Inevitably and like every sphere of normal life, existing dispute resolution proceedings, whether in national courts or arbitration, are already experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, as the lockdowns extend for the foreseeable future, hearings will still need to be held. Many national courts and arbitral institutions are now alive to these issues and are looking at solutions, in particular technological ones.
We look at the major jurisdictions and what steps are being taken to help maintain hearing dates in existing disputes and plan for the progress of dispute resolution proceedings:
Recent government announcements have stressed the vital importance of the continued administration of justice in England and Wales and the courts continue to operate, though with adjustments.
Most civil court buildings currently remain open, but civil hearings are now being conducted remotely wherever possible. Physical hearings are only to take place if a remote hearing is not possible and suitable arrangements can be made to ensure safety. Civil courts have long permitted remote hearings in appropriate circumstances, but a new “Protocol Regarding Remote Hearings” was issued on March 20, 2020 to provide further guidance, including on the forms of remote technology offered and use of electronic documentation. The courts’ technological infrastructure is also being rapidly up-scaled to support expanded utilisation of telephone, video and other remote technology (including Skype for Business, Zoom and BT conference call).
On March 24, 2020, the Supreme Court conducted its first ever remote hearing. The Supreme Court building has closed and it will be hearing all cases and delivering judgments through video conferencing until further notice.
Arbitral institutions – London Court of International Arbitration (LCIA) approach
The LCIA has confirmed that, although they expect to remain operational, in order to deal with matters as usual, they have requested that all further interactions be done online or over the telephone. Insofar as hearings are concerned, the LCIA Rules cater for the possibility that proceedings need not take place in person. Article 19 [Oral Hearings] provides that “as to form, a hearing may take place by video or telephone conference or in person (or a combination of all three).” In its Guidance Note for Arbitrators, the LCIA acknowledges that it may be appropriate for hearings to be held by telephone or by videoconference rather than in person. The tribunal should also consider “where appropriate, whether some or all of those who must attend any meeting or hearing might do so by video conference, rather than in person (for example, if a witness is unable to travel due to health issues).” 1
The Dubai Courts
On March 17, 2020 the Managing Director of the Dubai Courts issued Decision No. 30 of 2020 declaring a temporary postponement of all ongoing proceedings and court hearings until April 16, 2020. The Dubai courts has since confirmed that commencing April 19, 2020, all hearings will occur electronically utilising Microsoft Teams. This allows parties to participate in hearings by videoconference. Filing of all new cases is also being carried out electronically.
The DIFC Court
The DIFC Court remains open, however all staff are working remotely. The DIFC Courts and Registry offices are physically closed until at least April 26, 2020. Hearings, however, are planned to continue. In their latest update, the DIFC Court has advised that generally, all hearings conducted from March 17, 2020 will be via teleconference. The court is urging practitioners to make use of the eBundling software and require permission not to do so for hearings listed in the near future. It has long been commonplace in the DIFC for both judges and advocates to attend hearings by video-conferencing when, with the court’s permission, it is considered appropriate to do so.
Arbitral institutions – Dubai International Arbitration Centre (DIAC)
DIAC has issued its circular to practitioners essentially advising that aside from the remote working of all DIAC staff, the centre is open for business. DIAC endeavours to remain fully operational during the crisis, with the Case Management Unit working remotely and reachable by email and phone during the normal working hours. They are continuing to register new cases through their online portal and payments are all being made online. Under the current circumstances, the Centre has urged parties and arbitrators to avoid any physical hearings and to use alternative electronic means instead.
The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (the CARES Act), signed into law on March 27, provided more than just the fiscal stimulus, importantly Section 15002 allows for the use of videoconferencing in certain* judicial matters.
USCourts.gov has a page dedicated to Judiciary Preparedness for Coronavirus (COVID-19) which is updated frequently and which includes a link to various federal courts to assess the individual steps being taken by the respective courts. The Supreme Court, in keeping with public health precautions recommended in response to COVID-19, postponed all oral arguments currently scheduled for the March and April sessions and intends to examine the options for rescheduling those cases before the end of the Term. The May session is due to see the virtual hearing of a limited number of previously postponed cases with Justices and counsel participating remotely. The US Court of Appeals for the Federal Circuit issued an advisory that it would hold all oral arguments telephonically during the court’s May 2020 session. Lower courts, like the United States District Court for the Eastern District of New York have issued a number of administrative orders regarding the administration of justice. One such Order encourages judges to conduct proceedings by telephone or video conferencing where practicable.
