The spread of COVID-19 is obviously affecting the way in which companies conduct international business. It will also impact the way in which they resolve their disputes.
While procedural hearings by teleconference and remote witness testimony are well-known in arbitration, the arbitration world may have to adapt to much more extensive use of remote communication, both during and outside of formal hearings.
The most recent and most substantial attempt to develop guidance on this is the Seoul Protocol on Video Conferencing in International Arbitration (available here). The Protocol is not a hasty reaction to the current public health crisis; it has been under discussion among arbitration practitioners since 2018. While it focusses on witness examination and is not designed to be a comprehensive guide to conducting arbitration remotely, it contains a range of useful advice.
The Protocol contains nine articles on video conferencing in arbitration, which are summarised below:
- Witness examination generally: the Protocol suggests that the video should show the witness sitting at an empty desk and that appropriate technical support be available to assist the witness.
- Video conferencing venue: the parties are encouraged to ensure that the connection is as smooth as possible, so as to minimise any disruptions or inaccuracies. It also suggests ensuring that safeguards are in place to prevent unlawful interception of the feed (such as IP-to-IP encryption).
- Observers: the witness does not need to be alone while giving evidence, but observers are limited to his or her counsel, interpreter and representatives from each party’s counsel team “on a watching brief”.
- Documents: the Protocol suggests several measures which are already common in arbitration, such as an agreed bundle of documents to be provided to each party, the tribunal and witness to facilitate reference to documents. It also encourages the use of electronic bundles, so that the relevant document can be displayed to all participants simultaneously.
- Technical requirements: various minimum technical standards are set out so as to avoid a poor quality feed or delay. These provide a useful checklist for practitioners engaging with technical providers.
- Test conferencing and audio backup: the Protocol prudently encourages parties to test video conferencing twice in advance of the video conference, and to have teleconferencing available as a fall back if technical issues arise.
- Interpretation: interpreters are to be provided to the witness where required and, generally, interpretation should be consecutive rather than simultaneous.
- Recordings: recordings of the testimony are not to be taken without the permission of the tribunal, and any recordings are to be circulated to the tribunal and parties within 24 hours.
- Preparatory arrangements: the Protocol makes various practical suggestions to ensure that the video conferencing runs smoothly, such as placing the burden of making the relevant arrangements on the party which has requested the video conference, and encouraging the parties to agree on a seating arrangement which allows them to see the relevant participants throughout.
The Protocol is a welcome first step in establishing international standards for video conferencing in arbitration. It is not, and nor does it purport to be, a comprehensive guide to conducting remote arbitration during a prolonged period of travel restrictions. The arbitration community will have to address a number of important questions not considered in the Protocol, including the following:
- While it might be possible to hear evidence from one individual witness remotely, is it practicable to have counsel, witnesses and the tribunal all in separate locations for the duration of the hearing?
- Would it be beneficial to make additional provision to further facilitate such processes for example, in institutional rules or the parties’ own arbitration agreements?
- To what extent will the estimated time length of hearings need to be altered to take into account the use of technology?
- Might there be circumstances in which it is unfair for parts of a proceeding to be conducted remotely?
- What should be done if one party or witness is able to attend a hearing in person, but others are not?
- What if travel restrictions prevent a party from sending its preferred counsel as an observer?
As with all arbitral practice, the best guidance will be gained through experience, which will inevitably involve some trial and error. This experience will start to emerge over the coming weeks. One of the world’s largest arbitrations, and best training ground for junior practitioners, the Vis East Moot will be conducted entirely online shortly. One of the Vis East Moot’s new requirements is that participants “solemnly promise” that they are not receiving external assistance while presenting their arguments. This is designed to ensure the integrity of a student competition, but similar concerns might conceivably arise regarding counsel assisting a witness. Lessons will be drawn from litigation too: the UK’s first fully online Commercial Court trial (in which Linklaters is acting as counsel) is due to take place in late March.
While today’s technological standards will enable the arbitration community to accommodate an increasing number of virtual hearings, practitioners will need to be mindful of the cybersecurity implications that this opportunity for technical innovation brings. Now more than ever, the arbitration community should take heed of the guidance on establishing reasonable cybersecurity measures in arbitration, as set out in the 2020 Cybersecurity Protocol for International Arbitration.
While there will no doubt be frustrations, the arbitration community is well-equipped to deal with this challenge. Tinkering with procedure and learning from bitter experience is in the arbitration community’s DNA: it has been a feature of the system for decades