机构合作丨国际仲裁中使用视频庭审的实操经验

引言

在新冠疫情波及全球的当前时期，我们已经看到法律界迅速做出反应并适应新的工作方式。视频庭审已成为当下国际仲裁领域被当事人普遍使用的替代性方式。然而，参与方对于视频庭审仍旧有不少顾虑。比如，是否能够通过视频方式成功进行交叉盘问（cross examination）？视频庭审是否考虑了不同法律文化中的不同风格，亦或是有些当事人或仲裁庭并不适应此种方式？

英国著名国际商事大律师事务所Twenty Essex的三位大律师就国际仲裁中的视频庭审问题分享了她们的实操经验，共同撰写了“A Tale of Two Cities: virtual arbitration in the best oftimes, the worst of times （双城记：网上仲裁之最好的时机与最坏的时机）”。

在本系列文章汇中，您将从三个不同的角度读到以下短文：

独立仲裁员Clare Ambrose女士，主要从仲裁员角度分享了其对视频庭审的看法和建议。

皇家大律师Sara Masters QC女士，从律师的角度出发，分享了英国法院对于视频庭审的态度及建议。

大律师Josephine Davies女士，从律师角度出发，分享了其管理视频庭审的经验，并就很多细节问题给出了操作建议。

本系列文章的英文原文由Twenty Essex大律师事务所发表于2020年4月，其中Ambrose女士及Masters女士的分享最初由Lexis®PSL收录并发表。

Twenty Essex是著名的国际商事大律师事务所，在钱伯斯（Chambers & Partners）、Legal 500等业界排名中均享有盛誉。其总部在英国伦敦并在新加坡设立办公室，更多信息及联系方式可参见：www.twentyessex.com。

智库在此感谢Twenty Essex大律师事务所及三位作者的授权与支持。

本文为本系列文章的第一篇，独立仲裁员Clare Ambrose女士分享了其对非常时期替代性审理方式选择的看法（比如更换开庭地点、推迟庭审、部分或全部进行书面审理、视频庭审等），以及视频庭审优劣的考量。本文首发于Lexis®PSL Arbitration。

机构合作丨国际仲裁中使用视频庭审的实操经验

Clare Ambrose女士在商事仲裁及诉讼方面拥有超过25年的经验，现为全职独立仲裁员，为皇家特许仲裁员协会资深会员（FCIArb）以及英国伦敦海事仲裁员协会正式会员（full memeber of the LMAA）。

Ambrose女士在各类仲裁案件中担任仲裁员，涉及的规则包括ICC、LCIA、LMAA、SIAC、SCMA、UNCITRAL等。Ambrose女士在仲裁理论领域也颇有建树，是海事仲裁经典书目《伦敦海事仲裁（London Maritime Arbitration）》一书的作者。

更多信息请参见：https://twentyessex.com/people/clare-ambrose/

1. An in-person hearing is scheduled for my arbitration over the next [few months]. In light of coronavirus(COVID-19), what should I be thinking about, what alternatives may be available(e.g. relocation, postponement, virtual), what considerations are relevant when contemplating these options, and how would alternative approaches be dealt with procedurally with the other side and the tribunal?

We all know the crisis is fast moving. Arrangements that seemed sensible a week ago now look unrealistic or inappropriate.

As matters stand there is some certainty that any hearing listed before the end of April 2020 will be significantly disrupted by global travel restrictions and public health rules.

Everyone concerned wants to reduce disruption butwork safely. Tribunals will expect parties to co-operate, adapt and compromisein order to find solutions that work. My current experience is that most parties are doing this. Obstructive and tactical positions are likely to be fairly obvious and viewed unfavourably. The client will need to be briefed but constructive discussions need to be broached promptly with the other side witha view to seeing what measures can be taken. This is not just about the hearing, consideration should be given as to potential difficulties that may arise in preparing evidence, for example ensuring experts’ meetings can take place remotely. Preparing for a hearing is always stressful. Working in isolation and with restrictions on normal facilities (for example with school closures) will create more pressure for teams in meeting deadlines. Everyone will need to be sensitive to this. Parties should feel confident to approach the tribunal for guidance, directions or an indication of whether proposals are workable.

So what are the options?

Relocation is unlikely to work in the short term dueto the global nature of the crisis. It is also probably unreliable for medium termhearings, as matters currently stand.

Postponement may be a practical option if the parties agree. No one can be confident as to developments, but the last quarter of 2020 is now being put forward by some parties. Adjournment may, however, be unattractive as one side may be keen to keep a date or it may be difficult to find an alternative date before 2021 if counsel or the tribunal are booked up.

Virtual hearings may be a viable option.

In considering whether a virtual hearing might work,the most relevant considerations are the length of the hearing, the number of participants,the type of evidence involved and what arrangements can be made for transcriptsand interpreters. There will also be practical matters such as enabling participation from different time zones.

