ABA: LIVE VIRTUAL ARBITRATION HEARING. Part 1 : The preliminary hearing/case management conference.

we begin in our roles i wanted to say that the the problem that we're going to be using for the next hour uh was sent to all attendees uh

on monday monday evening 11 o'clock moscow time um sent out at 4 pm new york time it may have gone into your spam folders it went into my spam folder and in the

event that you haven't seen it yet i'm going to just take a couple of minutes to to give you the problem that we'll be using today and will also be used tomorrow for the simulated cross-examination of

evaluation experts there's a different tribunal tomorrow but it's the same problem george berman will be the sole arbitrator tomorrow

so in our case the claimant is learn fast a uk company which is in the business of

operating english language premium tuition schools in europe uh and uh learn fast obtained a license

from the government of kalia which is our fictitious um former soviet republic that has a legal system identical to

that of russia so learn fast to claim it had a license to operate its english language high tuition independent school in kalia it made its investment

and then the government withdrew the license and required the learn fast to operate with the same obligations and structures

as kalia government schools which in calais khalil's view made their further operation uh not possible and eventually the

local entity went into bankruptcy and this case was brought under the kalia uk investment treaty bilateral investment treaty

our case is under the unsettraw rules and it's cited in london the hearings have been scheduled for some time the maritarians for two weeks

to begin uh on the 16th of november in two months time and the tribunal has asked the parties uh to to get together for this pre-con

free hearing conference to talk about uh whether the matter should be postponed the hearing should be postponed or whether we should go forward virtually on the scheduled dates and if so how we go forward on those

dates um the um i guess they should also say that that miss von hoff or maybe i did say it was appointed by the claimant and miss paisley by the

by the respondent um each each side has four witnesses um for the claimant three of their witnesses are in london

and one is in caton city which is the capital of kalia it's three time zones east of moscow

caton city capital of calia for the respondent three of its witnesses are in caton city but one of its witnesses its valuation

expert is in singapore um the other thing to say at the outset is that we invite attendees uh to participate through the chat room

you can uh you can send notes uh as we do in hearings to either council uh or the tribunal you can be a tribunal secretary

we'll monitor the chat room um and perhaps we'll have some time at the end of the simulation to talk about things raised in the chat room that we haven't uh we haven't address during the

the one hour that we have so with that introduction uh we'll go back into roles um and we're on the record now

um so i invite uh and welcome everyone here um my name is grant anessian you have my colleagues uh miss vanhoof and

miss paisley and um we have the council here we see for uh for both claimant and respondent um we see respondents counsel

in a uh an unfamiliar venue and perhaps we'll hear more about that and why don't we get right to it so um uh council we've said that we we want to

wish your views as to whether we should go forward in two months time and uh and if so how we go forward at that time so we'll hear first from the claimant uh mr cruz

thank you sir learn fast position is that the merits hearing should proceed as scheduled on the 16th of november but remotely the us belgium

russia and khalia are all currently on the uk quarantine list and that is likely to be the case for the foreseeable future unfortunately that means that an in-person hearing in

london cannot realistically take place in november however a journey to a date when everyone can be present in london

in the same room is simply not feasible in the current circumstances because nobody can say when that is going to be possible the

present situation in the uk in terms of travel movement and restrictions is extremely uncertain uk quarantine list is changing all the time

and new restrictions on gatherings were in fact imposed just last week now we need to be clear about the consequence of not proceeding

in november it would mean either an indefinite adjournment or multiple adjournments until

we can see a clearer picture the delay that that would cause in the resolution of this dispute is going to be extremely significant several months at the very least and in

reality probably well over a year and that is uh we'll have to take into account that setting a new hearing date would also require

coordinating the diaries of eight witnesses two sets of council and three busy arbitrators all of whom have already set aside a significant chunk of time in their

diaries for a hearing currently scheduled in november an adjournment which would result in this extent of delay

would be inconsistent entirely inconsistent with the due process requirement under article 17 1 of the answer trial rules

that obligates the tribunal to conduct proceedings to avoid unnecessary delay and by means of efficient processes

for resolving the dispute now we shouldn't lose sight of the fact that when the parties incorporated the artificial rules into their agreement they contracted to arbitrate any future

dispute on the basis of the principles in article 17 1.

