EMPIRICAL EVIDENCE FROM OUR GLOBAL EXPERIENCE

Virtual Hearings

Jean-Pierre Douglas-Henry and Ben Sanderson

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Contents

Introduction

Virtual hearings: Surveying the global landscape

How are jurisdictions adapting?

Responding to the challenges of virtual hearings

Dealing with witnesses

The client perspective

A paradigm shift

Appendix

Cite as: “Virtual hearings: Empirical Evidence from our global experience”, Jean-Pierre Douglas-Henry and Ben Sanderson, DLA Piper, 13 May 2020”.

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DLA Piper presents the first global, empirical study on the use of virtual hearings as a result of the COVID-19 confinement measures. We analyse the experience of our lawyers, and reflect on feedback from our clients.

Introduction Virtual hearings: Surveying the global landscape

Lawyers have been hearing for a number of years that the legal profession needs to change. Many aspects of the legal services profession are unquestionably outdated and need to be consigned to history. But lawyers don’t tend to be good with change. It unsettles their need for certainty and predictability. Our clients, though, have no such insecurities; technology and change are as much staples of boardroom discussion as turnover and profit. The reason is simple, no business – law firms included – can hope to survive standing still. For many businesses, though, change may not be enough; radical change may be what is needed.

In this first of a series of reports on virtual hearings, we look at how courts and arbitral tribunals, and their users, have adapted in response to COVID-19. Courts and arbitral institutions across the globe have been quick to produce guidance on the use of virtual hearings. Initiatives such as the Seoul Protocol, which provides a new benchmark for conducting virtual hearings in international arbitration, are welcome early steps which will no doubt be refined further over the course of time.

How are jurisdictions adapting?The confinement measures in response to COVID-19 have brought the world as close to a standstill as any of us would care to imagine. The disputes world is no exception. In this section, we look at the extent to which different jurisdictions were prepared for virtual hearings, and how they have adapted in order to minimise the disruption to legal proceedings.

ARE OUR COURTS READY AND WILLING FOR CHANGE?Our survey showed differing levels of preparedness among national courts. Lawyers in a number of jurisdictions including Australia, England and Wales, the United Arab Emirates and Austria reported that national courts already had the requisite technology in place to hold virtual hearings, albeit to differing degrees. It is one thing to have the infrastructure in place at the courts themselves; it is quite a different proposition to ensure that this infrastructure can work seamlessly with the judge connecting from home. There are, however, a number of very positive experiences, with judges being in large part not only willing to embrace technology, but also up to speed with how to use it. This is particularly the case for evidence gathered from users’ experience of the courts in England & Wales.

In many jurisdictions, though, the courts have simply ground to a halt. That is true not only in countries with less sophisticated court infrastructure (for example, some African, South East Asian and Caribbean court systems) but also in a number of EU Member States. In Spain, for example, there were no reported virtual hearings conducted by the judiciary during the first eight weeks of the strict confinement measures that were imposed there. Indeed, emergency legislation to allow virtual hearings was not passed in Spain until 28 April 2020, and the first virtual hearing only took place on 5 May 2020.1

The purpose of this report is to draw on DLA Piper’s global disputes platform (one of the largest in the world) to gather empirical evidence from our lawyers and clients from a range of different jurisdictions to see how the legal market is adapting to the need for change. Our data has been collected from a wide range of sources (both civil and common law) covering court litigation, arbitration and public inquiries. I can report that our team has been involved in a class action virtual hearing – no mean feat given the large number of participants.

Our report sits within a wider Radical Change agenda at DLA Piper. In the disputes market, you should expect to see in the not too distant future wider use of automation driven by artificial intelligence and algorithms, from programmes used to draft pleadings to software developed to assess prospects of success. The digitization of disputes will apply to all sections of the legal market – it will facilitate access to justice for those with limited means as well as influence how boardroom directors and GCs evaluate risk and maximise opportunity. The way we help our clients, from pro bono to blue chip, is evolving at an unprecedented rate. Expect to hear more from us in the coming weeks and months. In the meantime, I hope you enjoy this survey and please do get in touch if you have any questions.

In Italy, an emergency law was passed suspending all court proceedings except those deemed urgent.2 These provisions remain in place until at least 30 June 2020. How these provisions have been applied in practice has varied between regions as no overarching court guidance has been issued. Regional courts, and even judges themselves, have a broad discretion to determine whether a matter is urgent and to order a virtual hearing by whatever means they see fit. Respondents report that this lack of coordination has led to inconsistent approaches taken by different courts and to a degree of confusion.

