COVID 19Hot Off The PressNews

In view of the sudden spurt and spike in Covid-19 cases in the NCT of Delhi and issuance of ‘yellow alert’ in Delhi by GNCTD,  this Court shall, with effect from 03.01.2022, take up the matters, as per the existing arrangement with regard to the listing of cases, through virtual mode only.

The Courts of Registrar and Joint Registrar (Judicial) shall also take up matters through virtual mode only.

The District Courts in Delhi shall also, with effect from 03.01.2022, hold Courts through virtual mode only. The video-conferencing links of the Courts shall be made available on the website/ cause-list(s). The Principal District and Sessions Judges, in consultation with the DG (Prisons), shall make necessary arrangements for extension of remand of UTPs. Wherever required, the UTPs may be produced through video-conferencing.

The aforesaid arrangement shall continue till 15.01.2022. The entire situation shall be reassessed and reviewed, shortly. All the stakeholders including court-staff, required to come to the Courts, shall get themselves fully vaccinated and shall strictly adhere to the norms of social-distancing and Covid-19 protocols, guidelines, directions, etc. issued by the Government of India, Government of NCT of Delhi and this Court from time to time.


[Public Notice dt. 30-12-2021]

Delhi High Court

Op EdsOP. ED.

Introduction

“There can be no life without change, and to be afraid of what is different or unfamiliar is to be afraid of life.”

— Theodore Roosevelt

Arbitration is often hailed for its exemplary flexibility and time effective process, as an ingenious dispute resolution mechanism. With physical hearings of courts, tribunals, etc. coming to a halt[1], Covid-19[2] pandemic made virtual hearings, the new normal. Virtual arbitration or even virtual adjudication is an unconventional eventuality that has been spurned upon the legal fraternity across oceans. Wherein, the legal fraternity was used to appearing in person before the courts or various tribunals, everyone has been thrust to a world of remote hearing, as a matter of urgency and desperation so that the judiciary is not overburdened due to a major time lapse.

It is often said: “justice delayed is justice denied”. In order to tackle the preceding issue, the Indian judiciary came up with effective solutions to move forward with their work and manage the rise of cases as they come, as justice never sleeps. Howbeit, there was a certain lack of illumination in regards to our alternate dispute resolution mechanism i.e. arbitration. Wherein our country and judiciary hails themselves to be a pro-arbitration regime, they sure have failed to take charge to emphasise that stance. With hearings in arbitration hardly moving past the initial stage, we have become what one might call “stagnant”. As a developing arbitration regime, being stagnant in this time and day is unpropitious news. In order to avoid becoming a dinosaur in the arbitration community, our country would have to take major significant steps to curb the conundrum which our country does not fully realise.

Vis-à-vis the aforementioned inception, the authors have penned down their thoughts on virtual arbitration in India. The article highlights the benefits and downfalls in virtual hearings in arbitration through an analysis undertaken by White & Case, elucidates the existing procedural framework and deals with the legal and ancillary issues subsisting and posed by the Covid-19 pandemic, concluding with the way forward for India to effectively adapt and tackle the predicament in order to become a hub for arbitration in the future.

A statistical analysis by White & Case

Internationally renowned firm, White & Case, in association with Queen Mary University of London and School of International Arbitration conducted a survey.[3] It stated that the use of virtual hearings has been brought upon as a result of Covid-19 pandemic. It has allowed for people to evaluate the alternatives available to in-person hearings.[4]

Inter alia, the survey pinpointed the wish of the people and exhibited their opinion on virtual arbitration hearings. When posed with the question of procedural delay and scheduled hearing dates which would be hampered as a result of this pandemic, 79% surveyors opted for advancing with virtual hearing on the pre-decided date rather than uprooting the process and causing a procedural delay, 16% opted for postponing the hearing and 4% opted for an award to be delivered based on the documents submitted in front of the Tribunal.[5] So much so, that 40% of arbitrators said they would do without an oral hearing for any procedural matter[6] and 87% would prefer to hold a virtual hearing if an in-person hearing is not an alternative.[7]

It even highlighted the advantages of virtual hearings with 65% going for more benefits of more available dates for hearing, 58% highlighting greater efficiency through use of technology, 55% opting for greater procedural and logistical flexibility, 34% choosing less environmental impact compared to in-person hearings inter alia.[8] Speaking of disadvantages, 40% each chose multiple time zones issues and harder in-between hearing conversations between client and counsel, respectively. 38% stated concern over controlling their witnesses and their credibility, 35% each over technical malfunctions and screen fatigue respectively. Confidentiality and cybersecurity also found 30% of people voting for it as a concern for virtual arbitration. 27% and 15% of the people voted for difficulty in reading arbitrators and other participants and expressed concern on arbitrator’s ability to confer during sessions respectively. Last but not the least ethical or procedural issues and enforcement of awards stood at 11% and 8% respectively.[9]

It is clearly visible from the above survey that virtual arbitrations are not the pariah as they are made out to be. Innovation is termed as need of this hour and in hindsight, by hiding behind the curtain of a pretend pro-arbitration stance, India has basically shot themselves in the foot.

Procedural framework for arbitrations: The rudiment of all dispute resolution

A concrete foundation for a prospective arbitration is actualised via the legal framework that is made applicable to it. It is of paramount significance that the governing/procedural law, substantive law of the contract and the seat is selected as per the peculiar requirements of each party at the time of drafting of the arbitration clause or agreement. India has been taking leaps to strengthen its own procedural framework so as to advance India’s ease of doing business rankings and establish the nation as a growing hub of alternate dispute resolution (hereinafter “ADR”). The Arbitration and Conciliation (Amendment) Act, 2015[10] (providing time limitations, fast-track procedures, narrowing scope of public policy, etc.), the Arbitration and Conciliation (Amendment) Act, 2019[11] (providing for the courts to make reference to certain arbitral institutes, formation of the Indian Arbitration Council, mandating confidentiality, etc.) and the Arbitration and Conciliation (Amendment) Act, 2021[12] (removing qualifications for empanelling as arbitrator) have been notified by the Government. The State is cognizant of institutes like International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), London Court of International Arbitration (LCIA), Australian Centre for International Commercial Arbitration (ACICA), International Centre for Settlement of Investment Disputes (ICSID), etc. that have tried to minimise disruptions from the pandemic by issuing relevant virtual protocols. There is much to learn from these soft law instruments and these can be used as guiding principles while creating the Indian arbitral framework.

Covid-19 and arbitral best practices

With the onset of the Covid pandemic, arbitral friendly nations and institutions perceived the inevitability of the evolution of virtual hearings and accepted this challenge with utmost compassion. Choosing the right arbitral institution with facilities such as e-filing of documents, live help-desk features, panel of emergency arbitrators, panel of experts on various subjects, protocols for online dispute resolution, cybersecurity policies, etc. would solve half the dispute at hand. Many of these institutes like Singapore International Arbitration Centre, World Intellectual Property Organisation (WIPO), etc.  have also been using, third-party management services such as those of Maxwell Chambers to meet their logistical needs through curated meeting rooms, breakout rooms, screen-sharing facilities, etc.

