In Africa, the cost of litigation and arbitration can be significantly reduced by conducting more proceedings virtually. However, it is essential to invest in ensuring that these virtual proceedings are fair and enhance access to justice. Addressing the challenges related to virtual hearings could position Africa as a prominent dispute resolution hub.
The question is not whether virtual hearings should be conducted but whether there is sufficient justification for incurring additional expenses associated with physical hearings.
Adapting to Different Dynamics
Virtual hearings have gained popularity, especially in light of the Covid-19 pandemic and associated travel restrictions. However, virtual hearings differ significantly from physical ones, where all participants are present in the same courtroom or arbitration center. For instance, it may be challenging to interpret a witness’s body language accurately in virtual hearings. Therefore, adjustments are necessary to address the absence of physical elements.
These adaptations may include using additional screens to help adjudicators view witnesses, evidence, and transcripts separately. Obtaining expert testimony via virtual hearings can be complex due to difficulties like administering oaths, language interpretation, and witness interference. It can also be challenging to replicate the same level of engagement among participants in virtual hearings as in physical ones. To address this, simple instant messaging platforms and breakout rooms could be used to facilitate discussions.
Challenges to the Adoption of Virtual Courts and Arbitration
Africa has an opportunity to establish itself as a leading dispute resolution hub by addressing the challenges associated with virtual hearings. Some steps have already been taken, such as the introduction of a digital case management system called CaseLines in the Gauteng division of the High Court of South Africa. This system enables electronic filing of pleadings, easier access to documents, and more efficient case management. Other African nations, including Ghana, Egypt, Rwanda, and Kenya, have developed similar computerised case management systems.
However, comprehensive legislation governing virtual hearings is lacking in many African countries, resulting in varying protocols and requirements. Additional investments in internet connectivity, electricity supply, and efficient court processes are needed to ensure virtual courts do not hinder access to justice. Community education is also crucial to help people understand how virtual courts enhance rather than limit their rights.
Many African court systems face administrative backlogs, outdated infrastructure, staffing issues, and resource shortages, making it a significant challenge to revolutionise the system for virtual hearings.
Challenges in Arbitration
In arbitration, there is a lack of standardisation regarding how virtual proceedings should be conducted. However, some steps have been taken to address this issue. For instance, the Association of Young Arbitrators Protocol on Virtual Hearings in Africa, issued in April 2020, addresses challenges specific to the continent and aims to ensure that arbitrations align with international standards.
Virtual hearings have prompted a shift in how arbitral proceedings are conducted. Some traditional court methods, like unlimited duration hearings and reliance on physical copies of submissions, are inefficient in a virtual context. Modern arbitral procedures adapt easily to a virtual environment. For example, opening statements and witness statements can be exchanged in advance of the hearing, reducing time and cost.
Virtual hearings can dramatically lower the cost of international arbitration, as travel and subsistence costs constitute a significant portion of physical hearing expenses. Additionally, witness availability and expert costs are improved in virtual proceedings. Consequently, there is a growing willingness to consider modern arbitral procedures, with the expectation that hearings will be conducted virtually.
The shift to virtual hearings opens opportunities for African practitioners who have not previously been involved in international arbitrations. It allows African parties to participate in arbitration proceedings at a lower cost, promoting the expansion of arbitration practices and expertise within Africa.
In conclusion, the question is not whether virtual hearings should be conducted but whether the additional expenses of physical hearings are justified. The practicality and feasibility of the shift to virtual hearings depend on infrastructure investments and overcoming various challenges. Virtual hearings have the potential to alleviate existing pressures on African court systems.
