The COVID-19 pandemic has had innumerable impacts on life in Pakistan and has affected every element of our lives, including how we resolve our disputes. The global scale of this crisis has seen courts, mediators, arbitrators and lawyers, throughout the world, being forced to adapt to the use of e-technologies, including for processes they would never previously have considered undertaking other than in person. According to consumer analytics company ‘Viewers Logic’, video-conferencing applications such as Zoom have seen a jump in usage of 760% over recent weeks.
The E-Court was successfully launched in the Supreme Court of Pakistan in 2019, with the Chief Justice Asif Saeed Khan Khosa stating that “a big milestone has been achieved in the Judicial history of Pakistan that cases are been heard through latest technology. The facility will benefit lawyers and litigants to save time and money”. The time has come for this to be rolled out throughout the district and session courts, in order to resolve the long delay of cases being before the courts. In most civil and property matters, the litigants have to wait decades -sometimes the third generation of the petitioners get the final verdict in their cases. It is estimated that there are 2 million cases pending with the judiciary as of 2018; the number is most likely to have increased since 2018.
It is suggested that by making efficient use of this technology courts and arbitral tribunals sitting in Pakistan can offer expeditious and cost-effective access to justice. Whilst the increased focus on this way of conducting remote hearings has been triggered by the worldwide public health crisis, Pakistan can and should continue to avail itself of such video-conferencing applications when the pandemic subsides, in order to save time and costs, and avoid the adverse environmental effect of people travelling to meetings (that can be conducted remotely). While a physical face to face hearing is different to an online hearing, judges, arbitrators, lawyers and the parties, and their witnesses and experts, can make the necessary adjustments to work within this new system.
In light of these anticipated benefits, below we offer some comments on how Pakistan can take this step effectively.
At first glance domestic and international arbitration might be expected to be less likely to be troubled by this change, as the process will often involve participants hundreds of miles apart (where the dispute in within the same country) or, thousands of miles apart, where the parties are from several countries in disparate parts of the world. Whether the former or latter scenario arises, both situations lend themselves naturally to the use of video-technology. However, while it was already common for preliminary Case Management Conferences to be held online, the tradition of an in-person hearing remained and the examples have been few and far between of even a single witness appearing by video-conference. Nonetheless, COVID-19 has had as much of an impact on international arbitration as it has had everywhere else, and parties, faced with an uncertain wait if hearings need to be rescheduled, have now begun to consider video-conferencing as the only safe and expeditious way of moving ahead with their arbitration.
In some cases, international ADR institutions such as Arbitration Place and JAMS have taken the initiative, combining commercial technology such as Zoom with administrative support to lower the risk that planned proceedings will be derailed by technical problems or even cyber-attacks. However, in many cases in Pakistan, parties will not be using an institution or will be using an institution with no capacity to assist with online arbitrations.
The Seoul Protocol on Video Conferencing in International Arbitration
It is against this background that the recent release of the Seoul Protocol on Video Conferencing in International Arbitration makes an important contribution to the ability of arbitrations to continue effectively and efficiently despite the impacts of COVID-19. These guidelines will continue to be helpful even after the present crisis finishes.
The Protocol consists of 9 Articles, as follows:
- Article 1 – Witness Examination Generally
- Article 2 – Video Conferencing Venue
- Article 3 – Observers
- Article 4 – Documents
- Article 5 – Technical Requirements
- Article 6 – Test Conferencing and Audio-Conferencing Backup
- Article 7 – Interpretation
- Article 8 – Recordings
- Article 9 – Preparatory Arrangements
The guidance the Protocol offers is entirely practical, including such recommendations as “The Witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the Witness’s face shall be clearly visible” and “No recordings of the video conference shall be taken without leave of the Tribunal.”
One of the realities of the current attempts to “move arbitration online” is that they will almost inevitably be followed by a number of challenges to arbitral awards on the ground that an online hearing was insufficient for a party to properly present its case or that technical difficulties undermined the integrity of the process. There is, of course, also the risk that online proceedings intended to be confidential will be accessed by third parties, who then use the information they gain for the own purposes. There is no way that such risks can ever be entirely eliminated, but through the use of the Protocol guidelines, parties, arbitrators and counsel will be better equipped to minimise those risks, than if they just blindly decided to “do it online”. The pro-arbitration outlook of the Pakistani courts should see any such challenges dealt with in a fair and pragmatic way balancing the rights of those bringing such an application against the fact that the world has likely changed for ever due to Covid-19.
The Seoul Protocol on Video Conferencing in International Arbitration could not have come at a better time. Pakistan courts and arbitrators can follow international best practice but also adapt this Protocol to best meet the needs of Pakistan. It is nonetheless an extremely useful document and will greatly benefit parties, lawyers, courts and arbitrators attempting to use video-conferencing to ensure an arbitration can proceed, rather than be subject to uncertain delays. Just as importantly, the Protocol guidelines acknowledge the risks that use of online technology can raise in a process intended to be private and often confidential. These risks are real, but with the assistance of the Protocol guidelines those involved in online arbitrations will be better prepared to address them, than they would have been had they tried to negotiate this brand-new world on their own. It is expected that this development provides exciting opportunities for courts, arbitrators and mediators in Pakistan to promote a method of dispute resolution that will provide savings in time and cost.
DR TARIQ MAHMOOD, TONY COLE & ARRAN DOWLING-HUSSEY © 2020
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 based at 33 Bedford Row, London and the Law Library, Dublin. He is a visiting professor at the School of Business and Law in Lahore. He can be contacted at firstname.lastname@example.org
The authors have substantial experience, both as party representative and arbitrator/mediator, in a wide range of disputes. For enquiries please contact email@example.com.
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.