At the height of the pandemic, in or around the first quarter of 2021, the Abu Dhabi Global Market (ADGM) Arbitration Centre (ADGMAC) published a set of guidelines to provide procedural and logistical assistance on the conduct of remote and semi-remote hearings in international arbitration, known as the “ADGMAC Protocol for Remote Hearings ”. Being a soft law instrument, this Protocol is not binding and as such is subject to party autonomy. The Protocol may be used for guidance in merits hearings or be adapted for use in procedural case management conferences depending on the parties’ and the tribunal’s needs. It further lends itself for application in combination with the ADGMAC’s so-called “Smart Arbitration” services, which have been designed to promote a reality of fully remote arbitral proceedings. Given the continued relevance of remote hearings in daily arbitration practice around the globe, it is timely to take a closer look at the main provisions of the Protocol and how they may assist in the conduct of virtual arbitral proceedings.
Scope of application
The Protocol comprises a number of sections that allow for easy consultation (letter-numbered from A through to T).
These variously address under separate headings:
- The choice and use of electronic platforms and service providers for video-conferencing (Section B), document management/presentation (electronic bundles, also referred to as the “Remote Hearing Bundle”, and the operation of an online document room, accessible to the parties in preparation for and during the hearing) (Section K) and a real-time transcript (Sections D and O).
- The identification of all relevant stakeholders in the hearing, distinguishing between participants (the tribunal members, party counsel, party representatives, and fact and expert witnesses), speakers (tribunal members, party counsel advocating a party’s case, a testifying witness, an interpreter) and attendees (everybody else, including other members of a counsel team, party representatives, and a tribunal secretary) (Section C).
- The creation and use of a virtual hearing room as well as break-out rooms for the tribunal, the parties and witnesses (Section E).
- Guidance on the timetable for the remote hearing (Section H), including sitting days and hours (Section F) and the sequence of the proceedings (Section G).
- The confidentiality of the proceedings (Section I), including data protection and security arrangements (possibly by reference to a detailed cyber-protocol).
- The modalities to be put in place for the hearing of fact and expert witnesses (Section L), including the potential use of a hearing invigilator.
- The use of presentations and demonstratives during the hearing (Section M).
As stated above, the Protocol also envisages semi-remote hearings (Section J).
Importantly, in order to preserve the overall flexibility of the Protocol, the tribunal is placed at liberty to modify any of its provisions following consultation with the parties (Section A, 5), including upon request of a party (Section Q, 78). Such modifications must be in writing (Section Q, 79).
The Guiding Principles
Section A sets out three core guiding principles according to which all participants in a hearing under the Protocol will conduct themselves:
- Guiding Principle No 1: Fairness, cooperation and good faith: “in a manner consistent with the principles of fairness, cooperation and good faith”.
- Guiding Principle No 2: Enforceability: “in a manner that ensures the enforceability of any resultant arbitral award”.
- Guiding Principle No 3: Confidentiality: “in a manner that ensures confidentiality”.
These principles provide a helpful framework for the conduct of hearing participants in order to ensure an efficient remote hearing without jeopardising the confidentiality and the procedural regularity of the process. For the avoidance of doubt, Section S (see further below) discusses in some further detail the issue of enforceability addressed by Guiding Principle No 2.
List of issues
Section N requires the parties to prepare a list of issues of fact and law that arise for determination by the tribunal from the parties’ claims and counterclaims, to be fixed by the tribunal before a remote hearing. This is evidently to focus the parties’ and the tribunal’s minds on the main legal and evidentiary strands of each party’s case that require determination by the tribunal (Section N, 71).
In order to streamline the hearing, the parties are also required to identify issues that may be dealt with on a documents-only basis and as such do not require the presentation of oral testimony at the hearing (Section N, 72).
Pre-Hearing Conference
Importantly, the Protocol provides for a pre-hearing conference to take place in advance of the hearing in order to test and ensure the smooth operation of the virtual hearing arrangements for all hearing participants. The importance of this should not be underestimated as technological difficulties that arise during a remote hearing might, in a worst-case scenario, give rise to procedural irregularities with an adverse effect on due process.
