More efficient pre-hearing preparation
Much of ODR’s functionality can be quite basic but in practice the efficiencies offered for pre-hearing preparation can be significant. ODR’s benefits should not be underestimated. An online document management system makes it much easier to manage documents, including when searching for, annotating and/or sharing materials between the client, counsel, experts and witnesses of fact. The convenience of having exhibits hyperlinked within pleadings or witness statements, for example, is an incredibly useful and time saving feature.
More efficient preparation of hearing materials
The cost of producing hard copy bundles can quickly become significant, particularly in document-heavy, multi-party and/or multi-arbitrator proceedings. Hours of intensive labour are often involved in pulling together the hardcopy master, making and then proofing multiple copies and manually updating each copy every time an amendment or addition is made. An ORB significantly reduces the work required to prepare and maintain the arbitration hearing bundle. If the ORB is set up early and documents are uploaded as and when they are served, the hearing bundle will be automatically constructed during the course of the proceedings. Where additions or amendments need to be made, these are done once centrally, avoiding the need to manually update numerous hardcopies. This can save significant time and cost (particularly in multi-party and multi-arbitrator proceedings) and eliminates the risk of inaccuracies between copies of bundles. An ORB also saves on additional transport costs (and avoids associated confidentiality risks) – providing someone access to the hearing bundle is as simple as giving them an access password to the ORB.
More efficient hearings
An electronic hearing can be up to 25 percent to 30 percent quicker than a traditional hearing. This is largely driven by the smoother and more efficient management of documents. Gone is the time-consuming and thumb-numbing process of everyone in the hearing room locating the correct document within volumes of lever-arches, or indeed waiting to locate additional copies of a document if one bundle has a copying error. There are also significant forensic advantages. During cross-examination for example, each document referred to by counsel appears on the screen in front of the witness almost instantaneously, enabling the cross-examiner to launch a peppering assault of questions, free from the distraction, disruption and delay associated with the witness (and tribunal and opposing counsel) locating the document referred to in a hard copy bundle.
Another benefit is that everyone in the hearing room is presented with the same material simultaneously and the material on content screens cannot be “browsed” by an individual user. This focusses the attention of entire hearing room on the document or documents being discussed. Swifter resolution of disputes can not only benefit parties but also arbitrators who are often highly sought-after and time-poor individuals.
A more efficient hearing is not only faster, and often therefore less costly, but also affords parties greater opportunity to present their cases in the limited timeframe available. The same technology that allows ORBs can facilitate easier and novel ways of presenting evidence and submissions. It is far easier to navigate a large, complex spreadsheet electronically. Complex data can also be collated and presented electronically in clearer, even interactive, ways. Technologically-savvy counsel are already utilizing such methods.
Case Study: Recent ICC Mega-Arbitration
Norton Rose Fulbright recently acted in an ICC arbitration with the disputed quantum reaching ten figures. A decision was made by the parties shortly before the hearing that the hearing would be conducted electronically. The public ORB in that arbitration had over 110,000 documents. Those documents were at the instant disposal of the Tribunal and both parties. Over a six-week, stopclock hearing, more than forty lay and expert witnesses presented evidence (several by video link), and over 22,000 exhibits (including witness statements and documents) were referred to. Despite the significant logistic and document management challenges that one might expect from a dispute of that complexity, each party fully presented its case within the allotted time.
Mobility and global reach
In an increasingly global market place, commercial disputes are frequently cross-border. As a result, parties, counsel, witnesses, experts and/or the tribunal could be located in multiple locations. E-hearings are an especially attractive solution in those situations, and can reduce or eliminate the additional cost and inconvenience of unnecessary travel. Documents on an ORB can be accessed remotely by any authorized user at any time, no matter their location. Factual or expert evidence can be taken from almost anywhere using video link in conjunction with an ORB – all that is required is for the witness to have access to a secure location where a content screen can be set up and some form of video-link technology (now widely and cheaply available). ORB’s also eliminate the common complaint, made particularly by experts, counsel and arbitrators who often travel frequently for business, of having to carry arbitration bundles or risk not having to hand the right documents when needed. With an ORB, at most they would need to carry their laptop or iPad, alternatively, to have access to a secure computer.
Critical success factors
- Engage an established service provider to run the system.
- Get buy-in from arbitrators.
- Set up chosen system early to maximize benefits and encourage familiarity pre-hearing.