This article was first published in Construction Week.
Construction Week's Ranju Warrier discusses with KWM's Joanne Strain and Parnika Chaturvedi how virtual hearings have become the "new normal", their practicality and challenges, and why these could be a thing of the future.
When the COVID-19 pandemic hit the world, government restrictions on travel and movement forced sectors to diversify their operations. This presented a challenge for legal proceedings.
Thanks to technological advancements, the industry was able to adopt virtual hearings, as an effective alternative approach to physical hearings, to avoid delays and ensure that disruption to legal proceedings were kept to a minimum.
Courts and tribunals responded quickly to the changes to guarantee the administration of justice continued to work as effectively and efficiently as possible. Virtual hearings are increasingly becoming the "new normal" for many, including arbitrators, lawyers, parties, and witnesses.
King & Wood Mallesons (KWM), a multinational law firm, with offices across the globe, including Dubai, has conducted several virtual hearings during the pandemic.
KWM partner Joanne Strain tells Construction Week: "Technology now exists to provide efficient, affordable and generally reliable tools for audio-visual access to virtual hearing rooms, which has been embraced by parties in the COVID-19 era."
She adds: "The legal industry has supported the use of technology for some time, with electronic bundles and immediate online transcripts widely used by many, but the technology to facilitate a fully remote hearing is being utilised by many for the first time, and represents a new and exciting phase for the legal industry."
COVID-19 accelerated the number of parties choosing virtual hearings, but this is not the first time proceedings have been convened with the use of technology. Strain says: "For many years, where necessary and appropriate, the DIFC Courts have been willing to convene hearings of urgent applications by telephone, and have allowed witnesses to be heard remotely using video conferencing facilities, provided the 'DIFC Protocol on Remote Witnesses' is complied with."
Meanwhile, Parnika Chaturvedi of counsel at KWM in Dubai, tells Construction Week that whether a hearing is conducted physically or virtually, its success largely depends on how the parties cooperate.
A Practical Solution
According to Chaturvedi, provided proceedings are well organised, with the relevant digital infrastructure in place, a virtual hearing could be "a practical and viable alternative" to a physical hearing, where appropriate.
She explains: "With regards to practicality, they [virtual hearings] have their advantages. They can be convened at short notice as the hearing participants are not required to travel to one location. During the proceedings, parties have access to electronic bundles on a single platform and screen sharing allows the advocate or tribunal to direct all participants to a designated document, without parties needing to comb through hard copies."
"From a cost perspective, virtual hearings have their own benefits, as there is no longer the need for parties to allocate a budget for costs such as airfare, visas, printing or venue booking."
Safe and Secure Data
Migrating proceedings to an online platform addresses the increased need for safety and security. "Matters, such as data protection, safeguarding electronic documents, as well as cloud storage, must be taken into consideration to avoid the possibility of hacking of documents, audio or video files," notes Chaturvedi, while also adding that several international organisations have put protocols in place to ensure the safety and security of data. By way of example, she adds: "The International Bar Association (IBA) Cyber Security Guidelines has developed a checklist to which legal representatives should refer when conducting virtual hearings to comply with data privacy and security."
Chaturvedi notes these protocols also include checklists for the type of platform being used to conduct a virtual hearing. "Engaging with a high-level, single platform mitigates the risk involved. There is a greater responsibility for lawyers to ensure links to documents, hearings rooms and virtual party discussion rooms are appropriately circulated and adequate instructions and training is provided to all involved."
Password management is also key. Chaturvedi explains: "Each component of a virtual hearing, including electronic folders and virtual spaces, should be fully password protected
with passwords changed daily, and provided only to those who need access on any given day."
Construction and Dispute Resolution
According to Chaturvedi, virtual hearings could have a positive impact on the construction dispute landscape, as there is potential for faster resolution of disputes.
Even in a small construction dispute, the number of parties involved could be as many as 15 to 20, including witnesses, experts, counsel, and tribunals, all of which require time to
be heard during the proceedings.
"Construction disputes are infamously known to have many complex documents, from large spreadsheets to maps and drawings. Digital, searchable documents are easier to navigate, organise and position via screen sharing, ultimately reducing time often wasted when trying to locate the page on an exhibit," affirms Chaturvedi.
Challenges on the way
While virtual hearings have many benefits, they do not come without challenges. According to Strain, one of the biggest obstacles is dealing with witnesses. She says: "A significant challenge for virtual hearings can be dealing with witness testimony. Common law courts, such as the DIFC, and the vast majority of arbitrations follow the adversarial system, where the cross-examination of witnesses is a fundamental part of delivering justice.
"Safeguarding the integrity of the cross examination process is essential to ensuring the integrity of the proceedings so all parties receive a fair trial.
"Some parties express concern that the magnitude of the hearing is diminished when the witness is sat in a comfortable home environment, behind the screen, and often the gravitas of the occasion has a great bearing on the testimony."
She continued: "In some cases, the Tribunal may have been appointed, or a party may have selected its advocate for the case, long before a virtual hearing was in contemplation. The
ease with which such individuals can adopt the use of technology will be key to the efficiency of the hearing, and the effective presentation of a parties' case."
While Chaturvedi adds virtual hearings require additional preparation, including reaching agreements with legal technology providers and agreeing on protocols in relation to witness testimony. Such measures might include reaching an agreement with regard to whether any designated lawyer should be present with the witness during testimony, who can confirm to all concerned that appropriate procedures are being followed.
Future of Virtual Hearings
In May 2018, the UAE issued Federal Law No. 6 of 2018 on Arbitration acknowledging "modern means of communication and electronic technology" for use in arbitration proceedings.
Speaking about the future of virtual hearings in the post-COVID-19 era, Strain says: "Tribunals in this region are perhaps more likely to consider remote hearings in the future as we were already seeing arbitration institutions and courts adopting technology as a means to conduct hearings. The increased number of virtual hearings being conducted over
the past six months has broadened the experience of all involved, giving legal counsel, tribunals, courts and parties increased confidence that the system can be effective.
"However, it's not a one-size-fits-all solution. There will remain many cases where it is not appropriate to convene a virtual hearing in place of a physical hearing, including lack of buy-in to the process from those concerned and/or due to other circumstances relevant to the case.
"This is particularly relevant in arbitration which, in contradistinction to coercive court processes, is and must be, a consensual process."
"While the industry will see more virtual hearings, we haven't seen the death of the physical hearing," she concludes.