In Austria, while the courts have been using virtual hearings for a number of years, there are no centralised rules or guidance to be followed. Instead the judge has the discretion in every instance to apply to determine the procedure. Although some may find it surprising that in light of COVID-19, there has been little impetus among the Austrian legal community to move away from this ad hoc approach toward a more formalised system for remote hearings, the current approach does not appear to be causing issues in practice. Members of our team in Austria report: “we are used to this system and it works. Our system is far less adversarial than say common law jurisdictions so hearings are viewed very differently.”

1 Royal Decree Law 16/2020, dated 28 April 2020. El primer juicio telemático en España, Expansión, 7 May 2020.

2 Law Decree No. 18, dated 17 March 17 2020.

Jean-Pierre Douglas-Henry Partner Global Co-Chair, Litigation &Regulatory jp.douglashenry@dlapiper.com

Contact

DLA Piper, which has one of the largest global disputes practices, surveyed over 150 disputes partners.

“Our radical change initiative doesn’t just mean innovative products and services for our clients. It means transforming the way we do all our business. Going beyond conventions. Becoming the professional services firm of the future.”Simon Levine Global co-CEO and Managing Partner, DLA Piper

The Hong Kong International Arbitration Centre (HKIAC) has seen a significant increase in demand for its e-hearing services In April and May 2020, approximately 85% of all hearings have or will require virtual hearing services either in full or part.

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The response of the courts of England and Wales sits in sharp contrast to these examples. On 19 March 2020, three days before full lockdown measures were introduced in the UK, the Lord Chief Justice of the Courts of England and Wales issued guidance stating “[t]he default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.”3 A few days later, Mr. Justice Teare, head of the English Commercial Court issued a robust decision ordering the parties in a high profile and high value case to proceed by virtual means.4 The Commercial Court trial was streamed live on YouTube.

3 Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts, 19 March 2020.

4 National Bank of Kazakhstan -v- The Bank of New York Mellon and others, [2020] EWHC 916 (Comm).

5 COVID 19: Suspension of Inquiry Hearings, 16 March 2020.

“An extraordinary amount of hard work has gone into keeping our justice system functioning. Technology is being used creatively to ensure that many cases can continue. Not everything can be dealt with remotely and so we need to maintain functioning courts.

“These temporary adjustments to how we use the court estate will help ensure that we can continue to deal with work appropriately in all jurisdictions whilst safeguarding the well-being of all those who work in and visit the courts.” The Lord Burnett of Maldon Lord Chief Justice of England and Wales

“The COVID-19 experience has simply accelerated the reality we all knew was coming.”Arbitration practitioner, Australia

Our lawyers in the UK have been involved in a range of virtual hearings which demonstrate the adaptability of its courts and tribunals. Public hearings have been held by videoconference. For example, it was reported that a member of the inquiry panel for the public inquiry into the fire at Grenfell Tower in London had developed symptoms at the start of the COVID-19 pandemic. The inquiry therefore reconsidered its approach and acknowledged that certain core participants and their legal representatives could attend the hearing remotely rather than in person. Many took advantage of this. Hearings have since been suspended although the Chairman of the Inquiry stated “we shall be giving careful consideration to whether it is possible to resume hearings using electronic means”.5

However, caution should be exercised when seeking to extrapolate a general norm from either a policy statement or an early sample of cases. Responses received to our survey show that the picture is far from uniform across individual jurisdictions. This may be because, as in the case of Italy, there is no single procedure applicable nationally, or because resources may not be distributed evenly between the capital and the regions. The picture, however, is continuing to evolve as both the expertise of the court and best practice develop.

As an example, while there has been much media attention on the successful conduct of the hearing presided over by Mr Justice Teare in London, one respondent who participated in a virtual case management conference in the Commercial Court in Manchester had a very different experience. Despite the official court guidance stating that the court would be responsible for setting up the virtual hearing, this was in fact left to the claimant to organise using Skype. On the day itself, the virtual video hearing was quickly abandoned soon after its start in favour of an audio hearing, partly because the video for one counsel would not work due to bandwidth problems (notwithstanding prior testing), but also due to lack of preparedness of the court. The judge had a single screen and, as a consequence, was unable to navigate with ease between the video conference and the electronic bundle.

Further, at the end of the hearing the judge asked whether the hearing had been recorded, as is the norm in order to preserve access to justice. The court guidance clearly states that it is the court’s responsibility to record the hearing and the parties are prohibited from making their own recordings. In this instance, the court had failed to make any provision for this. A number of other respondents experienced similar issues.

