A FIRST IN THE COURTROOM
Will virtual courts and arbitration hearings be the new normal for the judicial process?
AFIRST-time scenario in the courts was witnessed on April 23, when the Court of Appeal went online for a virtual hearing of a case involving three individuals against a transportation company.
The hearing was conducted live showing a three-man Court of Appeal bench, lawyers and deputy registrar going into the listed matters from their homes and offices.
We are not alone as on the same day, the Jackson County district court in the United States, also started conducting virtual hearings during the novel coronavirus pandemic.
The Covid-19 pandemic may be what is needed for a different view of how the world views the norm. The “new normal” seems to be the catch phrase of the day.
The impact of the viral outbreak may be the trigger for us to look and think differently. It is timely that virtual hearings are accepted as the new normal rather than physical meetings.
Previously we never had to think about social distancing. We were never told to avoid large gatherings. We never had to stay home in fear of a disease that has wreaked havoc with peoples’ lives and global economy.
Perhaps walking away from the norms of physical court hearings and arbitration hearings inevitably may bring us towards what we desire, a closure for the parties? As Andrew Lloyd-Webber’s famous musical shows are streamed every weekend around the world, “The show must go on” and it will, by the wonders of technology!
Arbitral institutions have an important role to play in developing practices and protocols.
An important guideline is the International Criminal Court’s Guidance Note on Possible Measures Aimed at Mitigating the Effects of Covid-19 Pandemic which was published on April 9.
The procedure provides for cyber-protocol that ensures compliance with data privacy regulations between the parties and the arbitrator and the proceedings.
Such measures shall also deal with the privacy of the hearing and the protection of the confidentiality of electronic communications within the arbitration proceeding and any electronic document platform.
Another instrument that has released guidelines on virtual hearings is The Hague Conference on Private International Law draft of “Guide to Good Practice on the Use of Video-Links Under the Evidence Convention”. If we adopt the procedures in these guidelines, we will be ready to proceed with virtual hearings. The benefits of virtual arbitration are by no means few.
David A. Zeigler said that arbitrators are now much more accessible due to the cancellation of proceedings so accessibility is one important advantage.
Proceedings may be tailored to the parties and the arbitrator’s preferences. Thus, virtual hearings today are a necessity, especially if there is to be a live hearing without further delays.
The priority today is that the wheels of justice are kept turning whilst minimizing the risk of spreading the virus between the parties in the dispute resolution process; in the courts protecting the bench, bar and members of the public and in alternative dispute resolution modes; the arbitrator, mediator, lawyers and the parties.
In conclusion, by moving ahead with virtual court and arbitration hearings we are by no means ignoring established legal principles or guidelines, nor are we offending any of the constitutional rights entrenched in the Federal Constitution, but moving towards a “recovery phase” from Covid-19 obstacles.
By going virtual, we are looking at the world of dispute resolution in a broader view, one that does not take for granted the limitations of mundanity. The writer is research fellow at the Faculty of Law, Universiti Malaya and she can be reached at gracem@um.edu.my