Going Virtual in the time of COVID-19: A Guide for Counsel

Abstract: Following a presentation conducted by Sheila Ahuja as part of a panel hosted by the Singapore International Arbitration Centre, this article provides an overview of the evolving landscape of virtual hearings and discusses recent decisions in England, Singapore and Hong Kong in light of the ongoing Covid-19 pandemic. It highlights the existing guidelines and video conferencing protocols issued by leading arbitral institutions in the context of a wider argument that arbitration contains salient and critical advantages that can be uniquely leveraged by parties seeking speedier resolution of disputes [in these unprecedented times]. The article also outlines some common pitfalls faced by advocates during virtual hearings, and proposes practical solutions to tackle them. It concludes that the recent increase in the scope and acceptance of virtual hearings is commendable, and is part of a wider trend that will likely be here to stay – even after the world recovers from the Covid-19 pandemic.  

1. INTRODUCTION

There appears to be no greater success story to prove the veracity of the age-old adage that necessity is the mother of invention than the rapid virtualization brought about by the Covid-19 pandemic. In light of the various lockdown and physical distancing measures implemented around the world, courts and arbitration practitioners alike have had to rapidly embrace technology allowing the large-scale conduct of virtual hearings. The US Supreme Court has, for the first time in its 231-year history, allowed oral arguments over teleconference – a remarkable step given its historical reluctance to allow cameras and live audio recording of court proceedings. 

Elsewhere, however, the concept of virtual hearings is not quite so novel. For instance,  the International Centre for the Settlement of Investment Disputes (ICSID) has reported that it had already held more than 60% of its arbitral hearings in 2019 by video conference. This calls into question the common assumption that the move towards virtual hearings entails a radical departure from past practice.

In other forums, where virtual hearings were less common, the need to embrace new technology is widely acknowledged. For instance, in an English High Court judgment delivered in late March 2020 – one of the first cases discussing the permissibility of virtual hearings in light of Covid-19 – Teare J emphatically noted the crucial role of the judiciary in upholding justice, concluding that “the courts exist to resolve disputes”, and "it is the duty of all parties to co-operate to ensure that a remote hearing is possible".

This article outlines four strategies aimed at achieving effective advocacy in the virtual hearing environment:

  1. Embrace – rather than resist – virtual hearings;

  2. Capitalise on existing know-how to maximise success;

  3. Keep in mind the underlying goals of any advocate; and

  4. Potential pitfalls and effective ways to avoid them.

2. EMBRACE – RATHER THAN RESIST – THE IDEA OF VIRTUAL HEARINGS

At the outset, there is the question of whether to hear, or not to hear? Should we just wait for Covid-19 to dissipate? One school of thought is that the longer and more complex the hearing, the lower is the likelihood of it proceeding smoothly in a virtual environment – hence presenting adjournment as the more attractive option. However, given the tremendous uncertainty as to when "business as usual" will resume – allowing parties and legal teams often based out of different parts of the world to safely congregate in court and tribunal settings – continual and indefinite adjournments may neither be viable nor advisable.

In search for the "new normal", courts in various jurisdictions have been taking steps to embrace virtual hearings, with some courts doing so even before the outbreak of Covid-19. As far back as in 2018, a New Jersey appellate court rejected the argument that there was any blanket right to in-person hearings. Now, in the Covid-19 era, a plethora of cases across England, Singapore and Hong Kong (amongst other jurisdictions) have seen judicial and tribunal endorsement of virtual hearings.  

2.1 England & Wales

Take for example the recent decision of Municipio de Mariana & ors v BHP Group Plc & anor [2020] EWHC 928, a judgment delivered on 20 April for an application heard remotely on 17 April. The High Court analysed various cases (including Teare J's judgment in National Bank of Kazakhstan v Bank of New York Mellon mentioned above), taking into account the overriding objective that cases are dealt with justly and the Lord Chief Justice's guidance on whether to grant an extension of time to file. In doing so, the Court discerned five general principles governing the choice between an adjournment and proceeding with a virtual hearing:

  1. Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances;
  2. There is to be a recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings;
  3. The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago;
  4. There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice before the court should accept that a just determination cannot be achieved in such a hearing; and
  5. Inevitably the question of whether there can be a fair resolution by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing.

