I. Introduction

Serving as arbitrator is a personal service which may not be delegated. Acting as counsel in arbitration is also a personal service insofar as interpersonal persuasive skills are required in addition to legal and technical abilities. The credibility of a witness does not only depend on what she or he says but also on the general impression she/he leaves with the arbitrators. This impression depends to an astonishing degree on the impact of non-verbal communication that is often difficult to describe.

Even if one considers the arbitral procedure to be a rational endeavour to find truth and law, one should not ignore the fact that it also is a dynamic multi-layered communication process, which best flourishes if all players are physically present.

Videoconferencing uses technological means to allow people who are in different locations to communicate orally and visually. However, one's view is limited to what the camera shows and one hears only what the microphone captures. Besides, the handling of these devices may cause distraction. The communicative setting is not only different from face-to-face situations but also less rich, especially with regard to semi- or subconscious communication.

The author therefore contends that videoconferencing is only a second best and cannot fully supplant meetings in person. However, there is a price to be paid for the greater efficiency of personal meetings: displacing participants to a meeting room may result in 'dead time' and considerable expense for them. Therefore, the potential of efficiency must be balanced against the actual loss of efficiency in terms of time and money. On the other hand, videoconferencing is a better means of communication than, say, telephone conference calls, as reflected in its increasing use by national courts as part of judicial proceedings.

II. Videoconferencing technology

1. What is videoconferencing?

A videoconference is a meeting of several persons that takes place in two or more different locations and allows attendees to communicate in real time by voice, vision [Page36:] and possibly also exchanges of data using information technology. A videoconference presupposes as many videoconferencing front-ends or videoconferencing systems as there are places where attendees gather. In addition, communication channels are required through which the compressed data generated by one front-end is transferred to the other(s) and vice versa. These channels may be point-to-point fixed lines or the Internet. If more than two front-ends are involved in a conference, a logical 'broker'1 is required to ensure distribution.

2. The front-end

The videoconferencing system at each front-end will normally consist of a high-performance PC or a custom-built computer for videoconferencing, to which a video camera, a microphone and a display are attached. For demanding settings such as arbitration hearings, where the transmission must be of a high standard, the microphone may be a high-quality voice conference unit, the display an oversized screen or an image created by projection through a beamer, and the video camera a so-called PTZ (pan/tilt/zoom) device, i.e. a video camera that may be focused and moved remotely. If documents and/or applications are to be shared during the videoconference, other peripherals such as printers and scanners may be required.

There are custom-built systems for small, medium-sized and large rooms, and desktop systems. Irrespective of the specific purpose, the quality of pictures and sound required for a videoconference in arbitral proceedings will not be achieved through standard workstations with a connected webcam. Dedicated videoconferencing equipment will be required, the unit cost of which is currently around US$ 15,000 for a mid-range front-end, although this may change in time.

3. Connecting the front-ends

3.1 Bandwidth

The biggest current obstacle to effective videoconferencing is bandwidth. Even if the front-end systems possess powerful processors and use the ultimate in compression protocols (such as MPEG2 ), the amount of data generated in each fraction of a videoconference is daunting. 3 This requires more than one ISDN4 connection. Moreover, the required bandwidth must be available over the entire length of the communication channel and throughout the videoconference. A bottleneck at any point in the communication chain will affect overall performance. Firms nowadays increasingly have communications infrastructures that allow such obstacles when using ISDN to be overcome, provided the LAN5 or WAN6 used provides the necessary bandwidth. 7 In most instances, where such infrastructure is in place, private lines may be used to prevent interference of data traffic with other computers.

ISDN-connection-based videoconferencing traditionally works on an ITU8 standard called H.320, which laid the basis for this technology. Practical difficulties have led to a new standard, H.323, based on the Internet packet-switched9 communication protocol TCP/IP. 10 It is widely believed that H.323 and its improvements will become the dominant protocol.[Page37:]

Use of the Internet for a videoconference avoids the cost of multiple private ISDN connections. However, congestion on the Internet may reduce the stream of videoconference to a trickle. The required flow of information may be maintained by prioritizing the packets relating to a videoconference. Internet service providers should therefore be chosen that are capable of ensuring end-to-end quality of service (QoS) by means of service level agreements (SLAs). If the necessary technical arrangements are not made to ensure QoS, delays are likely to occur, which will affect audio and video quality and usability. Other adverse effects include jitter (due to the variability of transmission delays) and the loss of packets. Losses as small as 1%-2% may make a video unusable.

