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Africa rising: Virtual hearings in international arbitration

Africa Connected: Issue 5

By Kirsty Simpson

It took a global pandemic to disrupt the practice of litigation and arbitration.

Before the COVID-19 pandemic, the legal community was dabbling in the use of virtual hearings in certain parts of the world. However, the imposition of national lockdowns, strict social distancing measures and travel restrictions has forced lawyers to move away from the comfort of traditional, in-person hearings, towards new-age virtual hearings held on electronic platforms.

In May 2020, DLA Piper conducted a global, empirical study on the use of virtual hearings as a result of confinement due to the COVID-19 pandemic. Some clients revealed in the survey that a virtual hearing permits them the opportunity to observe more closely and to feel “more connected” in the proceedings.

Virtual hearings – pros and cons

However, there is varied opinion among external lawyers as to whether virtual hearings are a help or a hinderance in the advancement of African disputes. Some practitioners, particularly in common law jurisdictions, are of the view that virtual hearings have no place in trials requiring cross-examination of witnesses. Other practitioners believe virtual hearings will replace some physical hearings in African disputes after the pandemic.

On the one hand, virtual international arbitration hearings reduce or avoid the need for legal teams, factual and expert witnesses and arbitrators to travel to the place of the arbitration. Visas are not required. Local immigration law constraints are not an issue.

Virtual hearings therefore substantially reduce the financial cost to the arbitral parties, as well as their carbon footprints. They reduce “wasted” company time and travel time for lawyers. They can also allow more local lawyers to be involved in arbitration hearings pertaining to African disputes.

As to the timing of hearings, Africa is well-placed to accommodate hearings at times convenient to other African countries, the UK, the Middle East and Europe. The time zone differences between Africa and the US, or Africa and Asia Pacific are also tolerable.

On the other hand, virtual hearings introduce various new infrastructural requirements in terms of hardware and software. They require bandwidth, as well as stable internet and electricity connections.

For example, while the technological and logistical requirements proposed in the Seoul Protocol on Videoconferencing in International Arbitration (Seoul Protocol) can be met in some African countries (e.g. South Africa), it might not be possible for other African countries to meet the requirements. The standard equipment referred to in the Seoul Protocol is also unavailable in some African countries and too expensive in others, be it for some or all of the arbitral parties or the arbitration tribunal itself. Additional training may also be required for the arbitrators, lawyers and witnesses to ensure a smooth hearing – this in itself may discourage the use of technology.

Virtual hearings are also approached with caution given that a witness at a remote hearing room can potentially be coached through their oral evidence, or can refer to crib notes, thereby undermining the integrity and reliability of the evidence, and the fairness of the process.

Various African and overseas arbitration centers have recognized these developments in the practice of law and the associated challenges. Some centers have held virtual hearings during the pandemic under the existing arbitration rules. Some have revised their arbitration rules to provide expressly for the use of virtual hearings – a sign that virtual hearings may also be used after the pandemic. Guidelines have also been issued to assist arbitral parties and arbitrators to facilitate best practice and due process in virtual hearings.

How African arbitration centers have reacted to the demand for virtual hearings
The ability to insist on a virtual hearing in an international arbitration will depend on the terms of the arbitration agreement, the willingness of the parties and the rules of the agreed arbitration center. This is the approach to virtual hearings in international arbitrations adopted by some major African arbitration centers:

Southern Africa

Arbitration Foundation of Southern Africa

(AFSA International)

The current rules are silent on the use of virtual hearings. However, in terms of the proposed revision to the rules:

  • The arbitral tribunal must proceed in as short a time as possible to establish the facts of the case, by all appropriate means, which conceivably includes by remote hearing.
  • The arbitral tribunal has the fullest authority to establish the conduct of the hearing, including its form and procedure.
  • Express provision is made for the possibility of the hearing taking place by video or telephone conference or in person, or a combination thereof.

Practically, arbitral tribunals are holding virtual hearings in terms of the AFSA International rules, as dictated by the circumstances of the matter in question or agreed by the parties.

AFSA International has facilities at their Johannesburg offices to accommodate virtual hearings, should these be required by the arbitral parties or arbitration tribunal. The most commonly used platforms are Zoom and MS Teams.

East Africa

Mauritius Chamber of Commerce and Industry Arbitration and Medication Centre

(MARC)

The arbitration rules of the MARC (and the guidelines issued by the MARC) provide that:

  • Subject to the rules and the agreement of the parties, the arbitral tribunal shall adopt any suitable procedures for the conduct of the arbitration, provided among other things that it affords the parties a reasonable opportunity to present their respective cases.
  • The arbitral tribunal and the parties must do everything necessary to ensure the fair and efficient conduct of the arbitration.
  • An oral hearing may be held at the request of a party or direction of the arbitral tribunal. The rules suggest a physical hearing, given the reference to the tribunal directing the “venue” and “place” of the oral hearing.

