1 Introduction

The Covid-19 pandemic has brought about significant changes to the dispute resolution landscape, with in-person hearings and proceedings disrupted by lockdowns and travel restrictions [1]. In response, authorities and arbitral institutions quickly adapted to the situation, enabling remote proceedings using digital technologies to ensure the continuity of services and uphold fundamental rights like access to justice [2].

In the context of international arbitration, and faced by the need of preventing a suspension of their services, several international arbitral institutions published a joint statement committing to adapt their services to a digital framework [3]. This included the use of resources like videoconferencing, electronic document submission, and other tools that have facilitated virtual hearings and other proceedings, while also opening up new possibilities for more efficient and cost-effective dispute resolution.

This shift towards online arbitration has led to the emergence of more providers of digital services like hearing administrators and more sophisticated databases [4]. However, the focus of this article is on the impact of digitalization on legal language and particularly considerations on oral advocacy, an issue that has been largely understudied. The importance of this research is that the use of new technologies in international arbitration has transformed the way in which discursive construction is made in arbitration.

This calls for a comprehensive analysis of recent developments, issues and challenges on advocacy in virtual environments. These aspects include, among other things, the intersections between new technologies and persuasion, best practices in the use of e-evidence, ongoing debates concerning the pros and cons of remote hearings, and the growing formulation of specific rules and standards to deal with the behavior of all stakeholders during this type of proceedings.

This article explores cross-cutting aspects of some contemporary issues in arbitration related specifically to law, language, and communication. It examines the impact of digital technologies on cognitive processes, such as memory and attention, and their effects on the behavior of stakeholders like counsel, arbitrators and witnesses in remote hearings.

The article is divided into four additional sections. Section 2 discusses the impact of digital technologies on cognitive processes, reviewing some of these technologies and their key features. Section 3 reviews some of the distinctive characteristics of remote hearings and how they shape the way in which lawyers present their arguments and cross-examine witnesses. Section 4 delves deeper into the implications of digitalization on legal language in the field of international arbitration, examining this issue from the perspective of arbitrators, counsel, and witnesses. Lastly, Sect. 5 presents closing remarks and preliminary ideas to promote best practices and expand research on virtual advocacy in international arbitration.

2 The Impact of Digital Technologies on Cognitive Processes

2.1 Technologies Driving Change in the Field

This section will briefly discuss the key digital technologies that are transforming the practice of international arbitration, as well as their benefits and challenges. While various digital technologies have influenced international arbitration, this section will primarily focus on videoconferencing, electronic document management systems (EDMs), and online platforms for evidence submission. The article does not intend to provide a comprehensive review of each technology but rather a discussion of advocacy best practices in the context of international arbitration.

On a preliminary note, studies of online advocacy must refer to existing literature on online dispute resolution (ODR). ODR has been defined broadly as the spectrum of alternatives for the resolution of disputes outside of court carried out while using means of technology like the internet [5]. Scholars have pointed out that ODR emerged during the late 90s to fill a vacuum where existing laws were insufficient or inadequate, leading to digital platforms focused on procedural efficiency. Against this backdrop, the use of digital technologies emerged in a context where an increasing number of online services like Google, Amazon, eBay increased in global supply chains [6].

The first form of technology to consider is videoconferencing, which allows participants to communicate and interact with one another in real-time using video and audio over an internet connection [7]. Videoconferencing software allows participants to see and hear each other and share documents, presentations, and other materials [8]. This tool became essential during the Covid-19 pandemic as it allowed stakeholders to participate in proceedings from different locations around the world without the need for travel and physical presence in a hearing room [9]. However, there is considerable discussion on whether this resource is better for dispute resolution than in-person proceedings.

The debate about the use of videoconferencing in international arbitration is necessarily oriented by the benefits and challenges of these technologies for the arbitration process. Authors that favor remote hearings through videoconferencing highlight a reduction in costs as one of the main advantages of this alternative [10]. By step** away from in-person hearings, parties can save significant amounts of money in expenses such as travel and accommodation costs. Additionally, they do not have to pay other costs like the venue of the hearing and associated expenses.

Another important benefit of videoconferencing is that it increases efficiency. When entering a hearing is as simple as connecting to a link, participants avoid typical agenda issues that would otherwise be unsurmountable if they had to travel to different locations. This results in a fundamental change in the availability of actors like arbitrators, counsel, and witnesses. Recent studies have shown that availability is one of the most important challenges in international arbitration [11], which reflects the advantages of videoconferencing.

Likewise, the 2021 ICC’s Note to the Parties and Arbitral Tribunals on Conduct of the Arbitration refers to issues like the possible existence of travel constraints, the duration of the hearing, the number of participants, and the costs and gains of efficiency when assessing whether resorting to virtual means of communication would be beneficial for the proceeding [12].

