passengers on the Virtual Disputes Journey?

By Vijay Bange
January/February 2021
Construction Law

Reluctant Passengers on the Virtual Disputes Journey?

By Vijay Bange
January/February 2021
Construction Law

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The Technology and Construction Court (TCC) has been at the forefront in seeking ways of using technology to streamline and make the litigation process more cost effective. While the TCC has always embraced the use of technology, changes have been gradual and evolutionary.

Equally, many arbitral institutions have been responsive with similar advancements and like the TCC, have produced guidance to ensure clear parameters for the conduct of virtual hearings. Some examples are discussed below.

Guidance by Arbitral Institutions and Courts

1. CIArb: In response to the pandemic, CIArb stated in its Guidance Note on Remote Dispute Resolution Proceedings (Guidance Note) that “business should not be burdened by unresolved disputes due to the inability of parties to meet physically to resolve disputes. CIArb seeks to reassure disputing parties that, in most cases, applying some sensible checks as set out in this Guidance Note, parties can still use remote procedures for full resolution of their disputes”.[1]

The Guidance Note is broken down principally into three parts:

  • Part 1 – Technology and logistical matters. This section considers preliminary considerations such as the technology and software to be used by the parties for a virtual hearing, addressing issues such as security (i.e. confidentiality of the hearing), audio, virtual breakout rooms and electronic documentation.
  • Part 2 – Legal matters and procedural arrangements. The Guidance Note states that in the context of both current and future proceedings it is important to demonstrate parties’ affirmative agreement to the use of a particular type of remote proceeding. Parties should be aware of any applicable regulations or requirements of relevant domestic jurisdictions regarding the use of remote or non-physical proceedings in dispute resolution. Importantly, the Guidance Note reminds parties that due to differences in legal opinions and interpretations across jurisdictions, remote means of reaching a resolution to a dispute might be questioned by
    some enforcing domestic courts or may be used as a ground for appeal.
  • Part 3 – Institutional and Ad Hoc proceedings. Where parties have agreed to use institutionally administered procedures, the Guidance Note states that parties should consult directly with the applicable institution and follow any guidelines on remote proceedings issued by that relevant institution.

Finally there is an Appendix to the document which provides a checklist for the parties to consider prior to conducting remote dispute resolution proceedings.

2. ICC The ICC has produced a detailed guidance note to help parties consider the use of case management tools[2]. There is guidance on the organisation of virtual hearings covering issues such as the means of conducting conferences or hearings, cyberprotocol and procedural issues.

To further assist the parties, a checklist for a protocol on virtual hearings is annexed to theguidance note.

3. The High Court (including TCC) The Courts of England and Wales acted quickly in response to the pandemic and implemented a new Practice Direction 51Y entitled “Video or Audio Hearings During Coronavirus Pandemic” in March 2020[3]. The protocol seeks to provide basic guidance as to the conduct of remote hearings by addressing issues such as the recording of hearings, privacy and the technology to be used.

Importantly the practice direction conforms that nothing derogates from the judge’s duty to determine all issues that arise in the case judicially and in accordance with normal principles. Hearings conducted in accordance with this practice direction should however be treated for all other purposes as a hearing in accordance with the CPR. The protocol also provides a list of steps that the parties should consider in respect of a virtual hearing once a date is set.

Challenges

Substantive, and particularly final hearings, being dealt with virtually may potentially give rise to some interesting questions and challenges. Some examples are as follows:

  • Understandably, courts, arbitrators, and adjudicators have out of necessity proceededwith final hearings and trials. Parties faced with the option of delay have been compliant, perhaps as the reluctant passenger.
  • Given the approval (at least in the UK) of a successful vaccine, there is light at the end of the tunnel. It is unlikely that actual hearings will be replaced by virtual hearings, albeit that there may well be a place in certain circumstances, for example where parties agree to proceed that way.
  • The courts, arbitrators, adjudicators, but particularly practitioners need to have good IT support to ensure virtual hearings run smoothly with minimum technical glitches. Will this put small to mid-size law firms at a slight disadvantage and potentially present an uneven playing field as to access to justice?
  • Can a virtual hearing ever be a like-for-like alternative for an actual hearing? Or is it a second best?
  • The ultimate realisation by parties that they will be at trail may be lost where it is taking place at the offices of their law firms behind screens rather than a court or arbitration venue. Will this potentially reduce the desire to settle or the scope for the “steps of the court” settlement scenario?
  • Hearing evidence in person arguably gives a judge or arbitrator a more realistic opportunity to decipher body language and form a view as to credibility or otherwise of those giving testimony/evidence. Can that be judged as effectively from viewing virtual screens? Looking into “the whites of the eyes” of those giving evidence may be pixelated!
  • In a court or arbitration there is an officer of the court / clerk to ensure that there is no risk of witness coaching. It is difficult to police any potential bad behaviour by a witness giving evidence behind a lap top from an external location.
  • Will parties be forced to accept virtual hearings post pandemic? Presently, there is an air of acceptance that this is the alternative to a delayed conclusion. Can parties insist on having an actual hearing, or alternatively ask for a postponement or have they no choice?
  • Confidentiality with virtual platforms may be an arguable cause for objection.
  • Virtual hearings may be more suitable for some types of hearing than others. There may be a distinction to be had between interim/interlocutory applications / hearings and final hearings.
  • Arbitration agreements may stipulate where the hearing is to take place. In such circumstances, absent agreement by the contracting parties to vary that agreement, a virtual hearing is arguably not possible. Furthermore, it is not possible for an arbitral tribunal to deem a virtual hearing to be at the contracted agreed venue, and that would be a violation of the arbitration agreement. In such circumstances can an arbitrator require parties to appear via a virtual platform - probably not.
  • Some jurisdictions may legislate for physical appearance. The discussion points raised above may give rise to arguments of unfairness, breach of natural justice, bias and serious prejudice.

The legacy of the pandemic as we come out of it may also create yet further challenges as to the efficacy and use of virtual hearings, and the circumstances of their use.

Notes

  1. CIArb Guidance Note on Remote Dispute Resolution Proceedings
  2. ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, 9th April 2020
  3. Civil Justice In England and Wales Protocol Regarding Remote Hearings, 26th March 2020

Republished by permission.