Introduction
The COVID-19 pandemic has had innumerable impacts on life in Pakistan and has affected every element of our lives, including how we resolve our disputes. The global scale of this crisis has seen courts, mediators, arbitrators and lawyers the world over having to adapt to the use of E-technologies for processes they would never have previously considered not doing in person. According to consumer analytics company Viewers Logic, video-conferencing applications such as Zoom have seen a jump in usage of 760% over recent weeks.
The E-court was successfully launched in the Supreme Court of Pakistan in 2019, with Chief Justice Asif Saeed Khosa stating that, “…a big milestone has been achieved in the judicial history of Pakistan that cases are been heard through the latest technology. The facility will benefit lawyers and litigants to save time and money.”[1] The time has come for this to be rolled out throughout district and sessions courts in order to resolve the long delay of cases before the courts. In most civil and property matters, litigants have to wait decades. Sometimes the third generation of petitioners gets the final verdict in cases. By 2018, 2 million cases were estimated to be pending with the judiciary. The number is most likely to have increased now.[2]
It is suggested that by making efficient use of technology, courts and arbitral tribunals in Pakistan can offer expeditious and cost-effective access to justice. While the increased focus on this way of conducting remote hearings has been triggered by the global public health crisis, it is likely that Pakistan can and should continue to avail such video-conferencing applications to save time and costs and avoid the adverse environmental effect of people travelling to meetings that can be conducted remotely. The nature of a physical face-to-face hearing can be different than that of an online hearing, therefore, judges, arbitrators, lawyers and the parties and their witnesses and experts will need to make some adjustments when using this new system.
Below we offer some comments on how to effectively take this step for the benefit of all those who are involved in disputes in Pakistan.
At first glance, domestic and international arbitration may be expected to be less likely to be troubled by this change, as the process will often involve participants who are hundreds of miles apart (where the dispute in within the same country), or thousands of miles apart (where parties are from several countries across the world). Whether the former scenario arises or the latter, both situations naturally lend themselves to the use of video-technology. However, while it has already been common for preliminary case management conferences to be held online, the tradition of an in-person hearing has still remained and there have been very few examples of even a single witness appearing through video-conferencing. Nonetheless, COVID-19 has had as much of an impact on international arbitration as it has everywhere else. Parties faced with an uncertain wait if hearings need to be rescheduled have now begun to consider video-conferencing as the only safe and expeditious way of moving ahead with their arbitration proceedings.
In some cases, international alternative dispute resolution (ADR) institutions such as Arbitration Place and JAMS have taken the initiative to combine commercial technology such as Zoom with administrative support to lower the risk of planned proceedings being derailed by technical problems or even cyber-attacks. However, in many cases in Pakistan, parties tend to not use an institution at all or use an institution with no capacity to assist with online arbitration.
The Seoul Protocol on Video Conferencing in International Arbitration
It is against this background that the recent release of the Seoul Protocol on Video Conferencing in International Arbitration makes an important contribution to the ability of arbitration proceedings to continue effectively and efficiently despite the impacts of COVID-19. These guidelines will continue to be of help once the present crisis subsides.
The Protocol is broken down into the following 9 Articles:
- Article 1 – Witness Examination Generally
- Article 2 – Video Conferencing Venue
- Article 3 – Observers
- Article 4 – Documents
- Article 5 – Technical Requirements
- Article 6 – Test Conferencing and Audio-Conferencing Backup
- Article 7 – Interpretation
- Article 8 – Recordings
- Article 9 – Preparatory Arrangements
The guidance that the Protocol offers is entirely practical, including such recommendations as “The witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the witness’s face shall be clearly visible” and “No recordings of the video conference shall be taken without leave of the Tribunal”.
One of the realities of the current attempts to “move arbitration online” is that they will almost inevitably be followed by a number of challenges to arbitral awards on the grounds that an online hearing has been insufficient for a party to properly present its case or that technical difficulties have undermined the integrity of the process. There is, of course, also the risk that online proceedings intended to be confidential will be accessed by third parties, who can then use the information they gain for the own purposes. There is no way that such risks can ever be eliminated entirely, but through the use of the guidelines, parties, arbitrators and counsel will be better equipped to minimize those risks than just blindly deciding to “do it online”. The pro-arbitration outlook of the Pakistani courts should see any such challenges dealt with in a fair and pragmatic way, balancing the rights of those bringing such an application against the fact that the world has likely changed forever due to COVID-19.
Conclusion
The Seoul Protocol on Video Conferencing in International Arbitration could not have come at a better time. Pakistan’s courts and arbitrators can follow international best practices as well as adopt this Protocol to best meet the country’s needs. It is nonetheless an extremely useful document and will greatly benefit the parties, lawyers, courts and arbitrators attempting to use video-conferencing to ensure that an arbitration can proceed rather than be subjected to uncertain delays. Just as importantly, the guidelines acknowledge the risks that the use of online technology can raise in a process intended to be private and often confidential. These risks are real, but with the assistance of the guidelines, those involved in online arbitration will be better prepared to address them instead of trying to negotiate a brand new world on their own. It is expected that this development will provide exciting opportunities for courts, arbitrators and mediators in Pakistan to promote a method of dispute resolution that will provide savings in time and cost.
References
[1] International -The News – E-Court successfully launched in Supreme Court -27.05.2019
[2] Dawn – Over 1.8 million cases pending in Pakistan courts – 21.01.2019
Previously published in Daily Country News. Edited for clarity and republished here with permission.
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.
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