so our position is that it would be unfair to learn fast if we were now to depart from that contractually agreed approach the tribunal will be well aware that this is

a claim for damages relating to events that took place more than four years ago the arbitration at this arbitration began more than two years ago so learnfast has

already been kept out of its money unduly as to the suitability of a virtual hearing the tribunal recognized this as a real

possibility in april when it directed that we convened today to consider the viability of proceeding in person in november it was apparent to everyone in april

that an in-person hearing later this year might well not be possible because of what was then a developing code problem so a learn fast proposal to proceed virtually

is nothing more than what everyone anticipated in april might be necessary we're all aware that arbitration is supposed to be adaptable to the circumstances the dispute

and that includes utilizing remote hearings where the participants cannot be present in the same location which is the situation we find ourselves in today a virtual hearing for a merits issue is

now being adopted routinely in current arbitrations as the proportionate due process step uh in response to the current code

problems so this case we say is a paradigm one where a virtual hearing has become the only efficient process to adopt for resolving this dispute

without unnecessary delay and so for those reasons learn fast respectfully submits that proceeding remotely in november is now the only sensible way for the tribunal to progress this

dispute having regard to its obligations under article 17 1. those are my primary submissions

1. those are my primary submissions thank you mr cruz we'll hear now for mr cavalli thank you mr president uh first of all i want to apologize for like a formal

appearance as i mentioned before during the break i would love to be in my office in moscow and have my suit and nice tie and my team assisting me but

unfortunately for the last six months i'm i'm blocked in an island uh far from russia there's no flight connection and i don't know when realistically i'll be

able to join my i i share concern of the claimant council that this case should proceed efficiently and expeditiously because we

as a responder also interested in in finalizing this case as soon as possible i also here agree that these days

many tribunals are having their hearings visually because there's no other way to have hearing in person however i submit to the serbian also this particular case unfortunately

cannot be had by video conference uh mainly for three reasons uh apart from technical reasons but

i i'll start with legal reasons first of all there were allegations of fraud made by the claimant who segato responded and we take

these allegations very seriously and because this allegation of what we would ask the claimant councils to bring the original of documents

on which the fraud allegations are based because we want to inspect these originals during the hearing visual hearing doesn't allow us to

review the document and i'm afraid that without it uh we cannot make a real conclusion whether the documents were forged or not

whether the fraud regulations are supported or not and it has been consistent position of russian courts and beliefs the canadian courts as well uh that party has uh fundamental right

to review written evidence in person review regionals whether they did original or falsified corpus so without it i don't think the tribunal

would be able to make conclusion whether as a original social or not whether fraud allegations should be sustained or not this is the first reason i'm really concerned

about possible potential in possibility in caleb the second reason uh is that there are many weaknesses and experts to be had in this case

and again because this is the case involving fraud allegations we want all of them to testify under oath and be criminally liable in case of

patriarchy to the tribunal in a situation when witnesses and experts are in different countries i frankly cannot understand how they could testify

under us and subject to liability of which countries they could be and to have a risk of criminal liability as for us it's a serious

assurance that witnesses and experts will be telling only truth the third reason unfortunately we we are in a completely different

situation with mr cruz because he is sitting in his office in london with his team his weaknesses are in london i am sitting here in ireland uh even with

you know without notebook i have only one with me i mean tablet and iphone my notebook is in moscow my team is in moscow witnesses are somewhere else

so i cannot have access the same access to witnesses and documents as counterparty has it puts us in completely completely different position

with regard to ability to present our cases so i submit to this tribunal yes i realize that six months ago we thought we might have visual hearing because at that time i was

i was hoping that i'll be able to fly to moscow but now i understand i cannot uh so this case is lasting for already more than one year all events happened three or four years

ago it will not be a problem if you wait for another two three months russia already announced new wasina against kovite 19.

so i i hope situation will be resolved soon so i i kindly asked the tribunal not to have issue hearing in november i'd rather find a suitable day to meet

in person somewhere in february or march thank you mr kavali uh we may have some tribunal questions but let's first ask mr de cruz to respond thank you sir um well if i might just

pick up on the last um comment of of my friend i think to suggest that an adjournment would be no more than two or three

months is is frankly unrealistic um we're all aware of the current situation the reality is that we're talking about a delay of

much more than two or three months as far as the authenticity of documents is concerned i find that a surprising argument that

the tribunal needs to be able to inspect it themselves directly in order to determine whether or not the document is authentic in a situation

where authenticity is put into into issue that is a matter which should be referred to a handwriting expert and we would certainly be quite

concerned if the tribunal took it upon themselves to opine on something which is really quite a technical issue so

the documents in question can can and should be sent to a handwriting expert either appointed by each party or a single joint expert so that issue can be addressed through a

virtual hearing as far as perjury is concerned the point is actually quite clear and should really give the respondent all the comfort that it requires

the uh the lex arbitrage of this dispute is english law and under english law the tribunal has the power under section 38 5 of the

english arbitration act to direct that witnesses and experts be examined on oath all through affirmation and also to administer any such any necessary oath or take any

necessary affirmation as an adjunct to that section one of the english perjury act of 1911 makes it an imprisonable offense to knowingly give false evidence under oath

