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A timely intervention: A drafter’s perspective on the Protocol on Virtual Hearings in Africa

Africa Connected: Issue 5

By Ronald Mutasa

Concerned about the effects if the COVID-19 pandemic on Africa’s dispute resolution landscape, the Association of Young Arbitrators (AYA), bringing together arbitration practitioners in Africa under 40 years of age, launched its Protocol on Virtual Hearings in Africa (the Protocol) in April 2020. AYA was formed in 2015 with the mission to provide a platform for the young members of the African arbitration community to meet, exchange ideas and learn from peers and more experienced arbitrators and arbitration practitioners.

The Protocol – purpose and objectives

Hailed as a “timely intervention” and nominated by peers for the Global Arbitration Review’s special recognition award for response to the coronavirus pandemic, the Protocol was drawn up by a drafting committee of 11 arbitration practitioners (including the author of this article) from various African countries.

Although the Protocol is not the first of its kind in the arbitration space, its unique proposition is that it seeks to address specific challenges and circumstances that may arise in relation to remote hearings in Africa for African practitioners, African arbitration tribunals and African governments.

Some of the issues specific to Africa that concerned the drafting committee included:

  • The purpose of the Protocol: It was accepted that the health and safety considerations related to COVID-19 and travel restrictions in many African countries have significantly disrupted arbitration hearings and made it impossible to convene physically in a single location. Due to the situation, parties, counsel and tribunals should consider whether to proceed with a virtual hearing. However, the Protocol also had to be drafted to be relevant after the effects of the pandemic have subsided.
  • The objectives of the Protocol: It was accepted that for the Protocol to be relevant, it would have to promote the application of technology in arbitral proceedings (this in itself a possible challenge due to poor or obsolete telecommunications infrastructure), and to provide for the use of affordable and available technology, software and equipment during arbitral proceedings. Importantly, it would also have to provide for cybersecurity measures or applicable standards on a par with other established institutions, with a view to safeguarding the integrity of virtual hearings.
  • Preliminary considerations and logistics: Despite the differences in advancement in telecommunication and high-speed internet capabilities in different African countries, it had to be considered whether or not there should be a minimum quality standard, and where a party did not have access to a minimum standard, it had to be considered whether the parties should in fact consider other arbitral venues where they could be maintained. Further, it was considered whether technical support personnel should be in attendance throughout the hearing process.
  • Hearing Protocol, Infrastructure and Technical Standard: It was considered whether to prescribe the minimum bandwidth for an internet connection, including identifying venues that have good internet access (50 Mbps minimum) and whether there had to be an ethernet cable connection rather than relying on Wi-Fi.
  • Conduct of the virtual arbitral hearings: It was accepted that even with preparations and minimum quality standards for internet connectivity, it could still be possible for video conferencing to be poor. In such instances, it was considered whether the tribunal may terminate the video conference at any time if it deems the video conference so unsatisfactory or if it is concerned that the witness is being assisted, or that it would otherwise be unfair to either party to continue.
  • Security and privacy considerations: It was considered whether parties or witnesses should be able to connect from home offices bearing in mind that confidentiality could be difficult to monitor and witnesses could be compromised in such circumstances.

What do parties need to do to comply with the Protocol?

Following intense discussions and feedback from the Technical Review Committee chaired by the Dean of the African Arbitration Academy (a sister organization to AYA), Prof. Dr. Mohamed Abdel Wahab (Egypt), and with committee members including distinguished arbitration practitioners in the US, the UK and Africa, AYA unveiled the Protocol in April 2020.

The Protocol is unique in that it recognizes the need to seek the buy-in of African governments. As such, it acknowledges that governments may have their own advisory notes that parties in a jurisdiction may be required to adopt. Further, the Protocol also encourages African governments to “make express references to virtual hearings in arbitration rules and laws, and to serve as guiding standards, principles, and provisions to be adopted by arbitral institutions or governments in Africa when drafting their arbitration rules and laws.”

The Protocol is divided into distinct sections covering preliminary considerations, including pre-hearing agreements; conduct of virtual hearings and presentation of evidence; security and privacy considerations; and hearing protocol, infrastructure and technical standards. The Protocol also contains a series of annexes that address Minimum Cybersecurity standards, the Model Africa Arbitration Academy Arbitration Clause (incorporating the virtual hearing option), the Model Africa Arbitration Academy Virtual Hearing Agreement, the Tribunal Issued Cyber Protocol and the Witness Oath specific to virtual hearings.

The main recommendations in the Protocol include:

  • The parties and the arbitral tribunal must agree in advance, as far as possible, on all the procedures, schedules and deadlines to be followed during the virtual hearings.
  • The parties and the arbitral tribunal must agree in advance, as far as possible, on all the technology, software, equipment, and the platform to be used by all participants in the virtual hearings. All technology, software, equipment, and the platform to be used in virtual hearings should meet the minimum standards detailed in Annex I of the Protocol. For instance, full network security, audio and video encrypted at 128-bits AES or as recommended / verified by IT support should be required, and the parties, the tribunal, and all other participants must not join the hearing using an unsecured / public Wi-Fi connection.
  • Where any of the parties do not have access to the technology, software and equipment to be used for virtual hearings, or cannot meet the minimum standards, the parties may “solicit arbitral institutions or other centers in Africa, suitable to the parties, that can offer their venues for conducting virtual hearings. The technological and connection services offered by arbitral institutions or centers are often reliable and can provide the necessary equipment, software, high-quality internet connection, and minimal chance of signal interruptions.”
  • To dispense with frivolous challenges to arbitral awards rendered in cases where virtual hearings were held, where there is no agreement between parties on the use of virtual hearings and there are no provisions expressly regulating such hearings under the applicable procedural rules governing the arbitration, parties should, before the hearing and to the extent necessary, enter into a Pre-Virtual Hearing Agreement to consent expressly to the use of virtual hearings as per the draft in Annex II of the Protocol. Alternatively, the tribunals should be empowered, where appropriate and after due consultation with the parties, to direct that the evidentiary hearing be conducted virtually as per the draft procedural order in Annex IV of the Protocol.
  • Regarding conduct of the virtual hearings, it is recommended that witnesses give evidence under the arbitral tribunal’s direction and the arbitral tribunal should be empowered to terminate the video conference at any time if it deems the video conference so unsatisfactory or that it is unfair to either party to continue.
  • Although the possibility of home offices being used to conduct virtual hearings was not dismissed entirely, the Protocol recommends that the parties ensure that the rooms used to connect to virtual hearings either at their offices or “in such other locations are well equipped with any equipment necessary for the virtual hearing,” are isolated and inaccessible to non-participants or unauthorized persons during the virtual hearing and soundproofed as much as possible.
  • Regarding the technical standard for holding virtual hearings, the Protocol leaves it to the parties to connect to the virtual hearing platform through locations with reliable internet connectivity that offer seamless and smooth streaming and communications during the virtual hearing. It is further recommended that the minimum technical requirements and any back-up measures or contingency plan(s) must be agreed between the parties and the arbitral tribunal.
  • Regarding the audio / video conferencing platform, rather than being prescriptive, the Protocol recommends that any agreed audio / video conferencing platform be licensed with adequate security and privacy standards, and that the technical setup be “secure and user friendly.” The platform should also “meet the requirements of all relevant or applicable laws.”

In conclusion, the Protocol is an excellent example of innovation in international arbitration being led from Africa. The Protocol is being heralded as an important step towards virtual hearings being accepted as the new norm in African arbitration and beyond, and its careful drafting should help it stand the test of time well into the post-COVID-19 pandemic period.