3.2 Firewalls

Firewalls are devices consisting of software, and often hardware, located at the interface between WANs and LANs to prevent unauthorized access and data manipulation within the LAN computers. Whilst affording protection, they are also designed to allow the desired flow of information. The volume of data generated during a videoconference forces the firewall to open a considerable number of its communication ports11 to process the traffic. To avoid the risk of disruption, sophisticated technology is required specifically configured for dealing with videoconferences.

3.3 Protocol compatibility

Protocol compatibility will not be an issue if the front-ends use the same protocols. This will normally be the case, if the front-end devices have been manufactured by the same producer. However, a compatibility issue may arise, if front-ends from different producers or belonging to different product generations are used for the videoconference. These are not insurmountable problems but should be identified in good time and require technical expertise.

3.4 Videoconference settings and additional infrastructure that may be required

3.4.1 Single protocol point-to-point

Videoconferences involving a single front-end calling a second front-end using the same protocol (ISDN - H.320; IP - H.323) do not require special additional infrastructure.

3.4.2 Single protocol point-to-multipoint

Videoconferences involving several front-ends using the same protocol will require a multipoint control unit (MCU). MCU's receive and redistribute videoconference data. They may be separate external devices within the network or built into the front-ends. 12

3.4.3 Multiple protocol point-to-multipoint

Videoconferences involving several front ends and an MCU and using different protocols require a protocol gateway. This is software that provides transcoding services such as translating audio/video coding, and network protocols. 13[Page38:]

4. Practical considerations

A videoconference in arbitral proceedings must be of a high quality and should not cause the arbitral tribunal and the parties to have to struggle with technical issues. Any distraction from the substance of the arbitration will be counterproductive. The following recommendations will help to avoid such a risk.

Any videoconference should be planned well ahead of the scheduled date. The preparations should comprise the following steps:

Step 1 (four weeks at least before the videoconference): 14

- determine date, time and duration of the videoconference;

- determine the number of front-ends and their locations;

- determine how many people will be present in each conference room;

- determine the seating arrangements (do not sit in a row, rather an oval in front of the camera) and the audio requirements (number and arrangement of microphones) remembering that sound quality is even more important than video quality;

- determine whether additional infrastructure such as whiteboards15 are needed for the presentation of documents and/or which documents or other material must be physically available in each meeting room;

- determine how the conference will be recorded and in what form the records will be made available to the arbitral tribunal and the parties;

- if necessary, determine a procedure for ascertaining the identity of participants, including witnesses, if they are not personally known to counsel of both parties;

- if appropriate, provide for supervisors in each meeting room whose job will be to ensure that the conference takes place in an orderly and technically correct manner.

Step 2 (three weeks at least before the videoconference):

- assess the available infrastructure with particular focus on quality and reliability. If all participants possess and regularly use videoconferencing equipment in their offices or firms, they may be able to carry out the assessment with minimal assistance. Otherwise, to avoid using valuable legal resources for this purpose, it would be more appropriate to delegate the task to trained technical support staff. However, the arbitral tribunal and/or the parties must give precise and clear indications as to their requirements and should closely monitor the work of the support staff. If no adequately trained support staff or equipment is available to one or all parties, recourse should be had to a videoconference service provider. It is usually more efficient to use a single videoconference service provider to organize all aspects of the videoconference. 16 International videoconference service providers have suitably equipped and lighted conference rooms with connections that have been tested many times, so this decreases the likelihood of technical disruptions during the videoconference. 17 However, this type of service has its price and it would be misguided to think of videoconferencing today as a way to cut costs in small cases. The assessment process should conclude with a clear indication of what needs to be done, by whom and when.[Page39:]

Step 3 (ten days at least before the videoconference):

When implementing the previous step, a test run should be carried out to ascertain that all devices are correctly configured and functional. This should be done early enough to allow support staff calmly to resolve any technical problems or to postpone the conference or replace it with a real meeting, if necessary.

