In wake of the COVID-19 pandemic, there has been a considerable impact on the day to day routine across the globe, due to which virtual hearings have been embraced as the “new normal.” Adapting to the new normal, arbitral institutions across the globe have come together and issued a joint message to the arbitration community amidst COVID-19, and concurrently, a timely and innovative step has been made by the introduction of the Seoul Protocol on Video Conferencing in International Arbitration (“the Protocol”). It has been a remarkable addition in the area of soft law in the international arbitration community during such a crisis. However, COVID-19 is not the primary force behind the introduction of the Protocol, since, the aforesaid was introduced way back in 2018 but little did everyone know that it would play a pivotal role in such unprecedented times like now. Therefore, the present blog aims to critically analyse the Protocol whilst bearing in mind the obstacles faced by several stakeholders in the aforesaid context.
Key takeaways of the protocol
Convenience, flexibility, and dynamism happen to be one of the foremost premises of arbitration. The kind of flexible approach that arbitration provides whilst upholding party autonomy has not been too difficult for the practitioners to adapt and transform into the virtual hearings setup. Interestingly, the Protocol has provided the groundwork towards shifting to virtual hearings. In view thereof, the key aspects of the Protocol include:
1. Credibility of witness testimony: Article 1 of the Protocol suggests that all the venues must meet all prerequisite logistical and technological support whilst carrying out a virtual hearing. Additionally, it suggests that the video conferencing system shall display, on screen, a reasonable part of the interior of the room in which the witness is located and sitting at an empty desk with his/her face clearly visible. The Protocol also suggests that the Tribunal may, at any time, terminate the video conference, if it deems it to be unsatisfactory and that it will be unfair to either party to continue. Thus, the Protocol is a welcome step in increasing the credibility of a witness during a virtual hearing.
Further, Article 3 of The Protocol is an attempt to address the much required, yet less discussed, issue pertaining to the witness being tutored by individuals present in the video conferencing room. In this regard, apart from the witness, the Protocol allows only the presence of interpreters, paralegals, and the representatives of each party, who shall be identified by the Tribunal prior to the commencement of the video conference.
2. Minimum standards of Video Conferencing Venue: Vide Article 2, the Protocol lays down certain minimum standards in terms of multiple connections of stakeholders, on-call individuals for planning and controlling the virtual hearing, safeguarding cross-border connections to prevent unlawful interceptions so on and so forth. Therefore, the aforesaid standards prima facie display the weight of the Protocol in terms of tackling difficulties to an optimum extent.
3. Tackling Technical Snags: With the induction of a noteworthy and applauding provision viz. Article 5, the conundrum concerning the clarity of audio and video has been put to rest by prescribing minimum technical requirements for a virtual hearing, which shall be agreed upon by the parties and the arbitral tribunal. The Protocol also addresses even the minutest of details such as the amplification of the voice during the proceeding. Additionally, the annexure to the Protocol prescribes in-depth technical requirements that shall be adhered to during the conduct of the video conferencing.
4. Backup Facilities: Article 6 of the Protocol enunciates the backup facilities including, but not limited to, cable back-ups and teleconferencing facilities or any other modes of video-audio conferencing. In order to prevent disruptions during the video conference, the said article requires all equipment to be tested at least twice, prior to the commencement of the proceeding. Thus, the aforesaid is pertinent in terms of reducing the possibility of disrupted connections and maintaining the momentum of the virtual hearings.
5. Recordings: Vide Article 8, unless otherwise agreed by the parties, recordings of the video conferencing can only be obtained with the prior permission of the Tribunal and within 24 hours of the end of the virtual hearing for the ease and convenience of the stakeholders.
Obstacle course that lies ahead
Convenience and flexibility of the parties is an indispensable feature of arbitration. However, there appear to be multiple obstacles that stakeholders may face during virtual hearings, such as:
1. Witness Tutoring: A significant aspect that warrants attention is that of witness tutoring, which maybe in the form of reading out from a script that may have been prepared prior to the hearing or following instructions from a third party during the testimony. These aspects may be present or located in the interior of the hearing room, where the camera may not focus. However, it is comparatively easier during an in-person hearing to trace out the true character of the witness, whereas, in virtual hearings, it remains indispensable to ensure that the witnesses are not involved in acts that would undermine the credibility of their statements.
2. Technical Muddles: It is worth stating that, several arbitral institutions lack services in compliance with the minimum technological requirement as prescribed by the Protocol. Therefore, whilst moving forward, technical and logistical blocks may be a commonly faced obstacle.
3. Inflating Costs: There appears to be a conundrum of cost surrounding the virtual hearings, as (i) only a handful of arbitral institutions provide for virtual hearings set-up, and it would be extremely difficult to locate one with the exact specifications mentioned in the Protocol (ii) even if one succeeds, the cost of attending and utilizing such virtual platforms would be immensely high, thereby inflating the total cost borne by the parties to the dispute and defeating the point of cost-effectiveness, and (iii) in case the parties are not willing to utilize such virtual platforms due to the costs attached, delay in disposal or settlement of the case would ultimately result in opposing the objectives of selecting arbitration over litigation.
4. Confidentiality: One of the forefronts and motivations involved in arbitration is confidentiality. However, insofar as the exchange of documents and circulation of the recorded proceedings is concerned, questions regarding confidentiality are inevitable. Although, the Protocol provides for IP encryptions, the same needs an assessment to ensure that confidentiality is maintained throughout the proceedings.
Despite such unprecedented times, the Protocol has laid a strong groundwork towards conducting virtual hearings. Notwithstanding the obstacles, which may come through the way, several clouds over the conduct of virtual hearings are now lucid. Arguably, due recognition needs to be awarded to the Protocol for addressing a slew of questions apropos to the minimum technological requirements, witness testimony, observers, backup facilities so on and so forth. Pertinently, the concerns relating to the confidentiality may be answered by way of the Cybersecurity Protocol for International Arbitration, 2020.Therefore, timely and innovative steps in the international arbitration community have assisted dispute resolution services across the globe to not only suggest potential alternatives but also to ensure that there is a presence of a strong foundation to adapt to the new normal.
This article has been authored by Vivek Joshi and Rohan Gulati, students at Symbiosis Law School, Hyderabad.