The extent of the impact of the COVID-19 pandemic on the global community has been immeasurable. Even many people who have not themselves fallen ill or been close to someone who has, have nonetheless been seriously affected by the substantial closure of many workplaces, restrictions on the ability to undertake normal consumer activities, and for businesses interrupted supply chains and substantial financial challenges. Indeed, large numbers of businesses around the world are being faced with the risk or the reality of liquidation, receivership, examinership and similar mechanisms. In turn, courts around the world are operating with a limited capacity, with hearings often dealt with by way of videoconferencing and telephone conference calls.
Arbitration too has faced the same challenges. While the procedural flexibility of arbitration means that it is in one sense uniquely suited to addressing unexpected obstacles such as those created by COVID-19, the cross-border nature of many arbitrations means that a single arbitration can be affected by restrictions imposed in several locations around the world. One party may be able to participate fully, while another party’s lawyers can only coordinate through video or telephone, and the arbitrators themselves may want to avoid collecting all the participants in a single room out of concern of infection.
The procedural flexibility of arbitration that has already been mentioned has resulted in some actions already being taken to facilitate the use of e-technologies in arbitration, including both the Seoul Protocol on Video Conferencing in International Arbitration[i] and the Hogan Lovells Protocol for the use of technology in virtual international arbitration hearings.[ii] In turn, arbitral organisations such as JAMS[iii] and Arbitration Place[iv]have taken the initiative to combine commercial technology such as Zoom[v] with administrative support, thereby lowering the risk that planned arbitration proceedings will be derailed by technical problems or even cyber-attacks.
Nonetheless, as helpful as these initiatives have been, their focus on either international arbitration or on arbitration in economically developed jurisdictions has meant that they were at times less directly suitable for arbitrations taking places in countries where internet reliability was lower technology may be less easily available, and both parties and lawyers may have limited familiarity with arbitration. Of course, disputes happen in those places at well. For that reason, the release of the new Africa Arbitration Academy Protocol on Virtual Hearings in Africa[vi] is particularly to be welcomed.
The Africa Arbitration Academy Protocol on Virtual Hearings in Africa
Assembled by a Drafting Committee from jurisdictions across Africa, working in consultation with a Technical Review Committee of African arbitration specialists from around the world, the Africa Protocol distinguishes itself from the other protocols already mentioned by both the detailed approach it adopts to the guidance it provides and by its recognition that not all potential participants in a virtual hearing will have access to the high technology and reliable internet that is expected in international arbitration.
The Protocol is broken down into 5 parts as follows:
- 1 – Objective/Purpose of the Protocol
- 2 – Preliminary Considerations, Logistics and Preparatory Arrangements
- 3 – Virtual Hearings and Presentation of Evidence
- 4 – Security and Privacy Considerations
- 5 – Hearing Protocol, Infrastructure and Technical Standard
In addition, the Protocol includes six Annexes, providing detailed and specific guidance on both the technical standards that should be met and draft text of agreements necessary for the arbitration to be successful:
- A1 – Minimum Cyber Security Standards
- A2 – Model Pre-Virtual Hearing Agreement
- A3 – Model Virtual Hearing Clause
- A4 – Tribunal-Issued Cyber Protocol
- A5 – Witness Oath
The guidance the Protocol offers is entirely practical and while experienced users of arbitration may feel that it goes beyond what is required to only address the need to conduct an arbitration “virtually”, these additional details are an admirable recognition of the reality that many parties and lawyers with little experience of arbitration will now see arbitration as an alternative to ongoing delays in national courts. By way of example, Paragraph 3.2.6 explicitly advises that “When allocating time during virtual hearings, the arbitral tribunal shall set aside some time for housekeeping matters, objections, applications, and/or other unexpected incidents or events”, a simple point that just may not occur to an inexperienced tribunal. Similarly, paragraph 2.1.6. notes that “Where any of the parties do not have access to the technology, software, and equipment to be used for virtual hearings, parties may solicit arbitral institutions or other centres in Africa, suitable to the parties, that can offer their venues for conducting virtual hearings. The technological and connection services offered by arbitral institutions or centres are often reliable and can provide the necessary equipment, software, high-quality internet connection, and minimal chance of signal interruptions”, important guidance to parties who may not realise that institutions will often allow their facilities to be rented for the conduct of arbitration that the institution does not administer.