Scholars have also discussed the impact of the digitalization of arbitral proceedings in terms of environmental initiatives [13]. EDMs, which consist of managing documents virtually, have significantly reduced the amount of paper printed in these arbitrations, leading to a positive contribution to green initiatives [14]. The Green Pledge, a campaign started by international arbitration practitioners and aiming to reduce the carbon footprint of arbitration-related practices like hearings and document review, establishes among its commitments the replacement of the physical case file for an electronic version [15].

EDMs also contribute to the efficiency of the proceedings. They can reduce the costs associated with physical submissions and evidence, such as printing and mailing, which can be time-consuming and expensive [16]. These systems also help the parties and the tribunal have better management of the documents presented in the proceeding. Through a well-organized electronic platform, arbitrators can access key information in a simpler way. They may also do so from remote locations without needing to travel with a complex case file. Additionally, unlike hard copies, this technology improves the reliability of storage and prevents the loss of information [17].

The use of digital technologies in dispute resolution also raises important questions about issues such as access to technology and data security. While some argue that these technologies are more secure as they can be encrypted and protected through access controls and audit trails [18], an important consideration in this regard is how vulnerable these systems are to technical failures and cyber threats, leading to potential data loss or theft of sensitive information [19]. While this research will not entertain every one of these discussions, it is noteworthy that the Covid-19 pandemic has sparked ongoing debates about the future of dispute resolution and the role of technology in sha** it.

2.2 How Are Cognitive Processes Affected by These Technologies?

Digitalization has significant effects on cognitive processes, and it is essential to discuss how these effects can impact the effectiveness of advocacy in international arbitration. Cognitive processes such as attention, memory, and decision-making play a crucial role in an arbitration proceeding, as they affect the way stakeholders present and perceive information and, therefore, their perception of a case [20].

Remote hearings rely heavily on digital technologies, such as videoconferencing, for communication, evidence presentation, and decision-making. However, the use of digital technologies can adversely affect attention and memory due to potential distractions and limitations in the quality of the audio or video. Critical interactions such as cross-examination, opening or closing statements, where information fundamental to one party’s case may come up when the tribunal lost sound or image, can be significantly impacted.

In remote hearings, the quality of audio and video may be lower due to technical issues or poor internet connections, factors that do not play a role in in-person hearings and are beyond the control of other participants not affected by these circumstances. For instance, some researchers have argued that low audio quality may lead to less favorable evaluations of witnesses by decision-makers and a lower weighting of evidence [21]. Technical glitches could also make it more challenging to hear and remember the proceedings’ details, affecting the assessment of a case in a neutral and holistic manner by arbitrators or the ability of counsel to prepare for post-hearing briefs and other stages of a dispute following the hearing. This is more concerning taking into account that some arbitrators may not feel comfortable asking a witness or counsel to repeat content or confessing that they had a bad connection.

Furthermore, participants in remote environments are more susceptible to distractions due to the digital environment’s nature [22]. Studies on the capacity of participants to remain focused during a videoconference have found that digital encounters make stakeholders subject to several stimuli, which can divert attention away from the meeting’s main focus [23]. For instance, participants may multitask through simultaneous actions such as checking emails or messages on their devices [24]. Unlike in-person hearings, these activities cannot be controlled in a remote environment, where participants have limited knowledge of what happens with other users beyond the frame of the virtual meeting.

This could result in a lower level of engagement and attention to the proceedings. In contrast, in-person hearings offer fewer opportunities for distraction and more opportunities for non-verbal cues, eye contact, and physical presence that can help maintain attention and engagement. Similarly, difficulties in navigating the digital platform can lead to errors or miscommunications that can impact the accuracy and reliability of decisions made during the hearing, affecting the tribunal’s attention. However, some participants interviewed in empirical studies concerning online mediation have also declared that a slower pace of the social interactions in a virtual meeting increases processes related to attention such as listening, reflection and self-expression, making parties and mediators more thoughtful in their submissions, [25].

Arbitrators and witnesses may also be distracted by technical barriers in the use of digital technologies. Members of the tribunal of a certain age may have difficulty adapting to new and complex digital platforms, making it difficult to interact with several features like translation, transcript, or even basic audio and video settings. The same could happen with arbitrators of a younger age who are not well-versed in the use of digital technologies. This is particularly concerning when it comes to proceedings that have characteristics like witnesses, lawyers, or tribunal members who speak different languages, which is not uncommon in international arbitration [26].

In addition, remote hearings may involve longer periods of screen time, which can cause fatigue and negatively impact memory retention. Research has already established the importance of being well-rested for an appropriate level of attention and remembering contents [27], meaning that tired participants could have trouble processing information. Studies on the level of fatigue of participants during online meetings have found that participants cannot remain concentrated for longer than 15–20 min [28]. This is of particular interest in the context of remote hearings, where participants are expected to remain attentive for entire weeks, even for periods of several hours before break times.

