COVID-19 has sparked an unprecedented surge in remote and virtual litigation, and the profession is struggling to meet demand amid a huge backlog of cases. Even before the pandemic, arbitration negotiations were way ahead of the rest of the profession by using virtual and hybrid technologies as a more efficient way to resolve international disputes. As a result, international arbitration is outpacing litigation to keep up with its case numbers as courts around the world face congestion.
International hearings are logistically complex
For several years now, large international arbitration centers in the USA, Australia, Canada, Great Britain and Singapore, among others, have been offering both physical and virtual hearing services with integrated video and audio conference functions and secure, cloud-based technology platforms. Because of their logistical complexity, international hearings represent an excellent, albeit challenging, test case for virtual technology across the legal profession.
While each hearing is unique, international arbitration often involves multiple parties from different jurisdictions, different languages and cultures, complicated and often highly technical legal issues, and large packages of arbitration documents. While standard video conferencing solutions can often successfully meet the audiovisual requirements for a simpler conference or meeting, hearings held by international courts often have much more logistical nuances to consider.
Experienced administrators with a deep understanding of hearing dynamics and the required technological infrastructure are essential for the smooth flow of virtual or hybrid hearings. Exceptionally large and complex procedures may require the coordination and assistance of hundreds of legal practitioners – including training, camera angle configuration, extra attention to lighting and audio, and more.
The main components of such hearings include providing document management services, creating and presenting evidence, carefully managing listening interactions, and providing transcription services. The parties need to agree on the most important documents and the operators may need to be on site to retrieve the necessary documents and link to specific passages or documents referenced in the live log. Ideally, all participants, including backbankers, can digitally access all evidence, share notes privately, highlight passages, collaborate with team members, and read and search transcripts in real time.
A connected arbitration environment
To address these complexities, the most successful virtual and hybrid hearings go beyond providing audio and video feeds. Concentrating on these elements alone means that the real power and flexibility of today’s virtual technology cannot be used.
Indeed, today’s arbitration teams use secure solutions that integrate audiovisual technology with real-time transcription and a full set of digital case preparation tools. These tools include virtual collaboration workspaces that allow distributed team members to access all important documents, as well as specially designed tools for markup, annotation, hyperlinking and live chat – all in a single interface. Instead of constantly switching from paper to digital or from one application to another, team members use the same common solution to do all of their prep work, digitally produce and share the (now searchable) package, and actively participate in the hearing. including submitting evidence from remote, dispersed locations. Pandemic or not, “virtual walking” in international arbitration proceedings opens the door for legal teams to a whole new set of efficiency benefits that go well beyond the process itself.
Tips for lawyers
For legal teams, parties, and other participants who are new to virtual hearings:
Conduct technical rehearsals before the official hearing
In the days leading up to the hearing, test the video platform for each participant (especially the speakers) individually to identify and fix possible problems. Also test joint video conferencing between parties and the tribunal. All participants must be able to hear and see each other. This is also an opportunity to train attendees on muting and unmuting, joining and leaving the call, turning the camera on and off, screen sharing, and other basic functions.
Make sure you have an instant messaging platform
Legal team members need an efficient way to communicate privately with one another during the hearing. Ideally, the chat function is an integrated feature of the hearing solution, otherwise other tools such as WhatsApp, Skype or Slack can be used. If you do this over the phone, ask the court for permission to use your phone during the proceedings before the hearing.
Use a second screen for better visibility
This allows you to browse documents and evidence on one screen and see everyone on the call at the same time. In addition, there is no longer any need to print.
Strategically position your video conference window
During a virtual hearing, attention to detail can make a huge difference. Make sure you are looking directly at the video app window so the judge can see that you are fully focused and engaged.