The Protocol, however, is not a general guide to arbitration, and its guidance is overwhelmingly specifically devoted to the conduct of a hearing online. For example, Paragraph 3.3.2 states that “The parties may agree to utilize a cloud-based storage service to host all documents introduced during the virtual hearing and shall take adequate steps to ensure that such storage and sensitive electronic documents are password-protected and secure (i.e. from unlawful interception or retention by third parties).” While Paragraph 4.4 notes “The parties shall arrange for separate virtual meeting room(s) during the virtual hearing, which can be used as breakout rooms for parties and counsel, for arbitral tribunal deliberations and witness sequestration. The parties and the arbitral tribunal shall ensure that breakout rooms are secure and only accessible to those participants to whom the room(s) are allocated.”
Perhaps most notably, however, the Protocol adopts the mechanism of a “Pre-Virtual Hearing Agreement”, addressing the risk that a party may later challenge the outcome of the arbitration on the ground that the hearing was “virtual”, by ensuring that all participants have explicitly agreed in advance for the arbitration to proceed in this way: (Paragraph 2.3.1) “To dispense with frivolous challenges to arbitral awards rendered in cases where virtual hearings were held, where there is no agreement between parties on the use of virtual hearings and there are no provisions expressly regulating such hearings under the applicable procedural rules governing the arbitration, parties shall, prior to the hearing and to the extent necessary, enter into a Pre-Virtual Hearing Agreement to expressly consent to the use of virtual hearings as per the draft in Annex II of this Protocol. In the alternative, the Tribunal shall, where appropriate and after due consultation with the parties, direct that the evidentiary hearing be conducted virtually as per the draft procedural order in Annex IV of this Protocol.” Given the reality that in many countries around the world, courts lack both familiarity with arbitration and trust in the suitability of online dispute resolution, the incorporation into the Protocol of the “Pre-Virtual Hearing Agreement” is a decision for which many parties will ultimately be grateful.
The African Protocol is an important development in the ongoing efforts to provide support for the use of arbitration as a mechanism for resolving disputes in the fact of the restrictions caused by the COVID-19 pandemic. The drafters have had the benefit of being able consider other similar Protocol’s and have succeeded in creating a set of guidelines that will be helpful far beyond the African context to which they are specifically directed. The “Pre-Virtual Hearing Agreement” in particular is an important innovation that could be used by Tribunals and parties throughout the world to safeguard an online arbitration from subsequent challenge by a losing party. Even more importantly, though, the Protocol reflects the reality that not every arbitration is a “high stakes” dispute between major multinational corporations with large amounts of money to spend. Particularly in the present context, many parties and lawyers who had never before seriously considered using arbitration will turn to it as a means of avoiding the restrictions that COVID-19 has placed on court proceedings around the world. For these people, but also for any participants in a virtual arbitration, the Africa Arbitration Academy Protocol on Virtual Hearings in Africa is an important development, and despite its name is by no means relevant only for Africa.
DR TARIQ MAHMOOD AND ARRAN DOWLING-HUSSEY & TONY COLE © 2020
BARRISTERS, ARBITRATORS & MEDIATORS
33 BEDFORD ROW
Dr Tariq Mahmood is a Barrister, Arbitrator and Mediator practising from 33 Bedford Row where he is Head of Arbitration & Alternative Dispute Resolution. He can be contacted at firstname.lastname@example.org
Tony Cole is an Arbitrator/Mediator practising from 33 Bedford Row and a Reader in Arbitration and Investment Law at Leicester Law School. He can be contacted at email@example.com
Arran Dowling-Hussey is a Barrister, Arbitrator and Mediator working from 33 Bedford Row, London; he can be contacted at firstname.lastname@example.org.
Members of arbitrators@33BedfordRow have significant experience in a wide range of Alternative Dispute Resolution (‘ADR’) methods including mediation and can offer advise on all processes including mediation. For enquires about the professional availability of members of the group please contact Mark Byrne, Senior Civil & Commercial Clerk at 33 Bedford Row by email: email@example.com or on + 44 20 7242 6476.
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
[i] KCAB International (accessed on May 1, 2020)
[ii] Hogan Lovells - Digital Hearing Protocol (accessed on May 1, 2020)
[iii] Jams ADR (accessed on May 1, 2020)
[iv] Arbitration Place (accessed on May 1, 2020)
[v] It is outside the scope of this specific article to discuss the merits of the various video conferencing platforms.
[vi] African Arbitration Academy - Protocol Virtual Hearings (accessed on May 1, 2020)