Semi-remote hearings
Whereas remote hearings are typically those that are conducted on an entirely virtual basis, semi-remote hearings envisage limited in-person participation, for example, where a number of participants partake in the hearing from the same physical location.
Importantly, in order to safeguard procedural due process in semi-remote hearings, the Protocol expressly discourages the following arrangements (Section J, 43):
- The tribunal and the legal team of only one of the parties appearing in person, while the legal team of the other party appears remotely.
- The legal team of one of the parties examining an opposing party’s witness or expert in person, without the opposing party and its legal team also present in person.
Out of related due process concerns, the Protocol also envisages the sequestration of both fact and expert witnesses for the entire duration of their respective testimony in semi-remote hearings (Section J, 44).
Examination of fact and expert witnesses
Section L provides valuable procedural guidance on the examination of fact and expert witnesses. Importantly, alert to requirements often present in arbitration in the Middle East, Section L provides for fact-witness testimony to be taken on oath depending on the applicable procedural law, together with an agreed oath formula and requirements for the relevant holy book to be made available to the witness in good time before the hearing (Section L, 50-51). No doubt out of procedural caution and in particular considerations of due process, fact witnesses are not to have access to the real-time transcript (Section L, 54) until after having testified. For the same reason, fact witnesses are required to remain sequestered until after their testimony (Section L, 55). Although expert witnesses would usually only offer opinion (rather than fact) evidence, it is disappointing to note that the oath-taking requirement applicable to fact witnesses does not appear to extend to expert witnesses. Certain Middle Eastern jurisdictions, including importantly the UAE, do require expert evidence to be taken on oath.
In order to ensure procedural due process and more specifically the integrity of their respective testimony, Section L makes provision for the attendance of a hearing invigilator at the premises of the fact and expert witnesses testifying in the hearing (Section L, 61) and envisages alternative arrangements should no hearing invigilator be available (Section L, 62), such as the installation of a camera providing a full view of the room the witness is testifying from.
Section L also contains some practical guidance on the use of interpretation services for the examination of witnesses in remote hearings (Section L, 67).
Hearing Costs
Unsurprisingly, these are to be borne equally by the parties, subject to a cost order by the tribunal in the usual way in further course (Section R, 80).
Recognition and Enforcement
Following on from Guiding Principle No 2, the recognition and enforcement of a prospective arbitral award resulting from a remote or semi-remote hearing process is a key concern of the Protocol. To ensure the enforceability of a prospective award, Section T invites the Parties to agree the compatibility of remote hearings with the law of the seat in writing. The Protocol makes express provision for a waiver of right to challenge a prospective award on the basis of the hearing having been conducted remotely:
No party will seek to set aside or oppose the recognition or enforcement of any resultant arbitral award on the basis that the arbitral hearing was conducted by remote video-conferencing, and hereby waives any right to seek any such set-aside. (Section T, 82.d.)
This will provide some welcome reassurance to the parties that neither of them will exploit the novelty of a fully remote or hybrid hearing as a potential ground for a challenge (bar genuine procedural irregularities that may occur over the course of that process).
Finally, to streamline a prospective enforcement process, the Protocol provides for the remote hearing to “be deemed to take place at the seat of the arbitration” (Section S, 81).
Conclusion
The Protocol provides useful practical and procedural guidance on the conduct of remote and semi-remote hearings. Importantly, despite its title, it may be applied in arbitrations beyond the boundaries of the ADGM, both in the wider Middle East, that is, regionally, and internationally. Given its inbuilt flexibility, it is intended for modification by the arbitrators to suit each individual arbitration reference. This is, of course, welcome in a time and age where the development of technology moves at a pace that requires real-time adjustment and adaptation of the technical requirements of any virtual arbitration process. Given the wide-spread confidentiality of arbitration in the Middle East and elsewhere, it is difficult to say anything about the real uptake of the Protocol at this stage, but judging by personal experience, it has been warmly received as a timely source of guidance by arbitrators and practitioners alike.
