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Covid-19 effect: Online hearings will now become the new normal

Keeping in mind the fact that coronavirus is likely to spread its wings globally for at least another year or two, having sittings through video conferencing would be the new normal procedure to be adopted by all of us. In the wake of this unprecedented challenge that Covid-19 has brought upon the world of dispute resolution, renowned arbitral institutions like the ICC, LCIA and SIAC have come up with certain guidelines, guidance notes etc., for the parties and the arbitrators on how to tackle the unnecessary delays and ways to revive and bring on track arbitral proceedings… Speaking of logistical and technical issues involved, I have experienced quite a lot of such issues in my limited experience, which if handled properly in a planned manner can drastically reduce the problems and instil confidence in the minds of parties as well as arbitrators

On 24 March 2020, the Prime Minister addressed the nation and informed all that on account of the growing threat and spread of coronavirus in the country, it has been decided to impose a lockdown throughout the country for a period of 21 days. This was the first lockdown imposed in the country, on account of a virus, commonly known as Covid-19. Before this, many of us had not even understood the true and correct meaning of the word “Lockdown’’ been imposed in the country. Thus, the Prime Minister had himself clarified that it is almost akin to a curfew.

In the first flush, to be very honest and candid in my view, I was happy that atleast for 21 days, I will get total relaxation and time to spend with my family, without realising the final outcome of the same. Thereafter, I soon realised the difficulties and problems of being at home confined all the time, as one could not take the risk of going out, more so without any work, as is human nature.

For a few days, I tried to concentrate, to dispose of the pending work and matters but at the back of my mind, it was always lurking somewhere that I am unable to move out of my own home, which after a few days, became like a punishment. Thus, in the process, I thought of evolving some method, so that hearings of pending matters could take place online through video conferencing, with the help of platforms like Zoom, Skype, Webex and CODR. I contacted many IT experts in this regard, including Gold Member of Cisco, Delhi, to get the necessary facilities installed in my office, so that meetings could be convened, with the same speed, providing similar facilities and hearing experience as before, albeit virtually.

Various other persons were also contacted to do the needful. But unfortunately, since we were not geared up for this situation and I wanted to have a tailor-made solution for Arbitral Hearings for Ld. Arbitrators, Ld. Advocates and Representatives of Parties, therefore none was able to meet my requirement. Still, in my endeavour to achieve the goal, a few meetings could be organised on Zoom and Skype. In an international matter, hearing took place, on two days for 3 hours 30 minutes each day, with one of the Ld. Presiding Arbitrator sitting in Singapore and two of us in Delhi–the Representative of Parties sitting in London and other places and Ld. Advocates in Delhi. Certainly on both days, the hearing went off very well. Thereafter, all the three of us could also discuss the matter, in which the said IA was to be decided. Thereafter, an Order has also been passed on this matter–all this through Zoom, without any difficulties and obstructions.

In the matter of Delhi & District Cricket Association, where I am deciding various issues as an Ombudsman/Ethics Officer, I could hear the matter on three occasions, without any hindrance or obstructions, for more than six hours or so. In that also, an Order has been pronounced on 14.05.2020, without any difficulty.

Encouraged with this scenario, I sent a request to all the Ld. Arbitrators known to me, Sr. Advocates, other esteemed Advocates and Litigants that let us evolve a procedure of Hearing through Video Conferencing on various web based platforms and try to utilize this time as much as was possible. I certainly received some positive response from many.

Thus, in my zeal to achieve the required result, I started sending mails, in all my pending matters, either as a Sole Arbitrator or as member of a three-member panel with a request to resume the hearings, through video conferencing.

Now came the real hurdle, when all were intimated of the next date of hearing, already fixed, prior to Covid-19. They were requested to attend the hearing as was already fixed as in the manner mentioned hereinabove.

Some of them responded saying Ld. Sr. Advocate is not Tech savvy and is unable to do everything on laptop and computer, thus it will not be possible to have a hearing. Whereas, during the actual physical hearing, it was noticed, that most of them were coming with battery of young lawyers, who are well equipped, with latest technology, in this regard and can do wonders.

I wondered to myself, as to why, one of them could not assist the Ld. Sr. Advocate to discharge the same duty as he used to do, in actual sittings in person, of course maintaining a healthy social distance. I could not find any plausible answer to this. Some of them said that in absence of record, which is kept in their office and same is not accessible, therefore, they are unable to argue. Few came forward, with an explanation that there clerk concerned or secretary has gone to his own village and is stuck up there, with no mode to return and resume the duty.

Thus, all my efforts to move in this direction, attained no good and favourable results and I was left in the lurch.

For one of the hearings, where an IT professional well versed with all this situation came forward and informed me on phone that even if it comes to having a hearing through video conferencing, he would not agree and rather prefer to have it through actual hearings in person only. I asked him as to why so, as you are well versed, with the latest technology and according to your own estimate, even during lockdown your office is working almost full swing from the respective homes of the employees, to the extent of 95%.

