2020 will definitely be remembered as the year in which legal professionals had to rethink their practice, procedures, their relationship with clients and their relationship with those deciding their cases.
After all, as part of the applied social sciences, Law is all about relationships and contact between individuals, public and private, natural persons and legal entities, so the necessary social distancing forced us to rethink the way we practice our profession and to adopt alternatives for routine, everyday activities.
Suddenly, team and client meetings, evidentiary and trial hearings, witness examinations, meetings with judges and dealings with opposing parties could no longer take place in person. We were forced to adopt technology to carry out the ordinary acts of the profession.
Until the beginning of the year, “zoom” and “team” were just English nouns with no meaning other than their literal one. Today, they represent our virtual meeting and working environment, our meeting rooms and, for those in litigation practice, the hearing room, becoming as routine as instant messaging apps and email, indispensable in everyone’s professional and personal daily life.
For those working in arbitration, whether as arbitrators or as counsel, 2020 was exactly like that. With the suspension of in-person activities at most companies and Arbitration Chambers in mid-March, Tribunals and litigating parties faced a dilemma: suspend deadlines, as the Judiciary did, and wait until everything returned to normal, or proceed with the arbitrations, striving to minimize the impact of the pandemic on disputes already under way.
It is worth recalling that the Arbitration Law has always sought to bring flexibility and avoid the strictness and rigidity characteristic of — and so criticized in — state court proceedings. And in the face of a pandemic unprecedented for our generation and unthinkable in this day and age, we could never have imagined that the “new” and strange normal would last as long as it has. What was seen over the course of this year was that most Chambers left the decision to suspend or continue activities to the Arbitral Tribunals themselves and the parties, and many of them chose to maintain proceedings, deadlines and schedules, adapting to the new reality.
In this regard, although rare in some arbitrations, physical filing gave way to electronic filing, helping lawyers and interns organize pleadings and documents, also facilitating the work of arbitrators and tribunal assistants, who have all the elements, petitions, documents and evidence of a dispute available at the click of a button, and helping reduce unnecessary printing and the excessive accumulation of paper which, nowadays, no longer makes sense and goes against the ecological needs the world is crying out for, especially in a digital age.
In the fact-finding and evidence-gathering phase, there is some difficulty in complex and in-depth disputes: expert examinations and technical visits, essential in certain cases, have not been taking place or, when they do, may be unsatisfactory and incomplete, affecting the schedule of technical work and, consequently, the timeline of the arbitration. In other words, the virtualization of arbitration is not always positive in these cases.
As for hearings, many were already held remotely, especially terms of reference hearings and examinations of witnesses located outside the seat of the arbitration. However, during this pandemic period, it became necessary to also hold evidentiary hearings virtually, with the parties’ consent, which is not a settled point among colleagues in the field.
Indeed, virtual hearings represent great savings in money and time. In money, because the parties benefit from lower costs for renting hearing rooms and for transportation, accommodation and other daily expenses of all the professionals involved in the dispute. In time, because there is undoubtedly a gain from not having everyone involved in the arbitration travel, especially in the city of São Paulo, where private and public transportation is congested and getting around is difficult, allowing arbitrators and counsel to use only the hours actually needed to focus on preparing for and conducting the hearing.
There is an undeniable advantage not only for the main players in arbitration, but also for auxiliary participants: witnesses and technical experts do not need to travel and wait for hours to be heard for just a few minutes. Once heard, they can return to their professional and personal activities, without losing an entire day to the arbitration.
On the other hand, it is precisely on this point that colleagues in the field raise criticisms with which we agree: while there is an undeniable gain from holding hearings remotely, arbitrators lose the ability to read deponents more realistically in search of the truth, and the parties’ counsel lose the ability to explore possible contradictions in testimony, making it harder to present defense arguments.
Although the parties and their attorneys are presumed to act in good faith, with the expected ethics and transparency, the conditions under which certain witnesses or technical experts are heard cannot be guaranteed, which may significantly affect the outcome of a dispute.
It is also well known that body language — impaired in a videoconference — is an extremely important factor in assessing testimony. After all, what is not said and the behavior of the person being questioned are often far more revealing than what is expressed in words.
The solution, however, seems to be the adoption of rules and conduct by arbitrators and the parties’ counsel to make examinations as efficient as possible and avoid contamination through coached testimony, prior and improper knowledge of information and documents, among other issues.
Last but not least, the new reality imposed on arbitration also requires greater care by Chambers, arbitrators and counsel with confidential information and documents. The confidentiality of the entire proceeding and of the exchange of files, documents and petitions must be a primary concern for all participants in a dispute, especially with the advent and entry into force of the new General Data Protection Law, which aims at security and assigns responsibility to those who handle and store third-party data.
What has been seen so far are the alternatives and solutions found by arbitration professionals in this emblematic and challenging year, and it can be said that legal practice will never be the same. However, it is certain that safe and reliable mechanisms and procedures can be guaranteed to all participants in the coming years.
That is what we hope for.
Article originally published in Estadão, in Fausto Macedo’s column (in Portuguese), on 11.27.2020.
