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Sample Agreement for a Virtual Hearing12
The parties to the above-captioned arbitration case (“Arbitration”) hereby agree as follows(“Agreement”) to conduct the evidentiary hearing of the Arbitration using an online videoconferencing platform (“Virtual Hearing”).
Period3

I.
1

The Virtual Hearing shall be conducted within the following time and period unless otherwise
agreed by the parties and the arbitral tribunal:
Between [HH:MM] and [HH:MM] each day (JST), [MM] [DD] [YYYY] – [MM] [DD] [YYYY]4II.

2Platform

The Virtual Hearing shall be conducted using an online video-conference platform[Zoom/Microsoft Teams/Google Meet/Cisco WebEx/Skype for Business/other] (“Platform”).

3[teleconferencing system/other platform] shall be prepared as a back-up in case of technicalfailure of the Platform.

4

The arbitral tribunal (including the tribunal secretary; the same shall apply hereunder), staff of[arbitral institution], the parties (including counsel and interpreters; the same shall applyhereunder), witnesses and experts (“Participants”) who participate in the Virtual Hearing shallinstall the latest version of the application software of the Platform onto their PCs, and shallparticipate to the Virtual Hearing through the application.

1

While this kind of document is sometimes referred to as a “protocol,” we entitled this document
an “agreement,” taking into account the criticism that “protocol” could evoke the existence of a main
agreement (including institutional rules), just like a protocol annexed to a convention.
2 This document can be prepared as a procedural order issued by the arbitral tribunal.
3 Conducting test sessions before the virtual hearing and testing all of the systems used in the virtual
hearing is advisable to ensure the internet communication environment and operation of equipment.
It is worth drafting a framework of such test session in this agreement.
4 The parties should consider their time zone differences and set the period and timeframe in order
to avoid imposing significant burden on only one party. Long and multiple sessions without theintervention of a break should be avoided because participants in virtual hearings tend to tire easily.
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III. Management of the Virtual Hearing / Due Process

5Management of the Virtual Hearing
5.1

The arbitral tribunal shall manage the Virtual Hearing and play the role of “host” of thePlatform.

5.2

The arbitral tribunal may designate [an assistant 5 and/or the staff of the [arbitralinstitution]] to be a (co-)host of the Platform.

6

Maintenance of due process
6.1

The parties hereby confirm that conducting the evidentiary hearing of the Arbitration via
online using the Platform would not, in itself, deprive the parties of their opportunity topresent or defend their case.6

6.2

The parties hereby confirm that this Agreement is intended to confirm the best practices
in conducting the Virtual Hearing, and that in the actual proceedings of the VirtualHearing the parties shall comply with the instructions by the arbitral tribunal exercising
its discretion.7

6.3

The arbitral tribunal shall treat the parties equally, and grant the parties sufficient
opportunities to present or defend their case in the Virtual Hearing.
IV. Access to the Virtual Hearing

7

Method of access and location for access
7.1

The Participants shall not access the Platform of the Virtual Hearing through public WiFi.8

5The tribunal secretary or an IT vendor is intended as the assistant here.
For the purpose of mitigating the risk that conducting an evidentiary hearing via online itself isfound as a violation of due process, etc. and it constitutes grounds for setting aside an arbitration
award, it is advisable to obtain the parties’ agreement for conducting the evidentiary hearing via online, particularly if the applicable arbitration law or institutional rules are not clear as to whether avirtual hearing is allowed without the parties’ agreement.
7 Setting forth the detailed rules could increase the risk that the actual proceedings during a hearing
could be deviated from the agreed rules, which may constitute grounds for setting aside an arbitralaward due to a violation of the parties’ agreement as to the arbitral proceedings (although in manycases the parties could be deemed to have waived their right of objection by not having raised anobjection without delay, or such violation could be considered to be not so material to set aside thearbitral award). For the purpose of mitigating this risk, this provision stipulates that this Agreement
merely sets forth “best practices” and the actual proceedings during the hearing shall be managed
by the arbitral tribunal exercising its discretion.
8 Public Wi-Fi could be accepted if data security can be ensured by using a VPN (virtual privatenetwork), etc.
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7.2

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The Participants shall not access the Platform of the Virtual Hearing from any locations
where the Platform on the screen could be viewed by third parties (e.g., on a train or ata café, etc.).