In arbitral proceedings, use of so-called 'chair control' and 'electronic hand raising' may help the arbitral tribunal to keep the session under control. For this purpose, the arbitral tribunal, and especially the chairperson, will need to be familiarized with the basic control mechanisms and devices. This also applies to the operation of the PTZ camera. Also, distant participants will need to be familiar with the control devices and know how to operate any peripherals required to capture and reproduce documents during the videoconference. Any instruction that may be necessary should be given in advance of the conference, especially if the key people have no previous experience of videoconferences. However, this will not always be possible or desired. In any event, the arbitral tribunal and the other conference participants should always be available at the conference location sufficiently ahead of schedule to receive any necessary technical instructions from the support staff.

(ii) The following minor considerations may affect the success of a seamless videoconference.

- Minor technical details, such as uncertainty over which button to press on a remote control, may disrupt the conference. To deal with these and other hitches, the arbitral tribunal should ensure the presence of adequately trained support staff at each front-end during the conference and have the names and telephone numbers of these persons to hand. This will allow the tribunal and the parties to focus on the purpose of the videoconference without being distracted by technology.

- Lighting is of great importance. Carefully deployed artificial lighting may well be better than daylight, which varies according to the weather and time of day. The source of light should not be behind the participants, as it would beam into the camera, but should rather be behind the camera. However, care should be taken to avoid blinding the participants.

- Dress colours and patterns and body movements may have adverse effects. For instance, small squares and other patterns on jackets or shirts may come across strangely on the screen, and abrupt movements may be disturbing. Support staff should be able to provide practical tips in this regard.

III. Legal issues relating to videoconferencing

1. ICC Rules of Arbitration

Videoconferencing is fully compatible with the ICC Rules of Arbitration. Article 20(1) of the Rules states that the 'Arbitral Tribunal shall . . . establish the facts of the case by all appropriate means'. However, the freedom given to parties by Article 15(1) [Page40:] (second alternative) with respect to the procedural rules allows them to exclude or restrict the use of technology if they so wish.

2. IBA Rules on the Taking of Evidence in International Commercial Arbitration

The author believes that videoconferencing is also compatible with the IBA Rules on the Taking of Evidence in International Commercial Arbitration (hereafter 'IBA Rules'). There is no problem as far as Article 8, 'Evidentiary Hearing', is concerned. However, Articles 4 ('Witnesses of Fact') 18, 5 ('Party-Appointed Experts') 19 and 6 ('Tribunal-Appointed Experts') 20 use the terms 'appear for testimony' and 'be present at an Evidentiary Hearing', which could be construed as requiring that the person be physically present in the hearing room. However, this would be somewhat artificial, given that videoconferencing involves same-time visual and acoustic communication with full potential for direct - albeit not physical - interaction. Moreover, the use of videoconferencing technology has not been explicitly excluded by the drafters of the IBA Rules, nor is it likely to be tacitly excluded by parties who may decide to use them. However, to avoid possible disagreements at a later stage, it is advisable to obtain the parties' explicit consent to the use of videoconferencing in the event they agree on the application of the IBA Rules.

3. Potential problem areas

While no detailed research has been conducted to this end, the author is not aware of any instance in which the use of a videoconference during an arbitration has caused a legal problem that had to be decided by a national court. This may be due to its as yet limited use.

However, the following hypothetical problem areas may be identified:

(i) It may be possible that during a videoconference technology-specific incidents arise when a witness is examined, which a party considers as a violation of the basic procedural rights it enjoys under the public policy of the lex arbitri (arbitration law at the place of the arbitration) or the law of the country where the award is to be enforced.

For example, it could be imagined that:

- transmission is suddenly interrupted during intense cross-examination of a witness;

- when a witness is being cross-examined at distance, a person or device invisible to the other parties and the arbitral tribunal provides the witness with information or instructions;

- the sound or image is interrupted at the distant end unbeknown to the arbitral tribunal;

- none of the above occurred, but it is contended that one or other of these events did occur.

It is suggested that this type of issue may be avoided by: [Page41:]

- neutral monitoring at the front-ends;

- providing for immediate notification of any irregularity;

- immediately indicating any perceived irregularity to the arbitral tribunal and putting such indications or their absence on record;

- having an escape strategy or other measure that could be implemented where need be to neutralize the problem.

