NAVIGATING THE NEW WORLD OF VIRTUAL HEARINGS IN THE SHIPPING AND AVIATION SPACE
South Africa has been on ‘lockdown’ since late March. During this time our Shipping, Aviation and Logistics Practice has quickly adapted to working online. This has included running an online arbitration hearing, attending online court applications and conducting an online mediation.
While the South African High Court has remained open throughout lockdown, access has been restricted to varying degrees and some courts are operating with limited capacity.
During the most restrictive level 5 lockdown period, Bowmans successfully approached the Cape Town High Court to obtain a security arrest order (an arrest as security for foreign arbitration proceedings) in respect of a vessel scheduled to work cargo in the Port of Cape Town. Having persuaded the Urgent Duty Judge that the matter was sufficiently urgent to be heard, a telephone hearing was proposed and the order was granted.
Since moving to the less restrictive lockdown level 3, members of the team have appeared before the court in a number of opposed applications using Zoom and other platforms, in both Namibia and South Africa.
Craig Cunningham and Lana Stockton, together with English counsel, successfully concluded the hearing of a commodities quality dispute that had been referred to arbitration before the London Court of International Arbitration (LCIA). The matter involved two hearings, seven witnesses of fact, four expert witnesses, and participants and clients from seven different countries.
While all parties and their legal representatives had been able to attend the first hearing in London during 2019, the second hearing was scheduled for mid-2020. As the time of the second hearing approached, with prohibitions on international travel and many countries observing lockdowns and mandatory isolation periods, the prospects of a physical hearing in London became less and less feasible.
In the circumstance, the parties and tribunal agreed to a full virtual hearing using the Zoom platform, the International Dispute Resolution Centre (IDRC) as independent facilitator and an electronic documents management system. Bundles were prepared electronically and documents projected to all participants on screen as they were referenced during the hearing. Within three weeks of resolving to proceed, all arrangements were finalised for the virtual hearing which ran for three full days and included the cross examination of factual and expert witnesses.
Most recently, Heather Manson and Shanae Durman represented clients in a reinsurance dispute, that had been referred to mediation. The matter involved three parties, with representatives based across South Africa and Botswana, and was facilitated by a Johannesburg-based mediator.
Using the Zoom platform, the parties and mediator were able to meet virtually in caucus, a plenary session and in various other groupings. Position statements had been exchanged, and a paginated electronic bundle shared in advance. The mediation ran for two full days and included numerous discussions at various levels.
- Adapt with the times: Although video links and electronic hearing bundles are not new to court and arbitration hearings, the full integration of these tools is essential during a virtual hearing and may result in a substantial cost saving for parties going forward.
- Accessibility: Clients may not always have the opportunity to attend mediations, arbitrations or court proceedings in person when they are conducted abroad. Often, they must rely on their lawyers to report on the events each day. A virtual hearing offers clients this valuable and enriching opportunity, at comparatively little cost.
- Planning is crucial: Retaining the best service providers, advance testing of video links, providing hardware, providing training, having back-up plans and ensuring that hearing protocols are in place are essential. Meeting with witnesses over the video link that will be used ahead of the time, is one way to make witnesses more comfortable with the video link format.
- Collaborate with the Mediator/ Tribunal/ Judge: Because this process is new to everyone, ensuring that the Mediator, Tribunal or Judge is involved at every stage of the logistical planning will reduce the chance of hitches closer to the actual hearing.
- Cross examination is very different: Counsel and witnesses should be careful to not speak over one another. Because physical cues are not as clear on video link, interrupting tends to become an issue. Counsel and witnesses should pause after questions and answers in order to ensure that nothing is lost in interruption. Although physical cues are not as apparent, the witness’s tone, eye movements and other non-verbal cues are not non-existent during a virtual hearing. Good and clear advocacy shines during a virtual hearing.
- Witness behaviour: Always look at the Tribunal. Adjust your Zoom screen to pin screen on the Tribunal and his or her expression as opposed to opposing Counsel who may be expressing her/ himself non-verbally and distract you from your evidence.
- Break-away rooms: Having an independent facilitator to run the Zoom platform ensures that microphones and videos are muted and that parties are immediately transferred to virtual break-away rooms during breaks. Importantly for arbitration and court hearings, the facilitator should be instructed to ensure that any witness still giving evidence during a break is not transferred to a break-away room.
- It is slower: These hearings are slower in some respects due to the inevitable connection glitch or two, but also more efficient in other respects. Having electronic documents shared on the screen saves a considerable amount of time when witnesses and Counsel are usually paging through voluminous paper bundles.
- In-person attendances: Where in-person attendances are necessary, for example to physically issue court papers, careful planning and logistics management are key to success. Restrictions on movement and human contact may require an additional lead time, in order to navigate the logistics of the lockdown.
Where to now?
Is this the new normal for international hearings and mediations? The advent of the full virtual hearing certainly is a testament to the legal community’s ability to adapt very quickly in changing times, when pushed.
The more virtual hearings we are able to participate in as practitioners, the more we are able to refine the process by sharing knowledge and experience.
There is no doubt a benefit to being in the room with clients, Counsel and the legal team during a hearing, whether it is to brainstorm a strategy, pass a note or to feed off witness behaviour. Similarly, there is great benefit to all parties being in the same room together during a mediation.
However, we cannot now simply disregard the benefits of a fully virtual hearing, especially given the prevailing global state of uncertainty. Perhaps, moving forward, more elements of a virtual hearing will be integrated into all hearings given the clear efficiencies, access and convenience.
Despite the pandemic, Bowmans continues to build experience in the local and international arbitration arena and advocate the use of technology to ensure the best possible results for clients.