This can result in a lower level of engagement and retention of information. In-person hearings, on the other hand, offer better audio and visual quality, which can improve memory retention and recall. Moreover, the problem worsens when considering time zone issues. Parties in different time zones may plead at different times of day, leading to varying levels of rest, potentially impacting their performance [29]. In simpler words, hearing a submission at the beginning of the day and at a time when the parties are well-rested is not the same as doing so by the end of a working day or at late hours. This not only applies to counsel for the parties but also to arbitrators and witnesses, whose level of engagement could be significantly affected by these circumstances.

The use of digital technologies in remote hearings can have significant impacts on decision-making, participant experience, and cognitive processes involved in the dispute resolution process. Externalities that could have an impact on these aspects of a virtual proceeding include factors such as the quality of internet connection and the user-friendliness of the technology used, which can affect the accuracy and reliability of decisions made during remote hearings, ultimately raising concerns about the access of the parties to an impartial decision.

Moreover, the absence of non-verbal cues and physical presence can pose challenges to assessing credibility and making informed decisions [30]. As discussed in this article, studies in other fields like semiotics and psychology demonstrate that these factors play a crucial role in the way that information is perceived an processed by different actors. For instance, although some have criticized the criteria of credibility as being overly subjective, research has found that it is key in the reasoning’s that arbitrators and other decision-making authorities bear in mind when adjudicating a dispute [31].

It is important to consider how remote environments affect not only the audience but also the speakers. Existing literature has focused primarily on how language and communication are affected for arbitrators and witnesses, but the impact on speakers themselves cannot be underestimated. Technical issues, such as video/audio complications or poor internet connection, can create stress and frustration in the speaker, potentially leading to a poor performance [32]. Available empirical data on other forms of ODR shows that frustration has been associated with technical issues of digital technologies such as a slow relay and screen freeze, circumstances that appear minimal but negatively impact the fluidity of the hearing [33]. Similar findings have been made in the case of witnesses, whose memory can be highly affected by negative emotions, which has a detrimental impact in the quality of their testimony.

Another critical aspect to consider is how remote hearings can change the participants’ reactions to events taking place with other people in the meeting. Studies in the field of social psychology have found that circumstances affecting the mood of participants of a social interaction can have interpersonal effects on others surrounding them [34]. For example, the perception of fear or nervousness in a witness can trigger empathy in the arbitrators, leading to measures to mitigate such feelings, like ordering a pause or asking questions differently.

However, it is uncommon to see people confessing these feeling in an open and honest fashion during a formal proceeding like a remote hearing, which makes it more a matter of perception induced by cues like shaking or breathing heavily. Arguably, remote hearings may affect how these cues are perceived by the tribunal, making it more challenging to have a clear idea of how a witness is feeling and the capacity of arbitrators to spot, control, and direct these issues in a way that does not affect the quality of testimony [35].

It is essential to recognize that digital technologies are merely a tool and, as such, should be used responsibly. Remote hearings can inject efficiency into the proceeding, making access to arbitral justice faster, better, and cheaper. Still, they can also have undesired effects on aspects such as the quality of decisions or the level of engagement of key stakeholders like witnesses and arbitrators. Therefore, the use of digital technologies in remote hearings can have both positive and negative impacts on the cognitive processes involved in dispute resolution. It is critical to acknowledge these externalities and find ways to adjust to remote environments.

3 Advocacy in the Digital Age

This section explores the implications of digital technologies for advocacy in international arbitration, focusing on how witnesses, counsel, and arbitrators communicate differently in online hearings and the challenges posed by remote cross-examination and oral arguments. While there has been limited research dedicated exclusively to the effects of digital technologies in advocacy for international arbitration, some scholars have studied the impact of digitalization on the legal profession in general [36]. For instance, practitioners have tried to find ways to adjust advocacy to remote environments, which shows that digitalization has forced them to rethink how to convey an argument persuasively, changing typical best practices on good advocacy [37].

On a preliminary note, a significant discussion concerning online communication in dispute resolution environments relates to a decreased level of spontaneousness in the interactions. This is the result of how digital technologies affect the presence of what language studies have defined as paralinguistic responses, for example, body language. Most research tends to say that less non-verbal cues result in less emotions, but important scholars in psychology of emotions have proposed that virtual environments, given that they offer a greater sense of control, actually enhance a larger emotional openness [38]. Against this backdrop, some scholars have studied whether emotions are filtered by participants in the cyberspace and whether this is positive for dispute resolution [39].

3.1 Changes in the Delivery of Oral Arguments

Researchers have highlighted the importance of adopting a discourse analytical approach to gain a deeper understanding of interactions in online dispute resolution environments [33]. Digital technologies have impacted the way in which evidence is presented. Some argue that they have made it easier to present evidence in a more compelling and persuasive manner, particularly through the use of visuals such as charts, figures, diagrams, pictures, maps graphs, and animations to support legal arguments [40]. This could be particularly helpful in cases involving complex technical issues, such as arbitrations dealing with engineering and construction issues [41], which has resulted in a higher degree of sophistication in terms of audiovisual resources.