Timely case management conferences to determine procedure and choosing the right meeting platform are the cornerstone of a successful arbitral session.[13] Necessity is the mother of invention and India needs to provide impetus for the creation of platforms like Cisco Webex, Zoom, etc. with end-to-end encryption under its Make in India and Digital India initiatives. Online meeting etiquette dictates that meeting time be decided keeping in mind the difference in time zones (if any)[14] of the parties, giving proper notice, providing a list of participants who will be present in the meeting and sticking to the agenda of the meeting.[15]

Speedy and complete justice can be guaranteed by tweaking procedure to include more partial awards for different issues, accepting only documentary submissions for adjudicating upon issues and no evidence[16], allowing very limited arguments on certain contentions,[17] identifying issues that can be resolved without witness statement or expert evidence, etc.[18] A documents-only procedure as adopted by SIAC[19] or use of Redfern Schedule for limiting documentary production[20] are suitable examples of a hybrid procedure. The only way to conceive virtual arbitrations in India is through digitisation, both in terms of procedure adopted in the arbitration and in working of appellate court. Arbitral awards in India have to be rendered in writing[21], have to bear the arbitrators’ signatures[22], have to be delivered to the parties[23] and have to be submitted to Court in order to be recognised and enforced. However, Section 5 of the Information Technology Act, 2002[24] (hereinafter “the IT Act”) provides that a digital signature has the same effect as that of a paper signature and thus, digitally signed copies/scanned copies sent via e-mail[25] and original copies sent via post (as is being done by the leading arbitral institutes[26]) both can be filed in Court for enforcement of the award.

Legal and ancillary issues that converge in virtual arbitrations: Can they be dealt with?

Various challenges may be posed in virtual arbitrations but the authors herein have discussed some core issues to exhibit how they can be dealt with effectively by the parties, Tribunal and the appellate courts. The fundamental principle of each solution is that every virtual arbitration will endorse mutual consent juxtaposed with party autonomy, to ensure equity.

I. Accessibility to internet services and technology

Virtual arbitrations in the time of a pandemic will go on to secure justice for all as enshrined under Article 39-A of the Constitution.[27] However, as of now, only 55% of the Indian population has access to internet[28] which is now a protected right under Article 19 of the Constitution.[29] Only 23% of the urban and 4% of the rural population possesses computers,[30] which creates obstacles in accessibility to technology for virtual hearings. In the same way, certain hardware and infrastructural requirements are also supposed to be met.[31] Although infrastructure comprising hardware, LAN, DG set, UPS, internet connectivity and CIS software is available in the premises of almost all the lower courts, their usage has to be completely overhauled. E-governance initiatives in India, recognising the lacuna of accessibility of internet services and technologies, creation of more common service centres (CSS) and legal aid cells around the country and promotion of institutionalisation of arbitration can plug these administrative loopholes and allow virtual arbitrations to flourish in India.

II. Arbitrability of complex disputes

While simple contractual matters may easily be dealt with in virtual arbitrations, multi-party matters with multiple claims and voluminous evidence may render the process inaccessible.[32] While considering resolution of complex disputes the Supreme Court held that, “There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”[33] Modified procedures such as considering the nature of the dispute before passing an order/direction for e-disclosure, retention or preservation of e-documents[34] will have to be made the norm. Therefore, wherever possible, virtual recourse must be sought.

III. Technological complexities

Videoconferencing facilities have been set up across various Benches of the Income Tax Appellate Tribunal (ITAT) such as Ahmedabad, Delhi, etc., turning them into e-courts,[35] and an e-filing portal has been instituted for the ITAT.[36] Digital Negotiable Instruments Courts have been set up by the Delhi High Court’s State Court Management Systems Committee (SCMSC) for disposal of cheque dishonour cases.[37] These examples are testament to the fact that if proper protocols and logistics are adopted, virtual arbitrations can be made a reality too.

The key is to conduct training/orientation sessions for the parties, arbitrators, etc. to gauge the features of the meeting platform such as chat and breakout features and to families themselves with trouble-shooting features of the meeting platform.[38] Adequate training of judicial officers in computerisation is necessary and is underway,[39] although it needs to be ramped up exponentially. Similarly, the SIAC has been training a number of their counsel in the Secretariat to provide technological support.[40] Thus, even though differing technical capabilities may complicate the inception of virtual hearings,[41] user-friendly platforms, proper training and spreading awareness about e-initiatives can help in navigating through them.

A “data disruption” and “meeting disruption” policy will cater to technological issues, so that parties are not excluded from any part of the hearing without their consent.[42] These include internet connectivity issues, dropped calls, audio-video disruption, etc.

IV. Cybersecurity, privacy and data protection

Various cybersecurity protocols such as ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) can be referred to secure safety of the parties. A prior agreement on the participants allowed into the meeting, proper identification and verification of participants done before the commencement of the virtual hearing, etc. will ensure that there is no breach of trust amongst the parties involved.

The right to privacy being a fundamental right in India, private information disseminated during such proceedings must be handled with caution. The protocols provided under the Personal Data Protection Bill, 2019[43] and the Personal Data Protection Bill, 2018 and the EU General Data Protection Regulation (“GDPR”) can be followed for limited processing, storage, transmission and erasure of information for all principals. Express consent for processing information and record of said processing will rein in data protection and privacy concerns. Password protected and secured personal networks can be accessed for internet connectivity, rather than public networks. Filing of documents, correspondence and posting of orders in e-format can be done through secure online channels/dockets[44], on a cloud service,[45] through a licence fee-based documents sharing platform, so that it is accessible to all parties, as is their right.[46]

V. Confidentiality

Section 42-A, added by the 2019 Amendment Act imposes data confidentiality obligations on the parties and the arbitrator. Confidentiality, an implied aspect of arbitration,[47] may be achieved by the arbitrator by binding all parties and participants involved to a confidentiality undertaking. Adopting a confidentiality clause or rules of a designated arbitration service provider that require specified confidentiality levels, can also have the same effect. Professional meeting software can be used to ensure meetings are end-to-end encrypted and are not infiltrated by Trojan horses or bugs and have provisions of breakout rooms for privileged communication.

