At the beginning of COVID-19 pandemic, the world had to adjust its daily needs at the time to this new dynamic. Governments had to implement measures to prevent the transmission of COVID-19 as curfews were imposed, business were shut down and travel restrictions imposed. All these measures created challenges for face to face meetings and consequently affected court processes, as well as alternative dispute resolution mechanisms. In most jurisdictions, Courts started transitioning to virtual hearings and electronic filings. In Zimbabwe while the Courts remained operational[1], in so far as only urgent matters were being heard, arbitration hearings started to use technology platforms to conduct hearings virtually. There is no doubt that there will be a new era for Arbitration processes post Covid-19.


While remote hearings in Arbitrations have become common, important issues have to be considered such as; Are Virtual hearings/remote hearings provided for in terms of the Arbitration Act; is fairness achieved in virtual hearings; what platforms should be used to conduct virtual hearings and are they secure and reliable; evidence and hearing etiquette. There is no doubt that COVID-19 will continue to affect and force us to change the existing ways in which we conduct Arbitration matters.  It is important for parties as well as the legal community not to lean so much on the traditional methods and, rather, to adapt to the new way of conducting arbitrations.[2]


Arbitration laws in Zimbabwe are modelled on the Model Law set by the United Nations Commission on International Trade Law (UNCITRAL). This is meant to ensure an infusion of international best practices in the way arbitration occurs in Zimbabwe[3]. The benefits of arbitration are well documented: it is touted as a cheaper, faster and less bureaucratic method of alternative dispute resolution^[4]. The adverse consequences of the COVID-19 challenge these well documents benefits and make it more critical than ever that parties, counsel and tribunals give due consideration to implementing techniques designed to make arbitration retain these benefits. While the adoption of technology to Arbitration processes is welcome it should not change the fundamental principles of Arbitration which is to conduct Arbitration in an expeditious, fair and cost effective manner.


As is the nature of arbitration, arbitration is very flexible. Article 19 and 20 of the Arbitration Act[5], provides that the parties to arbitration are free to agree on the procedure as well as the place of arbitration. An ordinary reading of these provisions of the Act means that as long as both parties agree, there is no impediment to the arbitration hearing being conducted virtually or remotely. The parties therefore may also need to agree on the platform which is to be used to conduct the hearing, taking into consideration the various circumstances of each party. Such circumstances would include issues to deal with the leading of evidence; and maintaining the confidentiality and privacy of all the parties


Virtual hearings are however not without their own technological challenges. This being a novel territory,  there are inevitable “teething problems”, such as technical disruptions, including network interruption and power cuts, which can lead to certain critical points being lost in communication. These challenges put the issue of reliability of virtual hearings into play, and parties have to ensure that they have meticulously planned and prepared for the hearing. It is therefore crucial to always have a back-up plan, in case of network interruption or power cuts so as to avoid being inconvenienced.


It is also important to note that although virtual hearings offer a more relaxed approach to the traditional methods of arbitration hearings, parties should always remember to adhere to the guidelines and timelines as agreed to by the parties. Most importantly, etiquette should always be followed, from dressing to punctuality as well as addressing the Tribunal and other colleagues appropriately, and muting one’s microphone unless when instructed otherwise.


In conclusion, it is clear that in light of the Covid-19 pandemic, virtual hearings are an integral part of ensuring the continued administration of justice presently and beyond. Different jurisdictions all over the world have adapted to the demands of this pandemic, and most recently, we have had the privilege of being part of Arbitration hearings in the International Commercial Court, and witnessed the seamless migration to virtual hearings in international arbitration. Arbitration tribunals and parties have shared obligations to consider procedural measures that can mitigate the effect of delays to the arbitral process, including delays caused by the COVID-19 pandemic. There is no doubt that virtual Arbitration processes post Covid-19 will represent a new era in alternative dispute resolution mechanism which should remain fair and efficient.

[1] The Rules of the Zimbabwean Courts do not presently provide for Electronic filings or Virtual Hearing.

[2] Arbitration and Virtual Hearing Articles – 25 December 2020 By Pelin Baysal , Melis Sılacı Korkmaz and Dilara Kaçar 

[3] See Decimel Investments (Pvt) Ltd v Arundel Village (Pvt) Ltd and Anor,2012(1) ZLR 581 (H),Mathonsi J(as he then was); “It should be appreciated that the limited grounds of attacking an arbitral award are meant to ensure international uniformity in the application of the model law contained in the Arbitration Act. The law is of international origin and is intended to govern both domestic and international arbitrations. Pamire & Ors v Dumbutshena N.O and Anor 2001(1) ZLR 123 (H) at 125 E.”

[4] NSSA v Chairman, NSSA Worker’s Committee HH-51-2002

[5] Chapter 7:15