No going back?
Imagine a world free of Covid-19. A world in which, like smallpox, the human mind has overcome the virus.
But in this virus-free idyll how will life be? Holidays become a flight away as they always used to be free of urgent dashes for a negative test and without fear of an air bridge collapsing at the last minute leading to a dash for flights home. How wonderful!
What of the all-important world of business travel that has sustained airlines the world over? One of the biggest contributors to carbon emissions has been felled in the space of a few months as Zoom and Teams and other video-conferencing devices once shunned are now enthusiastically embraced.
The Greener Arbitrations campaign works to encourage the reduction of carbon emissions by the international arbitration community. The target of the campaign is the reduction of carbon emissions from a range of sources including air travel.
Much is written and spoken at present about achieving a “sustainable recovery” from the pandemic and one in which there will be “no going back” to the old ways of doing things. For the arbitration community the question arises: who would ever wish to engage in a face to face arbitration hearing again?
In the past air travel was used for parties and their teams to fly here, there and everywhere for site inspections, case management conferences, other interlocutory hearings and, of course, the final hearing. But the community has shown that all of those events can be undertaken by remote means. This has led to savings of time for everyone which can then be devoted to other projects or, for lawyers improving the quality and speed of service for other clients, for the parties a huge saving of costs is achieved and perhaps the most important but, perhaps, most overlooked: carbon emissions. During lockdown world carbon emission were estimated to have fallen by 13% with a 31% fall recorded in the UK. A study of the fall in emissions from aviation found a reduction of 60%. The findings of that study, by the University of East Anglia, were published on 19 May 2020 in Nature Climate Change and is here: https://www.nature.com/articles/s41558-020-0797-x.
Why would we revert to the old ways of flying here, there and everywhere?
In the context of the Courts in England and Wales the Civil Justice Council commissioned research to consider the effect of remote hearings on the quality of justice during the Pandemic. Its report, entitled “The impact of COVID-19 measures on the civil justice system”, was also published in May 2020 and may be found here: https://www.judiciary.uk/wp-content/uploads/2020/06/CJC-Rapid-Review-Final-Report-f-1.pdf. Problems with call connection and audio were the most commonly reported technical issues (para 5.31). The issues of complex commercial litigation and remotely enabled trials was discussed (para 8.3). These cases are perhaps the closest comparator we have to international arbitrations. A number of responses from large commercial law firms (including Mishcon de Reya, Hogan Lovells, Reed Smith and Freshfields) sought the greater use of remote hearings in this context with a few exceptions, for example, in cases where foreign language interpretation is required. Hogan Lovells are reported as saying:
“We consider that, in principle, remote hearings are likely to be suitable for all types of major commercial litigation during COVID-19 restrictions, although it will always be necessary to consider the circumstances of each case (including the needs of the hearing participants). Remote trials which involve a significant amount of fact and expert witness evidence, and in particular, the use of foreign language interpretation present particular challenges (we understand that there are currently limitations on using simultaneous interpretation with video-conferencing platforms, for example) and need to be considered and managed carefully, again depending on the circumstances of the case.”
Even in complex cases involving allegations of civil fraud there has been recorded enthusiasm and satisfaction with one QC acting in a hugely complex fraud case in the Bahamas reporting that, connection issues apart, he had no concerns about managing cross-examination in that most challenging of settings.
Who is up for flying here, there and everywhere ever again?
TONY N GUISE
Tony is a Member of the Steering Committee of the Greener Arbitrations campaign, the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association.