Having just finished my first fully remote arbitration, with live evidence, I wanted to share some thoughts about the experience.
As soon as it became clear that Covid-19 was more than a temporary nuisance and that “back-to-normal” certainty is nowhere on the horizon, the English dispute resolution world made what would otherwise have been unthinkable adjustments. Within weeks of the start of the pandemic both arbitration and court hearings were held partly or entirely remotely. This ambitious practice was approached with a degree of hesitation by practitioners and clients alike, many of whom had no experience of virtual hearings and who therefore viewed this as a last-resort solution.
Most of the hearings in 2020 have been held remotely and it is more likely than not that this will remain the case for a good part of 2021. By the end of April 2020, just one month after Covid-19 was officially declared a pandemic, no less than 90% of the hearings taking place in the courts and tribunals in England and Wales were through audio or video. In the following month a study found that 71.5% of more than 1,000 lawyers described their experience with remote hearings as positive or very positive. The excitement and slight awkwardness of seeing a barrister, a witness and even a judge in their own private home gradually declined, and the initial scent of unprofessionalism – previously, albeit sadly, associated with the exposure to one’s personal, human side – has too eroded as the virtual world, encouraged and facilitated by the British government, has become the new normal in the legal sector and beyond.
I must say that, like many other practitioners and clients, I was apprehensive when I approached the first week of my fully remote trial. I was concerned that our advocate, however experienced and professional, may lose some of his vigor, tenacity and concentration speaking into a screen in his bedroom. I also expected that the lack of formality may adversely affect the witnesses. Where a witness sits in his or her living room, without the solemn atmosphere brought about by being in a physical court room or the distinct experience of sitting in a physical witness box, he or she may be “overly relaxed”, resulting in less focused, potentially impolite answers to the court.
In addition, one cannot ignore the logistical difficulties that arise in remote hearings. Giving and taking instructions during such hearings is entirely technologically-dependent and may result in miscommunications. During the hearing it is inherently more difficult to discern the reactions and nuanced body language that would otherwise be felt in the courtroom, and it actually becomes impossible in respect of most of the attendees, considering the common practice of non-speaking participants to mute and turn their video off.
Notwithstanding my initial concerns and the real challenges, I found that there are, in fact, some refreshing benefits that make remote hearings distinctly appealing.
First, my fully remote arbitration hearing saved a huge amount of time, costs and carbon footprint. My clients and witnesses were from Israel and Germany, my opponents had witnesses in Belgium, the Netherlands and Ireland, and both sides instructed barristers in the UK. Neither side needed to incur travel and accommodation costs. This saving was particularly noticeable in relation to two of our client’s witnesses who ended up giving oral evidence for around 20 minutes each. The costs of flying them over to London for this short contribution would have been necessary but clearly disproportionate when considering the virtual alternative that was adopted in this case. Similarly, other people with interest in the case, who would otherwise not have travelled to the arbitration, were able to join when they had availability without having to sacrifice a week of work and other costs to attend the hearing in London. One such example was a director of my client company who had a real interest in the case but who would not have attended the hearing in person. The remote hearing allowed him to join and observe the parts of the hearing that were important to him from the comfort of his office, without effort or cost.
Second, the evidence that the witnesses gave during the hearing was not compromised by casual or indecorous talk which the remote nature of the hearing may have fostered. I find it hard to imagine that any of the experts or witnesses would have spoken, dressed or acted differently had they been in a physical courtroom. If anything, being away from the stress of the courtroom seemed to have helped witnesses to concentrate and provide fuller, more reliable evidence, thereby providing more assistance to the tribunal.
Third, on platforms such as Zoom and Skype, the users sit relatively close to their computer camera and stare directly at it when speaking. In doing so, other participants can observe the speaker and their facial expressions at a distance that would, in real life, be considered unrealistically close. For example, in a court room or arbitration center the judge or arbitrator usually sit some distance from the advocates and clients. The advocates are often quite remote too, often with their backs to everyone but the judge. It is particularly useful to see the judge or arbitrator’s facial reactions in this way.
Fourth, more generally, the smooth and reliable execution of remote hearings in the UK is reinforcing England’s place as the world’s top venue for international commercial dispute resolution. Now parties can avail themselves of the English justice system without needing to leave the comfort of their own jurisdictions. This is a great incentive for non-British parties who are presently considering whether English law should be their choice of law.
The uncertainty brought about by the pandemic makes it difficult to assess which new practices will remain in place once the virus is gone. However, the UK’s widespread use of remote hearings in litigation and arbitration, coupled with the positive feedback received, suggest that remote hearings are here to stay even in the post-Covid world – to the extent, perhaps, that they might become a permanent contender to the centuries-old model of courtroom attendance. We will hopefully know the answer soon enough.
Tomer Treger, a dual-qualified and bi-lingual Israeli and English lawyer, is an associate in Asserson’s growing dispute resolution group, focusing on international arbitration matters. Tomer has acted for major corporates and high net worth individuals in the principal arbitration institutions and the English High Court.
 Message from the Lord Chief Justice and Senior President of Tribunals: new COVID-19 restrictions for England: https://www.judiciary.uk/announcements/message-from-the-lord-chief-justice-and-senior-president-of-tribunals-new-covid-19-restrictions-for-england/.
British government’s introduction of a new video platform to enable remote cases to be heard safely and securely: https://www.gov.uk/government/news/new-video-tech-to-increase-remote-hearings-in-civil-and-family-courts.
Article written by: Tomer Treger