As a result of the current pandemic, clients, lawyers, and arbitrators have had to adjust to the new reality of conducting processes online due to travel limitations and mandatory social distancing precautions. This note examines some benefits and drawbacks of virtual hearings, as well as some pointers for holding a successful virtual hearing.
- more economical, and more accessible.
- Transportation and lodging expenditures are eliminated (or at least reduced).
- Assists in ensuring that hearings adhere to social distance limits, lowering the chance of infection with the COVID-19 virus.
- Argument and cross-examination methods may need to be adjusted.
- There is a risk of technical failures and disruptions.
- Issues of privacy, such as the necessity to preserve and protect the hearing itself as well as any data (papers, records, and recordings).
- Procedure equality and its ramifications, such as what follows if a side disagrees to a virtual hearing.
Best Advice For A Successful Virtual Hearing
Make sure you’re using the proper platform.
Zoom, BlueJeans, Microsoft Teams, and Opus are all popular platforms for virtual hearings. Audio and visual accessibility, digitalized conference packages, live subtitles, and a combined ‘hearing room,’ as well as specialized meeting rooms for the Tribunal and the parties, are all available on these platforms.
The participants should agree ahead of time who will run the software during the hearing; while the claimant frequently performs this position, it may make more sense to entrust this obligation to an independent organization with the necessary IT specialists. The participants and the tribunal should consider directing who will lead or co-host the virtual conference, as well as who will be in charged for document presentation if a service provider has not been contracted to do so.
Participants should evaluate who is responsible for expenditures incurred as a result of technological failures. To prevent further disagreements over liability for costs attributable to technical malfunctions, it is preferable to include a contract in the regulations relevant to the arbitration (e.g. costs to be equally shared between the parties). In the case of a technical delay or failure, service providers either provide for or eliminate liability.
Sufficient bandwidth and connection
Before the hearing, all parties should examine the functionality of cameras, mics, internet service providers, network bandwidth, Wi-Fi dependability, a backup 4/5G network, and the battery capacity of electronic devices to minimize any needless delays. All attendees in the proceedings, including arbitrators, attorneys, party members, and witnesses, should attend a technical test run session. A virtual hearing services provider can display the essential features of the virtual platform to all attendees during this session. Parties could also prefer to meet with the service provider separately.
If the parties cannot agree on a virtual hearing, the tribunal must assess whether it has the authority to order one. The provisions of the arbitration agreement, any organizational regulations enacted, the law of the seat, and, in the case of a witness’s testimony, perhaps the law of the location where the witness testifies, may all influence whether a tribunal has the authority to convene a virtual hearing. We encourage that parties get guidance on this as soon as possible.
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