Of course, we should not be too quick to criticise; any adaption on the scale witnessed in the last couple of months is bound to be subject to teething problems. But the need to establish the requisite infrastructure and provide adequate training and guidance is manifest. Further, responses from jurisdictions in which the court service is not digitised (but rather relies entirely on paper filings) highlight particular challenges in those counties. Necessity being the mother of innovation, perhaps this experience will give those jurisdictions the impetus to accelerate change and leapfrog stages in the usual evolutionary cycle. Such seismic shifts, though, require significant financial investment, and jurisdictions may understandably be reluctant to commit funds given the economic uncertainty that we all face. The positive among us, however, would note that an economic recession (which is the direction in which we are heading according to many experts) can be a source of great creativity and entrepreneurship. The post COVID-19 recovery period might therefore offer a unique opportunity for radical change on a number of fronts.

IS ARBITRATION SEEING MORE UNIFORM RESULTS?Arbitral institutions are generally much further ahead of the curve compared to many court systems. Party autonomy and the flexibility of the arbitral procedure have been driving change for a number of years. A number of arbitral institutions have been offering bespoke services for remote hearings well before COVID-19 hit the headlines. Notable examples include the collaboration between the Singapore International

Arbitration Centre (SIAC) and Maxwell Chambers to create a virtual ADR service, the video conferencing platform offered by the International Centre for the Settlement of Investment Disputes (ICSID) and the EndisputeTM mediation platform offered by JAMS. There are, of course, many other initiatives that could be cited.

According to our respondents, arbitral institutions globally have demonstrated a relatively more consistent level of preparedness for visual hearings than national courts. One experience from our global arbitration team reports how a two day in-person ICC arbitration hearing in Singapore was moved at short notice to a virtual platform (in this case BlueJeans) with some 50 separate connections. According to respondents, they were “very impressed” by the tribunal’s mastery of the technology and the transition was “seamless” as a result of various test calls being conducted in advance.

The data shows that arbitration practitioners are reasonably well-versed in virtual hearings which had been growing in popularity prior to the COVID-19 confinement measures. One respondent reported that in a major construction dispute with multiple parties it was only the lead counsel who physically attended the hearing in Singapore, with the remaining legal team, experts and factual witnesses all attending by video or audio link. Such time and cost saving efficiency measures have been a key component of practice notes and rules updates issued by arbitral institutions in recent years. For many, the transition to fully virtual hearings was only a matter of time. As one respondent commented “the COVID-19 experience has simply accelerated the reality we all knew was coming.” Others suggest that the hybrid model, where only lead advocates attend the hearing in person, may offer “a happy compromise” for future hearings.

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Responding to the challenges of virtual hearingsSome courts have been nimble in developing procedural orders to address the key steps needed to adapt to virtual hearings. At Appendix 1 is a procedural order (anonymised to protect confidentiality) used in English court proceedings. The order provides an insight into what the court will expect from the parties in terms of preparation for the hearing. The order also sets out the judge’s reasoning, including consideration of the court’s views on privacy and confidentiality. The order is notable as it makes specific provision for public attendance in order to preserve the open and public character of court justice.

OPEN JUSTICEWhile virtual hearings present some of the greatest challenges to open justice, they also offer some of the most obvious solutions. Simply saying a court is open to the public is perhaps not good enough today – the cost of travel to the hearing venue will be prohibitive for all but the most privileged. In today’s globalised world, there must be a better solution.

Many hearings from public inquiries to ICSID proceedings, as well as Court of Appeal and Supreme Court hearings in England & Wales and a number of other jurisdictions, have been live streamed to allow greater public access. One notable example is the jurisdiction and merits hearing in BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea, ICSID Case No. ARB/14/22 which was live streamed on ICSID’s website (with a short delay to deal with privacy issues). The videos have now been posted on YouTube. The internet has been the greatest recent revolution in achieving an open society, but its full potential in the world of disputes is yet to be harnessed. The COVID-19 experience could be seized upon as the perfect moment for stakeholders to promote further reforms in this area.

EMBRACING TECHNOLOGYAdapting to new technology will always have its challenges. This is particularly true where internet bandwidth is limited. One respondent who participated in a virtual hearing before the courts of the British Virgin Islands described the experience as a “disaster”. Lawyers for the parties chose to use Skype but had to abandon that in favour of Zoom, for technical reasons. The BVI courts then imposed a limit on the number of connections to Zoom, citing bandwidth issues. Limiting access to the hearing in this way may, although not in this instance, have two significant consequences. First, it could limit a party’s ability to ensure its full legal and client team is able to attend from separate locations which could give rise to procedural fairness issues. Second, following on from what was said above, it raises serious doubts about a court’s ability to maintain access to justice if public attendance is limited in part or in whole.