in judicial proceedings and that includes arbitration and thirdly it matters not whether the witness or expert

who takes uh gives evidence under oath does so from abroad the perjury act applies as long as sworn evidence is given in the course and for the purpose of english arbitration so

there's no difficulty at all in the witnesses and experts in this case giving evidence from anywhere abroad for the purpose of this english arbitration if they give false evidence in the arbitration they can be

prosecuted for perjury in the united kingdom so perjury the perjury position is not affected by whether this hearing goes ahead virtually or in person and i think the last point

that my friend made was um technical issues uh that he he is facing well in this modern age it's very

difficult to imagine that with two months notice mr harlay will be unable either to find a location with sufficient bandwidth

or to find equipment that will that will provide the necessary bandwidth where he is now in in the current technical technological age

um that uh we are living in it that's a remarkable that would be a remarkable uh situation but even if there was any real concern about

uh being able to access documents being able to participate in the hearing from where mr farley is then contingency plans should be put in place

now by the respondent for another member of mr haley's very talented team in moscow already working on the case to lead at the merits hearing if that proves to be

necessary again there is more than enough time for preparation in that regard so and it isn't the case the last point

i would make is it isn't the case that we for the claimant are all in london um and able to operate from london for the purpose of this arbitration

one of our experts the the legal expert is in moscow and one of our factual experts is in kalia so we face similar problems but we are very confident that these issues can be

addressed through a virtual hearing and therefore that both parties can properly present their case at a virtual hearing in november

which is all that you sir and your colleagues need to be concerned about thank you very much um mr cavalli briefly please

briefly uh sorry i frankly didn't hear half of what mr cruz said because internet line was was really really bad

this shows myself that we might see a school problem with the hearing because internet connection is really not good and sorry in this island this is the best connection i could have

what i've heard that you said that there will be some members of my team uh i i really sorry i have junior associates they are very good in compiling the documents but they cannot present this case

i've been in this case from the very beginning for five years and my client couldn't find suitable counsel in two months i think it's impossible

thank you very much let me ask my colleagues if they have any questions for council you know miss paisley wants to go first um

i was wondering if we could explore some of the maybe more technical issues to get a sense for how much discussion the parties have already had about this

and and whether we can make some progress before making any decisions um by looking at some of the of the options i mean

i would think as a starting point it is true at least in general that some arrangement can be made and i don't want to express a view of course on whether in this case we should proceed that is for this tribunal subsequently

to decide but um given the range of um time zones that we're in have the parties have any discussion about how many

days how many hours in the day um we could sensibly um get together because i'm very keen that if and when we decide to do a virtual hearing that it's going to be workable and

i think i would appreciate some comments about timings and platform and maybe

hosting of the hearing because there are providers third-party vendors who make available facilities both technical

facilities but also eerie room facilities which might accommodate of the parties and people involved even though they don't necessarily have

to be in the same place so some of the experts or witnesses could be in a particular hearing center which need not necessarily be where their counsel or where the tribunal is and it would still

then potentially help to move along the hearing so thoughts on our platform

and potentially hearing room providers to to accommodate the hearing that would be most helpful thank you i'm i'm happy to address those

points first if that's convenient so yeah in terms of timing i think that the the main challenge that we face is um the fact that our chairman is

in um not new york but new york time time zone i think and at the other extreme we have the respondents

expert who is in singapore and factual uh witnesses for both the respondent and the claimant who are in calia now the difference between

the chairman and singapore is i believe 12 hours and the difference between the chairman and the witnesses in kalia is i believe 10 hours so i think those are the parameters that

we need to consider um this isn't an ideal situation i don't pretend that it is but we're trying to make the best with what we have so what i would propose would be

a a shorter day for um that part of the arbitration where we're dealing with those witnesses but we could for example and i'm conscious i'm probably going to make myself very unpopular with the

chairman um have a start point of 7 a.m um for him on the basis of a four-hour day a start point of 7 a.m

which would mean that his day would end at 11 00 a.m

and as far as the singapore expert is concerned that would mean a start point of 7 p.m and an end point at 11 p.m which i

7 p.m and an end point at 11 p.m which i don't think is extreme as far as the caylia witnesses are concerned we could be a little bit more

accommodating and say have a start date a start time of 8 a.m

for the chairman and the start time for 6 p.m for the canadian witnesses

6 p.m for the canadian witnesses with a four-hour day i would i would also propose that we have shorter breaks we don't need to have for example a one-hour lunch break we could have a

