Lawyers at Home, around the World Roundup

30 June 2020

In mid-May, 39 Essex Chambers launched a brand new series called ‘At Home, around the World’. In these short videos, a number of different members of Chambers based all over the world came together with a host of different expert jurists, practitioners and commentators for a series of informal conversations. Based in their different locations across Europe, Africa and Asia, these individuals brought their considerable experience and unique insight to bear on various different topics, which ranged from the impact of COVID-19 and the public health restrictions which have followed to a consideration of what the future may look like for the legal profession and the world in general after this crisis abates.

This short article is intended merely as a summary of some of the conversations which have been had: of course, all the episodes are available in full on YouTube and on the 39 Essex webpage ‘At Home, Around the World’. These roundups will be published periodically as further episodes are launched and the videos have been uploaded at different times, with the conversations reflecting the situation as it was developing at the time of recording.

Episode One: Edwin Glasgow QC and Justice Edwin Cameron

In the first episode of the series, Edwin Glasgow QC (based in the United Kingdom) spoke with Justice Edwin Cameron (in South Africa). The two eminent jurists reflected deeply on a wide range of themes including how COVID-19 might impact the operation of the law and what changes will necessarily follow as a result. Justice Cameron placed the discussion within some historical context, noting the experience in the mid-1980s and since with the HIV/AIDS epidemic, and how this situation may prove to be a moment to rethink how we practice law and the way in which we think of each other more generally. One way in which South Africa has taken steps in reforming the law is to make it easier to use mediation and arbitration as paths to accessing justice.

Indeed, Edwin Glasgow QC reflected that one of the positive consequences of the adjustments which societies have been forced to make is the practical changes that are likely to take place in the context of international arbitration and in particular, the probability of it being a most cost-effective process (with fewer international trips). However he expressed some reservations about how permanent the move to online hearings will be in the future, given the more difficult challenge of handling witnesses virtually rather than in person.

Both jurists noted that there is likely to be an influx of ‘force majeure’ type claims arising out of the present situation, with parties having committed to commercial and civil obligations which they cannot perform due to the inherent interruption brought on by the pandemic. This led them to consider whether different kinds of dispute resolution mechanisms are required (perhaps even non-adversarial) in order to avoid any legal system being overwhelmed.

They also went on to discuss the specific situation in South Africa and in England and how the legal systems are coping with life during the pandemic, in particular considering how the criminal justice is operating, the challenges of jury trials during these times and the position in South Africa (at the time of recording) with regards to overcrowded prisons.

Episode Two: Peter Rees QC and Philip Rodney

In the second episode of the series, arbitrator and practitioner Peter Rees QC chatted with Philip Rodney, former chair of Burness Paull LLP and commentator for The Times who is based in Glasgow, Scotland. The two began by discussing Philip’s experience of lockdown in Scotland and how the situation there has differed from the rest of the United Kingdom. Philip reflected on the impact which the public health restrictions had on his working practices and the increased use of videoconferencing and how this compares to the other forms of communication available. In particular, they discussed how the phenomenon of video conferencing may be more exhausting then alternatives such as holding the meetings over the phone, because of the effort involved in trying to pick up visual cues which one wouldn’t do when just listening into a phone call.

Although Philip believed that video conferencing may be here to stay, he wondered whether it may be a case of thinking more about how it can be impactful and to think about it as a production, working out what each participant’s role might be and what time is needed.

They also reflected on a recent article that Peter had written about how these restrictions might stimulate creativity and how certain limitations themselves can release creativity. The conversation moved on to considering ways in which the legal profession can be more inventive, what new efficiencies can be created and what new opportunities there may be to be more collaborative as a profession. Indeed, they also considered that the COVID-19 pandemic might lead to a wider re-evaluation about how society sees and considers different professions.

Episode Three: Asian Arbitral Institutions with Swee Im Tan

In the third episode of the series, Swee Im Tan explores how three of the world’s leading arbitral institutions in Asia have coped with the pandemic as she catches up with Eric Ng (HKIAC), Kevin Nash (SIAC) and Tatiana Polevshchikova (AIAC).

Towards the start of the conversation, Kevin noted that the institutions were well-placed as arbitration is a pretty adaptable and flexible process such that in this tragic and difficult situation, the arbitral institutions have been able to run things remotely and smoothly. Indeed, he was surprised as to how busy things were and how work had not slowed down. In Hong Kong, Eric noted that they had also been very busy as people began to understand the scale of the pandemic: the institution has had emergency proceedings and nearly all of the hearings have some virtual component with 85% of the cases from April and May being virtual in some shape or form and 65% of all inquiries being in relation to virtual hearings or virtual hearing services.

Swee (who is based in Malaysia at the time of recording) noted the particular problems in that jurisdiction because of emphases on personal service and indeed Tatiana considered that in Malaysia, there were dealing with two different problems at the time of recording: the ongoing appointment of a new director and the COVID-19 situation which had affected adjudication matters and their registration (more so than arbitration issues).

The conversation then moved on to the broader impact of COVID-19 and how the profession stays in contact with each other, including the continued emphasis on online webinars and zoom meetings. Kevin noted that there is a networking element that is important to being at a physical event whilst Eric considered that the use of webinars was not a result of the crisis arising from COVID-19 as they had been in operation before.

The group also considered how the present situation may lead to there being greater scope amongst the arbitral institutions for increased cooperation, with Kevin noting that HKIAC, SIAC and AIAC have a close relationship and that the flexibility inherent in arbitration would mean that if one had (for instance) a dispute with parties from mainland China and Hong Kong with an SIAC administered arbitration who wanted to have the hearing in HKIAC, then this would be perfectly possible. Tatiana also echoed these comments, noting that they were all working towards the same goal of providing effective services whilst Eric also reflected that they needed to continue cooperating in order to create at least some sort of standard for the arbitration community and it was, in his view, the Asian institutions who were leading that charge.

James Bradford

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Author: James Bradford