Charles Fussell and Elizabeth Stoppelmoor of Charles Fussell & Co LLP recently took part in a remote international arbitration in order to determine a multi-million dollar dispute with allegations of fraud, bribery, corruption, negligence and breach of contract. The participants in the arbitration were spread across the globe, participating from South Africa, two timezones in Canada, China, the Democratic Republic of Congo, France and England and, as Claimant, Charles Fussell & Co LLP had responsibility for managing the smooth running of the matter.
As international arbitration and litigation look to the future, it seems likely that hearings involving participants from many countries, such as this one, will be heard online much more frequently. In order to ensure the smooth running of any hearing, the following matters will need to be considered prior to trial. If the parties prefer, then a hearing curatorship services are provided by, amongst others, the IAC, IDRC and ICC, and allow for a dedicated expert to facilitate the witnesses, check that all of the relevant system requirements have been met, provide the video conference platform and interact with the online bundle provider. If the parties elect not to use such a curator, however, then the following will need to be considered. A test run, preferably with all parties to the hearing, is key to ensuring that all requirements are met:
1. Platform: A number of platforms are available, including Zoom, WebEx and Teams. The parties will need to agree the platform to be used, and this will need to be approved by the court or tribunal. The parties will need to consider issues such as whether they wish all attendees to be visible and audible, how to deal with technological requirements, split or dual screens, and availability of the chosen platform in all relevant countries, as well as how matters such as muting background noise will be managed;
2. System requirements: All participants will need sufficient connectivity and updated software to connect to the video conferencing platform as well as managing the online bundles. This is crucial in particular for witnesses and counsel;
3. Privacy requirements: All participants will need to have sufficient privacy controls on their computers to ensure that the hearing – particularly those held in private – is not able to be accessed by third parties;
4. Hardware: For those with a speaking role, the parties should consider microphones and headsets if the inbuilt hardware is insufficient for clear audibility. Similarly, the witnesses must be able clearly to be seen on camera with sufficient lighting and a suitable background;
5. Number of screens: The number of screens required will vary by participant. However, the witnesses, counsel and judge, jury or tribunal will need at least two screens (or a large screen which can easily be split in half) in order to accommodate the online bundle and the video conferencing platform;
6. Recordings: Recordings of hearings will need to be made. This can be done using the inbuilt function on certain video conferencing facilities, including Zoom, or can be done externally using a third party provider. Similarly, transcripts will need to be considered, as in any hearing; and
7. Bundles: Electronic bundles should be provided in such a way that they are searchable and manageable. In particular, they must be either facilitated using a dedicated platform (such as the function provide by Opus2, Epiq etc) or managed so that pages can be found within bundles easily online; for instance, by breaking down large bundles into manageable sub-bundles, and providing searchable page references. Provision must also be made for the bundles to be provided to all witnesses electronically and in such a manner that they are easily able to be updated. Furthermore, consideration must be given to how bundles are to be cross-referenced to pleadings, including exploring the potential of hyperlinking;
In addition to the above, there are several logistical considerations which must be taken into account. These include the timing of the hearing, since where parties are spread across several timezones, the parties must consider the start and end time of each day's hearing in order to ensure that witnesses can properly give evidence without hindrance. Consideration must also be given to any assistance which will be necessary for the witnesses – particularly any witness who requires additional assistance with technology, or needs a translator, since provision will need to be made for any third party assistants.
Done right, online hearings can save the parties considerable time and money, and real consideration should be given to using this format (with the court's approval). However, done wrong, they are a minefield, and great care must be taken to ensure that they are properly run.