7.3

The Participants shall access the Platform of the Virtual Hearing from the locations listed
in the Annex9, unless otherwise permitted by the arbitral tribunal.

7.4

The parties shall not communicate with the arbitral tribunal ex parte regarding thesubstance of the case without the other party’s consent.10

8Advance registration of usernames and management of access information
8.1

The arbitral tribunal shall provide all the Participants with a conference ID and password
for the Platform of the Virtual Hearing.

8.2

The Participants shall join the Platform of the Virtual Hearing with the usernames whichhave been reported to the arbitral tribunal in advance.

8.3

The Participants shall not disclose the conference ID and password to any third party who
is not one of the Participants.

9Multiple accesses by the same Participant
9.1

The Participants [may/may not] access the Platform of the Virtual Hearing throughmultiple devices with a single username.

9.2

The arbitral tribunal permits each party to designate up to [xx] Participants who may
access the Platform of the Virtual Hearing through up to [xx] devices with a single
username.

10

Camera/screen/microphone/etc.
10.1 Each member of the arbitral tribunal shall make more than [xx] screens available inparticipation of the Virtual Hearing.11
10.2 Each Participant may participate in the Virtual Hearing with more than two screens.

9The Participants’ home, place of work, counsel’s office, etc. are expected to be access locations. If
domestic transportation is permitted, a hearing center in each country would also be an option as anaccess location.
10 This clause is drafted as a precaution, because in case where the arbitral tribunal and only one
party access the Virtual Hearing from the same venue (building), a potential risk of ex-partecommunication between them would increase. Depending on the parties’ preference, the parties
may agree that either party shall not access the Platform of the Virtual Hearing from the same venue(building) as the arbitral tribunal.
11 Multiple screens can be used to capture the entire hearing room of the venue, speaker,presentation slides, evidence to present to a witness, live transcript, etc. The number of screensshould be decided by the parties and arbitral tribunal taking into account the nature of the case andbudget.
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10.3 The arbitral tribunal may turn off the video feed of the Participants at any time during theVirtual Hearing.
10.4 The arbitral tribunal may mute or unmute the Participants’ audio at any time during theVirtual Hearing.
10.5 The arbitral tribunal may direct the Participants to adjust the positioning and angle oftheir camera at any time during the Virtual Hearing.12
10.6 The arbitral tribunal shall [fully activate/fully deactivate/partially activate] the chatfunction of the Platform during the Virtual Hearing[, to the extent that messages will only
be able to be sent to all the Participants/to the extent that only the arbitrators will beable to use the function].13
11

Virtual background11.1 [The arbitral tribunal/staff of [arbitral institution]/parties/counsel/witnesses/experts][may/may not] use a virtual background.14

12

Use of other communication tools
12.1 [The arbitral tribunal/each party and its counsel] [may/may not] communicate with eachother by email, other platform, chat function or any other tools during the Virtual Hearing.
12.2 Each party shall not communicate with the arbitral tribunal in a way that the other party
cannot monitor such communication; provided, however, that this does not apply if theother party permits such ex parte communication, or in cases where a party or its counsel
communicates with the arbitral tribunal just before and after breaks for house-keeping
matters.15

12This is to ensure that there is no coaching or advising exercise toward witnesses, and that only theauthorized Participants are present in the room. Alternatively, this provision may be replaced byother arrangements, such that the arbitral tribunal shall have a remote control over the witness’camera, that multiple cameras shall monitor the entire room, witness, PC screen at which the witness
is watching, and the witness’ hands at the same time, and that the witness and (part of) thearbitrators shall be in the same room, etc.
13 An appropriate measure should be implemented to deter coaching or advising exercise toward
witnesses as well as ex parte communication between one party and the arbitral tribunal.
14 Use of a virtual background is in general not recommended, for the same reason as in the footnoteat Clause 10.5.
15 The purpose of both Clause 7.4 and Clause 12.2 is the same in that Clause 7.4 intends in-person
conversations, while Clause 12.2 covers remote communications through the Platform.
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13

