Remote Arbitration Best Practices: Witness Examination

Disputing is synthesizing guidance documents from the AAA, CIArb, CPR, Hogan Lovells, and the ICC, as well as the Seoul Protocol, to provide a comprehensive list of best practices for remote arbitration. Previous blog posts have covered best practices for selecting the technology required for a remote arbitration, and best practices to ensure the security and confidentiality of the proceeding.

Today’s post focuses on procedures for witness examination over video conference:

• A witness does not need to be present at the same venue as the parties, but the chosen venue for the witness must meet the technology standards.
• The video conferencing system must show a reasonable part of the room in which the witness is located, while maintaining a clear picture of the witness. The witness should be in view at all times and in particular, the witness’s face and hands should be clearly visible. The witness must not use a virtual background.
• Counsel must ensure that all witnesses are familiar with the video conferencing platform prior to giving testimony by conducting a test session with each witness.
• The tribunal should ensure that the witness’s setup is adequate and that the witness is sufficiently familiar with the technology.
• The parties must ascertain whether the applicable law allows for oaths to be taken over video conference. If not, the parties must propose alternative methods to ensure the reliability of any testimony.
• The witness shall identify anyone else in the room with the witness and certify that the witness is not receiving communication of any kind while giving testimony.
• Witnesses must have full and fair access to any documentation relied on during direct or cross examination. A dedicated separate screen for sharing electronic documents with the witness is recommended. Where possible, hard copies should also be provided. If hard copies can be provided, the parties can seal the copies and require the witness to open the sealed documents for the first time on camera.
• All documents should be made available electronically to the parties, tribunal, and witness through the use of a secure document sharing platform.

If you would like to discuss remote arbitration further, please contact Karl’s scheduling team at (512) 345-8537. Additional information on the procedures that Karl utilizes for online dispute resolution can be found here.

Photo by: Sam McGhee on Unsplash