Many arbitration cases have been paused due to social distancing measures, which are widely regarded as the key to fighting the ongoing COVID-19 pandemic. This creates a dilemma for tribunals and parties to decide whether they should start rearranging hearings, or simply wait for an unknown period of time for the measures to be suspended.
Virtual hearings, or so-called online hearings, have become a promising solution for this dilemma, as they have been utilized in many mainland arbitration institutions. This article takes a closer look at the online hearing practice, and provides several tips for its future practice.
Almost every Chinese has benefited from the sophisticated tech developments of recent years. The videoconference, for example, is now frequently employed in commercial activities. Although an arbitration hearing is different from a business conference, this difference need not cause any substantial technical difficulty.
Neither the procedural constraints in laws and rules nor the incompatible technology settings really limit the possibilities of online hearings, unless parties give away the advantage of party-autonomy in arbitration. Arbitration institutions, tribunals and parties can always co-operate and work out solutions for online hearings in light of party autonomy.
For example, some argue that a physical hearing is a must in China because the Arbitration Law, and many arbitration rules, explicitly stipulate the place of arbitration hearing and attach significance to it. However, as mentioned above, the arbitration institution and tribunal can always be proactive in case management and co-ordinate the parties’ consent on conducting an online hearing, specifically the matters regarding place of hearing, platform choice, identity confirmation, and evidence verification.
In one recent case of Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC), in order to avoid an uncertain prolonging of proceedings, the parties agreed to hire an institution to notarize the witness giving his testimony independently. This creative arrangement took out the possibility of a “hidden coach” and thus mitigated the potential risk associated with giving testimony via video link.
The only technical difficulty in terms of conducting online hearings may lie in the capability of case management, which helps the institutions and tribunals co-or- dinate parties’ positions in disputes.
Nonetheless, how to cope with the established working habits of arbitration users is perhaps a more challenging task for utilizing online hearings. For many users, hearings in arbitration mean a suitable hearing room must be provided, with ancillary breakout rooms and facilities for the parties and the arbitral tribunal. Access to printing facilities and a Wi-Fi connection are invariably essential. A live transcript and verbatim record of the proceedings is often considered essential. Accommodation is also required for witnesses, experts, and the parties’ legal teams.
The online hearing, by contrast, requires nothing in terms of these traditions. It is up to everyone in an arbitration case to decide whether they can adapt their working habits in a timely and reasonable manner.
As early as 2009, the UK’s magistrate courts launched the Virtual Court Pilot, and in 2010 conducted an outcome evaluation. The assessment indicated that, “Judges thought that the court had more difficulty in imposing its authority ‘remotely’, and perceived that defendants took the process less seriously than they would if they appeared in person.”
The Guardian newspaper also commented: “Virtual technology inevitably degrades the quality of human interaction. Nuances may be undetected, misunderstandings may go unnoticed more easily. Empathy may be lost.”
Although magistrate court cases are different from commercial cases in nature, the online hearing issues may be similar. The same issues, since 2016, have deterred Her Majesty’s Courts & Tribunals Service’s (HMCTS) reform programme from achieving the goal of virtual hearings in civilian and commercial cases across the UK. According to the recent evaluation of HMCTS reform, “On hearing reductions, HMCTS did not record any progress”.
All legal practitioners have been trained to capture the information underlying behaviour and interaction, including eye contact and body language, at a given hearing. In an online hearing, these subtle expressions are simply not available when everyone is checking on more than one image, and the images are usually sleepy eyes staring at the screen.
Whenever the case is to be determined through critical testimony presented by witnesses or fact/expert witnesses, the adjudicator may rely more on the examination and cross-examination. Lacking the above-mentioned nuances, can online hearings in such scenarios still be a fair approach? This question remains unanswered.
SOLUTION IN COMMERCIAL ARBITRATION
On one hand, based on the practice of the BAC/BIAC, three tips are available for better adapting participants’ working habits making online hearings a good choice.
First, a tech personnel is necessary to help with devices, software setups, internet assessment, and operational guidance whenever needed.
Second, the software used for the online hearing should be equipped with the function of separating video screens. It should be switchable from one to another because the main screen needs to present evidence, transcripts or video links of one party. At the same time, the other screens must be maintained with all the parties’ video links.
Third, the arbitral tribunal shall, before the online hearing, facilitate and streamline every step of the hearing.To make sure everyone sticks to these steps, the arbitration institution (usually the institutional case managers) can help monitor and manage the software operation. In particular, where a hearing step involves several rounds of interaction, everyone should agree on the sequence of speaking in advance (and the length of speaking, if necessary). A good sequence of speaking needs to be strictly followed.
On the other hand, commercial arbitration cases normally arise from contractual relationships between commercial entities. Unlike the parties in civil or tort cases, commercial parties normally have a sophisticated mechanism to manage legal risks and preserve documentation for latter use as evidence.
It is true in many BAC/BIAC cases, when the documentation is enough to reflect the facts of the disputes, that neither tribunal nor parties are inclined to introduce witnesses into the case. Therefore, the online hearing is a more convenient option for parties who use arbitration as a way of dispute resolution.
In sum, as stated in article 1.7 of the Guide to Videoconferencing in the Federal Court of Australia, “Convenience alone is not, however, sufficient to justify a party’s request for leave. In every situation where it is proposed to use a video link, the court must consider whether this will provide a just, timely, economic and efficient use of the court’s and the parties’ resources, and aid the progress or resolution of the litigation.”
As the author writes this article, the UK’s supreme court has switched to video conferencing in all cases, yet the above-mentioned question still seems unresolved. The unpredicted length of the COVID-19 pandemic and the dilemma of dispute resolution calls for similar action in arbitration, either by institution or by tribunal, to find a way out for parties in dispute during this extraordinary time.
Terence Xu is a senior manager of Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC).