Can virtual hearing work in litigation, arbitration?

Can virtual hearing work in litigation, arbitration?

The coronavirus pandemic has altered the way arbitral hearings and litigations are conducted. Virtual hearing has thrown up issues around fair hearing, witness tampering, time-zone management, and security of technology. Will the laws on arbitration and evidence need to be amended to make virtual hearing effective? Deputy News Editor JOSEPH JIBUEZE examines the issues.

Olalekan Hameed was about to be sentenced. But he was not physically before the judge. In normal times, he would be standing in the dock.

This time, Hameed, the judge, the prosecuting and defence counsel and observers, including the Lagos State Attorney-General, were in different locations.

They were connected via Zoom, an application for online video conferencing.

Hameed, a driver, was tried for the murder of his employer’s mother, 76-year-old Mrs Jolasun Okunsanya, on December 1, 2018.

Staring at a computer screen from an office at a Lagos Correctional Centre, Hameed learned his fate via the video conference call: he was to die by hanging.

Justice Mojisola Dada, in the first virtual judgment delivered on May 4, said: “The sentence of this court upon you, Olalekan Hameed, is that you be hanged by the neck until you be pronounced dead and may the Lord have mercy upon your soul. This is the virtual judgment of the court.”

It was the first time a defendant would appear remotely from prison via Zoom. The court held the virtual session to comply with the government’s social distancing guidelines to curb coronavirus.

The virtual hearing may have come to stay. The proceedings in the Hameed case were approved by Lagos State Chief Judge, Justice Kazeem Alogba, in line with the State Judiciary Remote Hearing of Cases Covid-19 Pandemic Period Practice Directions.

The Federal High Court also issued the Practice Directions 2020 for the COVID-19 Period, of which Part F provides: “Virtual proceedings can either be by Zoom, Skype or any other audio-visual platform approved by the court.”

The Hameed sentencing sparked a debate about whether it complied with the principle of fair hearing.

Amnesty International Nigeria Director Osai Ojigho said the judgment could have been delayed, although trial, in which the judge is expected to observe the demeanour of an accused, was concluded earlier.

He said: “We know many courts are exploring how they can continue cases virtually, but the challenge is how much thought has been given to the process for virtual court sittings. In this case, could this sentencing not be delayed to another time?

“Can we say justice was seen to be done in this case, did the public have access to this session?

“It’s worth exploring if the processes that led to the virtual sitting followed the principle of natural justice and a fair hearing.”

At a Nigerian Bar Association (Lagos Branch) forum to discuss virtual hearing, legal experts said the laws allow for flexibility.

This is in view of the fact that Section 266 of the Administration of Criminal Justice Act (ACJA) 2015 requires the presence of a defendant at trial.

Justice Mohammed Liman said while the letters of the law may not have specifically provided for virtual hearings, an allowance can be made for them.

“We should look at what the law addresses, not what it says. The result can be achieved through virtual proceedings. The ultimate requirement for a fair hearing may not have been breached.

“We need to adopt a liberal interpretation of these laws,” he said.

To him, the times mean that the former ways of doing things will change.

“Our concept of reality has to change. We have to shift to virtual reality. If we don’t, the world will leave us there. Let us move with change and be ahead of change,” he said.

A former Lagos Attorney-General Olasupo Shasore (SAN) believes virtual hearing “is a step in the right direction”.

“We need to relax our rules. The Practice Direction is a quantum leap for the profession. We must seize it and grow it,” he said.

A Senior Advocate of Nigeria (SAN), Wale Akoni, noted that there will be practical issues to deal with.

For instance, filing of court processes still requires physical presence because electronic filing has not been effective.

A deponent is also required to be physically present before a Commissioner for Oath to for a witness statement on oath to be endorsed.

Nigeria, he said, could learn how from other jurisdictions where judges determine applications in the absence of parties or their counsel. The judge only relies on documents to make decisions.

Doing so, Akoni said, will require finding other ways of authorising a document, such as by notary publics.

“I don’t think we need to amend the Evidence Act. I don’t think there is any law that says a court cannot adopt a document if all the parties agree on it,” he said, emphasizing that written submissions can remove the need for physical presence.

He added that where “real evidence” needs to be tendered through a witness, “a physical hearing can then be conducted for that witness”.

A former Lagos judge, Justice Olusola Williams, believes that even criminal trials can be done virtually.

“Almost everything we do today is carried out online, so I don’t see how justice cannot be done online.

“Online activities have come to stay and they are a part of life now. Justice can take place even if the trial is done remotely,” she said.

Can virtual hearing work in arbitral hearings?

Arbitration, a form of alternative dispute resolution, is a way to resolve disputes outside the courts.

It involves the use of an arbitrator, who renders the ‘arbitration award’, which is legally binding on both sides and enforceable in the courts.

There is a litany of issues concerning virtual hearings in the arbitral tribunal, and these formed part of discussions at a webinar organised by the NBA Section on Business Law (NBA-SBL).

Several issues were raised around the workability of virtual arbitral hearing. A Senior Advocate of Nigeria (SAN) Chief Anthony Idigbe, wondered how a tribunal would manage party autonomy where a party is not comfortable with, and therefore, objects to the use of technology to deliver a virtual hearing.

The principle of party autonomy as a key characteristic of arbitration means that parties must have substantial control to decide how their arbitrations are to be conducted without the court interfering, except for the purpose of supervision and enforcement of the arbitral award.

Another SAN, Mrs Funke Adekoya, wondered what an arbitrator can do where one party proposes that a virtual hearing be held on an agreed date and the other party refuses.