Additionally, in Re Blackfriars Ltd [2020] EWHC 845, the High Court rejected an application to adjourn a 5-week trial (involving evidence from 4 witnesses and 13 experts) and ordered the parties to co-operate by exploring ways in which a remote trial might proceed.  Notably, the Judge observed that travel to a solicitor's office to give evidence at a virtual hearing was a legitimate exception to the general prohibition imposed by the government on movement and gatherings under the newly enacted Coronavirus Act 2020, as was sending an IT professional to a witness' home. In practical terms, this means that English courts are likely to be less sympathetic to any attempt to use lockdown and physical distancing measures as a blanket justification for an adjournment rather than forging ahead with a virtual trial.

2.2. Singapore

In Singapore, the COVID-19 (Temporary Measures) Act 2020 introduced measures allowing court proceedings to continue functioning smoothly with the use of remote communications technology (such as teleconference, video conference and email).

Even prior to the pandemic, section 62A of the Evidence Act permitted the taking of testimony by video-link. The Court’s broad discretion under section 62A was discussed in Anil Singh Gurm v J S Yeh & Co and another [2020] SGCA 5, where the Court of Appeal affirmed that the question of whether a witness is "unable" to travel to Singapore due to "circumstances outside their control", including "travel restrictions imposed by the authorities" and "real and substantial threats to their personal safety", is one that has to be "assessed on the facts of each case". Thus, the position in Singapore chimes with the English Courts' approach in that the decision to compel virtual proceedings will ultimately be fact-specific.

2.3. Hong Kong

The Hong Kong courts have also shared a similar sentiment towards embracing virtual hearings in the time of Covid-19. The Court of Appeal conducted proceedings in CSFK v HWH [2020] HKCA 207 on 6 April 2020 entirely via video conferencing. Crucially, before dealing with the substance of the dispute, the Court of Appeal confirmed that conducting remote hearings using video-conferencing facilities is "permissible and lawful" even "under the existing statutory frameworks governing civil proceedings" (namely, the High Court Ordinance (Cap. 4)). The Court underscored that as long as the key requirements of "fairness and openness" are satisfied, there is "no rule prohibiting other modes of hearings" now that physical hearings are no longer viable in the current climate. In doing so, the Court of Appeal affirmed that virtual hearings are consistent with the principle of open justice, which in any event has to be balanced against the public interest in conforming to physical distancing measures. 

In the same vein, the Court of First Instance in Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co Ltd [2020] HKCFI 347 ruled that holding directions hearing by teleconference would permit the parties to be "heard" (in circumstances where they otherwise could not be heard without significant delay) and promote the fair and efficient disposal of proceedings.   In reaching this decision, the Judge went as far as to opine that "the current Covid-19 crisis is actually an opportunity for the Courts and parties to litigation to reassess how cases can best be actively managed in furtherance of the underlying objectives", suggesting that there may even be a "strong argument for moving matters in a similar way beyond the end of the crisis."

3. THE ARBITRATION CONTEXT: CAPITALISING ON EXISTING PROTOCOLS & KNOW-HOW

In the throes of the various challenges thrown up by Covid-19, the benefits of arbitration as a mode of dispute resolution have become even more apparent. The judicial response, although timely and progressive as discussed above, has been relatively measured and cautious given the need for courts to take into consideration national legislation, evolving executive guidance and adherence to the principles of open justice and public access.   In contrast, arbitral tribunals – underpinned as they are by the consent of parties – have been able to rapidly adopt bespoke solutions to meet the demands of the cases before them and the changing circumstances of parties and practitioners in lockdown.

In the current climate, leading arbitral institutions (including SIAC, HKIAC, ICC, ICSID and LCIA) were quick to respond to the pandemic, issuing a Joint Statement on Covid-19 that encouraged "collaboration" between parties to “make the best use of digital technologies for working remotely” and effectively utilise “respective institutional rules and any case management techniques that may permit arbitrations to substantially progress without undue delay”. This timely and welcome statement is an example of the increasing significance in the present context of two key advantages of arbitration over traditional forms of dispute resolution: its relative flexibility and convenience.