VI. Admissibility and veracity of virtual evidence

The definition of “evidence”[48] under the Indian law includes all statements made by a witness in  court and documents, including e-documents (they are legally recognised as records[49]) produced in court. The Supreme Court has held that evidence recorded in videoconferencing “would be as per procedure established by law”[50] and therefore, would be well within the periphery of due process of law. In fact, very recently, the Delhi High Court asked appearing counsel to submit video recordings along with concise documents containing their arguments to adjudicate upon a matter virtually.[51]

So long as the accused and/or his pleader are present while the evidence is recorded by videoconferencing, the evidence is said to be taken in the “presence” of the accused[52] and will be admissible. If the videoconference is set up in the presence of the Judge himself, the requirements of recording evidence under Sections 274[53] and 275[54] of the Code of Criminal Procedure, 1973 will be fulfilled too.[55] The natural corollary, ergo, is to apply these ratio decidendi to virtual arbitrations as well, as they are ejusdem generis to court proceedings. Commissions issued by the courts under CrPC have been permitted to record evidence of unavailable witnesses, through video conferencing.[56] Similarly, the court may issue commissions under the Arbitration Act[57] to provide electronic evidence to the Tribunal and penalties/disadvantages may be imposed on the persons failing to attend them.[58]

VII. Witness examinations

India is not completely amiss of the merits of virtual examinations and has allowed them in the past.[59] It has been stated that videoconferencing would allow seeing the witness better, observing their demeanour, replaying or rehearing their deposition and testimony.[60] Witness statements and their examination must be sought on live meeting, under oath[61] and in the presence of the learned arbitrator and relevant court officers, after seeking proof of identity of the witness. All relevant exhibits and documents being used in the process of examination must also be provided to the opposing party prior to the commencement or shared at the time of the hearing with the opposing party[62] and to the witness for their perusal.[63] If questions put to the witness and the answers given by them are typed by a stenographer and made visible on the screen, it will ensure transparency in the process.[64] Reasonable opportunity must be given to the counsel to object to questions and statements put to their witnesses.

The Tribunal must not conduct the witnesses examination or allow adduction of evidence in the absence of parties, unless the parties have otherwise chosen to remain absent, despite proper notice.[65] Despite the concerns surrounding virtual arbitrations, they work to eliminate visual, behavioural and verbal bias that is created in the mind of the Tribunal and put the spotlight solely on the testimony presented.

VIII. Witness coaching

To ensure that the witness is not coached/prompted, a party may require its duly empowered legal representative to be present at the location of the witness, upon having sought the permission of the Tribunal. For a witness outside India, an officer of the Indian Consulate/Embassy may be placed in the room with the witness.[66] Moreover, the witness may be asked to show his surroundings via camera to prove that there is no one else present with him.[67] He should not be allowed to confer with his counsel,[68] use virtual backgrounds or use electronic devices other than the computer during the hearing.[69]

IX. Challenge to proceedings

If awards pronounced in virtual arbitrations are challenged under the garb of unfair treatment of parties or the public policy umbrella, the credibility of such arbitrations is thrown out the window. A work-around can be for parties to agree to not challenge the award or seek its annulment on the ground that the proceedings were not held in-person.[70] Moreover, parties are estopped from challenging a mutually decided procedure[71] and strict interpretation of public policy[72] will render such challenges infructuous in the court of appeal. Furthermore, even the Supreme e-Committee draft rules suggest that proceedings conducted by way of videoconferencing are judicial proceedings.[73]

X. Costs

As per Section 31-A of the Act, all expenses incurred in connection with the arbitral proceedings are included in the definition of “costs” and as a general rule, the losing party bears such costs, unless there is an agreement between the parties stating differently. Some protocols require the requesting party to bear costs for videoconferencing facilities,[74] whereas some mandate equal cost sharing.[75] The Tribunal may also refuse the request to use novel technology upon an analysis of the unreasonable financial burden it lays down on parties.[76]

XI. Due process

Due process holds the Government subservient to the law of the land and protects individuals from the excesses of State.[77] Conscious use of technology like teleconferencing and videoconferencing should be encouraged as they can replace the formal physical settings and manifest into a more efficient and smoother arbitral process.[78]

The Arbitration and Conciliation Act, 1996[79] (hereinafter “the Act”) or the 1985 UNCITRAL Model Law on International Commercial Arbitration[80] on which it is based, have no overt references to virtual arbitrations. Section 18 of the Act only talks about the treatment of parties with equality and the provision of adequate opportunity to present their case, in line with the principles of natural justice. The juristic principle of audi alteram partem is enshrined under Section 18 and the principle constitutes a fundamental policy of Indian law.[81] Thus, it only needs to be ensured that:

(i) There is availability of proper internet and infrastructure for all the parties involved that provides them a sufficient opportunity to argue their case.

(ii) No party is heard in the absence of the other as it would constitute a violation of fundamental principles of natural justice.[82]

(iii) Real-time transcripts or video records of the proceedings[83], will also be available to the differently abled.

(iv) Interpreters will be used, whether in a staggered manner or simultaneously.[84]

Section 19(2) gives the parties autonomy to choose the procedure to be followed in the proceedings, which could be virtual or physical hearings. If a procedure is not agreed to, Section 19(3) mandates the Tribunal to conduct proceedings in the manner it considers “appropriate”, ex aequo et bono, after giving due reasoning[85] and ensuring that requirements under Section 18 are met.[86] Thus, virtual hearings may be conducted by the Tribunal either via oral hearings or on the basis of documents and other materials submitted by the parties.[87] Brief, coherently structured written submissions also reduce the likelihood of error and help in saving time.[88] Since Section 24(3) ensures full disclosure of applications filed, reports and documents referred to etc. between the parties and the arbitrator, the mandate of due process will definitely be upheld.

Objections to virtual hearings

Before taking such a decision, Tribunals are to remain flexible[89], consider all the circumstances and consequences of the Covid-19 pandemic, the pertinent reasons for proceeding with the virtual hearing, the nature and complexity of the case, adequate time for the parties to prepare, enforceability of such an award and adopt procedures that are not contrary to the agreement between the parties.[90] An opportunity will be given to the objecting party to raise their concerns and the Tribunal will address said concerns and record reasons for its decisions.[91]

Section 20(3) of the Act allows the Tribunal to “meet at any place it considers appropriate for consultation.”[92] Similarly, a switch from the “physical venue” to the “online virtual venue” can also be done if it is deemed necessary. In Adani Ennore Container Terminal (P) Ltd. v. Kamarajar Port Ltd.,[93] the Madras High Court ordered the parties to the dispute to have a Zoom meeting to see if there is any scope for mediation between them.

Section 24 allows documentary or oral hearings, but does not mandate in-person hearings and cannot be equated to the latter necessarily.[94] “In person” may simply mean a live, adversarial exchange which may be done virtually.[95] Evidence taken over videoconferencing also suffices the requirements under Section 273[96] of the Code of Criminal Procedure, 1973 as the witness is perfectly visible. Electronic discovery of documents is permissible under Section 24 and the scope of the discovery can be limited to what is strictly necessary.[97] This is useful when conducting virtual arbitrations and is a widely accepted practice.[98]

Therefore, it can be deciphered from the above that not only is it possible to conduct virtual arbitrations, but they also have inherent benefits that will reflect in any such proceeding.