Arbitral institutions – American Arbitration Association (AAA)
The AAA-ICDR remains active and operational; however, no hearings are taking place in AAA-ICDR hearing facilities until at least June, 1. The AAA case management staff are in the process of making contact with parties and arbitrators to discuss alternative arrangements, including the use of video, teleconferencing or postponements. As at April 25, its advice was for parties and arbitrators “promptly [to] raise with each other any concerns about their participation” and has barred anyone with symptoms from attending in-person hearings.
The AAA Rules2 permit the use “when deemed appropriate…the presentation of evidence by alternative means including video conferencing, internet communication, telephonic conferences and means other than an in-person presentation.” The AAA boasts of its online video, teleconferencing, internet communication and means other than in-person hearings to facilitate a “full and equal opportunity for all parties to present evidence in a hearing”. The AAA therefore acknowledges that these are appropriate times to permit (indeed require) the use of viable alternatives to in-person hearings. The AAA has published a series of guides for conducting Virtual hearings, the use of Zoom and has also provided a link to a Model Order and Procedures for a Virtual Hearing via Videoconference.
*presently this is limited to certain criminal matters.
The French courts have been closed since March 16, 2020 with the exception of essential litigation, including litigation relating to "correctional hearings for pre-trial detention and judicial review measures," "immediate appearances," "appearances before the investigating judge and the liberty and custody judge," and "hearings of the sentence enforcement judge for emergency management." Apart from these essential matters, hearings have been postponed.
Arbitral institutions – International Chamber of Commerce (ICC)
In the immediate aftermath of the outbreak, the ICC encouraged parties, arbitral tribunals and other neutrals to “remain appraised of any developments and consider discussing their potential impact on pending proceedings, if and when necessary.” The ICC itself remains operative, albeit that its staff are working remotely and all meetings scheduled to take place at ICC offices worldwide are being conducted by means of video link or phone.
The ICC is well placed to deal with the current difficulties, having commissioned a report into the use of Information Technology in International Arbitration in the context of reducing time and costs in international arbitration. The report addresses when video or telephone conferencing may be used and what issues should be considered when doing so, and concludes that the parties may agree or the tribunal may order that certain (or even all) witnesses may be heard by video or telephone instead of requiring the witness to attend the hearing in person. In response to the pandemic, the ICC has published its Coronavirus Guidelines for Business in which it identifies key steps that business may take to limit the spread of the virus. These include replacing in-person meetings with virtual meeting. Where in-person attendance at hearings is no longer possible, it is likely that parties will either utilise technology voluntarily or be compelled to do so by order of tribunals.
The courts continue to operate albeit with reduced court staff. In-person hearings, however, have been postponed for up to six months. The specific handling of these delays is left to the courts resulting in some regional differences. Generally oral hearings are only taking place for urgent matters. While German civil procedure law makes provision for the use of video conferencing for hearings it has seldom been used. This is in part because the courts are not equipped to do so, and further because this provision is not applicable if the parties or witnesses are located outside of Germany.
Arbitral institutions - German Arbitration Institute (DIS)
DIS has closed its Berlin office for an indefinite period of time. The deadline mailbox of the Berlin office is therefore currently unavailable. In order to meet the deadline, it is therefore advisable to submit the action for arbitration by e-mail pursuant to Articles 4.2 and 6.1 of the DIS Rules with subsequent transmission of the action for arbitration in paper form to the main office of DIS in Bonn. While video-conferencing is not specifically catered for in the DIS Rules, as with all arbitral institutions, there is more flexibility to allow a departure from the standard approach of in-person hearings. This means that an arbitral tribunal can respond more easily by using digital tools to ensure the avoidance of physical contact and to combat the travel restrictions imposed. The arbitral tribunal may relocate the hearing or it may order the use of videoconferencing or, in certain circumstances, refrain from holding an oral hearing entirely (Article 29). The DIS has published its “Announcement of Particular Procedural Features for the Administration of Arbitrations in View of the Covid-19 Pandemic”, in which it announces distinct procedural features for the administration of both currently pending and forthcoming arbitrations.
The COVID-19 outbreak has had an impact on dispute resolution and enforcement proceedings, before courts, arbitration centers and enforcement/bankruptcy offices around the world. Please see below for a summary outlining current dispute resolution-related COVID-19 measures in Turkey.
