Questions from afar: examining witnesses using videoconference and the Seoul Protocol

| 6 minutes

The world has undergone incredible social and societal changes with the onset of the global pandemic COVID-19. Many are wondering how the world will look post pandemic [1] once social distancing mandates are lifted, and what the long term impact will be on the way industries conduct business.

The use of videoconferencing allowed parties in commercial arbitrations to proceed entirely virtually despite the imposition of social distancing measures. Notwithstanding this, it is doubtful that entirely virtual arbitrations will remain commonplace post-pandemic (though it has proven itself a viable option when appropriate). A potential residual effect of the widespread use of virtual hearings may be more frequent use of video conference for the taking of evidence from certain witnesses.

Where videoconference will be used to take witness evidence, crafting a protocol that sets out the terms governing the videoconference will be important. It is also a best practice to have the protocol enshrined in a procedural order.

The Korean Commercial Arbitration Board recently adopted the Seoul Protocol on Videoconference in International Arbitration. It provides a starting point for parties looking to craft a protocol for the use of videoconference in taking evidence in international arbitration.

The Seoul Protocol

(i)     Responsibilities

Under the Seoul Protocol, the arbitral tribunal retains the discretion to determine whether the videoconference is unfair to any party and to terminate the video conference accordingly.[2]

The responsibility to make the necessary arrangements to ensure the videoconference can be conducted smoothly falls to the party requesting the use of videoconference.[3]

(ii)    Technical requirements

The Seoul Protocol is equipped with a technical annex providing detailed technical specifications to ensure “sounds and images [are] accurately and properly aligned so as to minimize any delays”.[4]

The practical arrangements that are permissible while remaining in technical conformance with the Seoul Protocol are quite broad. Both of the following arrangements are technically permissible under the Seoul Protocol: a room equipped with dedicated microphones for each participant, and a rotating camera based on the speaker’s voice, or a tablet on a stand.

(iii)    Software and Security

The Seoul Protocol is mostly silent regarding the software platform that may be used for a web based communication, except to note that the parties should ensure that the internet connection is secure and stable throughout the proceedings,[5] and that cross-border connections are “adequately safeguarded so as to prevent unlawful interception by third parties” and suggests the use of IP-to-IP encryption.[6]

(iv)   Support and Contingencies

The Seoul Protocol advises having an on-call individual at each location that has “adequate technical knowledge to assist in planning, testing and conducting the video conference”.[7]

The Seoul Protocol also states that a test videoconference should be conducted at least twice: once in advance of the hearing, and a second time immediately prior to the video conference itself.[8] Backup plans are also to be in place and communicated to all participants prior to the hearing.[9]

How will it work – procedurally

From a procedure standpoint, perhaps the largest considerations are ensuring that documents can be reliably put to the witness, and mitigating the chances of abuse.

(i)     Mitigating possible abuse

Article 3.1. of the Seoul Protocol states that the only persons permitted in the Remote Venue will be: the witness (with counsel if applicable), interpreters, paralegals, and representatives from each party’s legal team on a watching brief.

The Seoul Protocol requires the parties to provide the identities of all individuals who are intended to be present at the Remote Venue in advance of the videoconference, and for the arbitral tribunal to take active steps to verify the identity of each individual present at the Remote Venue at the start of the videoconference.[10]

(ii)    Documents

Article 4 of the Seoul Protocol speaks to arrangements for documents. It provides that the party whose witness is to be examined is the one who must provide the witness with an unmarked and paginated copy of the hearing bundle.[11] The documents are to be made available to the witness at the start of the video conference.[12]

The Seoul Protocol also notes that the parties may agree on a shared “virtual document repository” to be made available to the parties, provided that the parties use best efforts to ensure the security of the documents in doing so.[13] This is likely a best practice as the virtual repository could be used for all witnesses providing evidence by video conference where there are multiple. It also provides certainty for all parties as to what documents are provided to the witness.

In terms of actually referring to the documents themselves, the Seoul Protocol recommends using a separate display screen to show the documents to the witness from the screen used for the video transmission.[14]

(iii)    Miscellaneous

The Seoul Protocol recommends consecutive translation,[15] and prohibits recording the videoconference without leave of the tribunal.[16]

Concluding Remarks

The Seoul Protocol represents a comprehensive protocol that parties may wish to avail themselves of as a starting point for a videoconference protocol to include as part of a procedural order.

The limitation of the Seoul Protocol however, is that like any generic protocol, it is one size fits all. Parties are well advised to tailor the generic language to provide specifics suitable to their particular situation.

[1]https://time.com/5818578/post-pandemic-world-look-like/; https://www.forbes.com/sites/enriquedans/2020/04/01/after-thepandemic/#249b556c65ba

[2] Seoul Protocol Article 1.7.

[3] Article 9.1.

[4] Article 2.1.a.

[5] Article 5.5.

[6] Article 2.1.c.

[7] Article 2.1.b.

[8] Article 6.1.

[9] Article 9.4.

[10] Article 3.1.

[11] Articles 4.1 and 4.2.

[12] Article 4.2.

[13] Article 4.3.

[14] Article 4.4.

[15] Article 7.2.

[16] Article 8.1.

arbitration international arbitration commercial arbitration Protocol

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