45-minute or half an hour lunch break we probably don't even need a mid uh mid-morning break or a mid-afternoon break or if we do it can it it can i think be just five minutes so

this is my point on timing platform i would propose zoom zoom is um we're all using it now you can see that the quality of

visual and audio is high it is um the medium that is recommended by the aaa and i'm sure that all of us have been using it

quite extensively over the past few months and certainly everyone i've spoken to has got a positive view um i would suggest that we have a uh somebody who is

an independent person who is appointed to take over the management of the technical side somebody like opus uh opus 2 who again which again has a very

uh excellent excellent reputation and then as far as a neutral venue is concerned and i confess i haven't had a chance to speak to mr foley about it but what we could do is to uh approach

the i think it's called the international arbitration alliance the uh group of arbitral institutes who have banded together to provide venues

in this current situation all around the world for for people to use so that that's those are the proposals that i would make

in terms of the logistics any any further uh comments from my colleagues before we ask mr cavalli to respond

um i would have a question but it's a it's a totally separate issue so all right i mean i will say that from my standpoint i'm perfectly content to

start at six o'clock am uh my time i'm i'm an early riser and uh and if we can add an additional hour that

i think that would be useful um so that would give us perhaps five hours if we go forward in that way um in terms of the documents my understanding is the fraud issue has

to do with financial statements and and there's an issue with respect to the evaluation issues and the the authenticity of the documents and i

we do have two months mr cavalli and there are you know the logistics companies are hard at work uh apparently this is a good time to be a logistics company um is there some reason why the documents

can't be delivered where they need to be to be able to deal with our authenticity issues in two months time uh well first of all for records

i didn't hear what exactly mr dickos said it was regard to technical proposal because there was uh some problem with internet line uh

if if he is prepared to deliver original of documents to us for inspections this is fine uh we would like to use originals first and uh

and send senate to kelia it was actually a misleading statement that there should be kind of a forensic specialist because in order to make

opinion worse documents were pushed a lot my client would like to see them by my own eyes coming back to technical issues

uh and timing the starting time seems for me okay if i understood it correct i'm i'm more concerned about the timing for cross-examination because it was

proposed to have four hours with short breaks i am afraid i would need for cross-examination of some of the weaknesses at least one day

and i want this day to be not interrupted so if you want to have a hearing full day should be at least eight hours half an hour break and within this break i want to see the

witness to make sure that we just does not talk to anyone i don't know how to arrange it but i have really really concerned

uh that weaknesses could be taught or some kind of science could be shown to witnesses so should be special rooms with 360 degrees camera so at any time we could see what exactly

witness is doing the same expert and as i said we we don't believe four hours hearing would be enough to have uh cross-examination we are planning to

have so this suddenly would need some consideration from the tribunal uh secondly or thirdly

in terms of technical platform for translation again i don't understand how we're going to show the documents to experts i i'm not sure

how it worked visually if if you are saying that we need to install some additional software i'm not sure that i technically able to do so and i'm

allowed to do so on my uh tablets uh yes uh mrs van hoff were you raising your hand

there no okay all right very good um well uh with respect to the hearing days and the you know witness issue i suppose you know a witness would be under the

same injunction we would have in our live hearings which the witness would be instructed not to not to speak with anybody breaks or overnight if the examination

uh carries into the next day so i'm not sure that that would be terribly different virtually than it would be in person with respect to a 360 degree camera

we can also ask a witness periodically and without notice to rotate their their camera or their laptop or around the room and of course we would instruct the witness

that there would be no one else in the room with the witness as is typically the case um there are a number of protocols which the tribunal has distributed to the

parties that provide model procedural orders and other guidelines for these and the tribunal will will issue one of these in due course

so i don't think that issue is is peculiar to this case frankly at least that's my own initial view uh prior to talking to my colleagues

um in terms of platforms the the parties may also wish to consider the the exit platform this is not an ixit case but ixa um has done a number of these

hearings now with webex um their platform is available for non-exit cases for a fee

the interpretation um as i understand has gone very well with the exit platform um perhaps we could talk more about that

before the tribunal deliberates is there anything else on either either side or any questions my colleagues may have

if i could mr chairman i i did have a question or two um to go back beyond the details i wondered if um i wasn't clear from respondents council whether

you were arguing that if we proceeded on this basis that the award would be unenforceable in russia or what the basis for your objection

under russian law was that's number one obviously for both sides um and then my second question um is it seems to me that i'm not quite clear on whether you're arguing we

shouldn't have a virtual hearing at all or whether there might be an intermediate position which is that we shouldn't have a virtual hearing till you could get off the island

um and those may not be exactly the same timing and and i guess lastly one thing you didn't mention um was any security

considerations either side had with respect to choice of platform and whether that whether there are any particular security issues we should be thinking about if we were to decide to order a virtual

hearing either now or in the future those are my questions yeah thank you very much for your question uh you're absolutely right my concern is about the possibility of the award