Overview and analysis

Virtual arbitration in essence cater to the needs of a section of the society that are completely forgotten in conventional arbitrations in India — the differently-abled individuals. Chairperson of the e-Committee of the Supreme Court recently wrote a letter to the Chief Justices of the High Courts to make provisions for the disabled and physically challenged in terms of filing cases, attending proceedings in an accessible manner, etc.[99]  Accessibility is a natural corollary to Articles 14, 19(1)(g) and 21 of the Constitution and virtual arbitrations help solve the issue of accessibility for all. Meetings can be accessed from the comfort of a home and interpreters/translator/sign language experts can provide specialised aid to the parties/counsel to make their submissions,[100] which may not be possible in an open, in-person hearing.

Effective access to justice is a part of the basic structure doctrine, conceptualised by the Supreme Court.[101] Under the 1996 Act, disposal of both domestic and international commercial arbitrations disputes is time-bound[102] which propels speedy justice in India. However, due to the pandemic, conventional arbitrations have been adjourned sine die which is against the mandate of the Act. Complications may come as part and parcel with virtual hearings, but the solutions are equally ubiquitous. Early case management conferences, a widely accepted practice in all leading arbitral institutions and can help determine the applicable procedure, rules, logistics and clarify the concerns of the parties towards this revolutionary virtual experiment. Prospective arbitrators, technical specialists, etc. can be trained at par with international standards[103] and empanelled in alternate dispute resolution (hereinafter “ADR”) Committees set up by the High Courts in their jurisdiction. The 2020 Ordinance promulgated by the President has also omitted the Eighth Schedule to the Act which provided for minimum qualifications to become an arbitrator, thereby, opening the door for everyone to set foot in the realm of arbitrations.[104] Gaps in technological knowhow continue to challenge the proposed scheme of virtual ad hoc arbitrations. The learning curve is steep but proper coaching, awareness about third-party management services and institutional arbitrations, grant-in-aid for infrastructural costs and good faith between the parties can plug the administrative loopholes that exist in this realm. There also have been various discussions about use of artificial intelligence to aid the user with management and automated service processes.[105] Various protocols have been effectuated to cater to cybersecurity issues,[106] such as the ICC issued ICC-NYC Bar Protocol[107] or the IBA issued Cybersecurity Guidelines.[108]

It is rightly said that justice delayed is justice denied. Therefore, rather than running away from the problem, we must face the challenge head on and with utmost vigour. Arbitration matters that have been stuck in oblivion due to the pandemic can finally be put to rest by the mutual cooperation of the parties[109] and thus, it is necessary that all stakeholders come together and support each other to make virtual arbitrations a new reality.


Associate at Jurisconsultus, Advocates, Business & Commercial Solicitors. Author can be reached at aafreenchoudhary1@gmail.com.

†† LLB 2021, Lloyd Law College, Greater Noida can be reached at dhruv.srivastava4@gmail.com 

[1]Mohamed S. Abdel Wahab, Chapter 1: Dispute Prevention, Management and Resolution in Times of Crisis between Tradition and Innovation: The COVID-19 Catalytic Crisis in Maxi Scherer, Niuscha Bassiri, et al. (eds.), International Arbitration and the COVID-19 Revolution.

[2] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog.

[3]White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[4] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 21.

[5] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 20.

[6] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 14.

[7] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 22.

[8] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 23.

[9] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 24.

[10] Arbitration and Conciliation (Amendment) Act, 2015.

[11]  Arbitration and Conciliation (Amendment) Act, 2019.

[12] Arbitration and Conciliation (Amendment) Act, 2021.

[13]In a recent letter written to Justice Dr D.Y. Chandrachud, the Madhya Pradesh State Bar Council has highlighted the glitches, disruptions, heavy data load and complicated user interface of the “Jitsi” platform which is being used by courts all across India to conduct virtual hearings. See Khadija Khan, Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/Webex: M.P. Bar Council Chairman writes to Justice D.Y. Chandrachud (29-6-2021, 7.30 p.m.), Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/ Webex: M.P. Bar Council Chairman Writes to Justice D.Y. Chandrachud (barandbench.com).

[14]Indian Arbitration Forum, Protocol on Virtual Hearings for Arbitrations, Para 2(a)(ii), p. 2, September 2020 accessed at <https://indianarbitrationforum.com/wp-content/themes/iaf/assets/IAF-Protocol-on-Virtual-Hearings-for-Arbitrations-Oct-2020.pdf> (indianarbitrationforum.com).

[15]International Chamber of Commerce, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic, Para 8, p. 2, 9-4-2020 accessed at <https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf> (iccwbo.org).

[16] Satpal P. Malhotra v. Puneet Malhotra, 2013 SCC OnLine Bom 689.

[17] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228; Also see Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492.

[18] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdfPara 8, p. 2.

[19] Singapore International Arbitration Centre, SIAC Covid-19 Frequently Asked Questions (FAQs) (30 June, 4.39 p.m.), SIAC Covid-19 Frequently Asked Questions (FAQs) <www.siac.org.sg/faqs/siac-covid-19-faqs>.

[20] See Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018; also see, Thiess Iviinecs India v. NTPC Ltd., 2016 SCC OnLine Del 1819.

[21] The Arbitration and Conciliation Act, 1996, S.  31(1).

[22] The Arbitration and Conciliation Act, 1996, S. 31(1).

[23] The Arbitration and Conciliation Act, 1996, S. 31(5).

[24] Section 5, Information Technology Act, 2002.

[25] Delhi High Court, Guidance Note for Conducting Arbitration Proceedings by Video Conference 2020, Para 2.3, p. 2, (30 June, 4.50 p.m.), Public Notice_QS9BF6S2KSA.PDF (delhihighcourt.nic.in).

[26] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at < http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[27]Constitution of India, Art. 39-A.

[28] Niti Aayog and United Nations, SDG India Index & Dashboard 2020-21 Partnerships in the Decade of Action, p. 136 (1-7-2021, 4:00 p.m.), accessed at <https://www.niti.gov.in/writereaddata/files/SDG_3.0_Final_04.03.2021_Web_Spreads.pdf>.

[29] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[30] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in)

[31]72% of the judicial officers emphasised the development of better infrastructure and 8% wanted the internet facilities to be improved. See National Council of Applied Economic Research, Evaluation Study of eCourts Integrated Mission Mode Project (1-7-2021, 5.41 p.m.), Evaluation Study of eCourts Integrated Mission Mode Project <www.doj.gov.in/sites/default/files/Report-of-Evaluation-eCourts.pdf>

[32]TadasVarapnickas, Will COVID-19 Revolutionize Arbitration? What’s Next for Business and Arbitration?, TGS Baltic Webinar.

[33] Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560.

