9 March 2021 Dispute Resolution Alert

South Africa zooming forward with the AFSA virtual hearing protocol

With COVID-19 reaching South African shores in February 2020, the commercial world, especially us practicing in the alternative dispute resolution space, did not think it would be necessary to find a solution to conduct hearings. It was envisaged by all of us that the Covid-19 pandemic would be over shortly after it began and that all our current hearings would merely be postponed to a future date. Well, we were wrong.

During lockdown, many of us still managed to conduct hearings virtually, through the various online audio video platforms, such as MS Teams, Zoom, and Web Ex and left it in the discretion of the tribunal to dictate the manner in which the hearing would take place. However, the Arbitration Foundation of Southern Africa (AFSA) published the AFSA Remote Hearing Protocol (RHP), which has provided parties with the necessary guidance as to how to conduct virtual hearings, which are administered by AFSA.

So how does the AFSA RHP fair against its counterparts? Whilst many arbitral institutions around the world have recently published guidelines on the organisation of online hearings, the rules of many arbitral institutions do not contain express provisions for virtual hearings, but rather leave it in the hands of the tribunal to conduct the hearing in the most appropriate and practical manner.

Of significance and concern for all ADR practitioners is the giving of expert and factual witness testimony during a virtual hearing. The AFSA RHP addresses this in detail, from the where to the how. Both witnesses and experts are required to give evidence from a remote hearing witness room, seated with the necessary technical equipment, including two or more large computer monitors, with the witness being clearly visible from a camera in front of the witness as well as an overhead wide-angle camera with views of the witness, the desk, the room and the entrance into the remote hearing witness room. Should this technology not be available, the only persons permitted in the remote hearing room is the witness (and the interpreter if necessary), technical assistants, and party representatives on a watching brief. The tribunal may request the witness to angle his camera to provide a 360° view of the room to ensure that no unauthorised persons are present. 

Whilst not as detailed as the AFSA RHP, the Africa Arbitration Academy Protocol (AAAP) contains similar provisions to ensure that witness testimony is not given with the assistance of any unauthorised person and requires the witness to disclose the people present in the room with him or her. Technology for purposes of virtual hearings is not always readily accessible in Africa, particularly for witnesses, and it is encouraging to see the various arbitration centres throughout Africa making their facilities available to those who require the necessary equipment for virtual hearings.

When compared to the guidelines published by arbitration centres such as the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), the Singapore International Arbitration Centre (SIAC) and so on, the AFSA RHP is ahead in the industry, particularly when it comes to witness testimony during virtual hearings. The Seoul Protocol on Video Conferencing is by far the most detailed protocol when it comes to the technical specifications required for virtual hearings, however, insofar as witness testimony is concerned, it is relatively standard, leaving the manner in which the testimony is given under the direction of the Tribunal.

It is encouraging to see that arbitration centres in Africa are keeping up and, in the case of AFSA, ahead of other arbitration centres around the world when it comes to setting out the relevant rules and guidelines for witness testimony during virtual hearings. CDH is proud to have been instrumental in developing the AFSA RHP.

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