(ii) Mandatory procedural rules, especially at the place of arbitration, could forbid the use of videoconferencing during oral hearings. Should such rules be overlooked, this could jeopardize enforcement by causing the award to be set aside. If national courts at the place of arbitration may use videoconferences, it should not be improper for an arbitral tribunal to do likewise, given that international arbitration proceedings are generally subject to a more flexible regime than judicial proceedings. In certain special cases similar consideration should also be given to the practice of the courts at the place where the award is likely to be enforced.

(iii) It is rare for arbitral tribunals to require witnesses to testify under oath. In many jurisdictions arbitrators do not have the power to take oaths. If an arbitral tribunal plans to take an oath from a witness and has asserted that this is within its powers under the lex arbitri that applies at the place of arbitration, the legal status of the oath could be questionable if the testimony is given during a videoconference by a witness located in a country where arbitrators do not have this power. There is no general solution to this problem, which should be considered on a case-by-case basis.

(iv) As far as confidentiality is concerned, there are no legal requirements specific to videoconferencing as distinct from any other arbitration context. Persons who acquire access to confidential information should be required to sign an appropriate written undertaking. However, this cannot protect against eavesdropping by third parties using technical means. As this risk exists for any type of distant communication, such as telephone conferences, facsimile letters and e-mails, it should not be blown out of proportion.

IV. Responsibility for organizing the videoconference

Responsibility for the entire arbitral proceedings lies ultimately with the arbitral tribunal. However, arbitrators may not always dispose of the same resources as counsel when it comes to arranging hearings and especially videoconferences. It is not uncommon in international arbitration for the tribunal to delegate organizational matters to one or both counsel, if - as often happens - the parties are willing to cooperate in good faith. There are practical reasons for doing so, as the counsel are sometimes geographically close to the place of the arbitration or the location of the hearing and may therefore use their contacts for logistical purposes. Such practice should not cause any problems, provided it is done with the required consent and transparency, especially with regard to costs. There is no reason to deviate from this practice in relation to videoconferences, assuming the parties remain willing to collaborate. In virtually all reported instances of videoconferencing, the arrangements were made by one or all of the parties.[Page42:]

The question arises as to which party should handle the organization? Geographic proximity to the place where the front-end(s) are located is one factor to be taken into consideration. More important however, in our view, is the parties' willingness and interest in making the videoconference efficient and successful.

From a practical perspective, it would be very unwise to expect and, even worse, to order a party that is unwilling or unable to arrange a videoconference session to do so. Asking the other party to step in as a substitute may prompt reactions that complicate the procedure to an extent the arbitrators could find difficult to handle. In such situations, the arbitral tribunal would have to deal with the organization or simply decide not to have a videoconference.

If the arbitral tribunal does delegate the organization of the videoconference to a party, it should specify all requirements, give clear instructions and check that they are followed. 21 However, the author believes that it is preferable for the arbitral tribunal to take charge of the organization whenever possible.

V. Settings for videoconferences

1. Communication within the arbitral tribunal

Unless and until videoconferencing is as simple and cheap as voiceconferencing, there would appear to be no advantage in using this technology for communications between the members of the arbitral tribunal. If there exists a trustful and collaborative atmosphere amongst the arbitrators, communication by telephone, email, fax and post is likely to be sufficient. This is particularly the case if the arbitrators have already met and/or worked together. Whenever the decision-making process is likely to be conflictual, a videoconference should not normally replace a personal meeting. In such situations, informal and external elements (a joint lunch, a coffee together or an invitation for dinner), which a videoconference does not offer, may be crucial to overcoming an impasse.

2. Preparatory videoconferences

A preparatory videoconference could be considered, if the cost as compared with a personal meeting or a telephone conference is not excessive. In most instances, a conference call requires little expense and should therefore be preferred, provided it is well prepared through a detailed agenda. If the arbitral tribunal considers a conference call to be inappropriate, this will usually be due to a perceived need to meet the parties and/or their representatives (maybe for the first time) and the other members of a three-member tribunal. Such a meeting helps personal relations and enables the participants to grasp the 'atmosphere of the case'. 'Soft' techniques such as these should not be overestimated, however. This is not to say that a preparatory videoconference is inadvisable, but it will normally presuppose that a constructive working atmosphere already exists.

3. Hearings by videoconference

The oral hearing is a, if not the, crucial phase of any arbitration. It may therefore be somewhat of a surprise to find all of the reported uses of videoconferencing [Page43:] concerned hearings. Theoretically, there are several different possible settings, depending on which person or persons is/are distant from the place where the sole arbitrator or tribunal chair is located.