In oral arguments, some traditional practices of effective in-person advocacy may not be equally useful in remote hearings. For instance, in an in-person hearing, a lawyer delivering an opening or closing statement would typically be able to gauge the reactions and body language of the arbitrators in real-time, allowing them to adjust their delivery or emphasize certain points as necessary [42]. However, in a remote hearing, attempting to pay attention to multiple screens and deliver a script while looking at a PowerPoint presentation makes trying to read the reactions of the tribunal simultaneously more challenging.

By way of example, the increased level of fatigue of all the participants in remote environments makes it necessary for lawyers to find new ways to keep the tribunal engaged and interested in the proceedings, particularly when dealing with technical or complex issues. Experts have found that speakers should rely heavily on visual aids given the increased level of fatigue that explaining such concepts could create in a remote hearing, meaning that lawyers must adjust their presentation style to be more persuasive in a virtual environment [43].

Typically, this will involve even more digital technologies like simulators and advanced graphics software, among others. In practice, this reality has led to the emergence of professional developers who create visual aids specifically designed for dispute resolution. Interestingly, their work is inspired by other disciplines, such as legal design and psychology, which are well-known in some domestic dispute settlement fora [44].

Researchers in the field of ODR have conducted empirical studies to find out the perception of users of online mediation and remote disputes services. Some of the participants highlighted the importance of in-person hearings in proceedings dealing with specific issues such as professional or personal negligence cases, considering that it was important to address the human element in such circumstances [25]. However, the same users have declared to see online disputes as an alternative that improves interaction in cases where parties are unwilling to meet face to face, including proceedings where there are considerable power imbalances or emotional intensity [45].

It is relevant to consider that technical glitches, such as delays, disruptions, or dropped connections, can impact the quality and reliability of proceedings. For instance, delivery and style effects such as pauses or emphasis may be affected if there is a lag in the voice behind the image [46]. Participants are indirectly encouraged to avoid interruptions in a virtual hearing because of the one second audio and video delay, which slows down interaction. Interestingly, the slowness of video platforms has been a frequent feature of ODR mentioned by its users [33]. Such circumstances could lead the speaker to lose momentum, affecting their arguments and the way they are perceived by the tribunal or a witness. They could also distract the tribunal or the witness, breaking the flow of attention and potentially affecting the capacity of the lawyer to induce certain reactions at a given moment of the hearing.

As a consequence of digitalization, lawyers have developed practical tips and tricks that take into account various elements of a remote hearing, such as the hardware used by participants, their distance from the camera, and their attire [47]. However, even when there are new tools to adapt advocacy to online dispute resolution environments, digital technologies have undoubtedly affected the perception of reality and authenticity by participants. Participants in empirical studies have declared to have a sensation of unreality during these interactions, declaring to feel as if they were watching a video [33].

While a detailed analysis of these specific elements could be the subject of a separate study, most discussions of good advocacy in remote hearings focus on the fundamental differences between virtual and in-person hearings. For instance, the background used by participants in a videoconference can significantly impact communication, which is neutral in a physical hearing. When the hearing is held physically, counsel cannot choose its background and the effect of such a feature is neutral, but in remote hearings an artificial background or a background with many distracting objects could negatively affect participants’ attention and concentration.

3.2 Challenges of Online Cross-Examinations

Cross-examination is fundamental to an appropriate hearing in the context of international arbitration considering the possibility that lawyers have to meet with their witnesses and prepare their testimony prior to the hearing [48]. In this regard, there has been significant discussion on the advantages and disadvantages of remote hearings. Many counsel consider that cross-examining a witness is more challenging in virtual proceedings due to the lack of physical proximity with the witness [49]. On the contrary, others consider that digital features like screen sharing have made it easier and simpler to conduct cross-examinations as the document referred to by the lawyer appears directly before the witness and it is not necessary to wait for the latter to search for it [50].

Evaluating the effects of remote hearings on cross-examination is challenging, as they rely heavily on the subjective experience of the participants. Handbooks on the matter suggest that effective cross-examination requires establishing a connection with the witness [51], which could be affected by remote hearings as the interaction may seem more distant. Physical distance could also affect the capacity of lawyers to build rapport with the tribunal, a key factor in persuasion [52].

Research has shown that technological changes towards online dispute resolution alter the social experience, allowing users to behave more detached and amplifying negative emotions [53]. Further technical tools enhancing remote interactions are eroding face-to-face interpersonal skills, creating tension with common affective exchanges in in-person environments [54]. This means that the impersonal setting of a virtual hearing might lead to a more distant interaction between the adjudicators and the parties or the arbitrators and a witness. Said circumstances could be negative for counsel seeking to establish a connection with both arbitrators and witnesses.

Again, the importance of non-verbal cues and body language in assessing the credibility of a witness should not be underestimated [55]. As pointed out by some commentators, virtual cross-examination environments could make it difficult for the tribunal or the cross-examiner to detect these aspects due to the witness’s visual frame in a videoconference room [56]. Despite the foregoing, it is relevant to note that some scholars have also argued that it would be easier to read witnesses and other participants in remote hearings due to unique features of digital technologies such as the close-up of cameras and the possibility of reviewing recordings [57].