The same respondent, however, had a very different experience before the English courts the same week. The respondent participated in a Zoom hearing for a Norwich Pharmacal order (an application for an order for disclosure to be made against a third party, who is not a party to the legal proceedings) reporting that the judge “seemed entirely au fait with the technology” and there were no access restrictions imposed.

Was the software satisfactory?

of respondents say yes

86%

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Discussion of technology has the pernicious effect of drawing out ageist observations. It is all too easy to conclude that our children will be better at navigating the latest app than either us or our parents! In some instances that may be true, but in the new world we are entering nothing can be taken as read. Catherine Reeves, practice manager of the arbitrators at 20 Essex Street said that “the concerns about senior arbitrators in their seventies and beyond not being able to keep up with the technology are misplaced. In fact, they are no more (and sometimes less!) resistant to change than the counsel in their arbitrations who are twenty years or more their junior.”

The technology available to us comes in many forms, and more will no doubt be soon available. Zoom appears to be the platform of choice for the time being, despite security concerns which have led some courts to restrict or prohibit its use. A number of respondents identified Skype as lacking functionality and susceptible to freezing. Others meanwhile used it without problem. BlueJeans and Microsoft Teams are other clear favourites, coming in just behind Zoom in terms of frequency of usage.

One practical issue to consider: in a number jurisdictions, it may not be possible to conduct virtual hearings using certain products. In particular, many video calling platforms are blocked in the Middle East and in China, for example, and freedom of access to all online service providers is not guaranteed. Licensing and regulatory factors need to be taken into account.

TIMING ISSUES A recurrent theme, notably from respondents participating in international arbitration hearings, was the very practical challenge caused by participants being located in different time zones. One hearing involving participants from several jurisdictions as geographically disparate as Australia and the US gave rise to some concern as both advocates and tribunal members were required to remain connected into the early hours of the morning. Remote hearings of this nature demonstrate how courts and tribunals will need to take account of the additional pressures placed on participants and offer solutions aimed at maintaining procedural fairness.

Time zones aside, the duration of the hearing day itself can place particular pressure on the participants. A number of respondents noted that additional time had to be provided for with remote hearings as the proceedings can be that bit slower. For example, each participant finding their way around the electronic bundles individually rather than centrally can require additional time. Also, respondents noted that

questioning of witnesses had to be taken at a slower pace, and additional breaks had to be provided for. In contrast, one respondent noted a novel approach by one arbitral tribunal to keep hearing timing on track. The tribunal requested that the parties each submit their oral opening statements by recorded video a couple of days in advance of the hearing. A creative solution which could well catch on.

The length of the hearing is likely to be a determining factor as to whether a virtual hearing is viable. A number of respondents noted that while tribunals and courts in many jurisdictions have embraced the move to virtual hearings, there was scarce evidence of long hearings (i.e. those lasting more than a week) being moved to be entirely virtual. For the time being, it seems that a wait and see approach will be adopted. Perhaps we may see courts, tribunals and parties reaching consensus on having shorter hearings which are more focussed on the key issues in dispute. Hearings are an extremely costly phase of all disputes and a move to shorter, virtual hearings could be a key driver in achieving cost efficiency in the dispute resolution process. Of course, in the civil law world, where the court adopts an inquisitorial style, hearings tend to be shorter than in common law jurisdictions, where the adversarial style necessitates expansive oral argument and cross-examination of witnesses. A move to virtual hearings could require common law lawyers to radically re-evaluate the importance of hearings going forward, forcing them to focus only on the most important aspects of the case.

“In the Dutch courts, like in other civil law jurisdictions, hearings tend to be much shorter and far less theatrical as witnesses play a much smaller role than say in England or the US. As such, civil law lawyers may find the transition to virtual hearings far easier than their common law counterparts.”Disputes Partner, Amsterdam

“The current acceleration of technology adoption in litigation is truly a genie that can never be put back into its bottle. There will be no return to the earlier state, because so much has changed – often for the better. Keeping up with fast-moving events in the field of legal technologies has never been more important.”Tracey Stretton, Ankura

Did the court or tribunal uphold procedural fairness during the virtual hearing?

Was the authority of the court or tribunal

maintained?

