Introduction
The global COVID-19 pandemic has had innumerable impacts on every element of our lives, including how we resolve our disputes. Courts, mediators, arbitrators and lawyers have all had to adapt to the use of e-technologies for things they would never previously have considered not doing in person. According to consumer analytics company ‘Viewers Logic’, video-conferencing apps such as Zoom have seen a jump in usage of 760% over the last two weeks.
At first glance international arbitration might be expected to be less likely to be troubled by this change, as a process that often has participants from several countries in disparate parts of the world lends itself naturally to the use of video-technology. In reality, however, while it was already common for Case Management Conferences to be held online, the tradition of an in-person hearing remained, with examples even of a single witness appearing by video-conference, being few and far between.
Nonetheless, COVID-19 has had as much of an impact on international arbitration as it has had everywhere else. 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, 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. In many cases however, 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. Initially, the Protocol was the product of a discussion on video-conferencing at 7thAsia Pacific ADR Conference, held in Seoul, Korea on 5-6 November 2018, and was largely finalised before the COVID-19 pandemic. The Protocol was initially developed for sophisticated arbitrations using high-end technology, but it nonetheless provides useful guidelines even for those attempting to self-manage a small-scale arbitration on Zoom, Skype, or any other video conferencing platform.
The Protocol is broken down into 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.” As such, it can serve the same role as the much-used UNCITRAL Notes on Organizing Arbitral Proceedings, raising points for those new to the process, in this case online arbitration, and suggesting a reliable way for them to be addressed. An examination of the Protocol makes clear that the primary focus during their development was on witness testimony, rather than fully-online proceedings, but they have been sufficiently adapted to this broader purpose that they are also useful in the fully-online context.
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 their own purposes. There is no way that such risks can ever be entirely eliminated, but through the use of the Protocol, parties, arbitrators and counsel will be better equipped to minimise those risks than if they just blindly decided to “do it online”.
Conclusion
The Seoul Protocol on Video Conferencing in International Arbitration could not have come at a better time. While its focus on witness testimony through video-conferencing makes it less directly applicable to a fully online arbitration than might be ideal, it is nonetheless an extremely useful document and will greatly benefit parties, lawyers 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 acknowledges 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, 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.
A Korean Commercial Arbitration Board (KCAB International) press release on the Protocol can be read here.
DR TARIQ MAHMOOD AND TONY COLE © 2020
BARRISTER/ARBITRATORS
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 t.mahmood@33bedfordrow.co.uk
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 t.cole@33bedfordrow.co.uk
The authors have substantial experience, both as party representative and arbitrator/mediator, in a wide range of disputes. For enquiries please contact m.byrne@33bedfordrow.co.uk.
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.