COVID-19 and Virtual Hearings

COVID-19 has affected our lives in many different ways. Thousands of people lost their lives, many employees lost their jobs, and it is still unclear when and how we would return to our daily routines. Social distancing and health measures have led to the closure of economies in many countries. Different business fields are affected, and they have been trying to continue their work by discovering safe methods. In this respect, one of the most important resources is technology as many areas have been implementing virtual and online methods to keep their business going. 

The legal world has also been trying to increase the use of technology and limit in-person gatherings. When we think of law, we think of large courtrooms, lawyers, judges, and heated moments of trial. But due to the effect of social distancing and other safety protocols, in-person hearings have been canceled in many jurisdictions. Therefore, large number of litigation proceedings have started to be made virtual. Similarly, international arbitration institutions, such as International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA), shutdown their locations and announced that they would not receive any in-person deliveries of documents. They suspended all of the deadlines and postponed physical hearings. 

Arbitral institutions acted immediately to facilitate the transition to virtual platforms, and they implemented new policies. For instance, the ICC “has digitized requests for arbitration” and the LCIA “has set up a virtual platform to file applications.” One of the biggest reasons why international arbitration made the transition easy was the “momentum within the arbitration community … to strive toward ‘greener’ arbitrations by reducing travel and using online filings.”Therefore, although not on such a large scale caused by a global pandemic, international arbitration is more ready for virtual hearings and digital work than litigation because arbitral tribunals have the necessary infrastructures. Even before the pandemic, the Arbitration Rules of the International Chamber of Commerce (ICC) offer comprehensive preferences for arbitrators to decide how to handle arbitral proceedings. For example, Article 22 states that “the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.” Similarly, Article 19 of the Arbitration Rules of the LCIA (The London Court of International Arbitration) specifically states that “a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form).”

The question of whether virtual hearings will continue to remain in our lives even after the pandemic is an important consideration. David W. Rivkin, partner at Debevoise & Plimpton, acknowledged that lawyers and arbitrators are developing skills to be more comfortable with virtual hearings and that there will be more efficient arbitration proceedings in 2021 than the year before. On the other hand, clients have been showing interest in virtual hearings since it helps them to save money. Besides legal and administrative costs, travel expenses are a huge burden for customers and thanks to virtual hearings and digitalization, they are saved from this expense. Today, cybersecurity is as important as ever because all the confidential and sensitive information has been moved online, instead of “locally controlled servers that were hard-wired to office computers.” Experts state that cyberattacks have changed dramatically and they are not so easy to be located. Therefore, practitioners should receive assistance from highly skilled technology people so that their clients’ sensitive information will be safe.  

By: Sinan Turhan, Junior Staffer and Article Editor

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