Yes 71%

Yes 100%

“As hearings move online, our clients more than ever now need to be able to communicate complex issues in a visually simple but compelling way.”Cindy Buxton, Z-Axis

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Dealing with witnessesOne of the principal concerns expressed by respondents was the handling of witness evidence during remote hearings. Hearings are the culmination of often a long legal battle in which factual and expert witnesses play a crucial role, and a significant amount of time is spent examining witnesses. A hearing is the opportunity for the opposing party, and the court or tribunal, to test that evidence. Issues such as the credibility of a witness, inconsistencies in the evidence presented, as well as independence and impartiality, can often only fully be explored during cross-examination. As a result the hearing can make or break a party’s case. Lawyers and clients will be reluctant to lose this opportunity. Again though, this reflects a more common law view of the world. Civil law lawyers may be less accustomed to the fireworks of the court room. And for all the pomp and drama, one might ask how often does this really change the outcome? To paraphrase one of the world’s leading arbitrators who mused provocatively at a recent conference “Do we really need witness statements? I can read the documents for myself and decide for myself what they mean.”

Virtual hearings, though, pose some very practical issues regarding witness evidence. For factual witnesses, respondents raised the issue of how one verifies that a witness is not cribbing from notes, or receiving prompts from a third party, during her/his testimony. Courts and tribunals have suggested various options: use of a wide angle camera, multiple cameras or a roving camera. Protocols can easily be established to alleviate these concerns.

Further, cross-examination in a hearing room is a tense affair which can provoke witnesses to show their true colours, in contrast to the polished edges of their heavily lawyered witness statement. A witness giving evidence by video link from home may feel less intimidated by the experience. But surely this would have a very positive effect on the quality of the evidence in a large number of cases. Perhaps, only in the minority of cases would there be some loss to the legal process in not being able to explore fully the credibility of a witness. No doubt solutions can be found to such problems, and we should not let extreme examples deter our readiness embrace change.

While respondents to this survey did not have to deal with translation and interpretation of witness evidence, there is no doubt that in a virtual setting, multiple languages being spoken could give rise to some challenges. An innovative approach is required here and it is likely that a number of solutions will be proposed over time, perhaps even formulating a system which improves on the way things are currently done in court. Currently, Zoom allows the host to assign to certain participants the role of “interpreters”. Those assigned as interpreters see a different interface, intended to make switching between channels easier. The remaining participants can then select their preferred audio channel from the Zoom menu at the bottom of the screen. The Permanent Court of Arbitration is reported to have used this system successfully on a number of occasions.

Feedback in respect of the handling of experts largely echoed that received in respect of fact witnesses. One respondent noted that cross-examination of the opposing party’s expert proved considerably more difficult without the legal team and his party’s witness at his side helping to identify weaknesses in the testimony. While WhatsApp group chats and other instant messaging options provide a quick and easy method to communicate, it was felt that this fell short of the usual hearing experience.

Indeed, one of the key drawbacks of virtual hearings expressed repeatedly by respondents was the lack of “feel” for the hearing room – a loss of chemistry between counsel and the opposing side, the tribunal and the witnesses. But of course, this is the advocate’s perspective. Perhaps judges and arbitral tribunals, as well as clients, might welcome a little less theatre.

The client perspectiveIt is always dangerous to believe that the traditional way of doing things is the best way – it rarely is. That viewpoint merely demonstrates that we humans are creatures of habit and resistant to change.

Clients, and their counsel, may be concerned that virtual hearings might in someway lead to a lesser, or compromised form of justice. At the extreme end, some respondents expressed concern that the fundamental human right to be heard is at risk, as virtual hearings are no substitute for an in person hearing. As discussed above, others indicated that the process of examining witness and expert evidence was less thorough than might otherwise have been the case.

Further, in a class action before the Australian Federal Court, it was argued that proceeding with an interim application using Microsoft Teams was “far from optimal”. The judge in that case, Justice Murphy, rejected that position and stated that “Microsoft Teams – as I said, I’ve had three or four hearings to date. It works perfectly well … it would work perfectly well for a hearing like this. In some ways it actually works – in some ways it makes hearings a bit easier because they can be conducted iteratively issue-by-issue.”6 The hearing of an application to strike out the claim will proceed in June as planned, whether in a court room or virtually, said the judge.

“Remote hearings present a much more efficient way of working for both the lawyers and the client.”Partner, UK

Competing with the need to preserve justice, is a need for efficiency. Clients have been calling on lawyers to reduce costs and resolve their disputes more efficiently. Our clients, after all, are not in the business of having disputes, and few relish them when they arise. Put simply, disputes disrupt business. Perhaps now we have a unique opportunity to re-evaluate how we do things as lawyers, and clients have a unique opportunity to say how they want things to be done in the future.

Virtual hearings could be a real driver for costs efficiency in dispute resolution. Travel, subsistence and accommodation costs can be reduced to almost zero. Of course, this will be partly offset by an increased provision for technology – although the costs of the more expensive integrated technology solutions which manage video connections, electronic bundles and transcription will no doubt reduce over time with greater competition in the market. The real source of costs savings will be a move towards shorter hearings. But that will require common law lawyers, judges and international arbitrators to focus their minds on only the most important aspects of a case (more in line with the pared down approach in civil law proceedings.) The virtual forum is also perhaps well-suited to mediation which many clients are using to try to resolve disputes quickly and more cost-effectively.

