Using Technology to Resolve Disputes

Civil Proceedings

In Cyberworks Audio Video Techology Ltd (In Compulsory Liquidation) [2020] HKCFI 347, the High Court decided that it could determine a court application by way of a telephone conference hearing and there was nothing in the court rules to prohibit this. Interestingly, one of the reasons given by the court in its written decision is that the parties' legal representatives were experienced with commercial arbitration, in which directions hearings are routinely held by telephone conference.

For practitioners in Hong Kong, the court's decision points a way forward for the greater use of technology in resolving disputes, both in extraordinary times and more generally.

At the time of writing the default position in many jurisdictions is that the public health emergency does not mean that general court business comes to an end. In England and Wales, parties and their lawyers are expected to make use of technology in civil proceedings where at all possible, in order to file documents and to dispose of applications (whether by way of telephone or video conference). In addition to the existing court rules and practice directions, new court protocols are being rolled out for remote hearings. As stated in a public message dated 19 March 2020 by the Lord Chief Justice of England and Wales (with respect to the civil courts):

"The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely".

As a result, the civil courts in England and Wales are moving to a (mainly) remote working basis during the period of the public health emergency and it is the duty of the parties to co-operate to ensure that remote hearings are possible. The courts there will be reluctant to adjourn any hearing without first having explored the use of technology or the possibility of disposal based on paper submissions. Of course, there will be hearings that require physical attendance and some adjournments are inevitable – for example, what works for procedural hearings and more routine matters will not necessarily work for trials.

The position adopted by the courts across the United Kingdom is expected to change as self-isolation and social distancing become the (hopefully temporary) norm. Courts in certain offshore jurisdictions are also making the most of remote hearings and electronic filing (the two often going hand in hand).

Arbitration

In Cyberworks, the court's analogy with arbitration practice is apt. Practices adopted by most of the major institutional arbitration bodies provide for video and audio conferencing, online document repository and real-time transcripts. Even if relevant details are not posted on their websites, the technology exists. Such technology will not be suitable for the resolution of all matters. However, the use of video and audio technology will be possible for many procedural hearings.

Mediation

It is possible to conduct remote ("virtual) mediations. While "face to face" is better (as with court hearings) this will not always be possible in the current climate. Anecdotal evidence from England is that remote mediations are taking place without insurmountable problems. Video conferencing facilities such as "Zoom" have allowed mediators to conduct mediations in much the same way, with (for example) joint meetings, private sessions with the respective parties and their lawyers and between the parties and their own lawyers.

Such mediations require much planning and cooperation between the mediator, the parties and their lawyers and strict rules regarding confidentiality and privacy must be put in place. All the parties must know who is in the "room" (but not necessarily in view) at each location and that everyone involved is bound by the confidentiality of the mediation process. Mediations in these circumstances are likely to take a bit longer to conduct and patience will be a priority.

Technology will not be a solution for all the related challenges arising out of the public health emergency and the consequential restrictions on movement of people. However, on the basis that "necessity is the mother of invention", technology will lead and provide a way forward. For example, look out for developments with e-BRAM (the online dispute resolution forum for mediation and arbitration).

Editorial Note: At the time of writing, the “General Adjourned Period” for the courts in Hong Kong has been extended to 5 April 2020 and is subject to review having regard to the prevailing public health situation.

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Senior Consultant and Accredited Mediator, RPC