3.1 Distant arbitrator

The physical presence of all arbitrators at a hearing is a basic tenet of arbitration as it enables them to take immediate cognizance of all oral submissions and evidence. Only in very exceptional circumstances, where, for instance, an arbitrator is physically prevented from travelling to the hearing and no postponement is possible, or for other compelling reasons, may an arbitrator's participation via a videoconference be envisaged. In this case the arbitral tribunal should plan how internal private communications between the distant arbitrator and the other members of the tribunal can be most efficiently handled. In any event, such a videoconference will be practicable only if the hearing is short. For hearings that last several days or longer, videoconferencing does not seem to be a viable option, and the cost is likely to be prohibitive, especially if recourse is had to a service provider.

3.2 Distant party

The considerations mentioned in 3.1 above also apply mutatis mutandis to distant parties. The author believes that 'soft' communication factors could create imbalance and unease where the arbitral tribunal and one of the parties are physically gathered in one location and the other party at a remote location connected via a video-link. Such situations could lead to complications that are better avoided. 22 For instance, limited camera angles (including even when a PTZ-camera is used) and the elimination of background noises by the microphones narrows the distant party's perception. Another complication is potential uncertainty about what may be going on behind the screen. The impracticability of videoconferencing for extended hearings is an additional factor. If exceptional circumstances nonetheless make such a videoconference necessary, it should be carried out only with the distant party's informed consent.

On the other hand, there may be occasions where all counsel are present in the location where the hearing takes place and the participation of the party itself, e.g. a senior officer of that party, appears to be necessary for a limited period of time. If a voiceconference is considered insufficient for this purpose, a videoconference could be the appropriate solution, provided that cost-efficiency is ensured.

3.3 Distant witness

All reported uses of videoconferencing in arbitration relate to the examination of witnesses. In each case, only some of the witnesses - those one or two persons unable physically to attend the hearing - were examined via a videoconference link. Reports by those who participated in such videoconferences tend to be positive.

As such videoconferences will normally require only two front-ends, they are relatively simple to organize. However, they still require the planning discussed above in section II.4. [Page44:]

When contemplating the use of videoconferencing for distant witnesses, the tribunal should consider above all how crucial the testimony of the distant witness is likely to be. 'Soft' communication factors amongst people who are physically together may have an important impact on the result of the examination. Especial care should be taken when a key witness is involved. However, if use of a videoconference enables a witness to be heard, who for compelling reasons would not otherwise have been available at any point in the proceedings, this would seem preferable to not hearing the witness at all.

When planning the videoconference, the possibility of confronting witnesses with each other should be borne in mind. If this is not likely, it is recommended that a second point-to-point videoconference be organized. The situation will be more complicated if it has been or may be decided to hear witnesses together, as happens especially with expert witnesses23. Then a point-to-multipoint conference will be necessary, which usually requires more thorough preparation.

3.4 Combinations

Combinations of the above settings may also be possible whenever videoconferencing is considered appropriate in each of the settings involved. This is particularly the case if the videoconferences take place consecutively and only two front-ends are used. As soon as more front-ends are involved, the videoconference will be harder to organize (see section II.2-3 above). Moreover, the configuration at each end is likely to be less convenient for the participants, who will have to deal with several separate video-pictures and voice input from different sources. The need to look at several different images at once may require adaptation and decrease communication efficiency.

The author believes that the 'ultimate', multipoint videoconferencing scenario in international arbitration still requires further technological progress and wider dissemination of this technology among users. Only if multipoint videoconferences are as simple to organize as voiceconferencing and their cost falls will this tool gain acceptance in arbitration. Even then, however, videoconferencing is unlikely to be used in smaller international cases capable of being decided without an oral hearing and the attendant expense.

VI. Conclusion

Using videoconferencing in international arbitration currently requires careful organization and technical planning if, as is normally the case, front-ends not regularly joined for videoconferencing are to be connected. The acquisition of videoconference equipment of a sufficiently high standard and its maintenance are still expensive. The same is true of videoconference service providers. These technical obstacles are likely to diminish during the coming years, which will make videoconferencing more attractive and accessible. Companies that use videoconferencing mainly for internal meetings to save on travel expenses may push for increased use of this facility in arbitral proceedings.