Actions in case of occurrence of technical failure

In case of the occurrence of the technical failure such as an access problem, the arbitral tribunal
and each party shall promptly notify the arbitral tribunal and each party of the same inaccordance with a list of contacts to be prepared separately.16 If the arbitral tribunal finds it
difficult to continue the virtual hearing, the arbitral tribunal shall stop the virtual hearing andattempt to resolve the issue.

14

If the arbitral tribunal cannot resolve the above technical failure within a reasonable time17, it
shall continue the hearing with a back-up Platform described in Clause 3.

15[The parties shall give notice of the occurrence of a technical failure such as an access problem
as provided in Clause 13 above by the end of the hearing of the same day, failing which the party
may not thereafter request to redo the hearing day due to any such technical failure.]
VI. Proceedings of the Virtual Hearing

16Screen Sharing
16.1 The participants [may/may not] use the screen-sharing function of the Platform to show
documents.
16.2 If the participants may use the screen sharing of the Platform, they shall identify thedocument displayed by exhibit number and the page of the document, and [the arbitral
tribunal/the tribunal secretary/the participants] shall display it on the Platform by screen
sharing.

17Printed copy18
17.1 The parties [will/will not] prepare printed copies of the case file for the arbitral tribunal’suse.
17.2 The parties [may/may not] show the printed copy of the case file to witnesses and experts
instead of using the screen-sharing function of the platform.
17.3 Each party [may/may not] send the printed copy of the exhibits to be shown to witnesses
and experts of the other party in advance.

16

Because the parties cannot report the occurrence of technical issues which disturb the access tothe Platform to the arbitral tribunal through the Platform, it is worth considering that the parties
agree on the method of how to let the arbitral tribunal know such technical failure in advance, suchas preparation of an emergency-contact list.
17 To avoid such a situation, it is advisable to have IT specialists on standby at all times.
18 If the participants use the document management/sharing platform, it is advisable to set forthsome clauses which regulate the use of such document management/sharing platform.
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Break time
18.1 If the arbitral tribunal sets the break time in the Virtual Hearing, the arbitral tribunal shall[use the breakout room function of the Platform 19 /disconnect the Platform
temporarily/make other appropriate agreement].
18.2 The parties cannot communicate with witnesses and experts who have not yet finishedtheir testimony during the break time.

19Deliberation of the arbitral tribunal
19.1 The arbitral tribunal, if it considers it necessary, may conduct the deliberation.
19.2 If the arbitral tribunal conducts the above deliberation, it shall [use breakout room
breakout room function of the Platform/disconnect the Platform temporarily/make otherappropriate agreement].
19.3 The Parties cannot communicate with witnesses and experts who have not yet finishedtheir testimony during the deliberation.

20Time management
20.1 [The arbitral tribunal/The Parties] shall manage and record the elapsed time of the VirtualHearing.
20.2 [The arbitral tribunal/The Parties] shall check the elapsed time of the Virtual Hearing by[appropriate way agreed by the parties]
VII. Witness Examination

21Attendance and support of the parties
21.1 The parties [may/may not] attend with their witnesses and experts to have a preparatory
meeting or to support setting up of the Platform.
21.2 The other party of witnesses and experts [may/may not] attend the location/room
where witnesses access the Virtual Hearing; provided, however, that this does not
apply if the arbitral tribunal permits otherwise.