[34] Chartered Institute for Arbitrators, Protocol for E-Disclosure in International Arbitration, International Arbitration Protocol, Art. 3.1, p. 3  accessed at <www.ciarb.org/media/1272/e-iscolusureinarbitration.pdf>.

[35] Special Correspondent at The Hindu, e-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July 7.21 p.m.),  The Hindu.

[36] Press Information Bureau, Law Minister Shri Ravi Shankar Prasad Launches “itat e-dwar”, an E-Filing Portal of Income Tax Appellate Tribunal. Portal will Enable Online Filing of Appeals, Applications, Documents, etc. by Various Parties. Cases of Income Tax Appellate Tribunal should be Integrated in National Judicial Data Grid: Shri Ravi Shankar Prasad (1-7-2021, 3.34 p.m.), Press Information Bureau <www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1730394>

[37] Delhi High Court, Digital NI Act Courts, (1-7-2021, 2.20 p.m.), Digital NI Act Courts <www.delhidistrictcourts.nic.in/digitalnicourts.html>

[38] International Institute for Conflict Prevention and Resolution, CPR Model Procedural Order for Remote Video Arbitration Hearing, Para B(2) accessed at NEW: CPR’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings | CPR International Institute for Conflict Prevention & Resolution Inc. (cpradr.org); also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf >  Para B(ii) and (v), pp. 2, 9.

[39] Ministry of Law and Justice, Initiatives Towards Computerisation of Courts, Initiatives Taken by the Ministry of Law & Justice During the Two Years of the Present Government (1-7-2021, 5.35 p.m.), accessed at <https://lawmin.gov.in/sites/default/files/2year-achi.pdf> (lawmin.gov.in).

[40]Singapore International Arbitration Centre, Open Letter from SIAC President (1-7-2021, 3.15 p.m.), (Open Letter from SIAC Court President) Arbitration at SIAC during COVID-19.pdf

[41]Gabrielle Kaufmann-Kohler and Thomas Schultz, The Use of Information Technology in Arbitration, Jusletter, December 2005, at 62, available at <http://lk-k.com/wp-content/uploads/The-Use-of-Information-Technology-in-Arbitration.pdf> (hereinafter “Kaufmann-Kohler & Schultz”); Christoph Liebscher, The Healthy Award: Challenge in International Commercial Arbitration 243-273, 344 (2003).

[42] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[43] Personal Data Protection Bill, 2019.

[44] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr>

[45] Seoul International Dispute Resolution Center and KCAB International, Seoul Protocol on Videoconference in International Arbitration, Art. 4.3, 18-3-2020 accessed at <www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024>; also see Hogan Lovells Protocol for the Use of Technology in Virtual International Arbitration Hearings, Art. 3.2(a), p. 7, April 2020 accessed at  <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_09_hogan_lovells_international_arbitration_digital_hearing_protocols.pdf> (hoganlovells.com)

[46] Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131.

[47] Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc., (2008) 5 MLJ 254.

[48] The Evidence Act, 1872, S. 3.

[49] The Information Technology Act, 2000, S. 4.

[50] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601.

[51] Sat Prakash Soni v. Union of India, 2020 SCC OnLine Del 2027.

[52] The Code of Criminal Procedure, 1973, S. 273.

[53] Section 274 CrPC.

[54] Section 275 CrPC.

[55] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 19.

[56] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 20.

[57] Arbitration and Conciliation Act, 1996, Ss. 27(4) and (6).

[58] Arbitration and Conciliation Act, 1996, S. 27(5).

[59]International Planned Parenthood Federation v. Madhu Bala Nath, 2016 SCC OnLine Del 85; also see Twentieth Century Fox Film Corpn. v. NRI Film Production Associates (P) Ltd., 2003 SCC OnLine Kar 22.

[60]World Intellectual Property Organization, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at paras 19 and 20.

[61] Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551.

[62] Special Correspondent at The Hindu, E-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July, 7.21 p.m.), E-Court Launched at Income-Tax Appellate Tribunal in Chennai — The Hindu; Hogan Lovells , Art. 3.2(b), p. 7.

[63]See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog; Hogan Lovells  at Para 5(g), p. 9.

[64] Same protocol followed by the Bombay High Court in videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551; also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  Para E(iv).

[65] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[66] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Paras 5(i) and (iii), p. 10.

[67] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 5(d)(iii), p. 9.

[68] Africa Arbitration Academy, Africa Arbitration Academy Protocol on Virtual Hearings in Africa, Para 2.1.4, p. 7, April 2020 accessed at <https://www.africaarbitrationacademy.org/wp-content/uploads/2020/04/Africa-Arbitration-Academy-Protocol-on-Virtual-Hearings-in-Africa-2020.pdf>  (africaarbitrationacademy.org).

[69] Recently, the Delhi District Court allowed a mutual application moved on behalf of the parties for the recording of evidence through videoconferencing. Guidelines were put forth by the court to ensure that the witness is not being tutored while evidence is being recorded and in case there appears to be any prompting on the side of the witness, or if he deliberately keeps disrupting his internet connection, the proceedings will be adjourned. This can be applied to virtual arbitrations.  See Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[70] The Information Technology Act, 2000, S. 4; also see World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.10, p. 5.

[71]Jagjeet Singh Lyallpuri v. Unitop Apartments and Builders Ltd., (2020) 2 SCC 279.

[72]Govt. of India v. Vedanta Ltd., (2020) 10 SCC 1; also see Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131; also see Associate Builders v. DDA, (2015) 3 SCC 49.

[73] E-Committee of the Supreme Court of India, Draft Video Conferencing Rules, Para 3(ii) (1-7-2021, 6.20 p.m.) accessed at <https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2020/08/2020082629.pdf> (s3waas.gov.in).

[74] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in) at Art. 9.1.

[75]World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.9(f), p. 5.

[76]International Chamber of Commerce, ICC Commission Report Information Technology in International Arbitration, Para 1.2, 2017 accessed at <icc-information-technology-in-international-arbitration-icc-arbitration-adr-commission.pdf> (iccwbo.org).

[77] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 have read the due process doctrine into Art. 21, making them in severable parts of each other.

[78]Law Commission of India Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Point 16, p. 13 (2-7-2021, 8.40 p.m.)

[79] Arbitration and Conciliation Act, 1996.

[80] UNCITRAL Model Law on International Commercial Arbitration, 1985.

[81] Associate Builders v. DDA, (2015) 3 SCC 49.

[82] Sulaikha Clay Mines v. Alpha Clays, 2004 SCC OnLine Ker 79.

[83] E-Committee of the Supreme Court of India, Draft Model Rules for Live-Streaming and Recording of Court Proceedings, Para 10, p. 13 (30-6-2021, 1.15 p.m.), Rules on Live Streaming (mygov.in); also see Hague Conference on Private International Law, Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention, p. 98 (30-6-2021, 12.24 p.m.) <https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf> (hcch.net); also see Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[84] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 3.5, p. 7.

