Canadian Lawyer

March 2021

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30 www.canadianlawyermag.com LEGAL REPORT ADR Participants are also very dependent on what software others have, including the speed and stability of their internet connec- tions. With slow internet connections, video may have to be sacrificed completely. The challenges for international cases are often the effort and cost to attend a phys- ical hearing, which some busy counsel and arbitrators see as the tyranny of travel, says Judge. "But with a virtual hearing, you've exchanged the tyranny of travel with that of time zones," he adds, citing a Geneva case he is co-arbitrating with someone in Singapore: a 12-hour time difference. "It's not easy to conduct hearings when you're so far apart." Weaving a web of relationships is another reason in-person hearings may be preferred. "For an arbitral tribunal, you may have arbi- trators who know one another and who've worked with one another in the past, and that's helpful," Judge says, adding that these relationships can also facilitate conducting matters virtually. But in international arbitrations, he says, "Maybe the arbitrators don't know each other, and what's lost is the opportunities for members to interact and gain more trust and familiarity and a collegiality that will reinforce the effectiveness of that tribunal or on the main issues that will decide the merits of the case. "In-person meetings will remain very "You can participate [in virtual hearings] without spending a penny. That will make well-resourced parties think about whether they want to spend that money ever again." Louise Barrington, Arbitration Place Overall, "where cases are large enough and there's enough money at stake, counsel will prefer that parties be in one location," he says. "Going forward, we'll probably see more hybrid hearings, where some of the parties — or at least the council and the tribunal — may be in one place, and witnesses may be called on a virtual basis by videoconferencing. Counsel would then have the benefit of having the tribunal members in front of them, and they can see their interactions and their expressions, as evidence is going in and arguments are being made." Pros and cons of virtual (and physical) hearings There are "enormous financial savings" in holding hearings virtually, Barrington says. "The hearing is the most expensive part of an arbitration — travel, hotels, time off work — and it's simply being cut off " by virtual arbitrations. "You can participate without spending a penny. That will have very far-reaching repercussions; it will make well-resourced parties think about whether they want to spend that money ever again." Participants in a hearing generally fly busi- ness class and stay in expensive hotels, she says. "When you've got 12 to 15 witnesses, it's a huge industry." One downside of virtual hearings is there's never an absolute certainty that a partici- pant is alone in the room, says Barrington. "I usually ask the witness if they're alone, or who is with them," although "you can't check that unless you're there." ICC COURT'S 2020 DISPUTE RESOLUTION STATS 946 new arbitration cases were heard in 2020 — the highest number registered since 2016 929 of those cases were requested under the ICC Rules of Arbitration 17 cases were filed under the ICC Appointing Authority Rules, whereby parties who have determined to proceed ad hoc can seek assistance from the ICC Court on case management services Source: International Court of Arbitration

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