4 The Role of Digital Technology in the Main Actors of an International Arbitration

Digital technologies are reconstituting the scope and content of international arbitration practice. They create opportunities to enhance common procedures such as collection and submission of evidence, management of case files and presentation of oral pleadings [58]. Many questions have arisen with this new reality. For instance, some wonder whether transparency or authenticity are affected by the fact that witnesses are not in the same room as the lawyer practicing a cross-examination, and whether this affects the perception of the tribunal on its assessment regarding the trustworthiness of said evidence.

In arbitration, the use of online hearings was bolstered by Covid-19. However, seasoned arbitrators conducted some meetings of the proceeding, including case management conferences, virtually to save resources even before the pandemic [59]. The London Court of International Arbitration (LCIA) was a pioneer in the establishment of rules for remote hearings, having approved since 2017 language that allowed the tribunal to hold a hearing through technologies like video or telephone conference [60].

Travel restrictions and physical isolation due to the pandemic made this practice more common. According to the statistics of the International Centre for Settlement of Investment Disputes (ICSID) the majority of its hearings were held by videoconference in 2019 [29], Likewise, the International Chamber of Commerce (ICC) reported that 36% of users had participated in fully virtual hearings in the first quarter of the same year and that percentage increased to 71% by the final quarter [59].

Currently, the possibility to use remote hearings is the trend rather than the exception. During the pandemic, most arbitral institutions changed their rules to accommodate to online advocacy settings. The latest survey on international arbitration from Queen Mary University and White & Case shows interesting results [61]. Participants in 28% of their responses that the ability for local courts to deal remotely with arbitration-related matters would make arbitral seats more attractive [62]. 25% of respondents said that they would be willing to forego in-person hearings [63].

The same survey highlights that respondents are willing to use more virtual hearings mostly to discuss procedural issues, deciding on a hybrid format between in-person and remote environments [64]. Some common considerations to preserve some forms of face-to-face meetings are difficulties in counsel capacity to control witnesses and assess their credibility, technical malfunctions, maintaining concentration due to fatigue, and more challenges reading arbitrators reactions, all of which have been considered in this article [65].

As a consequence of the increased use of videoconferencing in remote hearings, careful consideration and planning are necessary to ensure that dispute resolution remains fair and effective [66]. This requires arbitrators to design well-crafted rules to regulate the behavior of the parties during a remote hearing, as their conduct could significantly affect the outcome of the proceedings. Notably, remote hearings could potentially undermine the standing of one party if only counsel for one side has met the tribunal in person, which highlights the issue of due process in a digital environment. For instance, if only counsel for one side already knows the tribunal in-person, the other side could argue that a remote hearing could impair its standing. While some parties have brought before the judiciary claims of unfairness due to arbitral decisions to conduct remote hearings, courts have rejected them considering that physical presence is not in and on itself a requirement of a fair hearing [67].

4.1 Counsel

To face the issue of distraction, some have suggested adopting a style of advocacy that permits a balanced view between the screen and the speaker. A way to do this is by making sure that the virtual platform focuses only the speaker instead of having multiple people appearing on screen [68]. This includes also incorporating best practices like asking anyone different from the speaker to turn off their cameras while the presenter is talking. Some have also advocated for shortening the length of oral arguments, focusing the attention of the tribunal on key issues [69].

Body language has also changed drastically from in-person to remote hearings. When all stakeholders are present in the same room, it is recommended to use body cues to attract the attention of the tribunal, for instance, using hand gestures [70]. However, in remote hearings, speakers might avoid too many movements and try to make subtle expressions instead to avoid distracting the tribunal, witnesses or other participants. This means that the way traditional oral advocacy was taught and practiced has reshaped to be more responsive to digital environments, facing lawyers with new challenges.

Some theories with a language focused perspective and considerations of social psychology are of great use of understanding how communication in online environments convey different forms of emotions and intentions [71]. Scholars have found that in an online dispute, where social cues are limited, participants draw inferences about the meaning of the words communicated to them and those inferences predict subsequent behavior [72]. Based on this, scholars have argued that negative reactions during a virtual meeting in the context of a dispute, such as negative comments or commands, could lead to a reduced likelihood of resolving the dispute amicably [73].

Additionally, it has been stressed that lawyers must establish eye-contact with the tribunal and thus look directly into the camera, not the screen [74]. Likewise, the position of the camera can be determining of how a speaker is perceived by other participants. A camera facing upwards could make the speaker more aggressive and intimidator, while the contrary circumstance could have the opposite effect [75]. This is way it is recommended to have a camera that faces the speaker directly in an angle that is more neutral [76]. As in this example, digital technologies have challenged lawyers to see their oral arguments differently.