One theme that was raised by a number of respondents was privacy. This is of course more an issue for arbitration than for litigation. Client concerns about privacy will be overcome by fixes to known limitations of certain platforms. But even arbitration itself is moving towards embracing greater transparency. Looking to the future, the presumption of confidentiality in arbitration is fast being eroded from a number of directions and therefore concerns regarding privacy may hold less weight over time.

6 Per Murphy J., Riley Gall and Domino’s Pizza Enterprises Limited, Federal Court of Australia (Victoria Registry), No. VID 685 of 2019, Transcript, 29 April 2020.

“Eye contact is so important when giving evidence on complex expert issues …maintaining that connection with the judge or tribunal via a screen may be a challenge at first but will become easier as we all adapt to the technologies.”Vikki Wall, Forensic Accounting Expert, Haberman Ilett

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Finally, while aspects of the hearing room drama might be lost, this shift may carry with it collateral benefits. In respect of the ICC hearing referred to above, respondents noted that the virtual hearing created a better client experience of the hearing. In a large hearing room, clients (who often sit behind counsel) can feel a little disconnected from the proceedings and do not have a clear view of all the advocates, the tribunal members and their commercial counterparts. The feedback from the client was that they felt “much more connected with the proceedings”, as all participants were on an equal footing and had an identical experience of the virtual hearing room.

“The client commented that the virtual hearing offered them a better experience…they were much more connected with the proceedings.”

A paradigm shiftTo date, the arbitration community is ahead of the curve in sharing experience of virtual hearings post COVID-19 for the perspective of all stakeholders. Of particular note is a webinar entitled The Art and Science of a Virtual Hearing hosted by ICSID on 5 May 2020, now available on YouTube.7 This webinar brought together stakeholders from a virtual hearing held on 6-8 April 2020, including legal counsel from both parties, the tribunal and representatives of the ICSID Secretariat.8 No doubt, in the coming weeks and months, more reflections will be shared from both arbitration and court hearings.

Respondents to this survey noted that not all hearings may be as amenable to being held remotely as others. Cases cited included complex construction disputes, where detailed technical presentation and models may be required. While technology can fill many of the gaps, it was felt that it would be crucially important to have a more direct connection with the judge or tribunal during such presentations to ensure that the pacing was correct. Similarly, some respondents noted that managing difficult witnesses, and even one’s own witness who turns hostile, may pose significant problems for the advocate. We, as lawyers, can be quick to find the obstacles but somewhat slower to find the solutions by embracing change.

Even after COVID-19 recedes, it is clear that virtual hearings will continue to be used. The interesting question, though, is how will they be used. Will virtual hearings seek to replicate a traditional hearing room experience; or will virtual hearings offer us something new and different? If we focus on what aspects may be lost in virtual hearings, we are missing out on the crucial other half of the debate on what is better about virtual hearings. As with the automation of legal services, the debate about virtual hearings should not be fixated on replicating existing practice in a new platform – such an exercise is not only futile, but it would be decidedly lacking in ambition. Rather digitization and the use of technology should drive us to deliver our service in fundamentally different and/or better ways. Radical change requires us to view the world differently, even if that means challenging hundreds of years of tradition an re-writing the rule book.

7 Webinar: The Art and Science of a Virtual Hearing, ICSID, 5 May 2020.

8 Alverley Investments Limited and Germen Properties Ltd v. Romania (ICSID Case No. ARB/18/30).

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AppendixUPON further consideration of the Orders for Delivery up and Provision of Information made herein, and the D1 Return Date Application and Ds2-5 Return Date Application (as defined in the Order dated 19 February 2020 (“the 19 February Order”))

AND UPON noting that paragraph 16(b) of the 19 February Order provided for a two-day hearing (“the Hearing”) to be fixed for the determination of the Defendants’ objections, if any, to inspection of the Listed Items (“the Objections”)

AND UPON the Hearing having been fixed to be held in Court on 6 and 7 May 2020

AND UPON the Judge

(1) taking notice of the COVID 19 (Coronavirus) pandemic and the measures being taken in response, including regulations 6 and 7 of the “stay-at-home” regulations (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)

(2) considering the provisions of s 85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020) and PD51Y

(3) inviting, receiving and considering the parties’ written proposals and submissions by letter as to the appropriate directions for the Hearing

WITHOUT A HEARING pursuant to CPR 23.8(c)

IT IS ORDERED THAT:-

Remote hearing

1. The Hearing shall take place by remote means.

Provision of documents for the hearing

2. The parties shall co-operate in ensuring that all documents necessary for the Court to identify and resolve the Objections (but only those documents) are made available in good time before the hearing.

