The Current Pandemic and Dispute Resolution. By Ajisafe A’isha Eyitayo.
- The ADR Society, UNILAG.
- Jun 8, 2020
- 3 min read
Corona virus and its threatening effect has resulted in partial and total lockdown in various parts of the world. This, in the past months has created a huge strain on various human endeavor particularly economic activities. It is inevitable that the lockdown would have serious effects on interstate and international trade both in short term and in the long run.
With particular regard to contracts, the fulfillment of obligation thereunder would be very difficult and in some cases impossible. Hence, irrespective of the prevailing circumstances, disputes are bound to arise. With full knowledge of this inevitability, how is the Justice system of various jurisdictions handling the situation?
In many jurisdictions, the courts have indeed substituted oral hearings for virtual hearings because of the very nature of the virus. In India, for example, cases have been filed by email and have been heard by virtual screen. In South Africa, information technology facilities are being upgraded in order to facilitate virtual hearing. In the United States, oral arguments are even being heard over the phone.
What steps have been taken by the Nigerian Government in relation to this?
With effect from May 18, 2020, the Federal High Court authorized judges to adopt virtual hearing of all cases in its various divisions. Such hearings could only be held with consent of the parties with requirement that both the Judges and Lawyers are appropriately dressed. In addition, service of processes is effective through emails and other messaging platforms approved by the court. Whether or not this is feasible in Nigeria considering the unstable supply of power, illiteracy, and the expensive access to internet services amongst other factors is a topic for another day.
Online Dispute Resolution (ODR): ADR + Virtual platforms.
The use of virtual platforms in ADR is not a novel event. In fact, it has been popularly used over the years and is being referred to by various terms such as Online ADR, Electronic ADR, Internet Dispute Resolution to mention but a few.
ODR creates a faster means of settling dispute through the internet by some virtual form of communication without parties being physically present. It cuts across all sections of ADR; arbitration, mediation and negotiation. Therefore, it’ll come very handy in these times.
It is noteworthy that ODR has no specific means of operation. Just like ADR, the form which the Online dispute resolution process would take, either by chats, videos or phone conversations is left for parties to decide. However, the dispute under consideration would mostly determine the form. It is understood that not all disputes can be resolved by ADR. At the same time, not all disputes can be resolved by ODR.
In line with the prevailing circumstances, the CiArb recently released the CiArb Guidance Note on Remote Dispute Resolution Proceedings. The Guidelines deal with preliminary considerations, venue, virtual proceedings, experts and witnesses, choices of neutrals, procedural documentation, confidentiality etc
The Guidelines provide that there must be a demonstration of parties’ agreement to use virtual means. In addition, important information should disseminate by email. The software and connection type (which should both be of high quality) to be used should also be agreed on by parties before the meeting. All software to be used should also be tested before the meeting.
With regards to caucus session, a separate meeting can be used which would prevent the other party from being able to view or hear such sessions. The list of documents associated to such proceedings should be available to all parties in digital form. Parties are also free to request an affirmation of privacy before proceedings begin.
It is important to note that these are merely guidelines to facilitate the smooth running of ODR. If you are interested in reading the full Guidelines, you can download it off CiArb’s website:
In conclusion, it is very clear that while humans are on lockdown, disputes are yet arising. Don’t wait until the courts are fully operational, try ODR today!
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