As international arbitration continues to become increasingly globalized, and as the technology underlying video conferencing becomes more powerful and sophisticated, it will become common to turn to video conferencing when witnesses are unavailable for in-person examination. The coronavirus epidemic even shows that sometimes video conferencing might be the only option of safely conducting a hearing.
However, every new technology entails certain risks and video conferencing is no exception to this. A tribunal as well as the parties must consider how to effectively, safely and fairly use video conferencing to best serve the interests of the arbitration. These issues have been addressed at the 7th Asia Pacific ADR Conference, held in Seoul, Korea on 5-6 November 2018. The discussions have yielded in the publication of a protocol.
On 18 March 2020, the Seoul Protocol on Video Conferencing in International Arbitration has been released. It is intended to serve as a guide to best practice for planning, testing and conducting video conferences in international arbitration.
The protocol sets forth certain minimum standard that should be observed in regard to the video conferencing location and the camera position. For example, “the witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the witness’s face shall be clearly visible.” (Article 1.3). Further, there are rules on who is permitted to be present in the room with the witness (Article 3) and on how documents to be presented to the witness shall be handled (Article 4).
The technical requirements provide for certain minimum transmission speeds. The minimum resolution should be HD standard (Article 5.1). Although preference is given to ISDN and IP communication lines, parties may agree on a web-based video conferencing solution (Article 5.5). Annex I to the protocol contains further details on the technical specifications.
The video conference may only be recorded with the leave of the tribunal. The recording must be circulated to the tribunal within 24 hours of the end of the video conference (Article 8).
Finally, the protocol emphasizes the importance of proper planning of the video conference (Article 9). The Parties should make the request to the tribunal to use video conferencing at least 72 hours before the commencement of hearing. Importantly, the parties shall inform the participants of any backup plans in case of communication or technological breakdowns.
The protocol presents a sophisticated point of reference for parties or arbitrators planning on conduction a hearing (partially) via video conference. Further inspiration can be drawn from paragraph 10 of the explanatory notes on the CIArb Guidelines for Witness Conferencing in International Arbitration.
It will be interesting to see how video conferencing will develop in international arbitration. It is well imaginable that institutions will start integrating video conferencing solutions in their offerings to the users of arbitration (see e.g. ICDR).