By Michael Hotz
The International Institute of Conflict Prevention and Resolution’s Arbitration Committee hosted an online event early this month to tackle questions from neutrals and advocates designed to help them properly use video conferencing to conduct alternative dispute resolution hearings remotely.
The event was a continuation of a series of discussions hosted by the CPR Institute examining remote mediation and arbitration practices and addressing issues neutrals are encountering conducting remote hearings. For a roundup of earlier CPR events, see this April 2 CPR Speaks blog post. The CPR Institute’s information clearinghouse on the virus and its effects can be found on its website at the link for ADR in the Time of COVID-19.
The April 7 teleconference was moderated by White & Case New York partner Jennifer Glasser, who is vice chair of the CPR Institute’s Arbitration Committee. Three panel members included: Daniel González, a Miami-based partner at Hogan Lovells; Samaa Haridi, a partner in Hogan Lovells’ New York office, and Jorge Mattamouros, a partner in White & Case’s Houston office.
Mattamouros began by discussing his video hearings experiences. The case he explored was a hearing in a large Brazilian M&A dispute. The hearing was mostly conducted in Portuguese, but also had English language witnesses. It began before the COVID-19 pandemic, so the process had to change in response to the health and safety measures implemented internationally.
Transitioning to remote hearings was made easier, Mattamouros explained, as the parties already had established a protocol for electronic conferencing. First, the parties conducted the opening presentation, and fact witnesses’ examination and cross examination, before travel bans in the United States and Europe.
Then the parties returned home and the hearing continued online using Zoom for the examination of the expert witnesses. Mattamouros noted that platforms like Zoom have chat functions that, if not turned off, allow the witnesses to receive messages during examination. Other neutrals, the panel noted, have used WebEx or other remote conferencing platforms.
The key benefit to being able to use telecommunication services to do arbitration was the ability to conduct hearings across the globe. This is especially relevant for smaller matters, as the amount disputed doesn’t necessarily merit traveling internationally.
Panelist Samaa Haridi discussed how technology allowed her to conduct an arbitration as tribunal chair remotely from New York, despite time differences, with the parties and co-arbitrators in Dubai and London. The timing was a key issue, as it required that the parties coordinate and that the arbitrators arrange a schedule that didn’t impose too great of a burden on any one party. In her hearings, Haridi explained, it often required that she start her day earlier than usual.
Glasser observed that remote hearings may require shorter hearing days but more total hearing time, both to accommodate time differences with parties across the globe but also because it is more difficult to keep the arbitrators and parties engaged when interacting virtually.
Haridi agreed that it was harder to keep people focused when they weren’t conducting in-person meetings. This required the neutral to adjust expectations of what could be accomplished each day.
In one semi-remote hearing Haridi participated in as arbitrator, the parties were together in one location, and two of the arbitrators were in different cities. And while the third arbitrator was located in the same venue as the parties, he sat in a separate room to maintain an appropriate balance considering the virtual participation of the other tribunal members.
To ward off potential challenges to the award on the basis of perceived lack of neutrality or unequal access to information by the arbitrators, Haridi recommended having the neutral participate in a separate room from the parties in cases such as hers where not all of the arbitrators are able to sit together with the parties in one location. This maintains the appearance of impartiality.
Daniel González stated that he has participated in remote hearings for many years, such as examining a witness by video while the neutral and parties are together in another location. While remote hearings in the age of Covid-19 present the new challenge of all participants joining remotely from different locations, and technology is rapidly evolving to meet this challenge, it is the human factor and interaction that has not changed over time and must be carefully considered as it will present special issues for the arbitrators, the cross examiners and the witnesses on how they can carry out these virtual hearings. For example, one challenge the program panel members agreed on is the ability to use and assess body language.
For example, during cross examination, it is difficult for the lawyer to gauge the tribunal’s reaction or for the witness to know if they are effectively conveying information to them.
Hogan Lovells’ Haridi mentioned that the lack of body language also made it harder to evaluate the credibility of a witness. This is one critical issue that led Jorge Mattamouros to state that in-person meetings were still preferable.
Another issue the panelists discussed was the sharing of documents. Remote hearing technology allows for the presentation of documents through the video conference platform. This feature was used in all of the remote hearings conducted by the panelists.
The panel then discussed how to ensure the efficient presentation of evidence in document intensive cases that are being heard remotely. Mattamouros commented that he combined all of the exhibits into one master PDF so the parties, tribunal, and witness could easily navigate to the relevant document and page number being referenced without losing time to find and toggle between different documents.
González noted that vendors that handle the organization and presentation of the record in conventional settings were available for virtual sessions as well. Using a third party alleviates the burden on counsel to manage the technology and document presentation. He argued that it was best to use whatever method the tribunal was comfortable with.
The participants then discussed fairness in arbitration.
Samaa Haridi commented that the use of online hearings could create additional challenges in enforcing an arbitration tribunal’s award. A party who dislikes the ruling could challenge the award by claiming there was no due process. It remains to be seen how courts deal with such challenges.
White & Case’s Jorge Mattamouros noted that the party’s lack of consent didn’t always establish a lack of due process. That would be determined on a case-by-case basis.
The discussion noted that there is broad leeway granted to arbitrators and mediators when establishing a fair process. Acquiring consent is a simple way of reducing the likelihood that a party can challenge the outcome successfully, but it is not the only one.
Moderator Glasser concluded by asking for the panel’s views on the future of remote hearings after the Covid-19 crisis. The panel agreed that remote hearings are likely here to stay in some form, such as convening initial case management conferences by video rather than meeting in person.
They also agreed, however, that human interaction is a critical part of a hearing and that in-person hearings will not become a vestige of the past. Ultimately whether to hold a remote hearing will be a fact-specific inquiry depending on the circumstances at hand.
Glasser brought up the problem that, as more arbitration is moved online, newer attorneys may get fewer stand-up opportunities to make oral argument or cross-examine witnesses. In a standard face-to-face processes, the attorney in charge can allow the novice lawyer to take control more often, as they are still in the room and provide correction and assistance instantly. In the online forum, they do not have that ability, making it much less likely that anyone would be willing to risk their case to give the newer attorney some experience.
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After the discussion of the benefits and issues with virtual arbitration procedures, CPR Institute Senior Vice President Olivier P. Andre discussed the need for those using document transfer or other communication platforms to ensure that they comply with relevant privacy laws.
Without proper cybersecurity, the process can leave parties’ documents vulnerable and potentially subject the neutral to lability. He recommended consulting the CPR/FTI Consulting Cybersecurity Training, the draft ICCA-IBA Roadmap to Data Protection, and the International Council for Commercial Arbitration-New York City Bar Association-CPR Institute Cybersecurity Protocol for International Arbitration. These resources are designed to provide guidance on how to manage the risks associated with cybersecurity and privacy regulations.
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CPR Arbitration Committee Chair Hagit Elul, a partner in New York’s Hughes Hubbard & Reed, announced that the committee was planning on creating an industry-specific project by corroborating with other CPR Institute industry committees such as the pharmaceutical, finance, energy, and construction committees.
The committee also discussed the CPR Institute’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings, a new best-practices document for navigating arbitration hearings electronically. The document was since released by CPR on April 21, and the details can be found on CPR’s website here.
Michael Hotz is a CPR Institute 2020 Spring Intern. His account relies on post-session comments from the participants.