Africa / Arbitration: navigating the current pandemic through technology
The current pandemic has impacted every facet of human existence to the point that even time itself has been split into pre and post COVID-19 periods. We now remember nostalgically how things were done before the pandemic, strive to cope with the new realities occasioned by the outbreak, and imagine how things will be in the post COVID-19 world.
The Alternative Dispute Resolution (ADR) space, particularly arbitration is one of those areas of our existence that has been impacted by the pandemic. Despite the impact of the pandemic, arbitration practitioners and institutions including national courts have devised creative ways of continuing arbitration proceedings to their logical conclusions. This has essentially been achieved through the use of technology. How it has limited or aided arbitration proceedings in all its ramifications is the objective of this short piece.
It is necessary to state here that this article is a follow up on the recently concluded webinar organized by the Port Harcourt2 Chapter of the Chartered Institute of Arbitrators (UK) Nigeria Branch in collaboration with the Commonwealth Lawyers Association (CLA). The webinar took place on 12 June 2020.
Generally, it is accepted that most legal systems world over are not against the notion of virtual hearings and by necessary implication the use of technology to achieve such hearings. However, in jurisdictions where public hearings are an essential component of their justice delivery system, there are issues around whether for instance such hearings are public. Indeed in Nigeria there is currently a constitutional question pending before the country’s Supreme Court on whether remote hearings of any kind in determination of cases are constitutional. This is against the backdrop of Section 36(3) of the Nigerian Constitution which provides that proceedings of a court must be held in public. Technology in ADR however presents a different perspective. One of the hallmarks of arbitration is confidentiality. It is generally implied in every arbitration that parties want the arbitral process kept from the public.3 In fact, confidentiality is considered one of the primary reasons why disputing parties opt for arbitration. Therefore, having a public hearing is usually not a sine qua non to arbitral proceedings.
There is no gainsaying the fact that arbitration at its core professes to have certain innate virtues such as cost effectiveness, confidentiality, flexibility, expeditiousness, enforceability of award, amongst others. These avowed attributes ordinarily makes it one of the easily preferred mode of dispute resolution between parties. Before the pandemic the use of technological tools to enhance these virtues was at best a cosmetic add on in some respects. Technology was not an essential component of the arbitral process, particularly international arbitration. In other words, one could 2
to a large extent do without it. That is however no longer the case. Indeed owing to the restriction on country to country movements, the ban on flights (even though now it is being lifted on a limited scale by some countries), the need for social distancing and other limiting directives of various governments, the use of technology has become common place in arbitral proceedings. One is now ‘forced’ to be familiar with Zoom, Whatsapp, Skype, Microsoft teams to Gotomeetings and Opus 2 amongst several other platforms. Interestingly, arbitrators and arbitral institutions are not allowing the current pandemic to impact them negatively. Indeed, most institutions have adopted a very progressive approach towards deflecting the effects of the pandemic. The Chartered Institute of Arbitrators (CIArb) for instance has created guidelines for virtual and remote hearings.4 The London Court of International Arbitration (LCIA) provides in Article 19 of its Rules that oral proceedings need not take place in person. It allows for hearings to take place by video or telephone, conference or in person. It even anticipates a hybrid scenario where all three options are deployed for arbitration hearings.
The pros for the use of technology are innumerable. Arbitral proceedings can now be conducted without the need for physical contact or presence of the arbitrators, parties and witnesses. What is instructive here is that it would be considered normal. Indeed, parties can give testimonies from the comfort of their respective homes and countries. Arbitral proceedings that can be determined primarily by documentary evidence are seamlessly being conducted via the internet using diverse technological tools. This is particularly so where the documents to be considered are not of large quantity. The overall implication, amongst others, is the saving of unbelievable cost, risk and inconvenience that would have hitherto being the case in travelling to and from arbitration venues. It has also increased the level of organization and efficiency of such proceedings. Parties can decide to fragment proceedings, agree on whether all aspects of the process should for instance be virtual. It has also by default provided a learning opportunity to arbitrators to develop tech skills since a good knowledge of how to manage proceedings on the different platforms is required for the entire process to run efficiently. Different aspects of the disputes can be easily conducted with minimal cost compared to pre pandemic periods.
The cons are equally daunting, and they are not necessarily peculiar to developing economies. There is the obvious lack of critical infrastructure which is typically evinced by inadequate power supply, and insufficient depth of internet penetration. In most developing economies, access to the internet is poor or non-existent outside the city centres. There are also the persistent issue of hackers and viruses that might impact proceedings when using some platforms – this may raise some privacy concerns. Arbitrators will now have to develop essential IT skills in managing the entire arbitration proceedings and its interface with the relevant technology in use. This may be a shock for arbitrators in the baby boomer demographic. Further, the peculiarities of parties could also be a concern. Some parties may take the view that if they have to pay for arbitral services, they will need to have a physical face to face interaction with the arbitrator rather than a virtual proceedings. There are those who may want to feel the ‘crinkle’ of the documents/processes as they are not adept at reading documents online. There is also the absence of 360-degree view of parties or witnesses since most prevalent technological tools essentially focus only on the face of 3
the person rather than the person’s surroundings. It will be difficult in most cases for instance to know whether a party or witness is being tele-guided on what to say. Arbitrators would also have to work around internet down times. When the internet connection goes off for instance, does that mean arbitration proceedings will come to an end? Clearly the orders for directions of proceedings that will be agreed upon by the parties must factor in all these scenarios and the parties must be in agreement on the steps to be taken when they occur. Even though these issues may hamper a progressive approach of determining arbitral proceedings virtually, it is the view of this writer that these are insignificant issues that cannot out-weigh the obvious advantages of accepting and adopting wholly the positive impact of technology to arbitration.
National courts are also critical to arbitral proceedings particularly from the perspective of recognition and enforcement of awards during this pandemic. It will be incongruent for arbitral proceedings to be aided by technology while the recognition of the award procedure in national court is still in the pre pandemic state. It is therefore heart-warming to note that countries like Rwanda are already in the forefront of implementing a paperless court system via the Electronic Filing System; EFS which has been integrated to its Integrated Electronic Case Management System; IECMS. Notably, in Rivers State of Nigeria, the High Court Practice Directions Nos 1 and 2 aim to give instructions to litigants and counsel on E-filings through the Rivers State Court Management Information System (RivComis) platform. The Practice Directions also go further to allow for remote hearings of cases. Similarly, the Practice directions recently issued by the High Court of Lagos State, the Federal High Court and the National Industrial Court of Nigeria also contain provisions on remote hearings of cases. These are commendable innovations necessitated by the onset of the pandemic.
Concluding, it has been argued that despite the terrible carnage of the pandemic on human lives world-wide, which is profoundly regrettable, this is probably arbitrations’ moment. As earlier mentioned, those age-old virtues of arbitration that make it the preferred ADR mode for commercial dispute resolution can only (and are being) be enhanced through technology. While we all hope for a quick solution to the end of the pandemic, the question is whether arbitration proceedings will go back to pre-pandemic scenarios? I do not think so. There are obvious issues, no doubt, but it is expected that there will be an improvement of existing technological tools such that in time there will be true convergence between arbitration and technology.