in russia because as you know one of the grounds for law enforcement of corner of detail was a lack of paris ability to present its case

uh i think at least under russian procedural mind if you want of russian judges ability to review the documents in original

is fundamental right of the party so uh the same goes uh basically the situation when we will not be able to to to hear

and and and say what we want because frankly again mr chairman was saying something i didn't hear what he said simply because the line is terrible if there's recording after that i'll

probably see it on recording but i will not be able to comment i think this is fundamentally fundamentally denies our opportunity to present the case

and of course it affects in possibility as to security issue yes you're absolutely right i mean thank you very much for raising this

question we know many uh incidents when uh zoom platform was hacked some people were intervened during the hearing information was leaked uh i don't think

zoom is appropriate platform and technically as i said i'm using zoom now but i cannot install the other software simply because i need technicians to assist me

i don't have one so i'm not saying visual hearing is impossible this is what i'm saying i need time to get back to mother russia once i am back in russia we could sit

again and discuss the official hearing or maybe at that time you know flies to london are resumed and the issue is over can i say a couple of words about enforcement

and platform as far as enforcement is concerned what my friend has mentioned is is the one issue of about being able to inspect the document well

chairman you've identified uh an answer to that which we are willing to work with uh that they will be given an opportunity to inspect the document the original of the document

but on on a broader issue the party and i think we're actually talking about enforcement in canadia rather than russia but um the party that has to be concerned

about enforcement in calia uh or russia is the claimant um learn fast we've of course we've talked we've considered carefully

the enforcement issues arising from everything that i have proposed we are confident that we can address each of those issues what you have to be

um satisfied about is that the award that you issue is compliant with the seat of the arbitration which is english

uh english law and none of the procedures that i have suggested to you um would in my submission put any award that you make in jeopardy

in respect of any of the things that we just discussed under english law and if we are willing to proceed as i have suggested to take on the risk

of enforcement in other jurisdictions then the respondent cannot i submit have a legitimate objection to that thank you very much

given our time constraints the the tribunal perhaps uh should deliberate now a bit and we'll be back with you um i'm not sure whether our host is able to um

segregate physically psycho gave virtually physically segregate uh council and if not perhaps council uh could just turn off their screams to sort of send me their

cameras to simulate their their absence and we'll have just the tribunal on the screen for the next few minutes we'll give mr cavalli a chance to to visit his uh

his seashore there so can you turn your screen off please mr cowell yes i'm trying to do it all right very good all right colleagues what do we what do

we think i must say there were some challenges i had to migrate to my ipad which at least has 4g so i have some sympathy for mystic valet but

i mean i did think that we received quite a bit of valuable information about the the technicalities i personally think that zoom is quite a useful platform because it is

normally quite stable and user friendly also for interpretation because as much as i like webex we need to get separate software which exit does which is

fine but it's another hurdle and i'm afraid that that might play in the hands of the party who's less keen to do this i must say i was also rather taken with with mr cruz's argument that the enforcement

risk is largely his side so i think as long as we do what is reasonably possible and necessary then ultimately

he's taking the the risk of the investment in a hearing which may not ultimately lead to an enforceable award we should obviously not do something

silly um i did want to discuss with you guys what you thought about the hearing schedule i mean there i thought he was a little bit optimistic i think we do need five hours to make

this work because also i think we need a few shorter breaks not in the least because you know we will need to consult with each other

and i think it's a little bit tricky to do that offline and and i would like to already block in advance little slots

maybe every hour for the three of us to have a quick offline discussion um so that's something to consider and finally i wanted to hear your thoughts on the on the platforms i would be quite

in favor of an integrated approach whether it's opus or somebody else dealing with the documents dealing with where to do this so that we don't just get people putting up cameras themselves but

that we get hearing room providers sorting that out i think that would also make your life a lot easier mr chairman i've seen chairman have to to do endless prep sessions

with the parties and i i would much prefer if you could focus on the on on the phone rather than but i know my colleague yeah i know my colleagues bailey is much

better verse than i and in lots of the technical issues do you see a lot of concerns that i've overlooked i have really more of a fairness concern here

to the respondent um you know it's only two months out from the suppose for the planned hearing date and for them to have to

substitute counsel um is an issue i think um and if you accept of course you have to accept that

you know sochi is a um problematic place for communication um then you know i i think there for me there is

a middle ground here that you could um delay delay the virtual hearing until the time that he is in a place that would not disadvantage him

not so much from an enforceability point because you know that i think that's a fair point that you know the risk is being taken by the claimant really but just on a fairness point that

you know would would would it be fair to the respondent to either force them to change counsel or force them to because i think for example if he's at all

genuine about the concerns with connections he won't be able to load opus i think that could or access lopus opus in a proper way so that's my main concern

