As lawyers, we have also had to innovate to navigate the “new normal” – Samaa Haridi
Interview with Samaa Haridi and Nathan Searle
The global spread of COVID-19 is impacting all industries in all directions. In your opinion, how has the legal system been affected by this pandemic?
Samaa Haridi: Although the COVID-19 pandemic has had varying degrees of effect depending on the region, one commonality with regards to dispute resolution globally is that because of the restrictions on movement and physical distancing rules, parties and decision facilitators and makers (mediators, arbitrators and judges) have had to consider holding virtual hearings. Virtual hearings are not a novelty, and prior to the pandemic, courts and arbitral tribunals were to some extent familiar with virtual measures, including electronic filling, virtual taking of evidence, and virtual hearings, although they were not common place. Prior to the pandemic, these virtual measures were adopted based on convenience and efficiency as opposed to necessity which is the current situation.
Nathan Searle: The pandemic has indeed caused great disruptions, and businesses have had to adapt to the new reality. Law firms are no exception to that. As lawyers, we have also had to innovate to navigate the “new normal” and to continue supporting and advising our clients during what has been an unprecedented crisis.
The COVID-19 pandemic has prompted all stakeholders (including businesses and institutions) to innovate and make significant changes to the ways they do business. How is the legal industry responding to this unforeseen situation?
Nathan Searle: The legal industry continues to innovate and respond as this unprecedented crisis has continued to unfold. Given the restrictions on travel and movements, law firms have had to find ways to stay connected to their clients, and keep them informed of the quickly changing legal environment we all operate in. The numerous platforms allowing virtual meetings and webinars have been tremendous in keeping us close to our colleagues and clients.
Samaa Haridi: Events and meetings going virtual has allowed us the opportunity to connect even more as one global international arbitration team. During this pandemic, the Hogan Lovells International Arbitration team has stayed connected and collaborated extensively. We have managed to turn this unprecedented crisis into an opportunity to work together as one seamless team from every corner of the globe while still being in the comfort of our own homes.
In your opinion, what are the advantages of virtual hearings?
Samaa Haridi: The main advantage of virtual hearings in the current situation we find ourselves in is that they offer a way for the wheels of justice to keep turning whilst safeguarding the health of each stakeholder. As the only option available to parties, counsel, arbitrators, and witnesses on lockdown, virtual hearings have allowed for arbitrations to proceed, where appropriate. Not every dispute can effectively be heard in a virtual setting, and it is important to balance the principle of due process with that of equality between the parties to carefully balance the exigencies at hand to decide the best way to proceed with every given dispute.
Nathan Searle: More generally, virtual hearings present the advantage of reducing global travel and the associated time and costs. Given the very nature of international arbitration – with parties, counsel, witnesses, and tribunals often spread around the world – the use of technology to conduct entirely on-line virtual hearings can result in tremendous savings and efficiencies. Virtual hearings also lead to greener arbitrations as they decrease carbon emissions and use of paper, which have positive impacts on the environment.
What steps have various legal communities taken to support participants in dealing with this new reality?
Samaa Haridi: With regards to virtual hearings, the Hogan Lovells’ International Arbitration team put together a Protocol for the use of technology in virtual international arbitration hearings (HL Protocol). The HL Protocol was designed as a general guidance on possible best practices in conducting virtual hearings to help ensure a smooth arbitral process with minimal technical issues. The HL Protocol is highly relevant to the current times we live in, and may be used after we return to some expected level of normalcy when virtual hearings are not the only option available to the parties. The Africa Arbitration Academy also issued a Protocol on virtual hearings in Africa. I was a member of the technical committee who reviewed the Africa Protocol, which is context-specific and takes into account the specific challenges and circumstances that may arise in relation to virtual hearings within Africa.
Nathan Searle: In the UK, there has been issuance of practice directions to provide guidance as to the conduct of remote hearings. Whilst most court buildings remain open, the objective is to undertake as many hearings as possible remotely. Physical hearings are to only take place if a remote hearing is not possible and suitable arrangements can be made to ensure safety. There has also been an improvement in the court’s technological infrastructure to support virtual hearings. However, there is recognition that there are some types of case in which the interests of justice require an in-person hearing such that these must be delayed until such a hearing can take place safely. Regarding arbitration, the London Court of International Arbitration (LCIA) rules allow hearings to take place by video or telephone, and LCIA issued a guidance stating that it might be appropriate for certain hearings to be held by telephone or video conference rather than in person. Similarly, in Nigeria, the National Judicial Council issued guidelines for court sittings and related matters during the pandemic. These guidelines encourage the courts to insist on virtual court sittings for matters that do not require the taking of evidence. The Nigerian National Judicial Council guidelines further state that when a matter does require the taking of evidence that such matters should not be called up by the courts at this time, unless they are extremely urgent and time-bound. There are also provisions related to electronic filling, the fee payments, social distancing, face masks, and temperature monitoring within the court premises.
How do we ensure procedural fairness in the context of a virtual hearing?
Nathan Searle: To ensure procedural fairness, we need to ensure that parties receive equal treatment. This means considering the time-zones and locations from which the various parties, witnesses and Tribunal are joining. For example, in some cases fairness may require shorter hearing times each day in order to have the hearing conducted during a time period that is reasonable for all stakeholders involved. It is also critical to allow adequate time to allow all parties to deal with and resolve technical issues. We are also finding that virtual hearings can become tiring quickly opposed to face to face hearing and it can be more difficult for members of the legal team and client to give instructions to the lead advocate. Increasing the frequency and number of breaks is one way to address these potential challenges.
Samaa Haridi: Focusing specifically on the issue of witnesses and evidence, it is paramount that tribunals remind parties and counsel prior to commencing virtual hearings that witnesses should not confer with counsel or party representatives while giving evidence. We specifically address this in our HL Protocol. As outlined in the HL Protocol, tribunals should clarify and affirm in oath that only authorised persons are in the room, that witnesses are not receiving any assistance, and that the witness is not aware of what documents will be shown to them by opposing counsel.
Is there anything inherent in communicating virtually which would cause a due process concern in virtual hearings?
Nathan Searle: Where one party has repeated technical issues and the other does not, it can break up the flow of submissions. Thus a transcript of the proceedings can be helpful to capture what is said and ensure there is comprehensive written record. Also, as the majority of our communication is through body language, it can be more difficult, depending on the quality of the virtual hearing platform being used, to pick up visual cues.
Samaa Haridi: Beyond due process, communicating virtually may also raise difficulties as maintaining eye contact and observing body language and assessing a witness’s credibility can be more difficult. There is something lost in translation in terms of advocacy when a hearing happens virtually, and there is no answer on how to recoup that.
What are the possible best practices in conducting virtual hearings to help ensure a smooth arbitral process with minimal technical issues?
Samaa Haridi: The HL Protocol outlines certain best practices that should be considered in virtual proceedings, including:
- Time zones: Where participants in the hearing are based in different time zones, preference should be given to individuals and witnesses with special circumstances such as health, family concerns, etc. No party should be expected to partake in a hearing at an unreasonable time based on their individual time zones, and the Tribunal will determine the proper timing and should allow at least, an eight-hour gap between the end of one session and the start of another.
- Platform & Security: The chosen video-conferencing platform should be password-protected and all other security features of the platform should be utilized to ensure that the platform is secure.
- Enforcement risk: Prior to the hearing, the parties should, to the extent possible, sign a joint agreement that videoconferencing constitutes an acceptable means of communication permitted by the applicable rules, the parties have agreed to the use of videoconferencing as the means for conducting the arbitral hearing and no party will seek to resist the enforcement of any resultant arbitral award on the basis that the arbitral hearing was not held in person. This will not entirely protect against a risk of set aside, but it is a prudent measure to adopt in cases where all parties agree to proceed with a virtual hearing.
- Witnesses: When providing witness testimony, counsel and the witness, the witness should be visible to counsel and counsel should be visible to the witness at all times during the examination. The witness should not use a “virtual background” and the remote venue from which they are testifying should be visible.