[85] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para D(iii).

[86] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228.

[87] The Arbitration and Conciliation Act, 1996, S. 24(1).

[88] Kiran Chhabra v. Pawan Kumar Jain, 2011 SCC OnLine Del 803.

[89] Narendra Kumar Anchalia v. Krishna Kumar Mundhra, 2002 SCC OnLine Cal 485.

[90] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Paras 18 and  22.

[91] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 2, p. 2.

[92]In line with this, the venue of arbitration was changed from Kuala Lumpur, Malaysia to London, due to the breakout of the Severe Acute Respiratory Syndrome (SARS) virus, which was designated as a mere physical change in Videocon Industries Ltd. v. Union of India, (2011) 6 SCC 161.

[93] 2020 SCC OnLine Mad 2708.

[94] Yvonne Mak, Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore (8-7-2020, 7.15 p.m.), Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore — Kluwer Arbitration Blog; <http://www.scconline.com/DocumentLink/Dgqf5o4W>.

[95] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para 23.

[96] Section 273 CrPC.

[97] Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018.

[98]Pyrrho Investments Ltd. v. MWB Property Ltd., 2016 EWHC 256; Da Silva Moore v. Publicis Groupe SA, 11 Civ 1279 (ALC) (AJP) (SDNY 2012) Judge Peck; Irish Bank Resolution Corpn. v. Quinn, 2015 IECH 175.

[99] ANI, Need to Create Accessible Infrastructure for Lawyers, Litigants, with Disabilities: Justice D.Y. Chandrachud to High Courts (29-6-2021, 12.40 p.m.), Need to Create Accessible Infrastructure for Lawyers, Litigants with Disabilities: Justice D.Y. Chandrachud — The New Indian Express.

[100]Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551 at Para 5.9.3.

[101]Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 .

[102] Arbitration and Conciliation Act, 1996, S. 29-A.

[103] See New Delhi International Arbitration Centre Act, 2019, S. 29(1), No. 17.

[104] The Arbitration and Conciliation (Amendment) Act, 2021, S. 4.

[105] Aditya Singh Chauhan, Future of AI in Arbitration: The Fine Line between Fiction and Reality (29-6-2021, 8.51 p.m.), Future of AI in Arbitration: The Fine Line between Fiction and Reality — Kluwer Arbitration Blog.

[106] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  at 14; also see Claire Morel de Westgaver, Cybersecurity in International Arbitration — A Necessity and An Opportunity for Arbitral Institutions (29-6-2021, 8.47 p.m.), Cybersecurity in International Arbitration – A Necessity and An Opportunity for Arbitral Institutions — Kluwer Arbitration Blog.

[107]ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) ICCA Reports n6-v4-A5-v4 (arbitration-icca.org).

[108]International Council for Commercial Arbitration, The ICCA-IBA Roadmap to Data Protection in International Arbitration accessed at ICCA-IBA Roadmap to Data Protection in International Arbitration: 2020 Edition (arbitration-icca.org).

[109]Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

Hot Off The PressNews

Writing to Justice Dr. DY Chandrachud, after waiting for a response from the Chief Justice of Madhya Pradesh High Court for over two months, the Madhya Pradesh States Bar Council has has drawn Justice Chandrachud’s attention towards the serious concerns of a large number of advocates having day-to-day hearings before the High Court and has sought for introduction of an effective, efficient, user-friendly, and convenient virtual hearing platform for convening the virtual Court proceedings.

Currently, since the onset of the COVID-19 pandemic, the Madhya Pradesh High Court has been carrying out its virtual hearings on the “Jitsi platform”, which is neither user-friendly nor convenient for both, the lawyers as well as litigants.

“As in the case of physical Court, the justice must be accessible’ convenient; in the case of virtual Courts, the softwares and the applications that are being employed for convening virtual Courts must be completely user friendly, which meets all the desired expectations which make the virtual courts efficient, non-interruptive and hassle-free.”

The letter highlights that in the ongoing COVID-I9 proceedings, where 25-30 advocates are appearing, most of the time are not able to comprehend submissions of the counsels, nor the lawyers appearing on the screen are able to fathom the oral observations of the Court. From the last two dates, the hearings had to be suspended due to technical glitches.

“This is nothing less than deliberately trivialising the justice dispensation system, wherein the whole system is continuing on the same application/software despite facing day-to-day regular problems with it, that too on a matter concerning the life and livelihood of the larger number of citizens of the state who are facing the wrath of the COVID-19 pandemic.”

The letter, hence, urged, Justice Chandrachud, who is the chairperson of the E Committee Project, to Iook into the matter and push for the introduction of appropriate steps, which may resolve the problems faced by the Iawyers of the country.


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Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., addressed a concern wherein it was stated that the NCLAT and NCLT ought to have an open link where parties who are interested can join the proceedings.

The instant petition was filed to seek the provision of open or virtual links for attending hearings in the National Company Law Tribunal and National Company Law Appellate Tribunal.

High Court’s opinion on perusal of the affidavits filed on behalf of the NCLT and NCLAT was that the forums like NCLT and NCLAT, which have a high quantum of work, ought to be permitted to regulate their own procedure so long as the same is not arbitrary.

In virtual hearings, there is a possibility of enormous disturbance if there is no regulated entry.

NCLAT and NCLT submitted that whenever links are required, there are separate ‘active’ and ‘viewing’ links shared with the parties. They also added their concern that lawyers mention matters which may not have been listed on the particular date causing enormous disruption in the hearings if open links would be provided.

Hence in view of the facts and circumstances, Bench directed NCLT and NCLAT to regulate their own procedure for virtual hearing platforms so long as it is ensured that if any particular party requests for a link, the same would be considered in a fair, transparent and non-arbitrary manner.

To the extent possible, parties would be permitted to view the proceedings.

 While concluding, High Court held that since virtual hearings are a measure adopted to ensure that Tribunals and Courts are functioning during the COVID-19 pandemic, the Petitioner, if he wishes to join any particular hearing, may write an e-mail at least 24 hours in advance to the Deputy Registrar of the NCLT and NCLAT. The same shall be considered in accordance with the NCLT and NCLAT’s own procedure, in a fair, transparent and non-arbitrary manner. [Deepak Khosla v. NCLAT, 2021 SCC OnLine Del 1214, decided on 08-03-2021]


Advocates who appeared before the Court:

For the Petitioner: Deepak Khosla, Advocate

For the Respondents: Chetan Sharma, ASG with Dev P. Bhardwaj, CGSC, Amit Gupta, Vinay Yadav, Sahaj Garg, Akshay Gadeock &  R.V. Prabhat, Advocates for UOI.

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

COVID 19Op EdsOP. ED.

Whether the remote hearings are on an online dispute resolution (ODR) platform, or  e-courts hearing the urgent reliefs; there are very many loopholes that the Indian legal system is going through currently. And I will try and throw light on some of them in this article.