3. Unless otherwise directed all documents may be provided in electronic form. No party is required to provide any document in hard copy.

4. By 4.30pm on Friday 1 May 2020 the claimants shall make available to the parties and the court an indexed and paginated electronic bundle comprising the documents to be considered by the Court.

(1) Electronic bundles should contain only documents that are essential to the remote hearing. Please note that large electronic files can be slow to transmit and unwieldy to use.

(2) The electronic bundles may be provided via the platform identified by the claimants, namely Tresorit by the provision of login details to a data room but must also be filed through CE-file.

(3) Electronic bundles can be prepared in .pdf or another format and should facilitate electronic annotation. Requirements for the preparation of e-Bundles are at Appendix A to this Order. These should be followed as closely as Tresorit platform permits.

5. By 10.00am on Tuesday 5 May 2020 Skeleton Arguments, which should not exceed 20 pages in length, must be prepared, exchanged, and sent by email to Queen’s Bench Listing and the Judge’s clerk. Skeleton Arguments must address any application made in accordance with paragraph 15 below.

6. By 4.00pm on Tuesday 5 May 2020 the parties must agree prepare and provide to the Judge’s clerk and all other representatives an electronic indexed and paginated bundle of authorities for the hearing. Such electronic bundle should be provided to the Judge’s clerk and to all other representatives and parties. The bundle must be searchable.

Notification of attendance

7. By no later than 10:00am on Tuesday 5 May 2020, each party must notify Queen’s Bench Listing by email of the identity of each person attending the hearing for or on behalf of that party, the capacity in which they will attend, and their email and telephone contact details. A form to be used for this purpose is at Appendix B to this Order.

The hearing

8. Unless the Court directs otherwise the hearing will proceed by way of video hearing using Microsoft Teams. The arrangements will be made by the Court in liaison with the parties’ solicitors.

9. Invitations to join the meeting will be sent by email to all persons who have notified the Court as attending the remote hearing. Any person who has so notified the Court but not received an invitation to the hearing by 2:00pm on Tuesday 5 May 2020 should contact the Judge’s clerk or Queen’s Bench Listing.

10. Unless otherwise ordered or directed, the hearing will commence at 10:30am on 6 May 2020. However, all attendees are obliged to attempt to sign in shortly after 10:00am, so that any issues with the connection can be addressed before the hearing is due to begin. Issues should be raised with the Judge’s clerk.

11. Although the hearing is being conducted remotely, the hearing remains a court hearing. The usual rules and formalities continue to apply.

Open justice

12. The court will take reasonable steps to ensure that the hearing is of an open and public character, including by seeking to give notice to the media that the hearing is taking place remotely, and providing a contact address at which to obtain details of how to attend remotely.

13. In accordance with PD51Y para 3, if any media representative is able to access the proceedings remotely while they are taking place they will be public proceedings.

14. Unless otherwise directed, media representatives will be permitted to attend the hearing by video and audio. The Court will sit in private only if and to the extent that it is satisfied upon application that it is necessary to do so in the interest of the administration of justice in accordance with the provisions of CPR 39.2 and/or PD51Y.

15. The parties must liaise in an attempt to agree whether any and if so what aspect of the hearing needs to be in private. Any party that intends to apply for any part of the hearing to be held in private must by no later than 4.30pm on Friday 1 May 2020 file an application notice for that purpose, identifying

(1) (by way of a confidential schedule if necessary) those aspects of the evidence or hearing that it wishes to be held in private;

(2) why the preservation of privacy or confidentiality necessitates a private hearing (rather than, for instance, discretion in the reading out or showing of documents during the hearing).

Recording

16. The hearing will be recorded by the Court.

17. It is an offence and may be a contempt of court punishable with imprisonment for any person to make or to publish any visual or audio recording of the hearing. Attention is drawn to section 41 of the Criminal Justice Act 1925, section 9 of the Contempt of Court Act 1981, the Courts Act 2003 sections 85B and 85C and Attorney-General v Yaxley-Lennon at [27], [82-88].

18. Access to the court’s recording will be permitted to Marten Walsh Cherer or (on application) another identified authorised transcriber for the purposes of preparing a transcript. Otherwise, access will only be permitted in accordance with the Practice Direction: Access to Audio Recordings of Proceedings of 14 February 2014, or otherwise with the permission of the court and in accordance with PD51Y, if applicable.

