Stewarts has continued its support of efforts in Nigeria to ‘reopen’ its courts following their near-complete closure due to the Covid-19 crisis. Having participated in a similar workshop hosted by the Attorney-General of Ogun State, Daniel Wilmot, an Africa specialist and partner in our International Arbitration team, spoke at a workshop hosted by Lagos State entitled Making Virtual Hearings Work and attended by over 500 people.
The workshop was a joint initiative between the Lagos State Ministry of Justice, represented by the Honourable Mr Moyosore Onigbanjo SAN, the Attorney-General of Lagos State, The Justice Reform Project and CRID-LawNet. Alongside an opening introduction from the honourable Attorney-General, attendees were welcomed by each of Mrs Toki Mabogunje, President of the Lagos Chamber of Commerce and Industry, Mr Tayo Oyetibo SAN, President of CRID-LawNet and Mr Supo Shasore SAN, member of The Justice Reform Project. The session was chaired by Mr Babatunde Fagbohunlu SAN and closed with a Q&A session involving all the attendees.
The workshop received a number of presentations relevant to the topic of the virtualisation of justice, including from the Honourable Mr Justice Kazeem Alogba, Chief Judge of Lagos State, and the Honourable Mr Justice Hakeem Oshodi, a judge of the High Court of Lagos State. The discussion touched upon the recently published Lagos State practice direction on remote hearings, the use of virtual hearing technology on a longer-term basis and the evidential issues that could potentially arise in any adoption of such technologies to allow the courts to ‘reopen’.
Drawing upon the experience of Stewarts participating in the English Commercial Court’s first virtual trial in the case of National Bank of Kazakhstan and the Republic of Kazakhstan, Daniel focused his presentation on the practical perspectives and challenges of parties and courts shifting to a virtual hearing model. He answered a number of questions posed during the closing Q&A session, including on the subject of cross-examining witnesses.
The workshop also debated the constitutionality of virtual hearings, an issue that has since received significant focus within Nigerian political and legal circles and which has resulted in the Senate introducing a Bill proposing an amendment to the Nigerian Constitution. Mr Moyosore Onigbanjo SAN has reportedly also commenced an action seeking a ruling of the Supreme Court to determine the constitutionality of the issue, absent any amending Bill.
These developments illustrate well the focus being given in Nigeria to the use of virtual hearings, both as an immediate measure to allow cases to resume and as a longer-term option to reform and modernise the administration of justice within Nigeria’s court systems.
That movement has prompted a number of contributions from the wider legal community on the topic. Notable examples include the Protocol on Virtual Hearings in Africa developed by the Africa Arbitration Academy and the Covid-19 ADR Initiative, a platform created for the speedier and cheaper resolution of Covid-19 related commercial and contractual disputes.
The Protocol on Virtual Hearings in Africa was developed by the Africa Arbitration Academy in response to the Covid-19 pandemic. It outlines recommendations, guidelines and suggestions for best practice when participating in virtual hearings, taking into account the specific challenges and circumstances that may arise in relation to virtual hearings within Africa.
Following from last year’s Africa Arbitration Academy session in London, Daniel attended a webinar chaired by Ms Laura Alakija, a member of the protocol’s Drafting Committee, Mr Abayomi Okubote, co-founder of the Africa Arbitration Academy and a member of the protocol’s drafting committee, and Professor Mohamed Abdel Wahab and Ms Samaa Haridi, both members of the protocol’s technical review committee.
The webinar considered the protocol’s practical and user-friendly features, including its provisions on preliminary and pre-hearing arrangements that are designed to ensure that practical and logistical matters (such as access to a back-up internet connection) have been considered and tested well in advance of the hearing. Some attendees queried the position where one party objects or does not expressly consent to a virtual hearing being held. The panel explained that the protocol addresses this by recommending (and providing the template text of) a pre-virtual hearing agreement between the parties, or that a procedural order is issued by the tribunal directing that a virtual hearing be held. Furthermore, it was suggested that it would be good practice for a tribunal to clearly and carefully explain its decision to proceed to a virtual hearing in the face of opposition, with due regard to applicable local laws.
Attendees of the webinar noted that although parties and their legal representatives may be prepared to embrace virtual hearings and the recommendations laid out in the protocol, the viability of this option remained contingent on external factors, including the ability and willingness of the tribunal, experts and witnesses to embrace technology, and whether they have reasonable access to the internet.
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