However, what is technically possible is not necessarily desirable if the impact of technology on human communication is taken into consideration. Interaction in the hearing room is a complex matter, and the non-technical considerations discussed [Page45:] above need to be considered by the arbitrators, parties and counsel in determining whether to have recourse to videoconferencing.

Nonetheless, arbitrators and counsel are encouraged to use videoconferencing where appropriate. In an increasing number of countries this technology is already reaching national courts. Also, an increasing number of lawyers are gaining experience of its potential and limitations and adapting communication patterns to it. There is no reason, in the author's view, why international arbitration practitioners should lag behind in this regard, provided there is a sufficient level of collaboration.

1
MCU: see 3.4.2 below.

2
Motion Picture Experts Group, an ISO motion audio and video compression standard.

3
The Polycom white paper on video communications provides the following figures: audio (64 Kbps*) + video (320 Kbps) + IP overhead of approximately 25% = 480 Kbps. (*Kbps = kilobytes per second) for connections via ISDN. With a ½ duplex protocol, the required bandwidth could be as big as 960 Kbps. However, certain networks that use fiber optic wiring may support 700 Mb/s or more (Mb/s = megabytes per second)

4
Integrated switched digital network. ISDN is the digital step beyond the world of the existing analogue public switched telephone network (PSTN). At present, one ISDN B-channel provides 64Kbit/s.

5
Local area network. The LAN's external connections are currently via ISDN or ADSL. The connection is often via a permanent connection to the ISP. However, temporary 'dial-in' connections may also be used for a videoconference.

6
Wide area network.

7
See 'Network Requirements' in 'Video Conferencing Cookbook' at http://www.vide.gatech.edu/cookbook2.0/network.html

8
International Telecommunications Union, a grouping of the world's telecom companies.

9
Information packet means that the data is separated into 'packages' of a defined size that travel independently via the Internet and are re-assembled in the receiving system. For this purpose, each packet includes a number corresponding to the destination and another number corresponding to its position in the sequence of packets. This is the way in which the Internet works.

10
Transmission Control Protocol/Internet Protocol

11
Normally, a computer requires only one communication port for each protocol, e.g. port 80 for TCP/IP.

12
See 'Advanced Videoconferencing Components and Management' in 'Video Conferencing Cookbook' at http://www.vide.gatech.edu/cookbook2.0/advanced.html

13
See preceding footnote.

14
This and the following indications of periods of time for organizing a videoconference should allow for adjustments, if the unforeseen occurs. They may be shortened by more experienced users. They may also be considerably shortened if unexpected and insurmountable events prevent a witness from being physically present at the hearing. In such situations, it would be better to hear the witness by videoconference than not at all.

15
A whiteboard is a software collaboration tool, which may possibly require certain hardware; see http://www.webopedia.com/TERM/W/whiteboard.html

16
Videoconference service providers are companies that rent videoconference equipment and/or dedicated locations for videoconferencing and provide technical assistance in this regard. The nearest and most suitable may be found through local yellow pages or via Internet directories and search engines (e.g. www.google.com; search: 'Videoconference Service'). However, it may be preferable to ask for references from colleagues who have already used videoconferencing services. Depending on where the front-ends are to be located, the use of a single provider may not be possible or may be more expensive.

17
It may also be possible to install the videoconference equipment in the hearing room. If this is desired, care must be taken to ensure that the hearing room is adequately equipped to satisfy technical requirements (e.g. layout, lighting, availability of required broadband/ISDN connections). Furthermore, a service provider offering mobile equipment must be chosen.

18
See IBA Rules, Art. 4, paras. 7 and 8.

19
See IBA Rules, Art. 5, paras. 4 and 5.

20
See IBA Rules, Art. 6, para. 6.

21
See part II above.

22
However, the German administrative court of Villingen-Schwenningen has conducted a pilot project with the representatives of the government party being 'present' only via a video-link during the hearings. It is reported that, after solving certain technical problems, the system was widely accepted as being satisfactory by all parties and the judges.

23
The author is not aware of any cases where this has been done and considers that it is better for crucial witnesses such as expert witnesses on technical matters to be physically present in the hearing room, especially if they refer to graphical presentations or their own documents.