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Experts Discuss the Future of Virtual Hearing in Arbitral Tribunal

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Today, in the age of imagination, ‘virtual’ has become real, and even more so, the new normal in the face of the COVID-19 global pandemic. The world has dramatically changed in the past few months, including government lockdowns and gathering restrictions.

The question for many in the legal profession is this – “Where does that leave the administration of justice?” Courts around the globe have answered that question by taking a pragmatic approach.

Courts have been required to think both quickly and efficiently to ensure that, where possible, hearings can proceed with the use of virtual hearings.

Virtual hearings have been used to conduct hearings remotely in order to minimise the risk of the transmission of COVID-19 and to ensure the health of all parties in attendance is maintained.

There is a litany of issues concerning virtual hearings in the arbitral tribunal – from the right to fair hearing, witness tampering, security bridges, and the overall future of virtual hearings in a post-COVID-19 world.

These issues were at the centre of discussion at the recently concluded virtual hearing webinar organised by The Nigerian Bar Association Section on Business Law (NBA-SBL).

Speaking during the webinar, Samaa Haridi, a Partner at Hogan Lovells in New York, emphasized the standing of physical hearings and an increase in willingness to adopt virtual hearings. She said, “While we are going to see an increase no doubt in the number of virtual hearings as a result of COVID-19, I do not believe that it will be the end of physical hearings. I do think that sometimes there is no substitute for physical hearings”.

Samaa also spoke in detail regarding presenting evidence in a virtual hearing. In terms of presenting evidence, Samaa believes that the impact of the evidence presented may not the same when you are sitting in a physical room versus when you are in front of a computer.

Samaa posited that for a virtual hearing to successfully take place, the tribunal has to balance on one hand its duty to conduct the arbitration expeditiously and efficiently, and on the other hand the parties’ right to equal treatment and their right to be heard.

According to her, it could be helpful to get the parties to sign an agreement that they will not challenge the award should they agree to pursue a virtual hearing (although such an agreement may not ultimately fully protect against a risk of vacatur).

In the scenario where one party is opposed to a virtual hearing, it is necessary to look at the arbitration provision, the relevant institutional rules, the arbitration laws of the lex loci arbitri and any other applicable legal framework.

The Nigeria Arbitration and Conciliation Act, for instance, is potentially permissive of virtual hearings. Under Section 16.2 of the Act, “unless otherwise agreed by the parties, the arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods or other property.”

If the tribunal determines to proceed with a virtual hearing, it should be after careful consideration of various factors, including what are the reasons for requesting a virtual hearing; do all parties have equal access to technology; is the hearing heavily focused on argument or on testimonial evidence; or what is the likely delay if the virtual hearing does not go forward.

Another issue is related to maintaining the integrity of the process of giving evidence and avoiding assistance to witnesses while they testify.  According to Samaa, the issue is not specific to virtual hearings.

Rather the issue becomes more complex in virtual hearings as you cannot see the environment where the witnesses are, nor can you tell to what extent the witnesses are being coached, or helped.

These issues need to be addressed by the tribunal and it is incumbent on the arbitral tribunal to remind the parties and counsel that no witnesses should be allowed to confer with counsel or with any parties’ representatives while they are giving evidence.

Additionally, the tribunal should work to ensure that only the designated individuals are in the room during the hearing, and it could also consider including in the witness oath, where applicable, confirmation that the witness is not being assisted and is not communicating with anyone while giving evidence.

Given the current environment, and only where appropriate, virtual hearings allow for the administration of justice to continue when physical hearings cannot take place.


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NCC Threatens Illegal Users of GSM Boosters with Arrest, Prosecution

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Nigerian Communication Commission (NCC) has warned telecom consumers to desist from using illegal GSM boosters.

NCC Threatens Illegal Users of GSM Boosters with Arrest, Prosecution

The commission also said that anyone caught using a GSM booster without obtaining approval of a duly licensed network operator will face arrest and prosecution.

GSM boosters are devices that transmit and receive telecommunications signals and can therefore interfere with other radio frequency equipment.

Ikechukwu Adinde, director, public affairs, NCC, said in a notice published on NCC website, that only licensed network operators are allowed to use GSM boosters.

The booster, also known as amplifier or repeater is made up of three main elements – exterior antenna, amplifier, and interior antenna.

They form a wireless system to boost cellular reception

“Members of the public should note that, willful interference with any wireless telegraphy is an offence under Section 16 of the Telegraphy Act, 2004,”it said

The agency said it will not condone any flagrant breach of this law.

It has also enforced measures to prosecute offenders.

Accordingly, monitoring mechanisms have been put in place and anyone caught using a GSM booster without obtaining approval of a duly licensed network operator will face arrest and prosecution.