Remote telephone hearings and remote attendance of some witnesses (and counsel) is already standard practice. A short hearing can be heard by telephone with little difficulty. A longer hearing of up to a day (typically without oral evidence) may also be achieved in a similar way to standard arrangements for remote attendance at a meeting. Where a small number of participants are involved it may be practical to have a partially remote hearing with some participants present and appropriate social distancing, although while a lockdown situation prevails the hearing would be wholly remote.

Wholly virtual oral hearings have been long promoted but rarely adopted. There is no doubt technology available for them to take place with multiple participants, screen sharing and every other element necessary for an effective hearing. A wholly virtual hearing will be new for most and some ‘rehearsal’ may be needed. There is understandable reluctance to rely on technology when practical experience suggests it may be unreliable and time-consuming. However, in the current situation it may be the only option and a risk worth taking, especially for an urgent hearing or a relatively short one. This concept is very much a part of the Green Pledge in Arbitration to travel and meet only when necessary. Perhaps this period of enforced innovation may have long-lasting positive effects.

Partial hearing or no hearing

A final option would be for the parties to ask the tribunal to decide the matters on documents and without an oral hearing, or with a much shorter telephone hearing or remote hearing, perhaps with a reduced number of witnesses. This may be useful for small, medium-sized or urgent disputes where an adjourned or remote hearing may entail disproportionate delay or cost.It is unlikely to be attractive if there are heavily disputed factual issues, e.g. credibility. It would be attractive where the parties can reach agreement on a revised timetable. However, if one side objects then the tribunal may be more cautious.It would balance the various options available, deciding whether the proposal is fair to both sides, and whether an adjourned hearing is preferable. Some institutional rules enable a party to insist on a hearing but most are some what more flexible and the tribunal would have some discretion, especially if thereare exceptional circumstances.

2. A virtual hearing has been proposed for my arbitrationin light of coronavirus (COVID-19). What practical and logistical matters will need to be considered in advance? What are the potential advantages and disadvantages of this approach?

The obvious advantage is that the hearing can take place and the dispute resolved which is the ultimate aim of the tribunal. The tribunal’s duties of fairness to the parties do not require a hearing to take place in person, and if the arrangements will enable the hearing to go ahead then this will be a significant consideration justifying it. There is also a potential upside in costs savings as while there may be a cost to use the best technology, savings in hearing rooms and travel/hotels could be significant.

Virtual hearings are still new so practice is developing to address logistics. The technology options are wide and require investigation.

To make the hearing work effectively, all participants in the arbitration need to test their technology in the space where the virtual hearing will (for each of them) be held. While working from home with the dog barking in the back of conference calls is one thing, this will not be acceptable in a hearing. Everyone must make sure they know how to mute themselves in the interests of clarity of sound and perhaps agree a protocol for when a person wishes to interrupt.

We already know that care needs to be taken with arrangements for interpreters and transcription services where participants are in different places, and also to ensure that witnesses are giving evidence independently. However, most practitioners are familiar with resolving those issues.

The most significant downside is that the process is new and unfamiliar to many. Many fear that the technology will be unreliable and communication will be poor. In particular, there is concern about the perception of witnesses in person versus on screen and the persuasiveness of counselwithout being present in the same room. It could make a difference: in The Pounda [2018] EWHC 330 (Comm) there was a different outcome when a witness gave evidence face to face compared to via video- link. However, that was an unusual case and a witness’s demeanour is increasingly given less weight. As a general rule both parties will be at the same disadvantage from weaker communication, and not unfairly prejudiced. The tribunal will look carefully at potential unfairness but tribunals are already used to hearing witnesses (and counsel) remotely, and factoring in the difficulty, soany objection would need to be justified. Given theincentive for these arrangements to work there is likely to be significant enthusiasm all round to achieve success.

3. A key witness (expert or factual) cannot attend anin-person hearing scheduled for my arbitration over the next [few months] due to travel restrictions. How should I approach this issue vis a vis the witness, the client, the other side and the tribunal?

The party’s representative should consult with the witness and the other side. It would be unusual if a solution cannot be achieved by arranging for evidence to be given remotely. This is fairly standard practice. The technical, forensic and logistical disadvantages are manageable. The tribunal is likely tomake directions that protect both sides’ interests but preserve the hearing date.

4. In light of coronavirus (COVID-19), is arbitration preferable over litigation as a method of dispute resolution given the increased flexibility inherent in arbitration proceedings generally? [This could be answered in context of negotiating a new contract and in event that adispute arising under an existing contract and the parties are considering their options in light of the pandemic].

This is a “once in a generation” challenge. We will see over the next months how the court system and the arbitration community respond. Arbitration is more flexible and it is already common for directions to be made electronically, CMCs to be heard by telephone and disputes to be resolved by documents only. It is hoped that arbitration will be agile to meet the needs of parties. If so, and virtual hearings (or even partially virtual hearings) start to work well, then they will become an attractive feature. Corporations weathering this crisis will be mindful of resilience for the next one. Arbitration will be attractive if it is seen to work in times of crisis. If it becomes cheaper and more sustainable too then that must be a bonus.

This article was first published for Lexis®PSL Arbitration.

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机构合作丨国际仲裁中使用视频庭审的实操经验