Introduction

The Dentons vision is to be the law firm of the future, today.

Numerous court hearings, mediations, adjudications, and arbitrations have been delayed and disrupted across the globe because of COVID-19, and the measures to contain its spread. Notwithstanding this, we believe that technology can help us move hearings from terra firma to the cloud, so as to minimise delay and disruption.

We highlight 2 recent cases where we have done so.

Dispute Adjudication Board (DAB) / Dispute Board (DB) hearing

Project for the supply of power. Cashflow issues. DAB proceedings commenced. DB from two major cities in Europe (all separate locations). Parties in Asia and Eastern Europe. Counsel in two other major cities in Europe and Singapore.

Delay because of COVID-19 and hence financial disaster?

Nope.

A team from Dentons Rodyk, led by Senior Partner Kirindeep Singh, attended a virtual hearing via Zoom. The hearing was necessary because a party contended that the COVID-19 pandemic amounted to a force majeure event vis-à-vis the DB proceedings, and had applied for a suspension of the proceedings.

The participants dialed in from 7 locations: Singapore, 4 different major cities in Europe, Asia and Eastern Europe. At the time of the hearing, it seemed that all of the countries save for Singapore had implemented work-from-home measures. As for the Dentons Rodyk team, Singapore had yet to implement its circuit breaker measures, and the video call was taken from the office while safe distancing measures were observed in line with the firm’s Business Continuity Plan.

The hearing conducted in the manner that allowed all counsel to make their submissions, and with opportunities for questions from the DB at suitable junctures. When a time-out was necessary for a party to seek instructions, their microphones were put on mute and cameras switched off.

In all, the hearing was largely seamless; there were no connectivity issues and the Zoom platform was user-friendly. The fact that the parties had used Zoom to conduct a hearing once before, lasting about 1 hour, gave the participants a degree of familiarity with the platform. This may have contributed to its ease of use.

SIAC Expedited Procedure Arbitration

Sole arbitrator. 2 transcribers. 2 technical support staff. 3 expert witnesses plus 2 support staff from an expert witness’s team. 4 client representatives. 10 lawyers. Expert witness-conferencing.

Sounds like a trial with cross examination of expert witnesses. Yes.

At Maxwell Chambers? Not really.

The Dentons Rodyk team led by Senior Partner Low Chai Chong, together with all the other parties, dialled into Maxwell Chambers’ virtual hearing “room” via BlueJeans (a video-conferencing software) via more than 20 connections. Indeed, one expert witness dialled in from North America. This had to be done because of COVID-19 and to comply with the circuit breaker rules currently in place until early May 2020.

How did it go?

Very well actually. All 3 expert witnesses were very cooperative, so much so that it did not seem virtual at times, and it was as though we were all physically in Maxwell Chambers’ Henderson Room. Maxwell Chambers’ technical support was excellent and the dry run before actual day ironed out most technical issues. If the Tribunal wanted to ensure that counsel’s face appears on his screen, Maxwell Chamber’s moderator is a request away, and he will then do the necessary pinning. That said, it is important to mute the line to avoid audio feedback and minimise ambient noise when you are neither cross-examining nor being cross-examined.

Take-aways

We have shown that COVID-19 cannot stop the trial for Dentons, and can only move it virtually. That said, cyber-hygiene is important and there are protocols that should be considered can be adopted by the parties, see e.g.:

• CIArb’s Guidance Note on Remote Dispute Resolution Proceedings;
• Seoul Protocol on Video Conferencing in International Arbitration; and
• ICC’s 9 April 2020 Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic.

All of this shows that arbitration, DAB/ DB hearings, trials and evidentiary hearings need not be postponed and can take place during lockdowns and circuit breakers with the help of technology available today. They also demonstrate the determination to proceed with disputes expeditiously despite the difficulties presented by the pandemic.

Contact us if you wish to find out more about our capabilities, and our experience with arbitrations and trials conducted virtually. We can also share tips on muting, unmuting, sharing screens, and using the chat functionalities to object to unfair questions.