It is crucial to acknowledge the significance of adapting the skills of international arbitration to the digital age and the advancements in technology. Traditional knowledge of oral advocacy focused on factors like body language and tone, but virtual hearings introduce new elements that demand our attention. One such element is the ability to create and deliver compelling presentations using demonstrative evidence. This shift is particularly relevant when considering the principle of equality of arms, as the use of digital tools and expensive hardware can create disparities, limiting access to those who cannot afford such resources. The slower delivery speed of digital platforms, even if it is minimal like a delay of seconds, means that participants must necessarily pay more attention to what is being said by the participants and the non-verbal cues during the meeting.

The transformation of advocacy skills must also account for lawyers’ ability to effectively respond to various situations that may arise during virtual hearings. This encompasses not only proficiency in managing the necessary software and hardware devices for participation but also the skillful handling of scenarios involving multiple interventions and the need for quick reactions. An illustrative example of this is the formulation of objections. While voicing an objection promptly may be relatively straightforward in a physical hearing, doing so in a virtual setting poses additional challenges that demand heightened attention and adeptness from legal counsel.

It is also essential for counsel to recognize and consider the limitations that arbitrators and witnesses may face when participating in a virtual hearing. The unfamiliarity with digital platforms or technical difficulties can hinder the smooth conduct of proceedings. Therefore, it becomes crucial for counsel to convene and assist arbitrators and witnesses in navigating these challenges effectively. This may involve providing guidance on the use of technology, offering training sessions, or even conducting mock virtual hearings to familiarize participants with the platform and address any potential issues. By proactively addressing these challenges and providing support, counsel can contribute to ensuring a seamless and efficient procedure, allowing the focus to remain on the substantive matters at hand.

4.2 Arbitrators

The impact of digitalization on counsel extends beyond crafting effective arguments. It also significantly influences how arbitrators perceive and analyze information. Given that virtual hearings are not conducted in person, various aspects of the proceedings, including the interactions between witnesses and lawyers during pivotal moments like cross-examination, are affected. It falls upon arbitrators to exercise control over these critical junctures, necessitating heightened awareness and the ability to navigate the technical and distinctive features of videoconferencing.

Besides, not all of the effects of digital technologies on advocacy are limited to the oral phase of the proceedings and many of them also have an impact on written submissions. EDMs, for instance, can reduce the time and effort required to store, search for, and share documents, by enabling instant access to information from any location, which is exemplified by simple practices like the possibility to conduct a keyword search easily in a large document [77]. This is of particular help for arbitrators, who can use EDMs to get fast and easy access to the key documents of the record. Indirectly, this could also enhance the quality of their work as it makes it easier to understand the case.

Nevertheless, it is important to acknowledge again that the proliferation of digital resources is not without its challenges. Some technologies can be costly and necessitate specialized technical support, creating potential drawbacks for parties involved. While certain tools may assist the tribunal in comprehending pertinent issues, they may also prove redundant and financially burdensome. For instance, counsel may employ sophisticated software reminiscent of those employed by engineers to control project costs or technical aspects, aiming to present compelling evidence to the arbitrators. However, if the technology proves excessively intricate or demands excessive involvement from the arbitrators, they may opt against its use, rendering it a superfluous expenditure.

The same can happen with simpler software like EDMs, which may require staff training to ensure proper use and adoption, consuming valuable time and resources. Again, this issue is particularly significant when considering arbitrators who come from generations where the use of digital technologies was not the norm. In practice, there is a possibility of mismanagement of a digital platform for the official record, leading to unintended sharing of confidential information among stakeholders. For instance, an arbitrator may inadvertently share a draft of the award with the parties, or counsel could unintentionally disclose evidence that was not submitted to the record or private emails to unintended recipients. These incidents emphasize the necessity for arbitrators to adapt to the digital environment and be diligent in maintaining the confidentiality and integrity of the proceedings.

Arbitrators must also adapt their common practices to account for the unique characteristics of remote hearings. For instance, tribunal communications and deliberations during the hearing require adjustments. Breakout rooms can facilitate these exchanges without causing significant disruption, as they can be as simple as changing the location within the same videoconference. Similarly, considerations should be given to breaks and pauses. Given the fatigue induced by prolonged use of virtual platforms and the previously discussed impact on cognitive processes such as attention and memory, arbitrators should prioritize shorter hearings and provide participants with necessary breaks during remote proceedings. Additionally, arbitrators should make a dedicated ethical commitment to closely follow the hearing, avoiding the temptation of multitasking or becoming distracted.

Online platforms also transform the common discourse of arbitrators and how they address the parties. During an in-person hearing, arbitrators might refer to the parties through eye contact and body language, while in a videoconference they have to address the parties by their name every time. Another important change in language is that arbitrators may have a greater power over the participants during a remote hearing. Studies on other forms of alternative dispute resolution like mediation have concluded that, in online environments, mediators have a larger capacity to respond to inflammatory statements from a party [78]. This suggests that arbitrators should be more polite with the parties during remote hearings as negative emotions and certain forms of expression could more easily be perceived by participants as aggressive language, reducing good relationships in the proceeding.

