By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021.*
Online and/or Virtual arbitration is not a new or alien concept. Technological developments especially in the 21st century have changed the way in which people communicate and interact with each other. This has inevitably impacted the ways in which disputes are managed and resolved. Arbitration is a flexible and innovative process and has often adopted the use of technology where it has been impossible to conduct in-person hearing. This is in line with the principle of procedural autonomy that allows parties to agree on the conduct of the arbitral proceedings.
Consequently, various technological platforms such as email, video/audio conferencing, online platforms, electronic signatures and e-filing have been incorporated in the field of arbitration. In virtual arbitration, parties communicate with the arbitrator and submit their documents, evidence, and documents electronically via emails and teleconferences. This form of arbitration can be more expeditious and cost effective since it eliminates the need of having to travel to a physical location for the arbitral hearings and filing of voluminous documents.
Virtual trials are being embraced in various jurisdictions in light of the COVID-19 pandemic. Recently, the English Commercial Court conducted its first successful virtual trial in the case of NBK and RoK v Bank of New York Mellon and the Stati Parties. The United States Supreme Court has heard oral arguments via telephone conference in a limited number of cases with remote participation of justices and counsel12. The Judiciary in Kenya has also embraced the use of technology with certain cases being heard via videoconference coupled with electronic delivery of judgments and rulings.
Various institutional rules provide for the conduct of virtual arbitration. The UNCITRAL Rules stipulate that the arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute. This is in essence allows the use of technology in the conduct of arbitral proceedings. The Seoul Protocol on Video Conferencing in International Arbitration contains a comprehensive framework intended to serve as a guide to best practice for planning, testing and conducting video conferences in international arbitration.
The Protocol contains best practices on matters such as witness examination, video conferencing venue, filing of documents and technical requirements. Virtual arbitration commences where parties agree to refer their dispute to arbitration. The referral can be drawn and sent electronically to the Tribunal with the aid of a secure electronic signature to confirm the identity of the author. Once the Tribunal signifies its acceptance through a letter addressed to both parties, it may request parties to submit an electronic form of the arbitration agreement usually by way of electronic mail. The parties will then be required to produce and exchange their written statements and documents addressed to the arbitrator and the adverse party.
Where parties have agreed on a documents-only arbitration, the Tribunal will peruse the documents filed electronically by the parties and render an award without need for a hearing. Where there is need for a hearing, videoconference facilities can be organized. However, it is important for the parties to have the same technical capabilities and quality of connection to ensure the success of the process. This issue can be dealt with during the preliminary proceedings to avoid lapses at the hearing stage. Where a tribunal is satisfied that the issue of technical capability has been addressed, it can conduct virtual hearing through video conference. However, it must be ensured that the integrity of the process is guaranteed by disclosing the login data only to the respective parties who must be authorized before accessing the proceedings. This is to prevent unauthorized access by third parties which may raise confidentiality issues.
The tribunal may seek assistance from Information Technology (IT) experts to this extent. Where this has been dispensed with, the tribunal will conduct the hearing following the normal procedure that entails familiarization with witnesses, administering oaths, examination-in-chief, cross-examination and re-examination. Once, the proceedings have been concluded, the tribunal renders its award. The tribunal can send the electronic award to the parties by way of secure email or a hard copy of the award by way of registered mail due to the security concerns involved in placing the award online.
*This article is an extract from the Article “Virtual Arbitration Amidst Covid-19 : Efficacy and Checklist for Best Practices” by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Virtual Arbitration Amidst Covid-19: Efficacy and Checklist for Best Practices,” Available at: http://kmco.co.ke/wp-content/uploads/2020/05/Virtual-Arbitration-Proceedings-Amidst-COVID-19-Efficacy-and-Checklist-for-Best-Practices69523-Revised.pdf (accessed 22 April 2022).