Out-Law Analysis 3 min. read
22 Aug 2022, 1:48 am
Virtual hearings have become the “new normal” since the outbreak of the pandemic. Arbitration centres in different jurisdictions have quickly adapted and introduced various tools and facilities to ensure the process of the hearings are smoothly maintained.
There are also increased demands in the industry for the use of technology in court proceedings, and accordingly, innovative measures have been introduced in the Hong Kong Special Administrative Region (SAR).
When considering the technology that is being used in disputes, video-conferencing support for virtual hearings is essential for communicating with the tribunal, witnesses and other parties during the proceedings. With the increasing need for technology to organise and store documents in complex disputes, the support of a case and document management platform is more pressing and becoming the next essential item for those in disputes.
An online case management platform is software which enables arbitral participants to store, share, manage and edit case-related documents and other data in a single, shared, permissioned repository. These platforms are particularly useful in providing a secure and centralised platform for parties to transmit and store documents and written communications, when compared to transmission of documents by email. They can also facilitate the digital presentation of documents to advocates and witnesses during virtual hearings.
Hong Kong SAR is truly embracing technological means in disputes, flexibility of witnesses testifying virtually where circumstances permit and as a result, more effective shorter trial durations and faster resolution of disputes.
Use of technology in arbitration in Hong Kong SAR
From its current facilities and support, Hong Kong International Arbitration Centre (HKIAC) has been ahead of the curve to offer adequate assistance to parties in virtual hearings. HKIAC launched a virtual hearing suite on 1 August 2020 with comprehensive facilities including a multi-camera system, mobile display screens and wireless microphones. The suite is able to handle dozens of linked devices and provide a closed network that protects against unwarranted interception of video feeds.
The video-conferencing aspect of virtual hearings is very well taken care of, while the use of online case management support is a relatively new offering by the HKIAC.
HKIAC encourages the use of an online repository system, to the extent that this is recognised and embedded in Article 3.1(e) of the 2018 HKIAC administered rules. This allows the use of any secured online repository that is agreed by parties to serve as a recognised medium for service of written communication to the parties and arbitrators.
HKIAC also offers its own online case management platform called HKIAC Case Connect. Case Connect is not only a platform for the storage of documents used in the arbitral proceedings but also has functions which allows parties and the tribunal to communicate and track deadlines. From a cybersecurity perspective, the platform offers banking-level encryption, 99% uptime and continuous monitoring.
Case Connect is available for all HKIAC administered arbitrations and those in which HKIAC provides ongoing administrative support such as fundholding services.
Parties in complex or document-heavy disputes such as technology arbitrations should adopt a case management platform, such as Case Connect, and also consider agreeing an e-bundles protocol to ensure documents from both sides are consistent in terms of format. For example, searchable PDFs must be used; pagination must be computer generated but not handwritten; each PDF should be separated by section, page number and bookmarks; and e-bundles should be delivered via a cloud-based link or in the platform, rather than in a series of emails.
Hong Kong SAR now has supportive rules on the use of technology in court proceedings.
In May 2022, new rules on ‘use of E-bundles in the Commercial Court’ in Hong Kong SAR came into effect, setting directions to provide guidance to court users on the preparation and use of e-bundles so as to achieve consistency and to minimise the expenses involved.
There is a set of General Guidelines for Preparing Electronic Bundles in Portable Document Format (EBPDF) (guidelines), which specify the specific provisions that both parties need to follow when providing electronic evidence, the format of electronic evidence, the electronic specifications required for submitting such evidence, and the specific steps to be taken. Parties should follow these rules unless otherwise directed by the court.
The guidelines also provide video instructions on using e-bundles in court, digital evidence and exhibit handing.
Further guidance on the use of technology in evidence is set out in the courts’ Digital Evidence and Exhibit Handling policy (DEEH). DEEH allows for electronic document handling, the broadcasting of digital evidence such as videos or images in a courtroom, and annotation of electronic documents during witness testimony. The broadcasting function includes displaying e-bundle pages on connected screens or the physical objects on a visualiser. This is particularly useful for technical claims where parties need to refer to pictures or videos to prove the breach such as copying claims in IP infringement. DEEH also supports copying digital exhibits for legal representatives or parties during court proceedings for hearing preparation and annotating the file as an exhibit. This will assist the court when reviewing the evidence before it.
With the court’s aim to hand down judgments within six months after the conclusion of a hearing not exceeding 15 days in the Court of First Instance, and within nine months after the conclusion of a hearing of 15 days or more, adoption of technological means and further innovative measures will no doubt mean the court’s time can be used more effectively.