The legal sector has asked the MARC to adapt its rules to allow virtual hearings, as and when appropriate, particularly given that certain appeals to the Judicial Committee of the Privy Council in London have – at least in part – been conducted virtually.

During the COVID-19 lockdown period in Mauritius, the Secretariat remained opened but arbitral parties postponed hearings. The MARC is able to collaborate for this purpose with a third party to offer virtual hearing services to users, where appropriate.

Mauritius International Arbitration Centre

(MIAC)

The current arbitration rules of MIAC do not refer to the use of virtual hearings. However, the arbitral tribunal may direct, or parties may agree, that witnesses be examined by way of videoconference. The rules provide that:

  • The arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and each party is given a reasonable opportunity to present its case.
  • The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.
  • The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).

Although the MIAC rules make no express provision for virtual hearings, MIAC is taking steps to facilitate their use.

Nairobi Centre for International Arbitration

(NCIA)

The arbitration rules of the NCIA provide that:

  • The arbitral tribunal’s general duties include the duty to adopt procedures suitable in the circumstances, and avoid unnecessary delay or expense, so as to provide a fair and efficient means for the final resolution of the dispute.
  • The arbitral tribunal has the authority to issue any orders necessary to achieve a fair, efficient and economical resolution of the case.
  • The parties shall do everything necessary for the fair, efficient and expeditious conduct of the arbitration.
  • A hearing or any part of a hearing may be conducted via videoconference, telephone or other electronic means, with the agreement of parties or at the discretion of the arbitrator. The NCIA rules also provided expressly for virtual hearings before the pandemic.

Kigali International Arbitration Centre

(KIAC)

The arbitration rules of KIAC do not refer to the use of virtual hearings, and instead suggest that the hearing takes place in person, subject to the discretion of the arbitrator. The rules provide that:

  • The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, with regard to the complexity and value of the dispute.
  • The arbitral tribunal may hold hearings, meetings and deliberations at any convenient place at its discretion.
  • When a hearing is to be held, the arbitral tribunal shall summon the parties to appear before it at the place fixed by it, and the parties may appear in person or through duly authorized representatives.

North Africa

Cairo Regional Centre for International Commercial Arbitration

(CRCICA)

The rules of the CRCICA provide specifically for the holding of virtual hearings:

  • The arbitral tribunal may conduct the arbitration as it considers appropriate, provided the parties are treated equally and that each party is given an equal and full opportunity to present its case.
  • If any party so requests or if the arbitral tribunal decides, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument.
  • The arbitral tribunal shall conduct the proceedings efficiently, so as to avoid unnecessary delay and expenses likely to increase the arbitration costs in an unjustified manner.
  • The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).

West Africa

Common Court of Justice and Arbitration

(CCJA)

The CCJA was established to administer arbitrations in terms of the Treaty on the Harmonisation of Business Law in Africa. The rules of the CCJA suggest that a physical hearing must be held.

  • The scoping meeting after appointment of the arbitral tribunal may, with the consent of the parties, be held by telephone conference or videoconference (no similar reference is made in the provisions on hearings).
  • Unless otherwise agreed, the arbitral tribunal may decide to conduct the hearing and hold meetings and deliberate in any place it deems fit.
  • The hearing shall occur at the place fixed by the arbitral tribunal.
  • The arbitral tribunal shall proceed as promptly as possible to establish the facts of the case by all appropriate means.
  • The parties shall appear in person or be represented by duly authorized persons.
  • The arbitral tribunal may also decide to hear witnesses and experts, in the presence of the parties, or in their absence, provided that the latter have been duly summoned.

Guidelines on virtual hearings in Africa

Guidelines from the Africa Arbitration Academy

In April 2020, the African Arbitration Academy published a Protocol on Virtual Hearings in Africa (Africa Protocol). The overarching objectives of the Africa Protocol include to provide guidelines and best practices for arbitrations in Africa, where a physical hearing is impracticable due to health, safety, cost, or other considerations, considering the unique challenges in Africa. African institutions and governments are encouraged to make express reference to virtual hearings in local arbitration rules and laws. The Africa Protocol includes useful templates, sample protocols and model clauses.

The Africa Protocol proposes that parties and arbitral tribunals agree in advance, as far as possible, on all the procedures, schedules and deadlines to be followed, as well as the technology, software, equipment, and platform to be used by all participants in the virtual hearings, in the form of a cyber-protocol.

