Md. Mamonor Rashid :
The economic bang of the COVID-19 epidemic on businesses and commercial parties can be devotedly felt across the world. Displeased contractual obligations, supply-chain and logistics challenges, employment issues, to name a few, it is clear that COVID-19 has and will continue to bring about many sources of conflict and dispute.
ADR, arbitration and mediation are going to be affected, too. In fact, the virus is spreading throughout the world and is already having a significant impact on the arbitration venues worldwide including Bangladesh. Arbitration institutions (such as LCIA, SIAC, MCIA and BIAC etc.) parties and practitioners must be prepared to deal with this new reality.
Moreover, when one door closes, another one opens and in our world of arbitration, perhaps a door has been shut somewhat abruptly, but we have the flexibility and technology to open a new one immediately.
It is likely that some of the hearings currently in jeopardy will instead be transferred online. Interviewing witnesses and experts already frequently takes place via video link. Exclusively online hearings are nevertheless rarely agreed or requested. We read a lot nowadays of artificial intelligence in arbitration, of the feasibility of robot arbitrators and of the application of blockchain, all advanced applications of still fledgling technology. One of the most basic applications of technology in a dispute resolution scenario, however, would be that of minimizing or abolishing the necessity for everybody to be in the same room at the same time. This is by no means a ground-breaking concept: everybody nowadays is professionally and personally familiar with video calling and conferencing, under the guise of services such as Zoom, Skype and FaceTime.
However, there are number of other services available that make it also possible for all participants to communicate with each other from separate countries and time zones. National courts in several countries are also piloting virtual hearing schemes, recognising the impact the internet can have on access to justice.
Conversely, like the rest of the public, Arbitrators, mediators, lawyers, witnesses, experts, parties, are faced literally, overnight, with very severe restrictions. We can no longer move around the world with the freedom with which we have moved up to now; not even inside our own countries. However, even in exceptional situations of this type, this should not pose an insurmountable obstacle to continuing with pending arbitral proceedings but rather, on the contrary, we should consider this new reality as an opportunity to show the merits of arbitration as our local courts should follow the same.
The flexibility which is the defining characteristic of arbitration should permit the use of every kind of telematic and technological resources to go ahead with proceedings without suspending any kind of activity. Even if the use or incorporation of those technological tools were not provided for in the procedural rules of the arbitration in question, they could be incorporated by agreement of the parties and the arbitrators.
With the technology which we have at present, it is obvious that there should not be major problems to prepare and complete the written stage of proceedings: preparing the memorials online with our clients; working with experts using numerous video conferencing systems which exist on the market; receiving, analyzing and submitting documentation online is not a problem.
Vis-a-vis the oral stage (hearings), it is true that suspension is the prevailing option. However, what if this situation goes on too long? The system of justice by arbitration can and must continue and an indefinite deferral of hearings does not seem a reasonable solution. In fact, although suspension is the first option, the fact is that hearings with numerous parties connected by various technological tools for video conferencing are being maintained and conducted. It is obvious that a hearing will be held in which over many persons are participating, between the arbitral tribunal, lawyers, witnesses and experts. All of them connected by a videoconferencing system, displaying documentation online, examining and cross-examining witnesses and experts.
Procedural shortcomings:
Most arbitrators particularly in Bangladesh are unfamiliar with virtual hearings. There are large percentage of Arbitrators who had never or only rarely used them. They may have experienced cloud-based document sharing and video conferencing, but not hearings in which all participants are in different locations.
What is more, their know-how is often stained by technological failures, making them cagey of growing their dependence on technology. What if the video link fails or is of poor quality? What if the access to the documents is cut off without warning? Who will address these technical aspects when everyone is in separate locations?
Another challenge that may concern arbitrators is how to manage a virtual hearing with participants from different time zones. Those who have served in arbitrations with counsel teams located around the globe will be familiar with the difficulty of finding times for even brief tele-conferences that fall within the waking hours of the participants. Arbitrators who draw the short straw (typically those from Australasia) may soon expect to find themselves in hearings scheduled during the “business hours” of the parties and their counsel on a nightly basis.
Many arbitrators may also be concerned that the loss of in-person observation of witness testimony, particularly given under cross-examination, will impair their ability to form an opinion of the credibility and strength of the evidence. It may be difficult to capture the “look and feel” of the witness’s evidence onscreen and for the tribunal members to discern body language, facial expressions and tonal changes.
There is furthermore the concern that the witness may be being coached off-camera or reading from a script hidden from the tribunal’s view.
Punch the drawbacks
We must keep that in mind that in new arbitral proceedings which will be commenced from now onwards all these issues must be taken into account (more than they were taken into account up to now) when drawing up the terms of agreements and other procedural instructions and clauses.
Thus, this situation, which affects all of us, must provide an opportunity to take the step forward and show that the system of arbitration can continue to function, resolving disputes in such difficult situations as that with which we are faced. This crisis will make us reflect, adapt, improve and, therefore, emerge stronger. It will surely be the driving force which we needed to complete the building of a more efficient system of arbitration, less dependent on obsolete traditional rituals derived from the practice in our local courts.
(Md. Mamonor Rashid, an Advocte & Legal Researcher at CM&A-LCP; email: [email protected])
