29 Apr 2021

"I'm sorry Mr Arbitrator, you appear to be muted": navigating the virtual world in large-scale complex arbitrations

By Allison van Beers, Yazmin Judd

The success of recent exercises in virtual litigation suggests that, far from being relics of the pandemic, virtual hearing rooms and wholly online court books are here to stay.

Document-heavy, technically dense and highly confidential, large-scale construction arbitration hearings are not at first glance easily transferable to the virtual world. In an in-person arbitration hearing, practitioners know that careful preparation is required to facilitate the presentation of complex technical evidence (often involving non-standard programs and models) and manage substantial bundles of documentary evidence. In a virtual hearing, the same considerations arise as well as many others. Complexities unique to the virtual hearing range from remotely authenticating witness testimony by oath or affirmation to navigating technological and logistical matters (such as ensuring security of the hearing room and the confidentiality of the matters addressed). Of course, overriding these matters is the greater concern of achieving procedural fairness in a virtual setting and, in particular, ensuring that each party is given the necessary equal and reasonable opportunity to present its case (see, for example, Article 17(1) of the UNCITRAL Rules; Article 21.1 of the ACICA Rules).

There has been much hypothesising on these complexities in recent professional literature. The authors' practical experience is that virtual hearing rooms can facilitate large-scale complex disputes more than satisfactorily, provided the format and procedure of the virtual hearing is: (a) planned in advance; (b) agreed between the parties and the arbitrator; and (c) facilitated by adequate infrastructure (such as strong internet connections and multiple monitors). Drawing on the authors' recent experience in a six-week stop-clock virtual arbitration that involved four time zones, almost 40 lay and expert witnesses, and over 33,000 documents in the court book, this article suggests some approaches legal teams might adopt when taking a large-scale complex arbitration to the virtual hearing room.

Pre-hearing – now even more virtual

It would be the experience of most practitioners that in the last ten years almost all aspects of a dispute are managed virtually: pleadings are filed online, evidence is exchanged by file link (not even by USB stick) and, outside of the courts at least, determinations and awards are delivered by email.

While COVID-19 has not disrupted these procedures greatly, its impact is felt in the case preparation sitting behind such actions – for example, preparing court documents with counsel and instructors, collating evidence and reviewing documents for disclosure. In the future, where virtual hearings are likely to become the norm, evidence probably needs to be collated wholly electronically or by personnel at different sites (in some instances requiring in-house legal teams to perform the hard copy document review previously assigned to junior solicitors visiting a client's premises). At least for the moment, the swearing or affirming of written evidence is facilitated by regulations in many jurisdictions permitting remote witnessing of affidavits. (NSW, Queensland, Victoria, and WA )

Managing the hearing – the virtual hearing room

With appropriate technology and protocols in place, it is certainly possible to virtually recreate the real-life hearing room. Careful consideration as to how to best manage each component of a wholly or partially virtual hearing is crucial in order to ensure, amongst other things but most fundamentally, that the procedural fairness afforded by the real-life hearing room is provided by the virtual hearing room. The adoption of a collaborative mindset by internal and external teams of opposing parties is likewise crucial – a successful virtual hearing procedure is to the benefit of all parties.

Choosing the right technology

First, it is recommended to engage a specialist third party e-hearing provider to assist the parties in making the most of the available technology. Providers offer a one-stop-shop for parties undertaking a virtual arbitration by:

  • arranging access to the IT equipment each participant might need;
  • facilitating the virtual hearing room on the video-conferencing platform, including taking responsibility for the security of the hearing room and confidential information presented;
  • operating the document management system (often known as the electronic court book or review bundle) and integrating it with the virtual hearing room; and
  • providing both a real-time and daily transcription service.

This allows all participants to access the virtual hearing in the same way, streamlining the experience for solicitors and clients as well as the arbitrator. Our experience is that engaging a provider in a collaborative manner with all parties reduced the stress of these administrative matters, and thereby allowed the parties to focus on preparing for the substance of the hearing. If a provider is not engaged, parties should, together, not only consider how each of the above elements will be facilitated, but also have a back-up plan should the chosen technology fail.

