The cost of litigation and arbitration in Africa can be significantly reduced if more proceedings are conducted virtually, but investment is needed to ensure those proceedings are always fair and that they enhance access to justice.
Addressing the challenges around virtual hearings could help Africa position itself as a leading dispute resolution hub.
That was the consensus arising from a discussion on the future of virtual courts and hearings in Africa at a recent event hosted by Pinsent Masons, the law firm behind Out-Law, in partnership with Keating Chambers.
The question is not whether a virtual hearing should be conducted, but rather whether there is sufficient justification for incurring additional expenses associated with a physical hearing
Adapting to different dynamics
Virtual hearings have grown in popularity, and at times become the norm, in many jurisdictions in recent months as the legal and justice systems have adapted to life under the Covid-19 pandemic and the associated restrictions that have been imposed by governments, most notably on travel.
The dynamics of virtual hearings can be very different to physical hearings, where all the participants are present in the same court room or arbitration centre. Sir Vivian Ramsey, international judge and arbitrator highlighted the example of the body language displayed by a witness as one of the elements of physical hearings that may not always be able to be properly perceived in virtual hearings. Speaking at our event, Sir Vivian said that accommodations should be made to address the absence of physical elements lacking in virtual hearings.
One such adaptation includes the use of additional screens to assist the adjudicator with viewing the witness, evidence, and transcript separately.
Obtaining expert testimony via virtual hearings can be complicated. There have been some practical difficulties with witnesses, such as in administering the oath, language interpretation, and witness interference which can be caused by the presence of another person or through other means of communication. In addition, it can be hard to replicate the same level of engagement among participants in virtual hearings – including among the ruling panel – as it would in a physical hearing. Sir Vivian suggested that simple instant messaging platforms and breakout rooms could be used to exchange ideas to address this.
Challenges to the adoption of virtual courts and arbitration
There are opportunities for Africa continent to position itself as a leading dispute resolution hub if it can address the challenges associated with virtual hearings.
Some positive steps have already been taken. The introduction of a digital case management system, CaseLines, in the Gauteng division of the High Court of South Africa has enabled electronic filing of pleadings, easier access to documents and more efficient case management more generally. Other African nations have developed computerised case management systems comparable to CaseLines too, including Ghana, Egypt, Rwanda, and Kenya.
However, within Africa there is a lack of comprehensive legislation governing virtual hearings – in many countries, there is no legislation at all. While this reflects the fact that virtual courts were set up so quickly in many countries to enable the justice system to continue operating throughout the pandemic, the lack of legislation means businesses are likely to encounter different protocols and requirements from case to case around the continent.
More investment is required too to ensure virtual courts can operate effectively. This includes investment in internet connectivity, electricity supply and in established, efficient court processes. This will ensure that virtual court hearings do not impede access to justice and are in-line with more advanced alternative dispute resolution forums, which are mostly privately funded. In addition to the infrastructure investment necessary, community education is also critical to ensure that people understand how virtual courts enhance rather than limit parties' rights.
Most court systems in Africa are burdened with administrative backlogs, outdated infrastructure and systems, staffing systems and a general lack of resources, so the task of revolutionising the system to better provide for virtual hearings is significant.
There are challenges to the adoption of virtual proceedings in arbitration too.
There is a lack of standardisation over how virtual proceedings should be conducted. However, some steps have been taken to address this. The Association of Young Arbitrators Protocol on Virtual Hearings in Africa, issued in April 2020, for example, addresses challenges and circumstances particular to Africa and seeks to ensure that arbitrations are conducted in line with international standards and norms.
Johan Beyers, member of the Cape Bar and Keating Chambers, said that virtual hearings have initiated a shift in terms of how arbitral proceedings are conducted. Some conventional court methods, such as unlimited duration hearings, leading witnesses orally in chief, and reliance on physical copies of submissions, are inefficient in a virtual context. Modern arbitral procedures easily adapt to a virtual environment, however. Beyers highlighted the example of how opening statements and witness statements can be exchange in advance of the hearing to allow the presentation of evidence in chief at the virtual hearing. This reduces the time and cost of the hearing. These measures are already prevalent in international arbitrations and make sense in a virtual environment.
The cost of international arbitration can be dramatically lowered if proceedings are conducted virtually. Approximately a quarter of the physical hearing expenses ordinarily are accounted for by travel and subsistence costs, for example. These additional costs have commonly influenced the approach taken by African parties in international arbitration, with many seeking to settle rather than incur the cost associated with international arbitration hosted in one of the European centres. In addition to the cost savings of travel, the availability of witnesses is improved if proceedings are conducted virtually, and the cost of experts when coupled with limited duration hearings is reduced too. There is now a willingness to consider modern arbitral procedures and the expectation that the hearing will be conducted virtually is universal.
The shift to virtual hearings offers an opportunity to African practitioners who have not previously been involved in international arbitrations as party representatives. It relieves African parties of the requirement to designate legal representation in one of Europe's legal centres, allowing them to participate in arbitration proceedings at a lower cost. As the African legal community develops, this helps to promote the expansion of arbitration practices, resulting in the transmission of arbitration expertise to African practitioners and the eventual development of African arbitrators.
The question, therefore, is not whether a virtual hearing should be conducted, but rather whether there is sufficient justification for incurring additional expenses associated with a physical hearing. What remains to be seen is whether the shift to virtual hearings is practical and feasible given the infrastructure investment needed and the other challenges to overcome, or whether it will help relieve some of the existing pressures, particularly on the court systems in Africa.
Pinsent Masons and Keating Chambers are hosting a further webinar on 20 October on virtual adjudications in Africa. The panel will discuss the increasing popularity of adjudication as a form of alternative dispute resolution in construction projects in Africa and examine the adoption of adjudication in standard form contracts, the prospect of the introduction of regulated adjudication backed by legislation, and the challenges to such schemes on the continent. You can register free for the event.
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