Examination and cross-examination of witnesses in arbitral proceedings via video-conferencing: Challenges and the road ahead

The world today is facing a challenge that it has probably never experienced before. This ubiquitous enemy of humankind, COVID-19, has adversely affected the justice delivery system and the settlement of disputes through the regular mode of physical hearings at courts and tribunals. Therefore, adjudicating authorities have adopted information technology to ensure that their function of dispute settlement is not interrupted.

With the adoption of technology as a new means for conducting proceedings, several challenges seem to have emerged before the adjudicating authorities. One such challenge is with respect to the conduct of examination of witnesses. While the manner in which trial can be conducted at regular courts during this pandemic requires ponderance, arbitration as a means of alternate dispute settlement offers more flexibility to the parties, as ‘party autonomy’ is supreme here. In arbitration, the parties are given an option to determine the process by which the proceedings can be conducted.

Section 19 of the Arbitration and Conciliation Act, 1996 provides that an arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (CPC) or the Indian Evidence Act, 1872 . It also provides autonomy to the parties in determining their own set of procedures that they would follow in the conduct of arbitral proceedings. Further, examination of witnesses is not of much vitality in commercial disputes, where the evidence is largely document-driven.

However, though the rules enshrined in the CPC and the Evidence Act are not binding upon the arbitral tribunals, it has repeatedly been held by the Indian courts that the principles of conducting trials as provided under these two legislations shall be a part and parcel of all arbitral proceedings and that such principles cannot be abrogated ‘completely’. As a necessary corollary to this, domestic tribunals have adopted the practise of examination and cross-examination of witnesses in arbitral proceedings. .

Recently, the Delhi High Court in Sukhbir Singh v. M/s Hindustan Petroleum Corporation Ltd was confronted with an issue as to whether an arbitral award can be set aside under Section 34 of the Arbitration Act on the ground that the arbitrator did not permit cross-examination of the witness in the arbitral proceeding. The Court, while interpreting Section 24(1) of the Act, held that the request for an oral hearing can only be declined in exceptional circumstances. Setting aside the award, the Court ruled that the circumstances in the matter did not make out an instance where the right to cross-examination could have been denied by the arbitrator.

It is, therefore, safe to conclude that in India, the examination and cross-examination of witnesses in an arbitral proceeding have become a norm now, in pari materia to that of a trial procedure in a civil court.

Examination and cross-examination of witnesses over an online forum poses several challenges. First and foremost, is the element of confidentiality. Prior to the 2019 amendment, the Arbitration Act did not expressly provide that arbitration proceedings should be kept confidential. However, the Amendment Act of 2019 has inserted Section 42A, which categorically mandates that the arbitral institution, the arbitrator and the parties shall maintain confidentiality of all arbitral proceedings (except the award where its disclosure is necessary for implementation).

Holding an arbitration over cyberspace through a video conferencing application poses inherent threats such as stealthy recording of proceedings with the intent of making it public, hacking by third parties, and so on. Such imminent possibilities might create fear in the minds of witnesses who will then be unwilling to depose, particularly in sensitive matters.

Tutoring of witnesses becomes very convenient for advocates when witnesses are cross-examined online. Prompting answers using chat box options or sitting in physical proximity to the witness and readily providing them with answers would render ineffective the sanctity of the trial procedure.

Analysing the demeanour of witnesses by an arbitrator can play a crucial role in gauging the credibility of his deposition. Order 18 Rule 12 of the CPC provides that the court may record such remarks as it thinks material, respecting the demeanour of any witness under examination. Looking at the witness through the virtual eye may render this statutory power of the arbitrator difficult, if not improbable.

Apart from the omnipresence of connectivity issues, there may be witnesses who lack the technological infrastructure or the knowledge to use video conferencing applications to depose. Gathering under one roof to access a common video conferencing system may not be possible at all times, considering the travel restrictions on account of the lockdown.

Section 18 of the Arbitration Act mandates that there shall be equal treatment of parties and each party shall be given an equal opportunity to present his case. This necessitates the requirement of having certain uniform rules to conduct examination and cross-examination of witnesses via video-conferencing to ensure that all parties concerned are placed on an equal footing.

The Seoul Protocol on Video Conferencing in International Arbitration is a grundnorm in the matter of holding international arbitrations through video-conferencing. It was first introduced by a panel at the Seoul ADR Festival 2018, comprising chairman Kevin Kim (Peter & Kim) and panellists Yu-Jin Tay (Mayer Brown), Ing Loong Yang (Latham & Watkins LLP) and Seung Min Lee (Shin & Kim). This protocol aids in the identification of gordian knots in the conduct of an arbitral proceeding via video conferencing and lists out requisites and standards which are intended to ‘serve as a guide to best practice for planning, testing and conducting video conferences in international arbitration’.

To ensure confidentiality and sanctity of the arbitral process, Art.3.1 of the Protocol mandates that each party shall provide the identities of every individual in the room to the other parties and to the Tribunal prior to the video conference. The Tribunal shall take steps to verify the identity of each individual present at the start of the video conference. Art. 1.2 provides that the video conferencing system at the venue shall allow a reasonable part of the interior of the room in which the witness is located to be shown on screen, while retaining sufficient proximity to clearly depict the witness. Art.1.3 of the Protocol mandates that the witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the Witness’s face shall be clearly visible. These regulations will help prevent tutoring of witnesses and any other malpractices such as impersonation. Further, Article 8 prohibits recordings of the proceedings without the leave of the Tribunal.

Art.4.1 provides that all documents on record which the witness will refer to during the course of his/her evidence must be clearly identified, paginated and made available to the witness. Art. 4.2 lays down that the party whose witness is giving evidence by video conference shall provide an unmarked copy (without any annotations, notes or mark-ups) of the agreed bundle of documents at the start of the examination of the witness. This ensures transparency and preserves the sanctity of the process of examination of witnesses.

The Seoul Protocol details technological requirements and technical specifications, which minimises the unfairness and creates a level playing field. As a final resort, Art.1.7 provides that the Tribunal may terminate the video conference at any time if the Tribunal deems the video conference so unsatisfactory that it is unfair to either party to continue.

In the post COVID-era, technology is bound to be a key feature in the arbitral process. The Government of India is making efforts to promote India as a global hub for arbitration. To realise this goal, it is of utmost importance that the government frames guidelines that can regulate the arbitral process including the examination and cross-examination of witnesses via video-conferencing, which will ensure uniformity and preserve and protect the sanctity of the process and the ideal of giving equal opportunity to all concerned , in its real sense.

Gopika Nambiar is an Advocate at the Madras High Court. Kumar Karan is a law graduate of Symbiosis Law School, Noida.