Owain Stone shares his insights with the Chartered Institute of Arbitrators Australia.
The innovation challenge
Forensic expert Owain Stone recently shared his insights with the Chartered Institute of Arbitrators (CIArb) Australia about changes to expert evidence engagement in arbitrations and litigation. In response to the Covid-19 pandemic, both courts and arbitrations had to innovate.
In this article, Owain notes that while this has been a steady evolution for the historically more innovation-friendly arbitrations, the recent changes are more revolutionary for some courts.
"The unexpected and unprecedented restrictions arising from the international response to COVID-19 has meant both international arbitrations and the courts needed to respond," Owain noted. "...do arbitrations still have an edge in terms of flexibility and practicability when it comes to expert evidence?"
Owain shared his experiences as an Australian-based expert giving evidence in international arbitrations. He highlighted that while common to have some face-to-face pre-hearing meetings in the pre-Covid era, the practice of hearing interlocutory procedural matters in the virtual space was already occurring and, in the months following global Covid outbreaks, arbitral institutions facilitated a swift and seamless transition to the virtual environment for all stages of the arbitral process.
In the past, Owain states that even 'e-trials' in litigation, "... were primarily focussed on electronic versions of documents, pleadings etc. being available on-screen in physical courts; virtual court hearings for any matter were relatively rare." However, the movement to adopt, and continue with, virtual hearings both pre- and during trial has been quite revolutionary for many courts. "Interestingly, even as some parts of Australia are beginning to open up, our experience is that many counsel are continuing to engage with experts virtually, more so than before."
While many courts have caught up to arbitral institutions by embracing the flexibility and efficiencies of engaging with expert witnesses virtually, Owain discussed whether either are likely to return to pre-Covid norms. "Is an increase in flexibility a new habit that will stick with judges, arbitrators and users of courts and arbitrations, or will old habits re-emerge?" No matter the outcome, Owain advised that arbitration practitioners must continue to innovate if the argument about the merits of arbitration over litigation is to prevail.
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