3.1 Arbitral Institution Rules

Well before the onset of the Covid-19 pandemic, the rules of most major arbitral institutions already expressly envisaged flexibility in hearing format to accommodate virtual proceedings.  Some even go so far as to encourage the use of technology and conduct of virtual hearings where possible. See for instance:

  • Article 19.2 of LCIA Rules which allows hearings to take place ‘by video or telephone conference or in-person (or a combination of all three)’;
  • Article 17(c)(ii) of UNCITRAL Notes on Organizing Arbitral Proceedings 2016 which confirms that ‘hearings can be held in-person or remotely via technological means";
  • Rule 19.1 of SIAC Rules which grants wide powers for tribunals to enable hearings to proceed on the expectation that parties will cooperate; and
  • Recent guidance from the ACICA which encourages the use of its video-conferencing and virtual facilities ‘whenever possible’.

3.2. Prevalence of Video Conferencing Protocols

In addition, there have been various video conferencing protocols issued both before and in response to Covid-19.  Some key examples are set out below:

  • Hague Conference Guide on the Use of Video-Link Under Evidence Convention (April 2020);
  • ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (April 2020);
  • ICSID Guide to Online Hearings (March 2020)
  • Delos Checklist on Holding Hearings in Times of Covid-19 (March 2020);
  • CIArb Guidelines for Witness Conferencing in International Arbitration (April 2019);
  • Seoul Protocol on Video Conferencing in International Arbitration (November 2018); and
  • ICC Commission Report on Information Technology in International Arbitration (October 2017).

In particular, the Seoul Protocol provides a useful and detailed nine-step framework outlining the technical and administrative steps involved in preparing for an online hearing. Three key takeaways from the perspective of the advocate are (1) to encourage the use of electronic bundles so that any relevant document can be displayed to all participants simultaneously, (2) the inclusion of specified minimum technical standards (to avoid poor quality feed or delay) which provides a useful checklist for practitioners when engaging with technical providers, and (3) the importance of deploying test runs of the video conferencing facilities and to have fall back arrangements (such as teleconferencing lines) in place, to ward against any last-minute technical issues.

Notably, one of the more up-to-date protocols, namely the Hague Conference Guide on Use of Video-Link under Evidence Convention issued in April 2020, even mentions specific platforms that are "approved" including: Cisco Jabber, Skype for Business, and Polycom RealPresence. It also helpfully lists licensed software and commercial providers by name – making it convenient for parties when agreeing the mechanics and logistics of a virtual hearing.

A review of these protocols reveals that arbitral institutions have been able to go much further than national courts in this respect – not only do they have procedural rules that facilitate the virtual hearings themselves, they have even issued specific guidelines that go to ensuring the quality of virtual hearings so that they take place smoothly with minimal disruption and technical glitches. This allows for effective advocacy and ensures that the full attention of the tribunal is focused on the very purpose of the hearing itself: namely, to hear and decide your case.

3.3. What platforms to use?

Multiple platforms facilitating virtual hearings have already been put to the test. Courts in England reportedly tend to favour Skype for Business, whereas courts at all levels in Singapore are using Zoom (as laid out in Chief Justice Menon's statement on the Singapore Judiciary’s response to COVID-19 and in courts' published guides on use of videoconferencing). Immediation was used successfully in the 2020 edition of the Vis Moot for 250+ participating universities and arbitrators, and BlueJeans video conferencing software was deployed in a recent virtual hearing held at Maxwell Chambers under the SIAC Rules. Market-leading electronic hearing bundle providers include, amongst others, Epiq and Opus 2. 

4. KEEP IN MIND THE KEY UNDERLYING GOALS OF ANY ADVOCATE

In order to have a successful virtual hearing, the underlying goals of advocacy – which remain identical whether the hearing is held in-person or virtually – must not be forgotten.

At a minimum, parties must be satisfied of the equality of arms – no party should have a legitimate basis to feel that they are unfairly prejudiced by the virtual format of the hearing, and it is crucial that parties are given full (or, as applicable, a sufficiently reasonable) opportunity to present their case.

Further, there are important tactical factors for advocates to consider in order to deliver one's submissions with gravitas and impact. For instance, advocates must bear in mind the need to arrange for instantaneous and secure lines of communication between members of their teams, as well as ensuring virtual breakout rooms for counsel, parties and Tribunal members alike – in particular those that are not located in the same jurisdiction or are otherwise barred from gathering in one venue due to lockdown measures.

5. EFFECTIVE STRATEGIES TO ANTICIPATE AND AVOID COMMON PITFALLS

As with physical hearings, there are common pitfalls faced in virtual hearings, which can and should be avoided with sufficient preparation.