The Africa Protocol sets out the minimum proposed standards for technology, software, equipment, and platform that will be used for the virtual hearing, specifically bearing in mind the logistical challenges in many African jurisdictions. This includes the minimum requirements for security, privacy and data protection during the virtual hearing.

Given the lack of fast and stable internet connections in some African jurisdictions, where mobile cellular subscriber penetration and internet access is far lower than the global average, the Africa Protocol recommends that parties and arbitral tribunals have at least one back-up internet service provider and an alternative virtual platform to be used should any technical or communication breakdowns occur.

In an attempt to ensure that arbitral tribunals retain control over the hearing, the Africa Protocol provides that any video witness testimony may be terminated by the tribunal if the connectivity causes the videoconference to be so unsatisfactory that it is unfair to either party to continue.

Where arbitral parties or arbitrators do not have access to reliable infrastructure, the Africa Protocol suggests they approach arbitral institutions or other centers in Africa that can offer their venues to conduct virtual hearings.

Guidelines from AFSA International

In October 2020, AFSA International published its own guidelines on virtual hearings, the Remote Hearing Protocol (AFSA Protocol). The AFSA Protocol is recommended for use in all remote hearings and hybrid-remote hearings conducted by parties in accordance with the rules of AFSA International, to guide the efficient conduct of remote hearings and ensure fairness.

Similar to the Africa Protocol, the AFSA Protocol proposes that parties and arbitral tribunals agree in advance on the technological and logistical issues of the remote hearing.

Insofar as it is possible and as agreed between the parties or ordered by the arbitral tribunal, the remote hearing shall occur from various remote hearing venues. The venues need to comply with the minimum required technical, technological and security requirements which include that: the hearing platform should have a unique and automatically generated meeting ID; the parties must have secure internet connections; and all parties should have access to quality, high-speed internet networks to allow proper, clear and continuous audio-visual transmission.

Notably, in regard to ensuring the integrity and reliability of evidence given via remote hearings, the AFSA Protocol provides a process for ensuring and certifying that there has been no interference in giving the evidence. It prescribes, in detail, the hardware required by a witness to give evidence remotely (such as a web camera to record the individual and a wide-angle camera to record the environment of the hearing room). and failing access to such equipment, it limits the persons permitted to be present in the hearing room while evidence is being given. It also permits the appointment of an independent legal representative to observe the production of oral evidence by a witness in a remote hearing room.

The AFSA Protocol also contains details of online etiquette and practical hearing practices intended to promote the smooth and efficient conduct of the remote hearing – much of which is now common practice.

Is the approach in Africa in line with international best practice?

There is no doubt that the general approach to virtual hearings in Africa is in line with international best practice.

Some of the major regional arbitration centers in Africa were at the forefront of innovation, having catered for virtual hearings before the COVID-19 outbreak, although the arbitration rules are often less detailed than the likes of the London Court of International Arbitration (LCIA). Other African arbitration centers are now heeding the call and taking steps to provide for virtual hearings and issue associated guidelines.

This will minimize the number of disputes as to whether or not a virtual hearing is permissible. It will also provide for the principles that are to govern virtual hearings, with a view to ensuring arbitral parties receive a fair hearing, that the appropriate online etiquette is respected, and that the resultant arbitration award is enforceable.

Practical tips and protocols can be gleaned from various international arbitration documents, as well as the cases being decided in the various jurisdictions around the world. For example, the Seoul Protocol provides detailed guidelines on planning, testing and conducting international arbitration via videoconference. The International Chamber of Commerce (ICC) has also published a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, and is expected to release revised arbitration rules in January 2021 that expressly permit virtual hearings. On October 1, 2020, the LCIA published revised arbitration rules, which now also deal expressly with virtual hearings.

However, the Africa Protocol and AFSA Protocol go further. They provide insightful guidance in the context of arbitrating in Africa and recommendations to address certain challenges in virtual hearings unique to Africa. It has been welcomed as ground-breaking advancements in arbitration in Africa.

Lawyers must familiarize themselves with African and international best practice and engage with their counterparts with a view to agreeing cyber-protocols that ensure that their clients’ legal and strategic needs are met. The over-arching consideration must always be to ensure the need to resolve the dispute in an expeditious and cost-effective manner.

Virtual hearings provide an opportunity for the advancement of the arbitration of African disputes. The legal sector must continue to embrace this opportunity, adapt to the change and ensure that clients receive the appropriate quality of legal services.

By Kirsty Simpson (Partner, DLA Piper Advisory Services (Pty) Ltd) and Neil van Onselen (Candidate Attorney, DLA Piper)

This article forms part of Africa Connected: COVID-19 and the evolution of dispute resolution:

Authors

Kirsty Simpson
Kirsty Simpson DLA PiperSouth Africa