For better or for worse the coronavirus pandemic has ushered in a new paradigm in legal practice. So far as evidentiary hearings are concerned, what were usually in-person affairs have now, it seems, become fully virtual. But, is this a long-overdue development, or a mere blip? We examine the potential pitfalls of virtual construction hearings and explain how they may be avoided, and also look at how arbitral institutions have sought to develop and codify procedures to mitigate these risks. Ultimately, construction professionals may seek to achieve the best of both worlds through the development of the hybrid in-person and virtual hearing.
Of course, virtual hearings are not entirely without provenance. Procedural hearings, emergency evidentiary hearings (on discrete points), and witness or expert testimony via video-link have long been a part of the resolution of construction disputes. The shift brought about by the pandemic has been one of scale. This has led some to worry about due process; one concern being that an award may be susceptible to challenge on the basis that a virtual hearing impaired a party’s ability to present its case.
Most often the concern is in respect of the assessment of witness evidence and the integrity of cross-examination1. In circumstances where the parties have agreed to a virtual hearing it may be difficult for one party to challenge an award on the basis that the witness evidence could not be properly assessed. However, there are ways to allay concerns around virtual witness testimony. One practical tip is to request expert and factual witnesses to manoeuvre their webcams around the room to show the tribunal that there is no one else in the room, save for anybody whose presence had previously been disclosed. Witnesses could also be required to briefly flick through the documents in front of them, to show they had not been marked up, and to position their webcams such that their whole body above their desk could be seen, rather than just having a view of their head in frame. That way, a tribunal can better see non-verbal cues, as they would have been able to in an in-person hearing.
Even with these measures, it is not to say that the in-person experience can be entirely replicated on-screen. It may be that the testimony of certain witnesses (and assessments as to credibility and reliability) are better done in-person. As Lady Justice Cockerill recently commented: “for most counsel cross examination remotely is not the same as cross examination live”2. For particular key witnesses (or perhaps where there are language barriers, or where a witness would otherwise feel more comfortable) in-person testimony may be preferable. Indeed, there may be a preference for in-person cross-examination for key witnesses in order to ensure, for example, that even brief losses in internet connectivity do not interrupt the flow of the examination.
Documents are at the heart of any hearing and are especially important in construction disputes where the factual record can be voluminous. Particular care needs to be taken to organise and properly present the electronic bundle in a virtual environment. Depending on the court or tribunal’s preference, parties may wish to distribute a hardcopy ‘core’ bundle to sit alongside (or replicate parts of) the electronic bundle, particularly where advocates invite the documents to be marked-up. Similarly, it may be more cost effective to restrict the electronic bundle (if handled by external document management provider) to the key record, and distribute a secure hard-drive of documents for which there will be less frequent reference. This can be particularly important where document management providers do not have access to proprietary software (such as CAD, and Primavera) and files of these types need to be displayed on a virtual platform by a party/client representative instead.
There are many virtual platforms for parties to choose from, including those administered by arbitration centres and institutions themselves (such as the International Arbitration Centre and ICC Hearing Center platforms). Of particular importance is the speaker set-up. To resemble in-person hearings, the tribunal video-feed should appear clearly on-screen with counsel/witnesses also shown. Other participants should, typically, be muted and their video-feeds made less prominent or turned off. If possible, the tribunal ought to be equipped with at least two screens (one to display the documents and/or live transcript and the other to display the advocates/witnesses). One possible further feature is a digital chess clock (to be controlled by the tribunal secretary) to accurately keep time and avoid the all too common disputes over time allocations.
Whatever procedures the parties wish to adopt for virtual hearings, the crucial practical point is to agree all of this ahead of time. To assist, several arbitral institutions have published ‘cyber protocols’ and/or guidance regarding virtual hearings. The ICC checklist (which, at Annex II, provides a draft procedural order) is one of the most comprehensive. It addresses: online etiquette and due process considerations, hardware technical specifications, confidentiality and security, and the presentation of evidence.
One procedure which will need adaptation is the form of the witnesses declaration or oath. Parties may want to consider addressing that electronic communication devices are switched off but if communications are received, the witness or expert will notify the tribunal immediately. Furthermore, the declaration may also address the presence of people in the room as well as the documents available to them in the room as discussed above.
Looking ahead, to the shape of evidential hearings to come, we think some form of hybrid virtual and in-person model may ultimately prevail, which idea has already found some support from arbitral institutions. Article 19.2 of the LCIA (and DFIC-LCIA) Rules 2021, for example, provides that: “a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form)”. These final words highlight the need for flexibility in a post-COVID era.
Article 21(1) of the 2021 ICC Rules provides, similarly, that: “…any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication”. Recent ICC guidance also suggests that “the COVID-19 pandemic may mean that it is not possible to hold a face-to-face hearing in a reasonable time and that waiting until it becomes possible would produce unwarranted and even prejudicial delay. Accordingly, a tribunal may, in appropriate circumstances, adopt different approaches as it exercises its authority to establish procedures suitable to the particular circumstances of each arbitration and fulfils its overriding duty to conduct the arbitration in an expeditious and cost-effective manner”.3
Lastly, depending on the facts and circumstances of the dispute, there are various different forms a hybrid hearing might take. For example, some of the tribunal and party representatives may be physically assembled in two locations, with each being connected remotely. This means that while parties may not all be able to be present in one location due to local COVID restrictions, the parties will benefit from at least some in-person arrangements. As a further alternative, parties may instead prefer to have only key witnesses subject to in-person cross-examination, with the rest of the cross examination being conducted virtually.
Where the parties are willing, there are many possible nuances on how a hybrid hearing could be run. Parties should consider carefully what form best meets their individual needs and is appropriate to the circumstances, whilst always balancing procedural fairness to both parties, cost effectiveness and efficiency.
1 See, for example, Virtual Hearings: An Arbitrator’s Perspective. Jent Walker, CiArb. “Finally, in evaluating witness testimony, particularly under cross-examination, there is a concern that the loss of in-person observation will impair the tribunal’s ability to assess the credibility and strength of the evidence. It may be difficult to capture the ‘look and feel’ of the witness’s evidence onscreen and to discern body language, facial expressions and tonal changes.” Accessible here. Expert evidence in a virtual era, HKA. “The body language of witnesses has always been presented as a key reason for why witnesses should appear in person.” Accessible here.
2 See Mrs. Justice Cockerill, Learning our ABCs: Thoughts about Commercial Dispute Resolution After Brexit and Covid. Accessible here.
3 See ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic dated 9 April 2020, paragraph 20. Accessible here.
Originally published in Construction Law - August/September 2021.