The coronavirus pandemic has affected every aspect of our lives, including how we resolve disputes. Courts, mediators, arbitrators and lawyers have all had to adapt to the use of technology for things they had previously done in person. According to data from research firm Apptopia and previously published on MarketWatch, the company’s daily active user count was up 378% from a year earlier as of March 22, while monthly active users were up 186%.
This increase in the use of videoconferencing would appear to benefit international arbitration, as it is a process that often includes participants from around the world. In reality, however, while it is already common for case management conferences to be held online, the tradition of an in-person hearings remains, and witnesses seldom appear via video
Nonetheless, parties who are now having their hearings postponed have begun to realize that videoconferencing may be the only way to move ahead with their arbitration.
Institutions such as Arbitration Place and JAMS have taken the initiative, combining commercial technology such as Zoom with administrative support to lower the risk that proceedings will be derailed by technical problems or even cyberattacks. In many cases, however, parties will not be using any institution at all or will be using one that cannot assist with online arbitrations.
The Seoul Protocol on Video Conferencing in International Arbitration
The Seoul Protocol on Video Conferencing in International Arbitration makes an important contribution to the ability of arbitrations to continue effectively and efficiently during these unprecedented times. Developed during a discussion of videoconferencing at the 7th Asia Pacific ADR Conference in Seoul, South Korea, in 2018, and largely finalized before the pandemic, the protocol was initially intended for sophisticated arbitrations using high-end technology, but it nonetheless provides useful guidelines even for those attempting to self-manage a small-scale arbitration on Zoom, Skype or similar platforms.
The protocol is broken down into nine 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 protocol offers practical guidance, 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.” As such, it can serve the same role as the much-used UNCITRAL Notes on Organizing Arbitral Proceedings, raising points for those new to the process—in this case, online arbitration—and suggesting a reliable way for them to be addressed. While the primary focus of the guidelines is on witness testimony, not on having fully online proceedings, they are still useful in the fully online context.
Arbitral awards following online arbitrations may be subject to a number of challenges, such as a party could not properly present its case in an online hearing or technical difficulties 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. Such risks cannot be entirely eliminated, but through the use of the guidelines, parties, arbitrators and counsel will be better equipped to minimize those risks.
The Seoul Protocol on Video Conferencing in International Arbitration arrived at a fortuitous time. While its focus on witness testimony through videoconferencing makes it less directly applicable to a fully online arbitration, it is nonetheless an extremely useful document and will greatly benefit those who want to conduct an arbitration via videoconferencing. Further, the guidelines acknowledge the risks associated with the use of online technology in a process intended to be private and often confidential, and they can help participants address them.