i think the rest we can deal with um and um and and you know what we haven't done is explore to what extent um mr cruz has explored getting

equipment over because you know that's what i've seen in other cases in in even more remote areas i think it's absolutely clear that with the current

setup that he has he's not able to do what we would like him to be able to do but you know we have two months

so um we can have somebody sort out basic setup whether that's an additional computer and or some dongle or whatever and they do it with the terminology

do they give them satellites i mean if you have a fundamental connectivity problem do they give them satellite connections i mean i just i've never had a case where i thought there was a genuine connectivity

problem where and and i suppose there are satellite connections that are available there they probably don't come cheap but um for me that i think the argument he has to be with his team

okay but if you're there you know on an island with that kind of connectivity i think it and and if the document if he can't go out you know how do the documents get in i guess they get him by boat

wait a second he isn't sochi isn't he i mean sochi was where the olympics were organized and the entire world was able to watch this so i somehow think that we should be able to

to to accommodate that to me is a fundamental question whether you expect it would be so difficult for him to participate from there the rest i think is sortable

and i i take the point that the claimant that the claimant's counsel made very well which is that it's it's they're the one that's taking the enforcement risk i do think we should be fair though to both sides

yeah well we may want to inquire a little bit further about the logistical issues on sochi but i'm i'm sympathetic to jackie's point that this is uh was it was a major telecommunications

hub for two weeks a couple of years several years ago and i'm not sure where mr kavali is but i'm not sure it was critical that he take this

call on a beach uh frankly so shall we go forward virtually is that the consensus and um or kathleen is just something that you um i mean i'd be a little more comfortable

if we explored a little bit more with him first what the real logistics are but if you all are if you all agree that that regardless of that you go forward then i'd concur but i i do think it might be worth

a few minutes more exploration with with respondents counsel as to what the real issues are but um well and i it it might also give some comfort to to suggest that they

explore putting this witness in a safe place right not in his home not in the office of their representative but he's he's in hong kong isn't he well

suggests that he he goes to to maxwell chambers and and that's a completely neutral environment or maybe something similar can be set up in um in in

in in hong kong but i think that would be helpful i think the hkic will do it i mean they're not part of the alliance but i think they do it ad hoc so i think that's solvable um yeah it's

good this isn't the witness is in singapore um just one other issue on the on the on the time i mean it's perfect i'm perfectly agreeable as i say it is starting at six o'clock new york time

and um and i don't know if it's agreeable on the other side to go to midnight in singapore maybe it's not but so we would have five hours if they can go to 11 o'clock it's just one witness in singapore

yeah five hours i think would be good because i don't think we want more than five hours but four hours i think is too short and that's just you know one or possibly

two days with the evaluation people for the rest of it we can have a long it's a 10 hour difference and we can go longer and it's

potentially subject to your views we may be able to sit on the weekend or possibly find another period subsequent to this two week period if we

need more time and we can we can deal with those i i don't mind sitting on the weekend at all i would prefer i mean it's it's it's superficially attractive to say let's do another

slot but i think i would personally prefer that we kind of stay in our bubble and that we focus on this case but equally i've had the experience of of more than five hours and i think that

is just physically very very demanding compounded i think for people like you and the expert who are kind of at the extremes of the time zone by the fact that it's very early or very

late but even if we could i don't think that going much beyond five hours makes sense but personally happy to sit on the weekend

i mean too the only i would agree with jacqueline that we should dr van hoff that we should um consider having regular shorter breaks so that we can you know i

think that's very wise um and we should insist upon that um and i also agree with you mr chairman that um it this whole argument about you know

witnesses being able to you know having to sit in in a row that you know that is exactly the same in a in a live hearing so except that the time would be longer and i you know we just have to you know trust them to

do this so i think we're in agreement all right and i i do think we need a provider here uh someone who independent of the parties

can organize this they can choose who they like as far as i'm concerned um but i i i think given what we've just seen we we need some third party to demand the controls

here or yeah it may turn out that that zoom given the sochi issue that zoom ends up notwithstanding the legitimate security occurrence

concerns that it may raise at times um i think it may end up being the the best solution in which case they may need to have a service provider that would work with zoom rather than opus which is

i think might prove problematic because of the issues with sochi but they can work that out no no but they can they can be combined absolutely if if they go through the alliance in particular they they could

combine opens and zoom and opus could be used for the platform and uh for the documents and zoom could be used for the video and i think from my perspective having that

integrated would be optimal yes um there is a cost component to to the document side of things more than zoom but i think that is

an investment worth taking and ultimately i would say that is then you know if if if only one party is willing to take uh

make that investment then um yeah for me that would be quite critical that we that we have access to the documents yeah i agree so we we need to get back