22Camera
22.1 Witnesses and experts shall sit in front of the equipment with which they shall access the19

Some people appreciate the usefulness of the breakout room system, while others say that
establishing a separate web conference system is safer and recommended because breakout rooms
may allow unintended people to enter the room due to wrong room setting, etc.
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Virtual Hearing, and set their cameras so that [appropriately agreed by the parties] isvisible during their witness examination.
22.2 [The additional cameras shall be set in the room where witnesses and experts are present
so that [appropriately agreed by the parties] is visible.] 20
23Testimony
23.1 The parties may not say anything to coach or advise on the content of testimony during
the testimony of witnesses or experts.21
23.2 Witnesses and experts [may/may not] take notes during their testimony.
23.3 The participants other than the arbitral tribunal, the witness, and the counsel conducting
the examination shall mute during the testimony.
23.4 If the participants other than the above wish to speak, they shall [appropriate agreement].
23.5 In case a party raises an objection, the arbitral tribunal shall take appropriate measures
such as [appropriate agreement].

24

Use of a witness supervisor
24.1 The arbitral tribunal and parties may let a witness supervisor, who shall be independent
from the parties and shall be agreed separately, sit in the same place/room to be agreed
separately where witnesses or experts access the Platform.22
24.2 The witness supervisor shall submit a report in accordance with [the format as set forthin Annex or the format to be separately determined by the arbitral tribunal and parties]
to the arbitral tribunal and parties after the end the hearing day without delay. Thewitness supervisor may observe and take pictures of the witness/expert to the extent
necessary for preparing the report.
24.3 The witness supervisor may reach out to the arbitral tribunal [and the parties] pursuant
to the list of emergency contacts to be prepared separately, in case where a suspicious

20

Please see footnote 12(footnote to Clause 10.5) as to the options to prevent coaching or advising
exercise toward witnesses.
21 Especially in case where witnesses testify without other persons’ presence in the room, there arecases that witnesses see the memorandums prepared in advance during their testimony to make asincere and accurate explanation in good faith. Thus, the arbitral tribunal and counsel should instruct
the witnesses that such action is not allowed, and it is worth considering that the parties include thesame in the parties’ agreement just in case.
22The legal nature of the witness supervisor might become an issue depending on circumstances,such as when the arbitral tribunal’s breach of duty is alleged in relation to the problems on thewitness supervisor’s performance or when the witness supervisor’s performance is alleged, inextreme cases, as a violation of the due process and thus as a ground to set aside or refuse to enforce
the award.
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behavior is found on the witness/expert during their testimony, in case of the occurrenceof technical failure such as an access problem, or any other case where the arbitral
tribunal finds it necessary.
24.4 [The witness supervisor shall provide the arbitral tribunal with a letter undertaking a
confidentiality obligation and statement of impartiality and independence in advance ofthe hearing, pursuant to the format to be determined by the arbitral tribunal separately.]
VIII. Interpretation
25The interpretation of the Virtual Hearing is conducted by [consecutive interpretation/simultaneous interpretation].

26The parties may raise objections to the accuracy of the interpretation of the interpreter.

27

The other party [may/may not] have its own interpreter attend the hearing in order to check theaccuracy of the interpretation of the interpreter of the witnesses and experts.
IX. Recording・[Transcription/Real-Time Transcription]

28

The recording of the Virtual Hearing is [appropriately agreed by the parties]23.

29

The Parties [may/may not] use the recording function of the Platform.

30

Use of [Transcription/ Real-Time Transcription service] is [appropriately agreed by the parties].
X.

31

Confidentiality

To protect the confidentiality of the case, in addition to the matters set forth in this Agreement,
the arbitral tribunal and the parties shall take appropriate steps [such as executing appropriate
separate agreement to ensure the cyber security] in the Virtual Hearing.
XI. Location

32

The Virtual Hearing shall be deemed to be conducted in [**City, **(Country)]24.

23

The parties may agree that the participants may not record the hearing unless otherwise
permitted by the arbitral tribunal. It is worth considering that parties agree that the participants may
not save the recording data in third-party servers such as a platform vendor’s servers.
24 If the location of the virtual hearing does not have any legal significance, this clause is considered
unnecessary.
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