5.1. Preliminary Considerations when Setting Up a Virtual Hearing

The key elements to bear in mind when choosing a platform are the requirements that it be secure, have high-resolution video, sufficiently clear audio, ability to accommodate separate virtual break-out rooms for counsel and tribunal members, and lastly to arrange training sessions in order to ensure that all participants are familiar with how to use the virtual hearing technology.

To ensure confidentiality across a virtual medium, it is good practice for participants to agree to a common confidentiality undertaking. A list of participants (which typically includes arbitrators, tribunal secretary, parties, counsel, witnesses, experts, interpreters, transcription providers, and IT personnel helping with e-bundles) should also be prepared. This list should be strictly adhered to in order to ensure that only these approved participants have access to the virtual hearing room at any one time. Undisclosed participants and unauthorised audio or video recordings should be prohibited in confidential proceedings.

As participants should not be talking over each other (which is easy to do virtually), it is helpful to agree on a speaking protocol in advance. Technical dry-runs may also be conducted to identify and minimise any potential issues in order that the hearing itself can proceed smoothly without hiccups.

To minimize room for disagreement, parties may adopt or at least have as their starting point existing video conferencing protocols where possible. The choice of arbitral institution is also even more critical now than during pre-COVID-19 days – as their prior experience with virtual hearings and ability to apply learnings from one hearing to the next can be invaluable.

5.2. Considerations for Cross-Examination Preparation

One way to address the distinctive issues arising from cross-examination might be to have a separate protocol (to the overarching speaking protocol outlined above) governing communications between witnesses and counsel, which is also agreed in advance.

Some arbitrators (and at times, opposing counsel) may require a 360° view of the room in which witnesses are seated to ensure that there is no coaching or undue and dishonest interference with witness testimony.

In relation to electronic bundles, it is good practice to make these available to witnesses only just before the cross-examination.  If hard copies are necessary, these should ideally be delivered in a sealed package to be opened by the witness on-screen just before cross-examination begins.

It is crucial to ensure that witnesses have a clear video connection to allow counsel and tribunals to observe their manner and demeanour during cross-examination. The clarity of witnesses' audio connections is also vital, in order that their testimony can be properly understood and accurately transcribed and, where necessary, translated.

5.3. 10 Tips for Advocates  

Lastly, to ensure effective advocacy and cross-examination, counsel would do well to bear in mind these ten golden rules:

  1. Ensure clear video and audio connection. Connect to a stable internet connection and refrain from using hotspots;
  2. Look at the camera, not at the screen;
  3. Make sure your lighting is appropriate;
  4. Speak clearly – be aware that there might be time lags;
  5. Use headphones;
  6. Always be on mute when you are not speaking;
  7. Choose a simple, professional-looking background;
  8. Ensure that there are no distracting background noises;
  9. Remember that you are always on camera even if you are not speaking; and
  10. Check that your notes are not readable on-screen.

6. CONCLUSION

As lockdown measures continue to be extended globally, it will not be surprising to see the decision to adjourn increasingly being viewed as the exception rather than the rule. As outlined above, courts and tribunals are increasingly warming up to and indeed becoming proficient in conducting virtual hearings.

Commendably, both litigation and arbitration communities have responded in a swift fashion to the changing realities of virtual hearings. Whilst certain courts have had to adapt de novo to the technology, most leading arbitral institutions already have an ever-growing body of precedents and learning to draw on. As the conduct of virtual arbitration hearings had already been commonplace pre-COVID-19, the change that the pandemic brings about in the arbitration context is one of degree, not of kind – all that has changed is that parties have now shifted to the extreme end of the virtual hearing spectrum. It is heartening that new material on virtual hearings is being shared almost daily – these published hearing experiences are hugely useful as they can be relied upon to defuse any guerrilla tactical attempts. The tide is very much turning in favour of parties collaborating to make virtual hearings happen, rather than continuing to evince any stubborn opposition.

Finally, whilst the full impact of Covid-19 on the conduct of dispute resolution in the future cannot yet be predicted, it is encouraging to see that technological advancements for both court and arbitral hearings have been embraced so readily throughout the world. The ability to continue to be an effective advocate in these changing times is looking more promising by the day; and it requires no far stretch of the imagination to envisage a post-COVID-19 world in which virtual hearings, especially in the arbitration context, have become the norm – and possibly even the default starting position – rather than the exception.  

Partner, Allen & Overy

Registered Foreign Lawyer, Allen & Overy

Trainee Solicitor, Allen & Overy