with the others but i we just received a note from the tribunal secretary and i was a little concerned about this too so we're talking about sochi but uh mr cavalli talked about an island did he say sochi or is that something

that we assumed or was learned otherwise i thought i picked that up just before we started the hearing uh when we're all settling into the

hearing room but um yeah it it did look fairly tropical um well people ask him i think we should explore that and maybe it's an

island off so cheater yeah maybe it is maybe that i created the confusion possibly i thought but maybe do we think that this was maybe one of

these artificial backgrounds because actually that's one of the other benefits of having a third party provider and referring them to these protocols because they're all kind of how to's and one of the things you're

not supposed to be doing is is putting up screens with with you know artificial uh background so maybe that's something we can just ask

him to turn that off and see where he really is why don't we why don't we do this why don't we why don't we say we wish to go we'll just leave the sochi island possible background issues for for

another time and say that we the tribunal wishes to go forward with these two weeks and wishes the parties to agree on a service provider particular service

provider and a series of protocols which deal with things like background screens and witness isolation and such and to have another

call or a video conference uh 30 days out which we'll schedule to deal with these final issues um but that we and five five hours we think is uh sufficient uh

is is doable for these these hearing days and that we're available on the weekends if that's the desire of the parties we we accommodate that that all works for me

thank you all right because we've come up with just a few minutes left all right so let's now invite council to rejoin us please turning your cameras on

all right well thank you very much um so um the tribunal is of a mind to go forward on the scheduled dates beginning in two months time on 16th november

um we have these two weeks if the tribunal does feels like we should sit for no more than five hours uh a day but we can begin as early as

six o'clock uh new york time and then go for five hours to the extent we you know for singapore maybe that's what we need to start at six o'clock new york time for the

witnesses in cayton city perhaps we could start a bit a bit later but we're willing to be available for all 14 days in the two weeks that we've scheduled [Music]

we would like you to agree on a platform and provider service provider we think a third party should be should be retained to organize things and that you have a platform where you

can also show documents to the extent there are issues about authenticity that we're not able to deal with during this hearing we'll find another way to deal with any any issues that need to be resolved

regarding authenticity we we take uh mr de cruz's points regarding the oath um and we propose to have another

conference in 30 days to talk about the mode modalities so you can advise us in writing what points of agreement if there are any disagreements we'll deal with those in

our in our next conference in 30 days the protocols are many protocols that are available i think we've previously circulated some but they deal with things like isolation

of witnesses um use of backgrounds um and that sort of thing so we'll you know in our next call we'll sort of work out any outstanding details

regarding regarding those so that we have a completely level uh and fair playing field for all concern let me ask my colleagues if there's anything that i've

uh i've left out there in that summary okay um and let me ask the the uh the parties for any any comments or questions thank you so that seems

um it all seems very clear thank you for your flexibility particularly in terms of the time that you and your colleagues are will be making available to us and of course i'll be

in contact with mr foley to discuss the logistical issues and uh we will get back to you with our thoughts in 30 days

uh well mr president i'll try to do my best but if it happens like uh two months ago when the cable was broken and there was no internet connection for two weeks

i'm sorry i couldn't participate in it well miss mr crowley we wish you well and and hopefully leaving the island we we think it's best to proceed in this way

if they're still you're still having these issues in 30 days time we you know perhaps we'll have a deeper dive into your current circumstances but but for now we think this is the

appropriate way to proceed um let me ask everyone if there's anything else we need to do today i just we mentioned one thing that the parties might want to know in their

planning which is that we would like to have regular breaks during the course of the day so that we're not so if you're planning your timing we don't you know it doesn't need to be long

breaks and maybe in lieu of a longer break we could have more regular breaks but we would like to have regular bakes during the course of the day all right all right

very good um i'll bring this uh mock pre-hearing conference to close um we still have a few minutes to go out of a role here now and have a general

discussion [Music] of these matters thank you for turning off your

tropical isle does it help does it help to identify my island there's a lot of skepticism about whether it was sochi

i saw i saw from the chat yeah yeah i mean it's uh okay well as i leave the floor to others i thought there was one thing that we could have discussed and that i think

that in a real life situation we should have discussed it probably went beyond what we could accomplish in an hour which is kind of what other more substantive techniques could we deploy to make the

whole hearing a bit more efficient because we were focusing very much on you know five hours taking it for granted effectively that we would be doing what you would normally do and what i've seen in real

life is this forces people to think a little bit more outside of the box and say all right how many witnesses and maybe have

another preliminary hearing not so much just splitting it up but have a bit of a midstream conference that makes no sense given that

it's already in two months but um should we maybe pose questions to the parties in advance uh take the lead a bit more proactively as

