Gard senior lawyer Fredrik Falck-Knutsen, based in Arendal, and Louis Shepherd, Gard Senior Claims Adviser, Lawyer, Tokyo have noted that Gard had seen numerous disputes arise as a result of the Covid-19 pandemic.
Vessels were experiencing quarantine delays, force majeure claims and difficulties with supplies and crew. Many people in the shipping industry were working from home.
However, disputes needed to be resolved while adhering to social distancing rules. Some disputes were urgent in nature, such as when a vessel had been arrested or an injunction was being sought. In other cases, the parties might have been working for a long time towards a hearing on fixed dates, so that an adjournment might set back the case by months or years.
Gard said that its experience had been that court hearings, arbitrations and settlement meetings, such as mediations, had continued to take place effectively, with the parties communicating remotely through video conferencing.
Many courts had developed procedures to allow hearings to go ahead in a safe way under local social distancing guidelines. In some places, court rooms could still be used if the number of representatives was limited. However, many hearings must now be held remotely.
On March 19th the Lord Chief Justice of England and Wales announced that “the default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one or all participants attending remotely”. He urged civil and family judges to use video streaming technology instead of defaulting to postponement of proceedings.
Mr Justice Teare, who oversees the Commercial and Admiralty Courts, denied a request to postpone a Commercial Court trial rather than use video conferencing.
He stated: “It is the duty of all the parties to seek to co-operate to ensure that a remote hearing is possible”.
There is a Remote Hearings Protocol. While BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone calls are mentioned, the protocol also states that “any communication method available to the participants can be considered if appropriate”.
The Protocol also provides that remote hearings should, so far as possible, still be public hearings. The UK Coronavirus Act 2020 allows for the live streaming of Court hearings. In the previously mentioned Commercial Court trial, Mr Justice Teare ordered that the proceedings be live-streamed via YouTube.
Even in complex cases, courts in other countries have moved to video streaming rather than postponing a scheduled trial.
The writers observed that, because most arbitration awards were made on the basis of papers alone, without an oral hearing, many arbitrations would not be affected by Covid-19. When a hearing was necessary, as arbitration is a consensual process, Gard said that there should be no problem for the parties to attend remotely, as long as the practicalities could be dealt with to ensure it is a fair process.
In 2018 the Seoul Protocol on Video Conferencing in International Arbitration was published. This contains a sensible list of points that can be considered by the parties when agreeing and setting up a virtual arbitration hearing.
However, the writers said that there was still some concern about taking part in remote hearings. Part of this might be due to anxiety about how well the technology works, and also that it may not be the most advantageous way to present their case, the writers said.
“Over time, users will likely become used to the mechanics of such hearings, and if all parties and witnesses are joining the hearing in the same way, there is no advantage or disadvantage to any party. Virtual hearing etiquette is also developing, which in time will make it easier for all users.”
Mediation or facilitated settlement negotiation was a consensual process and had been open to remote meetings. Gard participated in its first online/video mediation (rettsmekling in Norwegian), regarding a P&I claim before the Norwegian courts.
In the Gard case the parties and the judge were sitting in separate locations around Norway, including North of Norway, Oslo and Arendal. From a technical point of view, the mediation went very well, the writers said. The opening and closing meetings were held in a common virtual room. The parties then had their separate virtual rooms where they could communicate privately, and the mediator kept shuttling back and forth between these “rooms”, just as he would have done in a physical mediation.
The writers called it “a positive experience”. Communication through the platform was good, both internally and with the opponents.
“A strength of mediation has been focusing the parties’ attention by bringing everyone together in one place. We were worried that holding the mediation virtually would lose that focus, but we were wrong. The mediation was successful, and all involved acted in good faith toward the common goal of settling the case.”
The use of video conferencing technology for some types of legal proceedings was a trend before the pandemic. The writers said that “necessity has pushed us years ahead of the trend. We are confident that as more practitioners use the available streaming technology and become comfortable with it, virtual proceedings will become accepted as a tool to efficiently handle many disputes.”
Gard concluded that during this time of global pandemic, we all must try our best to see that cases are handled fairly and expeditiously. “Preparation is essential – set out positions clearly and succinctly. Invest in and practice with the streaming technology before the hearing. Communicate and cooperate with the tribunal and other participants early to work out any of the technological hurdles.”
The writers concluded that virtual proceedings in a pandemic offered a way (sometimes the only way), to progress litigation and settle disputes. Most practitioners had said that virtual proceedings took more time than traditional litigation or mediation. Familiarity with the technology and potential advances or tailoring of current applications might improve the efficiency. “It is too early to say whether lawyers will disappear from the airports, but virtual proceedings can definitely contribute in reducing travel. With sustainability high on the agenda, this will be something for many companies to consider”.