Today, in the age of imagination, ‘virtual’ has become real, and even more so, the new normal in the face of the COVID-19 global pandemic. The world has dramatically changed in the past few months, including government lockdowns and gathering restrictions. The question for many in the legal profession is this – “Where does that leave the administration of justice?” Courts around the globe have answered that question by taking a pragmatic approach.
Courts have been required to think both quickly and efficiently to ensure that, where possible, hearings can proceed with the use of virtual hearings. Virtual hearings have been used to conduct hearings remotely in order to minimise the risk of the transmission of COVID-19 and to ensure the health of all parties in attendance is maintained.
There is a litany of issues concerning virtual hearings in the arbitral tribunal – from the right to fair hearing, witness tampering, security bridges, and the overall future of virtual hearings in a post-COVID-19 world. These issues were at the centre of discussion at the recently concluded virtual hearing webinar organised by The Nigerian Bar Association Section on Business Law (NBA-SBL).
Speaking during the webinar, Samaa Haridi, a Partner at Hogan Lovells in New York, emphasized the standing of physical hearings and an increase in willingness to adopt virtual hearings. She said, “While we are going to see an increase no doubt in the number of virtual hearings as a result of COVID-19, I do not believe that it will be the end of physical hearings. I do think that sometimes there is no substitute for physical hearings”. Samaa also spoke in detail regarding presenting evidence in a virtual hearing. In terms of presenting evidence, Samaa believes that the impact of the evidence presented may not the same when you are sitting in a physical room versus when you are in front of a computer.
Samaa posited that for a virtual hearing to successfully take place, the tribunal has to balance on one hand its duty to conduct the arbitration expeditiously and efficiently, and on the other hand the parties’ right to equal treatment and their right to be heard. According to her, it could be helpful to get the parties to sign an agreement that they will not challenge the award should they agree to pursue a virtual hearing (although such an agreement may not ultimately fully protect against a risk of vacatur).
In the scenario where one party is opposed to a virtual hearing, it is necessary to look at the arbitration provision, the relevant institutional rules, the arbitration laws of the lex loci arbitri and any other applicable legal framework. The Nigeria Arbitration and Conciliation Act, for instance, is potentially permissive of virtual hearings. Under Section 16.2 of the Act, “unless otherwise agreed by the parties, the arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods or other property.”
If the tribunal determines to proceed with a virtual hearing, it should be after careful consideration of various factors, including what are the reasons for requesting a virtual hearing; do all parties have equal access to technology; is the hearing heavily focused on argument or on testimonial evidence; or what is the likely delay if the virtual hearing does not go forward.
Another issue is related to maintaining the integrity of the process of giving evidence and avoiding assistance to witnesses while they testify. According to Samaa, the issue is not specific to virtual hearings. Rather the issue becomes more complex in virtual hearings as you cannot see the environment where the witnesses are, nor can you tell to what extent the witnesses are being coached, or helped.
These issues need to be addressed by the tribunal and it is incumbent on the arbitral tribunal to remind the parties and counsel that no witnesses should be allowed to confer with counsel or with any parties’ representatives while they are giving evidence. Additionally, the tribunal should work to ensure that only the designated individuals are in the room during the hearing, and it could also consider including in the witness oath, where applicable, confirmation that the witness is not being assisted and is not communicating with anyone while giving evidence.
Given the current environment, and only where appropriate, virtual hearings allow for the administration of justice to continue when physical hearings cannot take place.