tribunal to um to try to make it more efficient yeah that's what i mean all the things that we talk about sort of trying to manage hearings better are coming to the fore in a in a very

crystallized fashion because it's it's really forcing tribunals and parties to be more focused and more and to be uh to plan better so i think

that's an excellent point i think we would have talked about that and i think the parties would have would have raised it because normally you wouldn't be two months out now having these discussions for the first time in

quite a really effectively we've put a lot of that off until the next call in 30 days where we'll get more deeply into the logistics of all of this

and the parties weren't given given vladimir's current circumstances there or his purported current circumstances we weren't able to get as deeply into that as we probably would have otherwise

the other issue we didn't have a chance to talk about is inter interpretation right the challenges of that if it's done virtually yeah although that is why i i try to

weave in a reference because in my experience zoom is is is helpful because it is really integrated and um the point of

vladimir raised also about documents the more appliances and facilities and and and other programs you need the more vulnerable you are

um but yeah that's definitely a consideration and and i think the exit platform the exit web x platform also has an integrated

interpreter function no no it's a separate system it beautifully integrates but it is separate i see okay yeah i didn't yeah it does work very

well but i see one very interesting question in the chat box is uh about the experiences of people

when it comes to assessing credibility virtually versus in person what's your view jackie and kathleen and grant my view look go ahead please no go ahead

mr t i i i i was um i'm chairing a hearing which would substantially finish before the pandemic we had a couple of witnesses that we did

via zoom and my view was frankly that it it it works perfectly well to assess credibility of a very tight head shot on the witness [Music]

you know in a hearing room often the rooms are darkened so people can use slides and show documents on screens you can be 15 20 feet away from the witness

these tight headshots on witnesses i think uh it can be quite revealing um that's my view what i think is interesting is is there is a bit of a

trade-off because on the one hand which is why i was going on about the five hours i do think it's draining i mean if you properly if you're not on whatsapp sort of chatting with all your friends and

and colleagues you're so focused because you're watching the screen and you're really taking it in in a pretty intense way but um yeah that is tiring but equally you

concentrate so credibility is not the same as as concentration but it is part of making it a very um in-depth experience and i do believe

that you can do a lot in terms of you know making sure that there are people in the room who are neutral so that you don't need to be afraid or somebody um

coaching the witness that can be done of course i i agree with with all points i think for me if anything i think it's maybe easier to assess

credibility because it is so up close and personal and you do have to concentrate so much um the one time that i've seen issues arise

where is is cross-examining for example uh complicated damages witnesses and technical witnesses i think that is and and i have seen interpreter

issues come up where there was problems with interpretation but but though you know so there i think is where we i'm not saying we can't do it but i think we'll get better over time at technical and and damages

witnesses but i think on credibility just great credibility i i think concerns over that or were over oh you know bigger than may bigger

than they are and the platforms need to work because of course what you don't want is that apart from credibility that the whole cross-examination or examination kind of implodes because like in a physical

hearing room you can at least have somebody run up and say all right here's the page this is what we're talking about and you have to be able to rely on the document coming up at the right time and

everybody looking at the same document and it's harder to look sort of over each other's shoulder whether you're looking at the right document and the interpretation

being correct and if it's wrong it's very hard to correct it midstream it's very it's it's different problems you know than you have in your life yeah

and i cannot stress enough how important it is to to start well in advance because some of these things although they can be resolved let's imagine that we need to send or that mr cruz needs to send equipment

to mr grave and his team you know you you need time you can't just wait until a week before the hearing and start saying oh let's do a bit of that and a bit of a bit of opus and maybe uh maybe have

another computer and you know test test test and cooperation and that's in that you know it does require a larger degree of cooperation on these

issues sometimes um which is why maybe you need a third party to get in the middle yeah there are also some interesting chat questions now about asynchronous

hearings which uh particularly we have these massive time zone differences i think we'll hear more about the the objection to asynchronous here

is synchro synchronous hearings is that if if if the other party is not present a party council may take more liberties than they would if the other side were present

and even though the the other side has the opportunity to review it and recording it's you know once the horses left the barn once the tribunal's been told something

it's difficult for the other side to fully rebut it i i i i'm not aware frankly of any i i've heard of you know michael wang has talked about this and maxi share but i'm

i don't know how much of this is actually taking place these asynchronous hearings and openings closings that sort of thing i don't know if anybody on this on this zoom has any experience with those

maybe i'm old school but it causes me some that causes some concern yes okay i think everybody's got it we've come up against our time any any final thoughts

thank you for sharing it so efficiently excellent job all right thank you all for all your work and and helping to prepare this and uh hope the attendees got something out of it a lot of

interesting uh observations now in the chat room and uh uh thank you all very much and uh and uh we'll see you later bye

bye-bye thank you bye