Remote hearings in Norwegian courts and arbitration – eight months later
Norwegian courts and arbitral tribunals have seen a considerable increase in the number of remote hearings over the last eight months, and the provisional regulations following the outbreak of Covid-19 have now been prolonged. Our new dispute resolution partner Jørgen Vangsnes shares the experience so far.
After the initial shutdown in Norway on 12 March 2020, a large number of court cases were postponed. On 27 March 2020, the Government passed a provisional administrative regulation giving the courts an additional opportunity to hold their hearings remotely. This administrative regulation was replaced by a provisional law on 26 May 2020, regulating the use of remote hearings in Section 3 (office translation):
"The court can decide that a hearing should in whole or in part be held remotely, and that testimonies may be held remotely, if it is deemed necessary and unproblematic. […]"
Section 3 grants the court an extended competence to hold the proceedings remotely, as this will ordinarily require the parties to consent, pursuant to Section 13-1 of the Norwegian Disputes Act. On 6 November 2020, the provisional law was prolonged until 1 June 2021. The extended competence thereby continues to remain in force.
Some Norwegian courts have introduced a solution where counsel attend in court, while the parties themselves participate remotely. This may help observing the principle of equality of arms in situations where some parties are not able to attend, especially due to travel restrictions. Although it is unusual to deny a party the opportunity to appear physically in its own court case, the solution is certainly within the wording of the law ("should in whole or in part be held remotely"). One Norwegian District Court has held that the provisional law cannot be enforced on parties abroad (Halden District Court, referred by rett24.no, in a criminal case). However, this interpretation is not authoritative, and there is no similar case law for civil proceedings.
There are no provisional laws governing arbitral proceedings. It is debatable whether an arbitral tribunal unilaterally may decide to hold the proceedings remotely (if the parties have not agreed to it). Pursuant to Section 21 of the Norwegian Arbitration Act, the tribunal shall conduct the arbitration in such manner as it considers appropriate within the limits prescribed in the arbitration agreement and the Arbitration Act itself. The Arbitration Act entitles a party to request an oral hearing and in which the party is entitled to be present, cf. Section 26, first and second paragraphs. However, although the provision can be said to rest on an assumption that such an oral hearing is one where the participants physically are present together, there is no provision explicitly requiring physical presence in such a hearing. It may then be argued that as long as the tribunal has sufficient regard to the basic principle of equal treatment, laid down in Section 20 of the Arbitration Act, the arbitral tribunal may not be barred from deciding to hold such a hearing remotely. The parties may even have a duty to discuss the possibility of remote hearings in good faith: According to Article 22(1) of the ICC Arbitration Rules, for example, tribunals and parties have the duty "to conduct the arbitration in an expeditious and cost-effective manner". In the international arbitration community, remote hearings quickly became "the next big thing" during the first lock down period.
The experience so far
The choice between traditional physical hearings and remote hearings will still depend heavily on the characteristics of each case. A golden rule of advocacy is to make sure your key witnesses appear directly before the court. Although remote hearing platforms have improved dramatically in recent years, many argue that this is still true. Research on witness psychology seems to support that the presentation of the witness will indeed affect the court's assessment of the testimony given. Professor emeritus Ulf Stridbeck at the University of Oslo has discussed this in an article on Juridika.no (in Norwegian), referring several findings of interest. He also points out that it's not only a matter of remote hearings or not, but also a question of how they are conducted. For instance, witnesses are deemed more credible when in half-profile on video than witnesses in full frontal.
On the other hand, remote hearing technology may lead to swift and cost-effective proceedings, especially if the case is mostly based on documentary evidence. Until recently, the Norwegian Supreme Court held all of its hearings remotely. And in November, the Norwegian Supreme Court heard the so-called "climate lawsuit" through a remote hearing, while sitting in plenary. This has proved to work very well, bearing in mind of course that evidence is presented to the Supreme Court only through documents.
The choice between traditional physical hearings and remote hearings will be a balancing of pros and cons. Traditional physical hearings will probably be opted for when witness statements are essential to the case. Location of the parties and counsel must of course be assessed, as well as costs and time involved. While requiring additional equipment, a remote hearing may still prove to be less expensive than a physical hearing. In addition, there may be travel restrictions, or at least quarantine regulations, that should be considered.
If the court or the parties do decide to go with remote hearings, there is of course numerous considerations that must be made. The international arbitration institutes have published several protocols and guidelines to assist in conducting a remote hearing in a fair and efficient manner; among these are the Seoul Protocol on Video Conferencing in International Arbitration (published back in 2018) and the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic.
The remote hearing platform is in our experience vital to the success of such a hearing, as well as allowing all the participants sufficient time for testing the platform in advance. In addition, counsel must pay attention to the eccentricities of remote hearings. The remote hearing platforms also enable counsel to further use of modern presentation tools, especially in complex litigation. And conducting the hearing from one's own premises, while also being able to mute the microphones, makes it easier to consult with both the client and assistant counsel.