Key to a good planning is the introduction of robust procedural orders. Commonly, arbitrators issue a procedural order prior to the hearing, where they establish the rules that will apply there [79]. In the context of remote hearings, it is crucial for the tribunal to incorporate a remote hearing protocol into the procedural order, addressing the specific considerations and challenges associated with the digital environment. This protocol can cover various aspects, such as the use of documents and audiovisual aids, the authorization of participants, the allocation of hearing rooms, and other pertinent details. Furthermore, arbitrators should carefully evaluate the audiovisual requirements of the hearing and include provisions specifying the minimum software and hardware standards that participants must meet to ensure a seamless connection. By incorporating these provisions, arbitrators can establish clear guidelines and expectations, promoting efficiency and fairness throughout the remote hearing process.

4.3 Witnesses

Several discussions specific to witnesses have arisen in the context of virtual hearings in the practice of international arbitration. For instance, there are outstanding debates on the possibility that witnesses could have improper contact with counsel and other representatives when a hearing is remote. This is a concern of fundamental importance considering the central role of ethics and fairness in this field of law. Nevertheless, and leaving aside the part of this argument that refers to undue conduct, an additional issue to consider from the perspective of the semiotics of law is how stakeholders in general are affected by the fact that, outside the hearing room, they are not physically close. The unique characteristics of virtual hearings bring new challenges to counsel and arbitrators in several witness-related matters.

By way of example, in a remote environment, the dynamics of witness examination can be impacted, affecting lawyers’ ability to effectively control the witness. Controlling the witness entails guiding their testimony towards the desired direction, asking questions without difficulty, and preventing the witness from monopolizing time or introducing detrimental information. Poor practices in this regard include instances where a witness fails to answer a question or talks over counsel during the examination [80]. One prevalent issue in this interaction, particularly in international arbitration, is the sudden change of language by lawyers or witnesses, as well as interruptions between parties, which can have adverse effects on the accuracy and clarity of the transcript.

Given these challenges, it is crucial for counsel to adapt their questioning techniques and ensure effective communication in a remote setting to uphold the integrity of the examination process. Moreover, the witness’s trust and performance during the examination can be directly influenced by the environment and its impact on the proximity of other participants. In an in-person hearing, the witness may feel heightened pressure due to being in an unfamiliar space, surrounded by unfamiliar individuals who observe their every word [81]. In contrast, in a remote hearing, the witness may be situated in a familiar location and, albeit not physically present in the same room, surrounded by familiar and supportive faces such as friends or family members. Counsel must be cognizant of these contextual differences and their potential effects on the witness’s demeanor, responsiveness, and overall performance, and adapt their approach accordingly to ensure a productive examination.

This issue extends beyond the witness’s personal confidence during the hearing. The inherent limitations of a remote environment can impede both the tribunal and counsel from effectively managing the witness, thereby potentially disrupting the proceedings. For instance, instances may arise where the witness struggles to hear a question clearly or speaks too loudly or rapidly. In an in-person hearing, it would be simpler to interject and request the witness to pause or adjust their volume. However, in a remote hearing, such interventions become more challenging to execute seamlessly. Counsel and arbitrators must navigate these unique challenges, finding alternative means to ensure clear communication with the witness, such as using chat functions or politely requesting them to speak more clearly or moderate their pace. Adapting to these obstacles is vital to maintaining the flow and effectiveness of the hearing in a remote setting.

Counsel plays a crucial role in ensuring the effective participation of witnesses in virtual hearings by taking into account the unique features and challenges of such proceedings. It is essential for counsel to recognize the distinct circumstances surrounding virtual hearings and incorporate them into the preparation of witnesses. As such, counsel should provide thorough guidance to witnesses on how to navigate the virtual platform, optimize their audio and visual settings, and maintain effective communication during the hearing. This may include familiarizing witnesses with the technology, emphasizing the importance of clear and concise responses, and advising on appropriate body language and eye contact through the camera. By adequately preparing witnesses for the virtual environment, counsel can enhance their confidence, credibility, and overall performance.

On the other hand, as custodians of the hearing process, arbitrators should be proactive in creating a conducive environment that encourages witnesses to provide their testimony with clarity and confidence. This can include adopting a clear and consistent structure for the hearing, providing guidance on the use of virtual platforms, and ensuring that witnesses have the necessary technical support to navigate any technological issues. Moreover, arbitrators should be mindful of the potential impact of the virtual setting on witness demeanor and credibility, taking steps to mitigate any disadvantages. This may involve encouraging clear and focused questioning by counsel, closely monitoring witness reactions and body language through the camera, and allowing for appropriate breaks and rest periods to alleviate fatigue. By taking these measures, arbitrators can enhance witness participation in virtual settings.

5 Conclusions

In the realm of international arbitration, the advent of digital technologies brought a profound transformation, resha** the semiotics of law and revolutionizing legal communication. This article has delved into the key issues and main findings arising from this digital revolution, while also shedding light on the challenges it presents and the future research opportunities that lie ahead.