Laying down the ground rules for the virtual arbitration

Second, considering the party-led and consent-based nature of arbitration, it is critical that a comprehensive virtual hearing protocol is agreed between the parties. Such a protocol should include:

  1. Use of a video-conferencing platform like Zoom or BlueJeans that is capable of:
    1. screen splitting. This best replicates the hearing room as it allows the relevant participants' videos (usually the arbitrator, counsel and a witness) to be visible on one screen, and the document being referred to, tendered or exhibited to be presented on the other; and
    2. facilitating break-out rooms. This can be especially useful in a stop-clock arbitration where parties wish to make the most of the limited time available in the brief adjournments.
  2. A clear hearing timetable and framework for how time will be allocated and counted against each party. In a stop-clock arbitration conducted virtually, it is important to determine how time spent on inevitable technical glitches will be allocated. Similarly, the parties may want to agree to a timetable with shorter hearing days to accommodate for "Zoom fatigue" and participants in multiple time zones. The flexibility in scheduling that a videoconference offers also means that if and when witnesses with pre-existing commitments are required to give evidence, they might be able to be inserted at a stage of the hearing that better fits with the general sequence of evidence traversed at that time.
  3. A convention for document labelling. In document-heavy arbitrations, the parties will benefit from using a numbering system for all documents that are uploaded to the electronic court/review book. These numbers are read out during the hearing whenever counsel wants a particular document brought up onto everyone's screen, ensuring that each participant is looking at the same page of the same version of a document. The document numbers can also hyperlink to submissions and the transcript, which is especially useful in arbitrations involving a heavy reliance on technically complex expert evidence.
  4. Standards for the conduct of participants. To minimise distractions and ensure that the technology runs smoothly, parties should agree on basic etiquette such as muting of all participants except the arbitrator, counsel who is speaking and the relevant witness, and for those people to switch off computer and phone alerts. The protocol should also dictate whose video is to be broadcast when a witness is giving evidence as to allow for all parties to properly observe. It is obviously important to ensure that each participant, especially witnesses and counsel, has an opportunity to test the technology and their setup prior to the commencement of the relevant session.

Managing witnesses and evidence

A virtual hearing requires management of witnesses and evidence in a different way. Challenges and concerns that arise in relation to counsel's ability to question and verify witness independence when evidence is given virtually can also be overcome by use of a comprehensive virtual hearing protocol. Parties should ensure that, at a minimum, witnesses are alone in the room when appearing, that the table and surroundings are clearly visible in the video frame, and that the witnesses are not placed into the parties’ break-out rooms during the adjournments. To allow the arbitrator to adequately and fairly consider the weight of evidence given in a virtual hearing, parties should also plan for how objections will be made by counsel so as to allow cross- and re-examination to run smoothly. The question in a virtual hearing protocol of whose video will be visible at any given time is also important in ensuring that concerns about how counsel will test witness credibility (through prompting certain expression and body language) are minimised.

The virtual presentation of complex technical evidence also requires forward planning. Lagging and technical delays mean that it can take counsel a longer time to canvas the same material as they could in an in-person hearing, an especially important consideration for stop-clock arbitrations. However, parties may find that virtual hearings in this sense can actually improve the participants' experience in understanding the complex evidence. Counsel is able to instruct the e-hearing provider to display tables, graphs, spreadsheets and models on each participant's individual screen. The provider can zoom in on and enlarge text, numbers or images, and is also able to bring up multiple different documents or parts of the relevant evidence side-by-side to allow for easy comparison. This increases the ability for parties to fairly present and interrogate lay and expert evidence.

Keeping the communication lines open

A key challenge in virtual litigation is facilitating efficient communication between counsel, solicitors and instructors. While chat groups with relevant personnel are convenient, the mass-delivery of nuanced rebuttal, clarifications or requests for instruction can complicate the exercise for legal teams. We found our client was best served by an approach with several lines of communication that allowed for:

  1. one clear line of communication to counsel; and
  2. as many lines of communication as are required between solicitors and instructors.

We have found a combination of chat windows and email chains works well. Chat systems must be secured: use of a chat window facilitated by existing technology is prudent (eg. compare programs like Microsoft Teams which are part of technology suites already utilised (and therefore secured) by law firms with standalone products publicly available at no cost). A daily email chain is also useful for identifying issues or themes that may be later addressed by submission.

Those who fail to prepare, prepare to fail

Accepting that a virtual hearing will always be indeed virtual with its momentary glitches and lags and the occasional failure to mute or un-mute, it cannot be denied that in a COVID-safe arbitration the virtual hearing is priceless. When considered and planned carefully by solicitors and clients together, the virtual hearing room is arguably as effective as the real-life hearing room and provides parties with a more than viable solution to the unavailable physical venue. Indeed, the ease of access, incidental efficiencies and saving on physical venue and travel costs made possible by the virtual hearing room means that wholly or partial virtual hearings (whether they be interlocutory, procedural or evidentiary) are likely to be used well into the future.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.