Guidance on conducting virtual hearings

With the onset of the COVID-19 pandemic, conducting of hearings face to face has shifted towards conducting virtual hearings. Conducting all or parts of a hearing in the form of a virtual hearing has become a daily reality for many arbitrators, parties, and witnesses as the COVID pandemic continues to disrupt the legal practice. An increasing number of people are now realising the advantages of virtual hearings taking into consideration the ease and affordability of conducting hearings virtually. It is true that virtual hearings bring with them several challenges, however, technology helps us in dealing with even the direst of circumstances. Several matters require discreet consideration while conducting virtual hearings beyond that of and ordinary face-to-face hearing. Conducting a pre-hearing review is necessary to take into consideration all possible issues which may come up while conducting the virtual hearing.

• Hearing platforms

1. Several issues regarding usability and security have been raised by a number of parties. However, issues that arise generally do so because of “human error”. In other words, either user have not taken proper advantage of the available security settings, or they have failed to devote enough time to familiarise themselves with the technology.
2. Where a platform is agreed, parties and the tribunal must decide who will operate the software at the hearing. Although the tribunal is traditionally in charge of directing the hearing process, this is not always practicable in virtual hearings. This is because many, if not most, arbitrators simply do not have the technical ability. Hence, to avoid delay and excessive costs, it is probably best to have an IT professional.
3. Another question that arises is regarding who will be liable if it all goes wrong on the day? The best solution I am aware of is for the appointment of such a person or organisation to be recorded in a procedural order, with costs liability for technical failure to be shared between the parties.
4. A further consideration is to ensure that all participants have appropriate hardware, software and bandwidth. Most computers and laptops work perfectly well for a video conference lasting a few hours. it is helpful to have someone knowledgeable check the hardware, software and connection, and make recommendations for change beforehand. Conducting dummy runs is recommended before conducting the virtual hearing.
5. We at ‘’Webnyay’’ address and resolve all these issues.

• Document presentation

1. There are parties who demand documents to be in hardcopy. However, technology has made it possible to convert the hardcopy documents into softcopy. This does not mean that an entire e-document arbitration cannot be conducted.
2. However, users need to beware of document editing. Words in a clause or contract can be changed by dishonest parties and users must be vigilant of the integrity of documents.
3. Much like hard copy bundles, scanned documents can often cut out sections, or come out blank or illegible. Care must be taken to ensure that all documents are properly legible and not corrupted.

• Confidentiality and security

1. Beyond the inherent confidential nature of arbitration, attention must also be given to data protection, hacking of electronic document depositories and cloud storage, distribution of hearing recordings, and external parties high-jacking video or audio.
2. One solution to these problems is to adjust the security settings on the hearing platform. Most paid services allow users to increase security measures to avoid any issues.
3. In anticipation of any issues, it is advisable that someone oversees the operation of the software.
4. Separate breakout rooms can also be created for claimants, respondents and the tribunal to meet and hold discussions in private.
5. Those participating should be identified in advance, and steps should be taken to ensure that they are the only ones present in the virtual hearing venue.
6. Measures such as logging into a waiting room prior to being given access to the main hearing room have proven effective.
7. Webnyay is one of the most secured platforms in the Asian market today.

• Witness examination

1. Taking oath or affirmation of witnesses during virtual hearings has emerged to be a concern along with the legality of virtual evidence.
2. However, this could be dealt with by conducting the witness examination in a neutral physical venue. This could be the office of a law firm or a local arbitral institution’s facilities.
3. Other suggestions include having a lawyer from the opposing party present on two or more cameras, one pointing at the witness and others at the rest of the room.

• Advocacy

1. There is no feel for the hearing room, tribunal, opposing counsel or witnesses. The physical separation makes the whole experience a little surreal. The simple fact of being at home or in your office can give the illusion of informality.
2. Remember, the same care and respect should be given to the virtual hearing as if it had been face-to-face. You should dress appropriately, have a neutral background, ensure that no confidential documents or information are visible, and make sure that you are unlikely to suffer any unwanted interruption.
3. Steps should be taken to make sure that you can see the tribunal at all times, as well as witnesses during examination-in-chief and cross-examination. Microphones should be muted when not speaking. Advocates need to think about how they will communicate mid-hearing with others, in particular with their own legal team, with due regard paid to confidentiality.
4. Extra caution is necessary to ensure that everything is ready well in advance. There is simply less room for unforeseen or last-minute eventualities.