October 16, 2021

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Problems that arise in virtual cross-examination especially in an arbitration proceeding

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This article is written by Ronika Tater, a student of University of Petroleum and Energy Studies, School of Law. In this article, she discusses the challenges caused due to virtual examination and cross-examination in arbitral proceedings similar to that of a trial procedure in a civil court and also a solution for it.

Table of Contents

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The world is still at the mercy of COVID-19, which has disrupted the normal functioning of courts and especially the justice delivery system and the settlement of disputes through in-court hearings. Hence, the demand and evolution of technology have accelerated. Artificial intelligence and other digital tech trends are increasingly finding widespread use in different industry. During the COVID-19 pandemic, arbitral institutions have adopted information technology to manage arbitration proceedings by shifting to electronic filing and encouraging the use of videoconferencing for hearing.

Although, considering party autonomy and rights to due process as it would affect the finality of arbitration awards. Nevertheless, with the advent of technology as an alternative means for conducting proceedings, several challenges have been brought forward before the adjudicating authorities. One of the main problems that arise due to virtual hearing is the conduct of the examination of witnesses.

Arbitration is governed as per the provision under the Arbitration & Conciliation Act, 1996 ( hereinafter referred to as “Act”), it is a form of alternative dispute resolution (ADR) and a way to resolve disputes outside the courts. The disputes will be decided by one or more persons (the ‘arbitrators), which renders the arbitration award as per Section 34 of the Act. an arbitration award is legally binding on both sides and enforceable in the courts.

Arbitration to alternate dispute settlement offers more flexibility to the parties as party autonomy is the main element here. In arbitration, it gives the parties an option to determine the process by which they can conduct the proceedings. Section 19 of the Act states that an arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (CPC) or the Indian Evidence Act, 1872. The rules enumerated in the CPC and the Indian Evidence Act, 1872 are not binding upon the arbitral tribunal, but it has been noticed and held by the Indian judiciary that the principles are similar to that of an arbitral tribunal.

In the case of Sukhbir Singh v. M/S Hindustan Petroleum Corporation Ltd, the Delhi High Court discussed whether an arbitral award could be set aside under Section 34 of the Act as the arbitrator did not permit cross-examination of the witness in the arbitral proceeding. It was held that the request for an oral hearing could be declined only in exceptional cases and in the present case there are no circumstances to deny cross-examination by the arbitrator. Hence, it is concluded that examination and cross-examination of witnesses in arbitral proceedings is the same as that of a trial proceeding in a civil court.

Examination and cross-examination of witnesses over a virtual platform poses several challenges as below-mentioned:

Interaction with a different actor in arbitral proceedings

The virtual environment affects several issues of evidentiary and technical point between and with the cross-examining counsel, the witnesses, the experts, the arbitrators and the adjudicating authorities.

The credibility of witness testimony

One of the shortcomings due to virtual hearing is the credibility of the witness testimony as this would lead to biases on the part of arbitrators to access the evidence. A witness due to lack of knowledge or unfamiliar with an online forum may not be able to maintain direct contact with the camera. This leads to the possibility that the witnesses may be engaged in unfair means as reading documents, tutoring by the advocate due to proximity and prompting on the question asked by the arbitrator. It may even pose a challenge on the part of an arbitration panel discussion based on evidence, this leads to unconscious bias of the tribunal towards particular witnesses as visual, communication and behavioural personality based on gender, age, social background, gender. Order 18 Rule 12 of the CPC provides the court to record such remarks respecting the demeanour of the witness under examination. However, through the virtual eye, it may be difficult for the arbitrator to predict.

The lack of technological infrastructure

Section 18 of the Act provides equal treatment of parties and each party shall be given equal opportunity to present his matter. This brings the requirement of uniform rules and regulation to conduct the examination and cross-examination of witnesses via video-conferencing to ensure all parties concerned are under one roof to access the system at a possible time. International arbitration proceedings involve parties from all across the globe. A witness situated in a developing country of India or Africa may not have access to the same technology as that of high-speed internet witness in Europe.

Translation and interpreters

Translation and interpreters present additional challenges in virtual settings in case if the witness requires interpretation to participate in the proceeding network connectivity and speed would be a problem. However, the opposing party may choose to check with the translators to the accuracy during the physical hearing, but this set-up may be difficult in virtual hearing as it is compounded by connectivity difficulties and the quality of video conferencing sounds and speed.

Confidentiality and security of information

Privacy is the arbitral proceeding and is essential in the smooth running of the proceedings, however, due to the virtual hearing the potential security breaches are raised, when multiple parties, witness, legal authorities and adjudicating authorities are using a home network which is an easy prey for hackers to crash the proceedings at any time and intrude the proceeding as well. Thereby, imposing data theft and delaying the process of proceedings. Reasonable precautions concerning data protection, privacy, and cybersecurity should be checked before the start of the arbitral proceedings to ensure an appropriate level of security for the arbitral proceeding.