All of us are stuck in an unfamiliar and unprecedented situation with coronavirus wrecking hell in our lives. We all know that we are far from finding a solution to this problem. Even if, hypothetically and focussing on a distant silver lining; the lockdown is lifted ; we will still have to voluntarily practice social distancing.

We should not ideally be exposed to public places or places where there are more than say 4 people. And even if there are only 4 people, coming from different places and backgrounds, you don’t know if it’s safe to be amongst them. Accepting this reality, we all know it is going to be difficult for courts to function normally for a long time now. So, we are at the mercy of technology, online dispute resolution and remote hearings to survive and try and normalise the court hearings as much as possible.

However, we are also far from being good and efficient at remote hearings or using online dispute resolution effectively. It’s been almost a month since the courts started hearing urgent cases through remote hearings. Hearing the court experience, and other experiences from platforms and other modes of dispute resolution, this article aims to talk about the practicalities that we need to take into consideration for remote hearings.

Let me start my addressing the technical considerations that one will have to be mindful of:

1. INTERNET BANDWIDTH

The first and foremost hindrance, especially in India will be the internet bandwidth. We are a country which doesn’t have 5G yet. Efforts are being made to reach there, but currently we do not enjoy 5G services.

These days where parents are working from home; also have children who are attending online schools. Both of them use the internet and hence if someone wants to be on a video call using the same wireless internet, it becomes difficult for them. Of course we have our mobile internet to be used as hotspot but does that suffice the bandwidth we need? Now, I’m no engineer or I don’t understand the technicalities of what internet speed we require, but out of personal experience I know that what we have is not enough.

So, amidst lockdown we’re all hooked on the internet and all of us are going to have to be able to deal with the limited resources.

I will give you another example, I was recently attending a webinar hosted by SIAC talking about making the shift to online arbitration. The irony here is that the moderator himself had to leave the session midway because of internet connection issues. Just imagine the contrasting nature of the system wherein you’re talking about online recourse of arbitration and dispute resolution; but you don’t even have the means to explain the instructions online.

In the Indian context where most of the nation is comprised of people in the middle class and upper middle-class strata of society, it is very difficult to suddenly find the technology in order to suffice everybody’s needs.

Internet, as we know is a must to hold video conferencing and we need urgent attention towards that. Giving my own example again, I was speaking at a webinar on this same topic recently and before starting the video call; I made sure my family doesn’t use the WIFI and made them switch to their mobile hotspot so that there are no interruptions at my end for the Webinar.

There will be a lot of similar compromises, in each household when it comes to internet availability and usability in India. And this is one of the core areas that we need to work on.

2. TECHNOLOGICAL ADEPTNESS

When it comes to technological adeptness, the instances of the online court hearings for urgent matters that are currently taking place shall serve as perfect examples.

The Judges are still coming to the court premises in order to attend the hearings. This move still puts them in danger, considering the phase where India is with respect to COVID 19. The Supreme Court notification and guidelines on video conferencing also provides for infrastructure in the Supreme Court for parties and their advocates to utilise if they don’t own or have a laptop, mobile phone or tablet to use. Of course, social distancing is maintained and the parties/advocates are in a different room whereas the Judges are in a different room. But that still puts them in danger. You never know where parties are coming from and what conditions they are living in, whether those conditions are sanitary or not?

And with the recent news coming in from the Supreme Court where in one of the clerks tested positive for COVID, is just another example how dangerous it is for people to still venture out.

However, most people are not technologically adept to hear or appear for matters from the comfortable corners of their home. Either they don’t have the infrastructure or they are not absolutely convinced of the fact that they will be able to handle the video conferencing and the applications by themselves, without any help.

If I give another example, is the situation of Gujarat High Court; wherein sanitization tunnels have been erected so that people who NEED to come to the Court to facilitate the online hearings, can do so without worry. Technological inability is one of the biggest obstructions that we are going to face for remote hearings.

Also, most Judges or adjudicators in a court hearing, arbitration or mediation are generally beyond the age group of 40. Given a specific age group, it is not very easy for them to learn to use technology efficiently. And that shall be a big lacuna, in my understanding. In such a short time, to not only be able to learn the technology but also then master it and use it efficiently; is going to be a big task.

Another issue is that most lawyers use stenographers, and do not type or draft applications by themselves. It is only people currently in their 30s and the generation after that who are able to draft and type on their own devices. If you look at any well-established lawyer in their 40s and beyond; and I apologize in advance for the generalisation; but I am pretty sure that all of them use stenographers.

Where do we get the stenographers in a complete lockdown state, currently? And how do we manage e-filing as well? I have also heard complaints with regards to uploading the applications or petitions via e-filing and that the portal does not provide with ample memory strength. They have a cap of 2MB or 5MB files and sometimes that may be less for voluminous records.

This wave of change, in my humble opinion should not be resisted. However, having said which I absolutely empathise with the generation of lawyers, Judges, arbitrators and mediators who have never used technology and who will have to float above the pressure created by the situation and be able to learn afresh.

While that is also a rosy picture I’ve painted, more often than not, people will have to make real efforts to be able to accept and adapt to this change or learn how to use the computer, from scratch. And this we are talking about people who can easily afford learning. However, what about people with minimum resources who would not be able to even afford the usage of technology? That is a question left unanswered.

Recently the Chairman of Bar Council of India wrote to the Chief Justice of India advising against continuing virtual hearings after the lockdown is lifted. His reason was that most advocates are not able to attend to technology well; and hence unable to be self-sufficient.

We absolutely need a well-rounded approach here to make the entire legal community adept to technological needs that we are facing currently.

3. CHOICE OF PLATFORM

Choosing the correct platform is also an important consideration for remote hearings because confidentiality plays a huge role, for any type of dispute resolution process. All of us have heard and read about what happened to Zoom. The Government of India has now come up with guidelines to make sure that under dire circumstances, even if we use Zoom, then we must ensure taking certain preventive steps so that we do not falter or get our accounts hacked.

Hence, choice of platform is one of the most sensitive considerations to be made while going for remote hearings. Google Meet, I believe is one of the safer alternatives (not a paid promotion).

Having said all of this, we will still have to be very careful in making the correct choice for an appropriate platform taking in mind the safety, security, confidentiality of the proceedings. The Supreme Court uses this app called VIDYO, for their video conferencing and court hearings.

There is also another part of confidentiality wherein people remotely attending hearings have been caught recording the hearings on their phones. This is an absolute breach especially in commercial matters. So, we need to bind people by an oath or we need another way to ensure that such activities happen. But how do we do that? We cannot enter the houses of the ones appearing, except virtually. So how do we ensure that no one is recording these hearings?

These are a few technical considerations,  that made me wonder and ask questions. I also wish to touch upon the considerations that a lawyer representing a client in a hearing or a counsel, should take into account before attending a remote hearing.

