ADGMAC protocol for remote hearing

In June 2021, the Abu Dhabi Global Market Arbitration Centre (ADGMAC) launched its
Protocol for Remote Hearings (Protocol). The Protocol establishes a set of procedural and
logistical procedures for the conduct of remote hearings for parties, their counsel, and the
Tribunal (whether fully or in part). ADGMAC previously released its Arbitration Guidelines
(“Guidelines”) in September 2019. While the Guidelines did not specifically address remote
hearings, they did allow witnesses to appear through video conference or telephone in some
cases, and they urged parties to hold case management sessions via phone or video
conference where possible and urged parties to hold case management meetings over the
phone or via video conference unless the parties agree otherwise or the tribunal is
reasonably satisfied that it is necessary and cost-effective for the parties to meet in person.

Many arbitration laws and guidelines, including the ADGM Arbitration Regulations 2015
(revised on December 23, 2020) (the "ADGM Arbitration Regulations"), have been amended
to expressly allow virtual procedures. The recently updated Arbitration Regulations clarify
and, in some cases, encourage the use of technology in arbitration. The Protocol is timely
because it establishes a clear set of standards that ensure remote hearings are organized
and performed in a fair, efficient, reliable, and cost-effective way, following the revision of the
ADGM Arbitration Regulations and publishing of the Guidelines. In this post, we go through
some of the Protocol's most important features.

The Key aspect of the protocol includes the Protocol is intended for merits hearings in which
factual and expert witness testimony is heard and oral submissions are made, but it may
also be used for case management conferences in which procedural and organizational
issues are considered. The Protocol (or any portion of it), like the Guidelines, may be
amended by the Parties and/or the Tribunal to the unique circumstances of each case and, if
required, applied by the Tribunal in a procedural order.

The guidelines principles: this declaration follows the adoption of the KSA Bankruptcy Law
(2018), the new Government Tenders and Procurement Law and Regulations (2019/2020),
and the Securing Rights on Moveable Assets Law (2019/2020).
Selection of Remote Hearing Platforms and Service Providers the Protocol specifies in
Section B that the functional requirements for a remote hearing must include a video-
conferencing system, an electronic document management system and a real-time
transcript.

Speakers and Attendees; The Protocol distinguishes between ‘Speakers' and ‘Attendees'
in Section C. It defines Speakers as participants who can be seen and heard by all other
participants on any given day. The Tribunal, attorneys representing the parties, the testifying
fact and expected witnesses, and an interpreter, if any, are all speakers. The Protocol
specifies that Attendees are participants who can only see and hear the Speakers but
cannot be seen or heard themselves. Attendees include all other people (apart from
Speakers), such as members of the legal team who are not appearing as lead counsel, party
representatives or personnel, and any other allowed Participant(s), such as a Tribunal
secretary. The Protocol also gives the parties the opportunity to object to any of the
participants within 24 hours of the list of participants being exchanged.

Arrangements for Semi-Remote Hearing. The Protocol covers scenarios in Section J

where many participants attend the remote hearing from the same physical room. The
Protocol allows for semi-remote hearing arrangements but urges parties to agree on such
semi-remote configuration prior to the distant hearing. Despite the foregoing, the Protocol
advises against the following semi-remote arrangements, the Tribunal, and the legal team of
one of the parties appearing in person, while the legal team of the opposing party appears
remotely and/or the legal team of one of the parties examining an opposing party's witness
or expert in person.

Witnesses: Section L of the Protocol states that fact witnesses must affirm their evidence
before providing it in line with any relevant legislation. To preserve the integrity of the
examination, the Protocol urges the parties to arrange for a hearing invigilator to appear at
the same location as the fact or expert witness. (For example, ensuring that no unapproved
or agreed-upon person or recording equipment is present). To verify that only authorized
materials and equipment are present, the invigilator may check the room where the witness
is due to testify. The invigilator may also remain within the room during the witness's
testimony to ensure that no one enters and that the witnesses sequester is maintained.
If an invigilator cannot be present, the Protocol requires witnesses to testify alone in a room
equipped with a camera that gives a clear and reasonably full view of the witness and the
room he or she is in. The Protocol also requires each fact witness to confirm the following at
the outset of his or her testimony. The witness can certainly see and hear the other
Speakers; no one other than those agreed upon by the Parties or approved by the Tribunal
is in, or will enter, the room in which the witness is providing evidence; and the witness does
not have access to hard copy documentation other than his or her witness statement (s) and
the witness will not, and has no method of communicating with anybody, other than through
the authorized Platforms, while the witness's examination is taking place.

Confidentiality: Section I of the Protocol on Secrecy affirms that parties must take all
necessary efforts to protect the confidentiality of the proceedings. It requires parties to notify
the Tribunal of any legislation in effect at any participant's location that may provide an
impediment or issue of legal compliance with privacy, confidentiality, data protection, and
security requirements. Prior to the remote hearing, the Protocol encourages the parties to
agree on a more detailed “cyber-protocol” to ensure compliance with any applicable
regulations and to protect the confidentiality of electronic communications within the
arbitration proceedings and any platforms used for the remote hearing.

Recognition and enforcement. Section T of the Protocol encourages the parties to agree
in writing, for the purposes of recognizing and enforcing the arbitral award, that remote
videoconferencing constitutes a fair and acceptable means of holding hearings and taking
evidence by the Tribunal in accordance with the arbitration agreement and the applicable
law and rules. The Protocol also encourages parties to agree that the remote hearing will be
conducted in accordance with the law of the seat, and that no party will seek to set aside or
oppose the recognition or enforcement of any resultant arbitral award based on the fact that
the arbitral hearing was conducted via remote video-conferencing.