In April 2020, the Africa Arbitration Academy released a Protocol on Virtual Hearings in Africa. While not the first protocol to be released on the subject, it is a timely initiative for African practitioners, especially given that the ongoing COVID-19 pandemic, which has led to strict social distancing measures and travel restrictions in many countries, has brought about a surge in the use of virtual hearings in international arbitration.
The protocol establishes a suite of guidelines for arbitrators, parties and counsel to consider when preparing for and attending a virtual hearing. It has six sections, with five annexes setting out model clauses and protocols that may be adopted prior to and during the arbitration. Substantively, it covers a comprehensive range of topics from logistics, security and privacy considerations and technical specifications.
While there are many interesting and useful features proposed by the protocol which parties should consider adopting, one aspect in particular merits a more detailed discussion: the provisions relevant to internet connectivity. The plethora of studies and webinars discussing virtual hearings in recent times often focus on issues such as number of screens, monitoring of witnesses and the management of documents (electronically or in hard copy) in tandem with the video link. Few have addressed a fundamental problem that is especially pertinent to Africa, which is the ability to access a stable internet connection.
According to the World Bank’s 2019 press release on the report from The Working Group on Broadband for All: A Digital Moonshot Infrastructure for Africa, internet access in the region significantly lags behind compared to the rest of the world. Reportedly, in Africa in 2018, mobile cellular subscriber penetration was only 76%, 22% of households had internet access at home, and 24.4% of individuals used the internet. The respective global percentages were 107%, 57.8% and 51.2%. This lack of access to a fast and stable internet connection puts African arbitration users at a disadvantage compared to parties from other regions when it comes to virtual hearings, which require significant internet bandwidth in order to take place smoothly.
The protocol addresses this challenge by recommending that at least one back-up service provider and alternative virtual platform be prepared (paragraph 2.1.5). It further encourages testing of these back-up options prior to the hearing (paragraph 2.2.3). In order to ensure that tribunals retain control over the proceedings during the hearing, the protocol also expressly provides that the tribunal may terminate any video witness testimony if the connectivity proves to be so unsatisfactory as to trigger due process concerns (paragraph 3.2.5). While these measures cannot replace the need for further infrastructure development on the continent, they are useful in mitigating the imbalance an African arbitration user may face vis-à-vis a counterparty with access to superior technology. This is all the more important from a due process point of view, given that tribunals operating under the rules of many major institutions have a right to order that a virtual hearing take place notwithstanding the objections of one of the parties.
Aside from the recommendations discussed above, the protocol also suggests that parties facing difficulties with accessing the appropriate technology and infrastructure may consider approaching arbitral institutions or other centres in Africa that can offer their venues for conducting virtual hearings (paragraph 2.1.6). In this respect, African arbitral institutions could consider forming an alliance in order to assist parties with getting better prepared for virtual hearings. This approach has been pioneered by the International Arbitration Centre Alliance, formed by Arbitration Place in Canada, the International Dispute Resolution Centre in London, and Maxwell Chambers in Singapore. A similar pan-African alliance could be a helpful initiative to provide parties in pan-African international arbitrations with a seamless service for remote hearings.
As a contender for the Special Recognition Award for Response to the Coronavirus Pandemic at the upcoming 10th Annual GAR Awards 2020, the protocol is a worthy addition to the arsenal of tools available to practitioners and parties in making international arbitration a cheaper, greener and more technologically advanced mode of dispute resolution.