Albert Bates Jr.
R. Zachary Torres-Fowler
As the COVID-19 pandemic continues to upend carefully choreographed arbitration schedules, parties, counsel and arbitrators have expressed interest in the use of video-conferencing technology to manage remote arbitration hearings. And while arbitration is no stranger to video conferencing, the arbitration community has never sought to utilize this technology on the scale being imagined today. As a result, counsel and arbitrators have clamored for guidance on how to effectively structure and manage remote arbitration proceedings.
This post seeks to introduce readers to the “Seoul Protocol on Video Conferencing in International Arbitration” as a potential resource (accessible here). Released in March 2020, but developed long before the COVID-19 global pandemic, the Seoul Protocol offers a standard set of protocols that counsel and arbitrators may turn to for guidance on how to address some of the logistical challenges presented by remote arbitration hearings. While not directly applicable to all circumstances involving video hearings, and principally targeted at international arbitration practitioners, the Seoul Protocol offers helpful default standards that may be more widely applicable to streamline video-conference proceedings.
Some of the key features of the Seoul Protocol are summarized below.
Article 1 – Witness Examination Generally
Article 1 outlines the basic parameters for remote witness examinations, including logistical and technological requirements. Most significantly, Article 1 requires witnesses to present evidence while sitting at an empty desk or standing at a lectern. It also requires the parties to ensure that the witness’s face is clearly visible. Importantly, careful considerations should be made if the witness is accompanied by his or her counsel in the same room, with no other party representative. Further, parties should consider how the use of video technology during witness examination may affect the length of the hearing.
Article 2 – Video Conferencing Venue
Article 2 sets out a series of minimum standards that a venue should satisfy to host a remote hearing. For example, the venue must have on-call technical staff available during the hearing and must have appropriate cybersecurity measures in place. These standards aim to ensure that the video connection is as smooth as possible to avoid disruptions or misunderstandings.
Article 3 – Observers
Article 3 recognizes that witnesses will not always present their evidence alone and accounts for the fact that other individuals may observe the witness’s testimony in the same venue. However, Article 3 limits observers to just counsel, interpreters, paralegals and representatives from each party’s legal team “on a watching brief” (i.e., opposing counsel will have the right to observe the witness’s testimony in person). The Seoul Protocol requires all parties present in the venue to provide their identities to the tribunal before the witness provides his or her evidence; however, Article 3 fails to address a scenario where the witness and his or her counsel are the only individuals present in the room. Under such a scenario, the parties and tribunal must ensure that counsel cannot make nonverbal communications off camera during the witness’ testimony.
Article 4 – Documents
Article 4 establishes standards for documentary evidence presentation during a remote hearing. According to Article 4, the witness must have access to hard or electronic copies of all documents on the record. Further, the Seoul Protocol recommends that the parties make available a separate display (other than the screen used to display the video transmission) to show any relevant electronic documents to the witness during the examination.
Article 5 – Technical Requirements
Article 5 sets out minimum technical requirements that the hearing venues should satisfy to ensure clear audio and video transmission. Specifically, Article 5 recommends that a venue’s video-conferencing technology ensure minimum transmission speeds not less than 256 kB/second and 30 frames/second, and offer a minimum HD standard resolution. Additional technical requirements are set out in Annex 1 to the Seoul Protocol in significant detail. These default standards are particularly useful for counsel hoping to reach agreement on the minimum video-conferencing standards parties must satisfy. Indeed, counsel’s failure to ensure that a venue satisfies the minimum video technology standards could disrupt the witness examination and may ultimately prejudice a party’s right to prosecute or defend its case.
Article 6 – Test Conferencing and Audio Conferencing Backup
Article 6, uncontroversially, requires all video-conferencing equipment to be tested at least twice and requires parties to ensure that there are adequate backups to avoid significant disruption if the principal video-conferencing equipment fails.
Article 7 – Interpretation
Article 7 requires interpretation services to be made available to the witness if necessary and establishes that, as a general principal, consecutive interpretation is preferred to simultaneous interpretation.
Article 8 – Recordings
Article 8 prohibits recordings of the video conference without the tribunal’s permission and requires that any recordings be circulated to the tribunal and parties within 24 hours after the video conference. However, as a practical matter, depending on the size of the video files and the locations of the parties and the tribunal, the 24-hour requirement imposed by the Seoul Protocol may not be feasible.
Article 9 – Preparatory Arrangements
Finally, Article 9 offers something of a checklist of additional logistical issues the parties may consider before conducting a video-conferencing hearing. Article 9 places the burden of making the relevant arrangements on the party requesting a remote hearing — including booking the relevant venues, notifying the participants of the video-conferencing arrangements, and bearing the extra costs of the facilities. Further, Article 9 recommends that the parties agree to a seating plan to allow all participants to see each other during the hearing.
Overall, the Seoul Protocol is a useful set of standards for parties and arbitrators seeking resources on precisely how best to address the logistical challenges presented by a remote arbitration hearing. However, as indicated above, the Seoul Protocol is not comprehensive, and parties and arbitrators must carefully consider all of the logistical challenges of a video hearing under their case’s particular circumstances. As the COVID-19 pandemic continues to expand, and video-conferencing technology increasingly becomes a more common method of managing arbitration hearings, experience among the arbitration community will expand and best practices will continue to evolve. For those seeking guidance, however, the Seoul Protocol is a good place to start.