Responsibilities on the part of the arbitrator

The arbitrator has the responsibility to manage efficient hearing, balancing the conflicting interest, smooth flow of proceeding and due process. The process involved in the arbitral proceeding is crucial as it may form the grounds to challenge the enforcement of the award. UNCITRAL Model Law deals with the equal treatment of parties and their rights to due process. While considering procedural order in virtual hearing the arbitrator should be acquainted with various models and guidelines. The International Institute for Conflict Prevention and Resolution (CPR) offers a model for such kind of order dealing with virtual hearing and considering parties rights to reduce problems and misunderstanding in future.

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Consideration for parties

In an arbitration proceeding, the parties are free to decide the arbitrators and the rules and protocols for their proceeding. If the parties choose to implement any particular protocol or procedural order for virtual hearing, it is presumed on the behalf of the parties that they have to conform with the protocol,  model, the cost and benefit of doing so. Any party concerned with lack of access to technology should raise the concern before the proceeding and propose a solution for the same. The parties and the arbitrators should ensure that the arbitration proceeds fairly and smoothly. In case of any breach of party rights, the party may follow the below-mention remedies:

  • In case of any issue with the award, the party may seek redress before the same court, jurisdiction as the seat of the arbitration to set aside or reconsider the award.
  • Challenge the award in an appropriate jurisdiction.

Section 68 of the Act provides the party with a right to challenge an award in certain circumstances where there has been severe irregularity or injustice caused to the applicant. However, the new procedural challenges introduced by virtual hearing may include technological interruptions and issues with interpretation as a legal ground under the provision Section 68 of the Act. Also, Section 33 of the Act, can be the legal ground that the tribunal has failed to comply with its duty to act fairly and impartially as between the parties and provide equal opportunities in virtual hearing.

The credibility of witness testimony

This problem can be solved through preparation, practice and accessibility of the witnesses by the legal team on how to use the online platform so that his focus is not diverted during the arbitration proceedings. The effect of virtual hearings based on evidence is uncertain, it is certain that witnesses can be prepared for the examination to avoid any injustice.

Lack of access to technology

The existing concern that the technology for conducting the examination is misplaced. However, the court is adapting to artificial intelligence to overcome the burden of courts by making feasible access to technology not only in the urban area but to the rural area. Electronic hearing facilitates the review of submission of referenced legal authorities, statements, expert reports in one click. Moreover, there are various guides and protocols published by arbitral institutions that the parties can adapt to ensure fair use of technology. The technological standard should be agreed between the parties before the virtual hearing to ensure fair means of the arbitration proceeding. The Seoul Protocol on Video Conferencing in International Arbitration sets the rules and guidelines for holding matters of international arbitration through video-conferencing to serve as a guide for planning, testing and conducting the virtual hearing in international arbitration. The following guidelines and rules to abide by are below-mentioned:

  • To ensure confidentiality and sanctity of the arbitral process.
  • To ensure the video conferencing system at the venue shall take place at a reasonable part of the interior room with a screen located in the same room of witnesses.
  • It prevents tutoring of witnesses and any other malpractices.
  • To ensure transparency and accessibility of the arbitral process
  • It preserves the sanctity of the process of examination and cross-examination of witnesses. 
  • It provides details of technological requirements and specification to minimise the unfairness and creates a uniform standard for the concerned parties.
  • It also gives power to the tribunal to terminate the video-conferencing on the knowledge of unfair means from either party at any time. 

                   

The modernized procedures followed by the Indian Council of Arbitration, one of the leading arbitral institutions in India has adopted the International Commercial Arbitration Rules to handle a vast number of arbitration cases through the medium of video conference, telephone or any other relevant means of communication as per the rules of the International Commercial Arbitration. Furthermore, in the era of technology, it is an advantage since the parties are the residents of different countries and it will lead to cost-effective arbitration proceedings within the statutory timelines and protection of parties autonomy.

The increasing restrictions and lockdown in the country have seen the rise of virtual conduct of proceedings which is already a norm in international commercial arbitration. Considering the situation, the Arbitral Tribunals with the changing technology and the strict statutory timelines enumerated in the Arbitration and Conciliation Act, 1996, may shift to video conferencing for feasibility as well as cost-effective in domestic arbitration proceedings. In the post-COVID era, technology is going to be the key feature in the arbitral process. In India, through Arbitration and Conciliation (Amendment) Act, 2019, the government seeks to tackle the problem of a lack of specialized arbitrators and also, to make India a hub of institutional arbitration for both domestic and international arbitrations.

However, the amendment lacks various challenges such as any specific procedure for the designate of an arbitration institution. Hence, the need for a specific procedure and government guidelines to regulate the arbitral process including the examination and cross-examination of witnesses via video-conferencing and to ensure uniformity and protect the integrity of the arbitral process and equal opportunity to all the concerned parties is of utmost importance. 

  1. https://www.mondaq.com/india/arbitration-dispute-resolution/840292/the-arbitration-and-conciliation-amendment-act-2019-key-highlights.
  2. https://iccwbo.org/content/uploads/sites/3/2017/01/ICC-2017-Arbitration-and-2014-Mediation-Rules-english-version.pdf.pdf.
  3. http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024.

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