- Document sharing: The parties may agree to utilize a cloud-based storage service to host all documents introduced during the course of the proceedings. Any sensitive electronic documents should be password-protected. If third-party cloud storage is used to transfer documents, the parties should take adequate steps to ensure that such storage systems are password-protected and secure. It is advisable to use a document sharing platform that can be managed by a technology consultant during the duration of the hearing, which permits all viewers to simultaneously view the document/ passage being discussed.
What challenges do you envision in the adoption of virtual hearings?
Nathan Searle: One challenge that may not seem obvious at first is creating the sense and feel of a courtroom with minimum distractions for all participants. This can be especially so where lockdown measures mean that are people are confined to their homes, so that an advocate or witness may be joining from their kitchen table or a sofa in their living room. If lockdown measures mean that schools are closed, those attending the virtual hearing may be doing so from a space shared with others and potentially with background noise from children and/or pets.
Samaa Haridi: Regarding time zones, sometimes it is just impossible to find a convenient time for instance, when participants are located in two different continents such as Asia and America. However, prime consideration when determining hearing time should be given to the testifying witnesses because they have less familiarity with the proceedings.
Taking into account the specific challenges and circumstances that may arise in relation to remote hearings in Africa, including access to reliable technology, what recommendations do you propose?
Samaa Haridi: The Africa Arbitration Academy Protocol on Virtual Hearings covers some Africa-focused guidance that can be of assistance in carrying out virtual hearings in Africa. For instance, one major issue that is prevalent in Africa is access to high-end technology, software, and equipment, as well as strong internet connection. The African Arbitration Academy Protocol in response to this states that “where any of the parties do not have access to the technology, software, and equipment to be used for virtual hearings, parties may solicit arbitral institutions or other centres in Africa, suitable to the parties that can offer their venues for conducting virtual hearings. The technological and connection services offered by arbitral institutions or centres are often reliable and can provide the necessary equipment, software, high-quality internet connection, and minimal chance of signal interruptions”.
Do you envision virtual hearings becoming the norm?
Samaa Haridi: There are various criteria to consider when deciding to adopt a virtual hearing, and one of the major considerations is how fact intensive the case is and how much fact evidence will be given during the hearing. The impact of evidence may differ in a physical hearing versus in front of the computer, particularly where a case is heavily reliant on testimony, and the credibility of a witness is key to the case. Thus while there will be an increased use of virtual hearings long after the pandemic because we are getting more used to and accustomed to these virtual platforms, I do not think it is the end of in-person hearings because sometimes there is just no substitute for in-person hearings.
Nathan Searle: As Samaa said, there would definitely be a greater use of full or partial virtual hearings even after COVID-19, however, in specific cases there are benefits to having the tribunal, counsel and key witnesses in the same room.
Times of crisis have historically also been opportunities for change. Are you optimistic that as we emerge from this, it could be a chance to create an even more efficient legal system?
Nathan Searle: The pandemic has definitely sped up the level of innovation, adaptation, and technological advancement in the legal sector, and I am positive that we will emerge from this pandemic with a more technologically advanced, innovative, and efficient legal system for resolving disputes.
Samaa Haridi is a civil and common law-trained, trilingual lawyer who represents corporations and financial institutions from all over the world in international commercial and investment arbitration, under the rules of all major arbitral institutions. She also frequently sits as an arbitrator in international disputes. Samaa has been ranked by clients and peers in Chambers USA and Chambers Global for International Arbitration.
Nathan Searle is a partner in Hogan Lovells’s international arbitration group, acting for large multinationals in complex and high-value international arbitrations and cross-border disputes. He has extensive experience in African related disputes and coordinates the firm’s disputes practice in the region. Nathan also has experience in other emerging markets including Asia, India, Russia and the CIS. He is currently appointed to the LCIA African Users Council as councillor, a co-chair of the LCIA’s Young International Arbitration Group (YIAG) and is a member of the Advisory Board for the Association of Young Arbitrators (AYA).