“Any member of the public with useful information regarding the illegal use of GSM Boosters should contact the Commission on 09-4617000/7351 or send an email to [email protected],” the notice said.

“Individuals desirous of using GSM Boosters should note that they can only do so in conjunction with licensed network operators,” it added.

 

 


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Tizeti Selects Nokia to Provide LTE Fixed Wireless Access Solution for High-Speed internet Services in Nigeria

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Tizeti announced that it selected Nokia’s Fastmile Long Term Evolution (LTE) technology to enable usprovide superior internet services to over 1 Million subscribers in Port Harcourt, Edo and Ogun in Nigeria.

Tizeti Selects Nokia to Provide LTE Fixed Wireless Access Solution for High-Speed internet Services in Nigeria

Tizeti will deploy Nokia’s AirScale Base Station TDD-LTE and FastmileFixed Wireless Access (FWA) gatewaysto deliver premium internet and Virtual Private Network (VPN) services to Residential, Small and Medium Enterprises (SMEs).

The solution will also enable Tizeti’sto deliver a more robust, high-speedinternet service to subscribers and the flexibility to seamlessly evolve to 5G Fixed Wireless Access when needed.

Nokia’s FWA solution enables Tizeti to fast-track broadband access and provide a best-in-class broadband experience to its subscribers.

Nokia’sAirScale Base Stations ensure high-quality connectivity and coverage and enablesTizeti to evolve the network in line with customer demand.

Nokia’sFastmilegateways connect wirelessly to the existing network to createa fastbroadband connection and enhanced Wi-Fi experience in the home.

The Nokia Network Services Platform will help Tizeti to simplify operations and quickly respond to changing market demands.

Kendall Ananyi, Tizeti, said:“We are committed to providing the best-in-class network experience to our subscribers. We are confident that Nokia’s proven technology and expertise will help us differentiate our services based on quality. This a crucial project for us as it introduces LTE in our networks and allows us to bring new and innovative services to our subscribers.”

Eniola Balogun, Nokia, said:“We are thrilled to work with Tizeti on the initiative to upgrade their network to bring the latest products and services to its subscribers. Nokia Fastmile will help Tizeti to cost-effectively enhance the customer experience.

The project will also enable them to delight their subscribers by providing more reliable data services.

On the other hand, Tizeti will benefit by adding new revenue streams.”

 

 


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Risk Assets Push Higher on Vaccine Hopes; Eyes on the Fed

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By Hussein Sayed, Chief Market Strategist at FXTM,

After two consecutive weeks of back-to-back declines, global stocks kicked off Monday with solid gains amid a surge in M&A activity and positive signs towards vaccine developments. Currency markets were little changed ahead of a busy week of monetary policy announcements, while Oil and Gold ticked slightly higher.

The two big deals announced over the weekend were Softbank’s plan to sell chipmaker ARM to Nvidia for more than $40 billion and Gilead Sciences to acquire Immunomedics for a price tag of $21 billion. Meanwhile, on the vaccine front, AstraZeneca resumed its phase-3 trial on Covid-19 after being suspended last week following a neurological illness developed in one participant, and Pfizer announced that its vaccine could be distributed before year-end if found safe and effective.

 

Central Banks will take centre stage this week with the Federal Reserve, Bank of England and Bank of Japan all due to announce policy decisions. Out of the three meetings, the Fed is likely to be the most watched following its historic shift towards average inflation targeting. The big question remains how will the FOMC put this policy into action?

 

From what we know now, the Fed is set up to keep interest rates near zero for a long time, possibly for several years. Given the new framework, any spike in inflation won’t translate into immediate rate hikes as the Fed wants to compensate for the lost years when they have failed to hit the target. The dot plot will be the key guide for investors and traders alike. If inflation projections remain at 2% or below for the foreseeable future, this will solidify market expectations for a low rate environment for many years to come. That said, Jay Powell would still have to explain in more detail how the new framework will be translated into policy action.

 

In June’s economic projections, the Fed anticipated unemployment would be at 9.3% by year-end, but, in August, unemployment was well below that forecast at 8.4%. Many other economic data surprised to the upside during the June – August period in a clear sign that most economists were overly pessimistic towards the strength of the recovery. However, there is still a considerable amount of uncertainty given the latest surge in Covid-19 cases worldwide and the US, especially as we get closer into the winter season. A second wave will undoubtedly put the recovery at risk in the final quarter of the year and it will be interesting to see the Fed’s view on that issue.

 

As for the market selloff over the past two weeks, the Fed isn’t likely to show any signs of concern. In fact, policymakers should be satisfied with the pullback as the risk of a bubble in several assets has been growing due to the Fed’s extremely accommodative policies. Unless we see another 10 -15% drop, do not expect the Fed to intervene.


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