Digital technologies have opened up new avenues for enhancing common procedures in international arbitration, including the collection and submission of evidence, case file management, and the presentation of oral arguments. These technologies offer exciting possibilities to streamline processes and improve efficiency. However, as with any disruptive force, they also bring forth their own set of challenges. One of the central concerns raised by the introduction of digital technologies is the potential impact on transparency and authenticity. The shift to virtual hearings raises questions about the trustworthiness of evidence, particularly when witnesses are not physically present in the same room as the lawyers conducting cross-examinations. These changes in physical presence and interaction dynamics have led to a reevaluation of traditional notions of credibility and perception in the tribunal’s assessment of evidence.

To navigate these challenges, all the stakeholders of a virtual hearing in an international arbitration must pay careful attention to the unique features of a digital environment. Counsel must adapt their advocacy styles, finding new ways to deliver their arguments effectively and maintaining a sense of engagement and undivided attention among participants. Moreover, they must recognize that the shift from in-person to remote hearings has significantly altered body language and non-verbal cues. Arbitrators shall also accommodate remote hearings, including establishing clear guidelines, addressing specific considerations and challenges to traditional proceedings, and mitigating any disadvantages. Lastly, witnesses are influenced by the digital context, and it is fundamental to find out ways for them to maintain effective communication, and enhance their confidence and credibility.

The transformation of legal communication in a digital environment reflects the inevitability of new forms of advocacy in international arbitration proceedings. Rather than highlighting the challenges or negative effects of digitalization, this article adopts the view that understanding these changes and develo** robust instruments to reshape traditional knowledge and practices into effective communication methods are paramount. It is crucial to focus on identifying and preventing any circumstances that could create disadvantages for the parties or hinder the involvement of arbitration stakeholders in the digital procedures. One such consideration is the allocation of resources, including costs and technical support necessary for implementing these new practices. By addressing these issues, the objective is to ensure equal opportunities and promote a seamless transition into a more digitalized international arbitration landscape.

As digital technologies reshape the semiotics of law and legal communication, challenges and future research opportunities emerge. Further exploration is needed to understand the long-term impact of digital technology on the perception of evidence and the construction of trust in virtual hearings. Best practices for conducting remote hearings must be developed, addressing disparities in access to digital resources and ensuring equal opportunities for all parties. Additionally, the dynamics of witness examination in remote settings warrant in-depth investigation to identify effective strategies for eliciting reliable and authentic testimony. Furthermore, as digitalization continues to shape the landscape of international arbitration, there is a need to examine the evolving role of legal professionals. The transformation of legal communication necessitates a reevaluation of the skills and competencies required in a digital environment.

Efficient and conscious planning is a fundamental concept in navigating the digitalization of legal communication. Stakeholders must carefully consider the technology they will employ during hearings, taking into account platform specifics and the need for technical assistance. A recommended practice is to schedule advance tests, allowing hearing participants to connect and test their devices, connections, and address any potential issues from the same location where they will present their testimony. When selecting a videoconferencing platform, stakeholders must strategically assess factors such as the number of participants, technical requirements in terms of bandwidth or transmission speed, and recommended hardware like cameras, screens, or microphones.

One legal issue of significant relevance is the absence of explicit references to remote hearings and the associated rules in most arbitration laws. However, it is noteworthy that many arbitral institutions have taken steps to revise their rules and regulations, incorporating specific considerations for remote hearings. These efforts represent best practices that should be endorsed and replicated. An exemplary initiative is the publication of the "Principles for Remote Advocacy" by the International Council for Commercial Arbitration during the lockdown period. These principles focus on guiding lawyers to effectively deploy their argumentation skills in an online environment, serving as a valuable resource for advocates seeking to adapt their presentations to remote hearings. This proactive approach to change demonstrates the willingness of institutions to embrace transformation in a positive and constructive manner.

However, the profound impact of digital technologies on the semiotics of law and legal communication in international arbitration presents a multitude of questions and opportunities for further exploration. While the introduction of digital technologies has already revealed some benefits, particularly accelerated by the pandemic, there are still significant growth opportunities to be pursued. The utilization of interactive technology to effectively present complex evidence in technical cases and the development of sophisticated practices for remote cross-examination are areas that warrant further investigation. Moreover, as digitalization continues to permeate the field of international arbitration, there are important challenges that must be addressed. Complex cases involving a multiplicity of parties or contracts, as well as those with a substantial number of witnesses, require careful consideration of how technology can be effectively employed. The integration of digital tools in such scenarios demands comprehensive solutions that ensure equal access, maintain procedural fairness, and safeguard the integrity of the proceedings.

Looking ahead, collaborative efforts between academia, practitioners, and arbitral institutions are essential to tackle these challenges and unlock the full potential of digital technologies in international arbitration. By embracing innovation, promoting interdisciplinary research, and sharing best practices, the field can navigate the evolving landscape of legal communication and establish robust frameworks that uphold the principles of efficiency and fairness.