  • The foremost thing is the decorum. A counsel needs to make sure to consider this online hearing just as important as personal court appearance. Formal clothes and attire; are not excusable. We all have read about how lawyers were not adhering to the code of conduct and formal dressing while appearing for online hearings. And we need to make sure to consider this with extreme sincerity.
  • Absolute importance should be given to the written submissions. In India especially, more weightage is given to oral advocacy in comparison to sound legal drafting. However, when it comes to remote hearings; the technical glitches possible to occur are high as explained earlier. And hence, the reliance on written statements is bound to increase.

We have fast track arbitrations already in place wherein people tend to only rely on written submissions and oral hearings are seldom conducted. With the world going online and relying more on virtual hearings, it will be preferable for a lot of smaller disputes to adopt fast track arbitrations with focus only on the written submissions.

So, we need to make sure that our drafting is top notch and perfect, without any loopholes. Over the counter citing of case laws and introducing new precedents, at the time of the hearing; will definitely not be allowed anymore. So, one has to carefully draft the written submissions, to ensure that everything needed has been included and its carefully worded as well.

  • Secondly, with respect to oral advocacy, we Indians have the habit of splurging on oral arguments going on for days and days. With remote hearings, we will have to cut short the explanation of each and every point and go ahead with the assumption that the adjudicator/mediator/arbitrator/Judge has read the files thoroughly and that explanation on facts and smaller points is not required.

The counsel also will need to be brief and crisp with their arguments; all the while making sure that you are articulate enough and that everyone concerned can hear and understand you appropriately. Oral advocacy in remote hearings is hence going to be tricky and not the exact same that happens in face to face hearings, especially for the ones who are used to court hearings.

Another point that I need to make here is coupled with my earlier technical consideration of being technologically sound.

Referencing of the written material: Often times you will have to take the Judges through the written material or you’re reading out from the submitted written material. Being able to share those documents online and handholding the Judge through that, is only possible if you know how to share the screen and approach that in the video application, you are using.

Referencing documents and sharing the screen for pointing out the appropriate para or lines is a task that every counsel shall have to learn. In Zoom and most other video conferencing apps, we have the option to share screen and show particular documents to the people in the meeting. So, one has to be prepared with all the documentation and files open in the background to quickly show them across to the Judges/arbitrators in the meeting. It again gets us back to the point of how technologically adept you are to be able to efficiently juggle between these screens and multitask.

Most senior counsel during oral advocacy are habitual with their juniors handing out files and case laws to them. It is highly possible that the same treatment may not be available to them in remote hearings as everyone will be practicing social distancing and each man will be left to their own mercy. Hence, the counsel have to be as aware and adaptive to technology for being able to be articulate in their oral advocacy during remote hearings.

So, oral advocacy in remote hearings is definitely interrelated to how well you are able to operate the video application.

  • Another consideration is the entire concept of instructing counsels and arguing counsel will vanish or will be extremely difficult to survive, when it comes to remote hearings. The instructing counsel cannot discreetly guide or suggest something to the arguing counsel; during the hearing. Which they normally would if face to face. And this applies to all forms of dispute resolution.

How would they manage to do that here?

It will also come down to the fact that except for expertise, there will be just as much effort in mastering the technology by senior counsels. Even preparation by all parties concerned will be increased, because of inability of assistance during the hearing. 

  • Your preparedness will be absolutely visible and so will be your expressions. Unlike the courts or the arbitrations, there will not be a dias or any distance between you and the Judges. Your face will be visible and flashing on their screens; and hence the Judges will be able to read each and every one of your expressions. So, you need to be sure to not give away your bluntness or any of your overt expressions because even when not in the courtroom, utmost respect needs to be paid to the Judges.
  • There is another consideration for counsel during remote hearings; which is witness examination.

Technology availability at the witness’s end and his ability to use that technology, is one of the most important questions to consider. Also being able to prepare the witness well in advance, to be able to show him the relevant documents are going to be tough especially when it comes to doing all of this on video call and not being able to meet face to face.

Often times, our entire cases depend on witness testimony. And if we are not able to prepare the witness well, or the witness is not able to attend to technology well; that can pose as a big hindrance.

So, we will have to rely on the written witness statements more than the oral testimony because of the reasons earlier mentioned. Reiterating the importance of drafting a witness statement.

Indian courts have earlier often taken witness testimony through video conferencing. The most famous case is that of David Headley giving his testimony through video conferencing as he was and currently is in an American prison. He was proven to be an accomplice in the 26/11 terror attacks and hence his testimony was taken by the TADA court through video conferencing.

What I mean to say it is not impossible for us to get through witness examination via video conferencing. There will just be additional challenges, that all of us will have to be more mindful of. The Courts and the arbitral institutions as well as the chambers of commerce conducting ADR hearings will have to provide technological solutions to be able to reach the witnesses easily. Easy access to technology whether it is mobile phones, internet, video calling apps in remote interiors of the country and villages will be needed to get witness examination, at times. And that should be made possible without having to endanger anybody’s lives.

However, gaining the certainty that the witness is not being prompted or not reading out of a script; is a challenge still left to overcome. There is no way one can be aware of the fact that the witness is not being helped in a manner disallowed by court, ordinarily.

These loopholes still remain and are going to be very difficult to find answers or solutions to and hence the only solid way to straighten this discrepancy will be to focus positively on the written testimony than oral.

  • Another consideration is the transcripts:

Will transcribers also join a virtual hearing/meeting? Or do we have inbuilt transcribing softwares in our technology? If yes, are those softwares easily available?

These are obvious questions that come to mind. A lot of us, especially when a part of international arbitrations or complex arbitrations, rely heavily on transcripts. And that is very important for us to receive at the end of every day of the hearing.

If we happen to add transcribers to the virtual hearings, then technical mishaps might also hamper their ability to understand what the arguing counsel is arguing. If there are connection issues for example, they might not be able to hear what the counsel has said and in turn will not be able to add the same on the transcript.

We might need an inbuilt transcription software on to these video conferencing apps for us to be able to get clear transcripts.

However the same are not easily available and  also come with a heavy price tag which shall be a difficult situation for people to purchase, especially for smaller disputes.

We also do not have inbuilt transcription services in any of the popular video conferencing apps, as of now.

The above are certain considerations that all of us should be prepared and mindful of. While I discussed all of this, it may sound like I only focussed on the problems. However, there are many benefits of online and remote hearings as well. And it’s just a matter of time that all parties concerned educate themselves and get themselves adept to technology. We’re also waiting for technological innovation with respect to certain concerns and maybe we will be able to ace the remote hearings, in no time.

I hope we give our undivided attention to get better and learn more during this period; so that we could take advantage of all the innovation once the world gets back to normal; however distant and far that reality may be. Be safe, all of you!


* Arbitration Lawyer, B.Com LL.B (Hons)