CORONAVIRUS SHAPES CONTEMPORARY ARBITRATION

Apr 6, 2020

Over the last few years, there has been a lively debate about new methods of the organization of arbitral proceedings involving telecommunication technology. Some arbitration centers have launched their online platforms for the administration of cases and the exchange of documents, e-discovery is gaining widespread use, witnesses and experts are ever more often examined by video conference. However, up until recently, there have not been that many arbitral tribunals that would agree to have in-person hearings entirely replaced with video conference hearings.

Amid the global coronavirus outbreak, arbitration hearings, particularly in international arbitration, scheduled for the first half of 2020 are now placed in jeopardy. In essence, parties and arbiters have only two available options — to reschedule hearings to a later date or hold virtual hearings. Although it is difficult now to predict when physical hearings can be held again. For those who deem it possible to hold virtual hearings the Seoul Protocol on Video Conferencing in International Arbitration (the “Seoul Protocol” or the “Protocol”) may prove to be useful.к

The Protocol regulates the matters of video conferencing in international arbitration and describes the procedure for examining witnesses, submitting documents, and technical requirements for audio and video conferencing.

Article 1 of the Protocol sets out rules for witnesses and experts to give their evidence by video conference in order to ensure that an online examination resembles a physical one as much as possible and that its necessary technical requirements are met.

For instance, as a general principle, the witness shall give his/her evidence during the course of the hearing, online, and under the direction of the Tribunal, not resorting to any notes. To this end, a party shall provide its witness with the agreed bundle of documents for the purposes of the hearing without any annotations, notes and so on. All documents which the witness will refer to must be clearly identified and paginated.

The Protocol sets out that the witness shall be clearly depicted on video, therefore he/she shall give his/her evidence sitting at an empty desk or standing at a lectern so that the witness shall be clearly visible on the screen. Besides, a reasonable part of the interior of the room shall be visible so that no prompter or counsel may be involved in the process while the witness responds to questions.

The parties shall provide a computer with email facilities and a printer to be located at all places (venues) connected to the arbitration hearing.

Witnesses’ evidence shall be interpreted by an interpreter present in the same venue as the witness.

As the connection quality maybe sometimes rather low, the Tribunal may terminate the video conference if the Tribunal deems the video conference to be so unsatisfactory that it is unfair to the other party to continue. For instance, when the sound or image quality is low, or when the connection is always cut off, the examining party is unable to raise questions and receive answers in a proper manner.

Article 2 introduces minimum standards for the venue, setting forth that the Internet connection shall be smooth, and the venue shall have at least one on-call individual with adequate technical knowledge to assist in planning, testing and conducting the video conference. The connection shall meet information security requirements, and data encryption is welcome.

Article 3 of the Protocol sets out that when the witness is giving his/her evidence, the only persons present, apart from the witness, shall be his/her counsel, interpreters, paralegals to assist with the documents, and representatives from each party’s legal team. Each party shall provide the identities of every individual present to the Tribunal.

Further, the Seoul Protocol introduces general requirements for documents used in examinations and/or discussions. In particular, documents must be identified and paginated. For instance, in addition to the aforementioned requirements for documents used by the witnesses, Article 4 of the Protocol sets out that the parties may utilize a shared virtual document repository. As the matter of confidentiality is central to arbitration, the Protocol obligates the parties to use best efforts to ensure the security of the electronic documents in such a repository. If available, a separate display screen shall be used to show the documents referred to by the party.

Under Articles 5 and 6 of the Protocol, the parties shall test video conferencing equipment at least twice. Besides, these articles set out a broad list of technical requirements for audio and video conferencing which are covered in detail in Annex 1 to the Protocol. These measures appear to be reasonable since the parties usually agree on the allocation of time at the hearing in advance. Any technical breakdown affects the party’s capacity to use its time in a reasonable manner or increases the length of hearings and leads to additional expenses borne by the parties.

Under Article 7 of the Seoul Protocol, the parties shall ensure that interpretation services are made available to the witness. As a general principle, consecutive interpretation shall be preferred to simultaneous interpretation. It is believed that arbiters prefer consecutive interpretation since it allows them to see the natural reaction of the witness to a question.

Article 8 of the Protocol prohibits any recordings of the video conference without leave of the Tribunal. Any recordings of the video conference shall be circulated to the Tribunal and the parties within 24 hours of the end of the video conference.

Finally, the last Article 9 of the Protocol sets out that the parties should make the request to the Tribunal to use video conferencing at the hearing at least 72 hours before the commencement of the hearing. The party who requests the use of video conferencing should be responsible for the booking of and payment for video conferencing facilities and ensure that the video conferencing can be conducted smoothly in accordance with the Protocol. It is difficult to find a rationale for the 72-hour rule. In practice, the parties and the Tribunal always discuss the possibility of using video conferencing for certain procedural actions. It is not unusual that the matter of video conferencing is raised with even less time left before the hearing under exceptional circumstances. Nevertheless, the aforementioned period can be regarded as an example of best practices.

Taking into account all possible difficulties associated with online hearings, the Seoul Protocol allows the Tribunal to terminate the video conference if the Tribunal deems the video conference so unsatisfactory that it is unfair to either party to continue.

Given the existing problems caused by the coronavirus and the ever-increasing cancellations of oral hearings due to the COVID-19 pandemic, the Seoul Protocol serves as a fairly useful guideline for online hearings in international arbitration.