According to him, it would be necessary to see the face expressions, gestures, physical action of the Ld. Arbitrators so as to know on which side they would be leaning, which may not be so accurately seen on video conferencing. This information came as a surprise to me, as the Litigant was trying to have this attitude and behaviour. This has been my good and bad experience of the lockdown period. However, on account of Research done by me and by my Associates, I have been able to find an online platform, which may be more suitable and almost tailor made for all of us, known as CODR.

In the wake of this unprecedented challenge that Covid-19 has brought upon the world of dispute resolution, renowned arbitral institutions like the ICC, LCIA and SIAC have come up with certain guidelines, guidance notes etc., for the parties and the arbitrators on how to tackle the unnecessary delays and posing ways to revive and bring on track arbitral proceedings. Certain points borrowed from these Guidance Notes and some of my own ideas/ thoughts, which I think might be useful and should be implemented by all of us to further evolve the ways in which we conduct proceedings are being shared. Identifying whether the entirety of the dispute or discrete issues may be resolved on the basis of documents only, with no evidentiary hearing. Shifting from a hearing based mechanism to a document only based system, especially in these times is the need of the hour. This shift would certainly eliminate the need of hearings to be conducted online and the logistical and technical issues involved.

Speaking of logistical and technical issues involved, I have experienced quite a lot of such issues in my limited experience, which if handled properly in a planned manner can drastically reduce the problems and instil confidence in the minds of parties as well as arbitrators. In my opinion, prior to any hearing the following point can be discussed by the parties and the arbitrators: (a) the preferred platform and technology to be used (including legal access to such platform and technology); (b) the minimum system specifications and technical requirements for smooth connectivity (audio and video), adequate visibility and lighting in each location; (c) the contingency measures to be implemented in case of sudden technical failures, disconnection, power outages (alternative communication channels and virtual technical support for all participants); (d) number and list of participants joining the hearing. This is important as excessive number of participants may result in hiccups during the video hearing; (e) Real time transcription and recording of the hearing.

As this is a new arena for all of us, certain due process must also be followed with respect to online hearings: (a) Obtaining written statements from the parties/counsel that the tested platform and technology are adequate as tested by the parties; (b) Confirming the parties’ agreement on proceeding with a virtual hearing or identifying the legal basis for proceeding with a virtual hearing absent such agreement by the parties; (c) Advising the parties on their duty to cooperate on technical matters prior to and during the virtual hearing.

Increasing role of technology and artificial intelligence: Times like these necessitate reform and it appears we have no option but to learn the nuances of the use of technology and unlearn certain archaic dogmas. This may also entail a complete overhaul of the way we conduct proceedings.

Therefore, we must encourage the lawyers representing the parties and other stakeholders to push the IT companies to build more customised and innovative platforms for conduct of arbitrations. For instance, artificial intelligence has already made great inroads and many international law firms are making use of it to reduce man-hours and of course to make document management in voluminous arbitrations more effective. I think the need of the hour is to make it more cost effective, so that it becomes conducive for the Indian parties to adopt.

Another problem shared by the lawyers that artificial intelligence can help mitigate to some extent, is the possibility of creating an automated virtual hearing room that effectively notes that behavioural pattern and facial expression of the participants (Arbitrators, Counsel, Witnesses) by using algorithms and predictive coding. To make sure that the witness is not supported by any other person or means, a 360-degree camera can also be installed. Also, the Seoul Protocol on Video Conference in International Arbitration (attached to the email) is of significant import.

Move towards Institutionalisation of Arbitration: In my experience, even Ad hoc arbitrations can be conducted under the administrative management of arbitral institutions even if the parties do not opt for the rules of the respective institution to govern the proceedings. This in my view has many benefits, to start with, the need for advance on costs and expenses of the Tribunal can be taken care of by the institution, thereby, saving previous time and effort for the arbitrators and most importantly, institution administered ad hoc arbitrations will enable the Tribunal to effectively manage the logistics such as conduct of hearing facilities, taking of evidence, web based platform through the facilities and resources available with the institutions.

Formalisation of the Role of Tribunal Secretaries: Internationally, Tribunal Secretaries, who are often very well qualified lawyers with a passion for arbitration, act as a helping hand to the Arbitrators, performing some defined functions, which may be academic, or administrative or purely ministerial in nature. They bring efficiency in the arbitral proceedings by giving effective assistance to the arbitrators and providing them leeway to deliberate more on the merits of the case. A short note on this is attached to the email.

Keeping in mind the fact that coronavirus is likely to continue to spread its wings throughout the globe, for at least another year or two, having sittings through video conferencing, would be new normal procedure to be adopted by all of us. In this regard, Work From Home (WFH) to a certain extent has to be developed and it should be imbibed in all of us. This will keep all of us safe and productive.

It is pertinent to mention here that if we adapt to such a procedure, then many of us may not be required to travel at all, from their respective places and to run the risk of getting infected. This will enable us to work from home, avoiding wastage of time, money, energy, tension etc. I, therefore, request all of you to kindly try to adapt and follow this new procedure of online hearing and let us follow this new normal system to hold Arbitral Sittings. Needless to say, these are my personal views experienced during this period.

Justice Deepak Verma is a former Judge, Supreme Court of India

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