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Tuesday, Mar 31, 2020

Coronavirus lockdown a call for Hong Kong courts to radically rethink hearings

A High Court judge recently presided over Hong Kong’s first telephone hearing The judiciary and arbitration centres must build on this initiative, which will reduce the cost of assembling participants in one place

Mr Justice Russell Coleman is to be congratulated on hearing an urgent matter on the telephone while the courts in Hong Kong are closed due to the global coronavirus risk. I hope the Hong Kong Judiciary will build on this initiative for both civil and criminal cases.

I have been puzzled for many years as to why more use is not made of modern technology when it comes to hearings in court, in arbitration or before tribunals.

In arbitration where parties, witnesses, counsel and arbitrators come from different jurisdictions, the cost of assembling all participants in one place is very expensive. Much complaint today is made of the cost of legal proceedings, whether arbitration or litigation, and I believe part of this cost can be saved by a more sensible use of video hearings.

Similarly, in civil litigation there are many procedural hearings that do not warrant attendance in person that could be dealt with by video or telephone.

I think the problem is greatest in international arbitration, of which Hong Kong is a major centre. I have arbitrated many disputes where the cost of gathering everyone in one room for days has been enormous. I have found a reluctance among lawyers to agree to the use of video hearings apart from for mere procedural matters. Such an attitude seems to me to defy a cost-benefit analysis.

In an age where artificial intelligence will soon be commonplace, technology must exist to make video hearings almost as good as face-to-face hearings. Many arbitration centres, such as the Hong Kong International Arbitration Centre, offer alternative solutions such as video conferencing.

However, the problem lies with the weakest link in the hook-up. More needs to be done to explore existing technologies that are known to be secure and reliable. We need to still better harmonise this technology and adapt it to the needs of arbitration hearings.

Another problem is that of time zones. This is not something that can be changed, but certainly there are many instances where reasonable times could be found to deal with certain issues.

The situation we face today is an opportunity for radical change. We need to change the way we conduct a wide range of meetings as well as hearings. Perhaps now is time for a technology pact whereby the arbitral tribunal, institutions and parties commit to considering the use of telephone or video conferencing for any hearing that would otherwise be held in person.

Mr Justice Coleman took a sensible and pragmatic approach, and I hope the judiciary and arbitration centres as well as those appearing in arbitration will take many leaves out of this book.

We need to get the message across that despite the current difficulties, we are open for business as usual and that travel to Hong Kong is not the only way to conduct business in and with Hong Kong.

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