By Jackie Lafleur
The COVID-19 pandemic has had a huge impact on the way in which disputes are being resolved around the world. In most countries, courts and arbitral bodies have been forced to take measures to prevent or limit the spread of COVID-19. This has included encouraging parties to make use of virtual hearings where possible.
In this regard, various global arbitral bodies have issued protocols and guidance notes to govern virtual arbitration hearings. For example, the International Chamber of Commerce has issued a guidance note outlining a range of possible measures to be adopted to help mitigate the effects of COVID-19 on arbitral proceedings, which includes, amongst other things, a checklist for a protocol on virtual hearings, suggested clauses for cyber-protocols and procedural tools available to mitigate delays occasioned by the pandemic.
However, none of these protocols or guidance notes take into account the specific challenges and circumstances that may arise in relation to remote hearings in Africa. In this regard, the African Arbitration Academy has developed a ground-breaking Protocol on Virtual Hearings in Africa (the Protocol) which is custom made for virtual hearings in Africa.
While the Protocol has been predominantly developed to take into account health and safety concerns in the wake of COVID-19, it is also aimed at reducing the costs and enhancing the efficiencies of arbitral proceedings. Some other noteworthy objectives of the Protocol include to encourage the investment in information and communication technologies in order to facilitate access to virtual hearings and, importantly, to provide for the equal treatment of parties and to ensure that each party is given a fair opportunity to present its case virtually.
To cater for the unique technological and infrastructure challenges faced in Africa, the Protocol includes preliminary considerations such as agreeing well in advance on the platform to be used for the hearing, and ensuring that at least one back-up internet service provider and an alternative platform for the hearing is in place in the event of technical difficulties. In addition, and in circumstances where parties may not have access to the technology, software or equipment necessary to attend a virtual hearing, the Protocol provides that arbitral institutions or centres should be solicited for the virtual hearing on the basis that they are generally able to provide the necessary equipment and infrastructure to ensure a smooth virtual hearing.
The Protocol also deals with the infrastructure and technical standard to apply to virtual hearings. In this regard, parties are required to ensure that they connect to the hearing through locations with reliable internet connectivity. Minimum technical requirements and back up or contingency plans must be agreed to between the parties and the tribunal.
As for the conduct of the hearing itself, the tribunal is required to consider the number of remote locations and time zones, the method of taking evidence in order to ensure that the integrity of oral evidence is preserved, and the possibility of using shared screen views or an electronic hearing bundle, hosted on a shared platform to ensure access for all participants.
Logistically, the Protocol provides for a pre-hearing virtual conference no later than 72 hours prior to the hearing to ensure that the technology to be used, and any back-up, is tested thoroughly by the parties and the tribunal. Parties are also required to ensure that at each of the locations from where any persons are joining the hearing, a suitably qualified technician is available to assist with any technical problems that may arise during the hearing.
The examination of witnesses is similarly required to meet all of the logistical and technical requirements outlined in the Protocol. Importantly, a witness is required to give evidence under the tribunal’s direction, and the tribunal has the power to terminate a video conference at any time if it deems it so unsatisfactory that it is unfair to either party to continue. The tribunal will then make the applicable directions regarding reconvening the hearing.
Where interpretation services are required, each party is required to ensure that qualified interpreters are available to the witnesses. Where interpretation is required simultaneously in multiple languages, arrangements must be made for several audio feeds so that participants can select which audio channel they wish to hear. In this regard, parties must ensure they select a platform for the hearing that allows for this functionality.
The Protocol also provides for parties to enter into a Pre-Virtual Hearing Agreement in order to dispense with any challenges to arbitral awards rendered in cases where virtual hearings have been held or where there has been no agreement between the parties on the use of virtual hearings or the procedures to be adopted. The Protocol also gives an arbitral tribunal the power to direct that an evidentiary hearing be conducted virtually if necessary and appropriate, and after consultation with the parties.
Finally, annexed to the Protocol are a number of useful templates and clauses including a Pre-Virtual Hearing Agreement for use by the parties, a procedural order for a cyber protocol, a template oath or affirmation to be administered to any witness and a model arbitration clause, including one containing a virtual hearing option for adoption by parties at the contracting stage.
The Protocol contains a number of innovative provisions that will go a long way towards addressing those challenges unique to virtual hearings in Africa and, to the extent possible, parties and tribunals should be encouraged to adopt and follow the Protocol when conducting arbitrations in Africa or in arbitrations involving African parties. Even if ultimately not adopted by parties, it provides useful guidance for virtual hearings in circumstances where similar challenges may arise. Ultimately, it should be considered as a welcome advancement in facilitating the further development of arbitration in Africa.
(Jackie Lafleur is Senior Associate, Dispute Resolution Practice, Baker McKenzie, Johannesburg).