19. Attention is drawn to the provisions of CPR 39.9(3) regarding non-party access to transcripts of hearings.

1918

DLAPIPER.COMVIRTUAL HEARINGS

Amendment of timetable

20. The parties may not agree to vary the dates and times fixed under paragraphs 3, 4 and 5 above, which may only be varied on application to the court.

21. Subject to paragraph 20 above and CPR 29.5, the parties are at liberty to vary the timetable provided for above, in accordance with CPR 2.11.

Liberty to apply

22. In addition to the rights conferred by CPR 2.11 and those referred to in the Note below, all parties have liberty to apply in relation to this order. Such liberty shall be exercised informally, by email to the Judge’s clerk. Any such communications must be copied to all other parties.

NOTE: Because this Order has been made without a hearing, any party affected has the right to apply to vary or discharge the order: see CPR 23.8(c), PD23A 11.2, and CPR 3.3(5) and (6). Any such application must be made in writing within 7 days of the date of this order, on notice to all other parties.

REASONS

1. I have reviewed the file in this matter and the correspondence between the parties. I can see no reason why the Objections cannot fairly be resolved by way of a remote hearing on the fixed dates. That is, as it presently appears, the only way – or at least the best way – in which a hearing can lawfully and safely take place in the foreseeable future; and it is in the interests of justice that, if possible, the matter be disposed of on the fixed dates rather than being adjourned.

2. However, remote hearings bring with them added complexity, including the need to:

(i) ensure the presence of all relevant parties; and

(ii) ensure that all material documents are before the Court in good time to allow them to be considered in advance, and in such a manner that all parties can easily identify and refer to them.

The order seeks to anticipate and deal with these issues.

3. I am very grateful for the assistance provided by both parties, and the co-operation shown in proposing and discussing arrangements for the remote hearing.

4. My overall approach is that the hearing, including its openness to the media, should approximate, as closely as is practicable, to what it would have been like, had the hearing been held in a public court room before the emergency. The order seeks to secure the maximum openness consistent with current circumstances, which include staff shortages and some technical constraints, and with the factual and evidential picture as it currently appears.

5. I favour a video hearing over a telephone hearing for the reasons given, for reasons of transparency and because I personally find it easier to be able to see the parties’ representatives.

6. Microsoft Teams is becoming familiar to the judiciary and their staff. I am not satisfied that the use of Cisco Webex as proposed by the claimants is appropriate. This is not based on any evaluation of the platform, but for the following reasons. This is not as yet one of the platforms identified as approved for this purpose. Neither the judiciary nor court staff have any experience or training in relation to it, and pressure of work means that no time can be made available to undertake training. I have considered the factors identified by the claimants in correspondence and I am satisfied that they are not sufficient reasons to use an untried platform.

7. There is as yet no compelling evidence or argument in favour of a hearing that is fully or partly in private. I see no justification, at present, for limiting media access to the hearing, either in terms of the number of representatives who may attend, or in terms of the nature of access they obtain. Nor am I yet persuaded that issues of privacy or confidentiality cannot be managed, as they commonly were before the emergency, by referring the Judge to a document and asking him to read it, rather than showing it to all those present in court or reading it out. Failing that, a discrete part of the hearing could be held in private, to enable all private or confidential matters that need to be spoken about in terms to be covered in a single part of the hearing.

8. It is not satisfactory for the recording of a hearing to be undertaken by a party. The court has a duty to make a recording, and that is normally the only recording that is authorised. I see no good reason to depart from that norm. Access to the proceedings and to the recording can be made available to any approved transcriber in the ordinary way.

APPENDIX A

If an electronic bundle is ordered or requested by the court the bundle must be prepared as follows and be suitable for use with Adobe Acrobat Reader:

1. The document must be a single PDF.

2. The document must be numbered in ascending order regardless of whether multiple documents have been combined together (the original page numbers of the document will be ignored and just the bundle page number will be referred to).

3. Index pages and authorities must be numbered as part of the single PDF document (they are not to be skipped; they are part of the single PDF and must be numbered).

4. The default display view size of all pages must always be 100%.

5. Texts on all pages must be selectable to facilitate comments and highlights to be imposed on the texts.

6. The bookmarks must be labelled indicating what document they are referring to (best to have the same name or title as the actual document) and also display the relevant page numbers.

7. The resolution on the electronic bundle must be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another

8. The index page must be hyperlinked to the pages or documents they refer to.

APPENDIX B

Remote Hearing Attendance Form

Case No

Case Name

Claimant

Defendant(s)

File name of this document

Hearing date and time

Party filing this document

ALL PERSONS ATTENDING ON BEHALF OF THIS PARTY

Name Email Direct phone

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