One other critical issue was raised by Babatunde Fagbohunlu (SAN): “Can a distracted or disinterested tribunal in a virtual hearing form a legitimate basis (for a party) to challenge an award?”

In the same vein, Diane Okoko wondered: “In attempting to balance the need for a fair hearing, how can a tribunal deal with witness coaching where unstable internet connections can be used as an excuse for disconnection during remote hearings?”

Again, there is the question of what can be done to prevent unauthorised intrusions into the virtual hearing room, especially when other witnesses are required to be away.

Also in consideration is the matter of time zones. Adekoya asked: “What time zone should determine the timing of hearings; the location of the arbitral seat, the parties or the arbitrators?”

Prof Paul Idornigie (SAN) sought to know whether, given the disparity in the know-how between the developed and developing countries, African practitioners/institutions are actually ready and will not be at a disadvantage.

Isaiah Bozimo raised this key poser: “In cases where opposing counsel are separated by a wide time gap, would counsel with the inevitable ‘late shift’ have a legitimate argument that they were disadvantaged in the presentation of their case?”

A lawyer Dapo Owoade said: “Sometimes, during teleconferencing, a particular attendee may have intermittent network disruptions. Sometimes apparent, sometimes hard to notice. So what happens if an arbitrator or a party has significant network disruption midway through a session?”

Another question is whether attendant delays will affect the constitutional requirements for determining cases.

The issue of safety of technology is also a factor. Adeyemi Agbelusi wondered whether judicial institutions would create platforms to serve their particular interests.

To him, “it is most inappropriate to conduct proceedings using general video conferencing applications”.

Also in consideration is a limitation in observing the demeanour of witnesses by an arbitrator or a judge.

Folashade Alli wondered: “Wouldn’t virtual hearing impede the proper assessment of a witness in determining the veracity of his testimony?”

With virtual proceedings now part of the “new normal”, Funmi Roberts wondered whether it should be provided for in any new legislation, and in the case of arbitration, whether an amendment to the requisite Act will be needed to accommodate virtual sittings.

Seeking answers

Speaking during the webinar, a Partner at Hogan Lovells in New York, Samaa Haridi, said while there will be an increase in the number of virtual hearings as a result of COVID-19, she does not believe that it will be the end of physical hearings.

“I do think that sometimes there is no substitute for physical hearings,” she said.

With regard to presenting evidence, Haridi believes that the effectiveness of testimony may not be the same as when one is physically present.

According to her, for a virtual hearing to successfully take place, the tribunal has to balance on one hand its duty to conduct the arbitration expeditiously and efficiently, and the parties’ rights to equal treatment and to be heard.

Haridi said it could be helpful to get the parties to sign an agreement that they will not challenge the award should they agree to pursue a virtual hearing.

She pointed out that such an agreement may not ultimately fully protect against a risk of vacatur (Latin term which means “to set aside a judgment.”).

She was of the view that in the scenario where one party is opposed to a virtual hearing, it is necessary to look at the arbitration provision, the relevant institutional rules, the arbitration laws of the lex loci arbitri (Latin term for “law of the place where arbitration is to take place” in the conflict of laws) and any other applicable legal framework.

Haridi, who is the Senior Vice-Chair of the International Bar Association (IBA) Arbitration Committee, noted that the Nigeria Arbitration and Conciliation Act, for instance, is potentially permissive of virtual hearings.

Section 16.2 of the Act provides: “Unless otherwise agreed by the parties, the arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods or other property.”

Haridi said if the tribunal determines to proceed with a virtual hearing, it should be after careful consideration of various factors, including what are the reasons for requesting a virtual hearing; whether all parties have equal access to technology; whether the hearing is heavily focused on argument or on testimonial evidence; or what is the likely delay if the virtual hearing does not go forward.

Haridi, who frequently sits as an arbitrator in international commercial and investment disputes, noted that in a virtual hearing, parties cannot see the environment where the witnesses are, nor can they tell to what extent the witnesses are being coached, or helped.

“These issues need to be addressed by the tribunal and it is incumbent on the arbitral tribunal to remind the parties and counsel that no witnesses should be allowed to confer with counsel or with any parties’ representatives while they are giving evidence.

“Additionally, the tribunal should work to ensure that only the designated individuals are in the room during the hearing, and it could also consider including in the witness oath, where applicable, confirmation that the witness is not being assisted and is not communicating with anyone while giving evidence.

“Given the current environment, and only where appropriate, virtual hearings allow for the administration of justice to continue when physical hearings cannot take place,” she said.

Haridi also spoke about the complexities of finding a good time zone for all concerned, such as where a client is in China and another is in New York (involving a 12-hour time difference).

On security, Isaiah Bozimo, a Partner at Broderick Bozimo & Company, Abuja, said parties must ensure that the app used for a virtual hearing has in-built features that prevent hacking that can compromise the proceedings.

On signing documents, Shasore said electronic signatures may be the way to go.

“I don’t see anything in the Arbitration and Conciliation Act that bars an e-signatory, but a regime will have to mature to accommodate it,” he said.

Going forward, a partner at the firm of SPA Ajibade and Co, Kolawole Mayomi, is of the view that virtual hearing will help courts and tribunals “salvage the fixture pileup”.

“The on-going pandemic challenge presents a good opportunity to the various courts to strengthen the provisions of their civil procedure rules (either by amendment or supplementation by practice directions) to usher in the future of virtual hearing of disputes,” he said.

Observers will be keen to know whether the appellate courts will endorse Hameed’s “virtual” conviction, and what the Justices will say on the legality of virtual hearings when other similar matters go on appeal.