Welcome to the New Normal. In the wake of COVID-19 and the attendant social distancing protocols, arbitrations have gone virtual. Whether you are embarking on your first or your fiftieth virtual arbitration, here are the Top Ten issues to consider when drafting your Virtual Arbitration Protocol.
Time and Place
When the Arbitration occurs in cyberspace, and the parties are connecting from different cities or even different countries, it is important to note and agree on the deemed location or place of the Arbitration. Further, where parties, witnesses or counsel are connecting virtually from different time zones, an agreement must be made as to the appropriate start and end times for hearing dates reasonably accommodating all participants to the extent possible.
Determine who will ‘host’ the videoconference and, as host, will manage invitations and access to the platform, control the movements of participants between the waiting room, the hearing room and break-out rooms, and manage screen-sharing permissions and other features. Typically, the host will be a member of the Arbitral tribunal, or an administrative delegate thereof. Counsel should be discouraged from hosting to ensure procedural fairness, and also the appearance thereof.