National courts and enforcement/bankruptcy proceedings
Pursuant to the Council of Judges and Prosecutors’ (Hakimler ve Savcılar Kurulu) decision dated April 30, 2020, all non-emergency court hearings are postponed to a date later than June 15, 2020.
Pursuant to the Presidential Decree numbered 2480 published on the Official Gazette on April 30, 2020 (the “Decree”), the following nationwide measures regarding enforcement and bankruptcy proceedings, excluding child support payments, will be in place until June 15, 2020:
All ongoing enforcement and bankruptcy proceedings have been suspended.
New enforcement and bankruptcy proceedings cannot be initiated.
Interim attachment decisions will not be executed.
Stay of proceedings would affect enforcement of security, which need to be foreclosed through execution offices.
In addition to the stay/postponement of proceedings, time periods regarding origination, exercise and termination of any rights including the statute of limitations or prescription terms for initiating a lawsuit or enforcement proceeding, filing an application, complaint or objection, sending notices are stayed until June 15, 2020 pursuant to the Decree.
Statutory time periods under the enforcement and bankruptcy legislation or deadlines imposed by execution/bankruptcy offices or judges are also stayed until June 15, 2020, to protect parties’ rights and interests.
Istanbul Chamber of Commerce Arbitration and Mediation Centre (İstanbul Ticaret Odası Tahkim ve Arabuluculuk Merkezi - ITOTAM)
ITOTAM staff have been working remotely as of March 23, 2020, and are available by email and by phone. File submissions will be carried out via both email and courier. Payment of any sums due to ITOTAM are to only be made electronically.
Even though the measures imposed by the Decree do not cover institutional arbitration, ITOTAM has adopted the same measures and announced on its website that all deadlines regarding existing arbitral proceedings or mediation processes, as well as other deadlines ordered by arbitrators, mediators or the ITOTAM Secretariat, will be stayed until June 15, 2020. During the stay period, parties can submit a request for arbitration but the 30-day window to receive an answer to such a request will not commence until after June 15, 2020. In case of need, parties can resort to an emergency arbitrator during the stay period.
Istanbul Arbitration Centre (İstanbul Tahkim Merkezi – ISTAC)
With the publication of the ISTAC Online Arbitral Hearing Rules and Procedures on its website, it is now possible to hold ISTAC hearings through teleconference or videoconference. ISTAC Online Arbitral Hearing Rules and Procedures provide rules for, among others, submission of documents during online hearings, witness or expert participation and recording of online hearings.
Before COVID-19 hit Singapore, the Singapore courts had an existing practice in place that enabled lawyers to make applications by video link. The Singapore court is also quite used to parties or witnesses appearing in court by way of video link. Insofar as the Supreme Court is concerned, hearings are continuing. Since the spread of COVID-19, the Singapore Court has implemented a justice continuity plan by dividing the judges of the High Court into two separate teams, Team A and Team B. The High Court has adopted arrangements such that no judge from Team A will be in physical proximity or in close contact with a judge from Team B. As a result of this, there have been court proceedings with a bench of three judges where one judge attends by video link. For example, in situations when two judges are from Team B and one judge is from Team A, the judge from Team A attends by video link.
In short, whilst the Singapore courts have taken measures to implement social distancing, these measures are an extension of the pre-existing use of attendance by video link prior to COVID-19.
Arbitral institutions - Singapore International Arbitration Centre
SIAC is continuing to operate as per normal. SAIC have split their staff into two teams with one team working at the Centre and one team working from home. It is also asking for Notices of Arbitration to be filed electronically only and for applications for emergency relief to also be filed by email only. Payments of any sums payable to the SIAC are to be made electronically only.
In an Updater to practitioners, the SIAC has proposed following Maxwell Chambers guidelines or consider using the Maxwell Chambers Virtual ADR Services for cases as a replacement for in-person meetings or hearings. Singapore, like many others, has just imposed a restriction on everyone entering the country except for citizens, permanent residents and some limited categories of work/employment pass holders making physical hearings involving tribunal members or counsel or parties/witnesses from outside the jurisdiction impossible.
On January 29, 2020 cases in the national courts of Hong Kong began to be adjourned in what has been referred to as the General Adjourned Period (the GAP). The duration of the GAP, however, remained uncertain. Initial hopes were to return to normal operations toward the end of March, however this has not been possible. In a statement released by the Chief Justice of the Court of Final Appeal the court provided some insight into steps being taken by the Courts to increase court services without compromising health and safety. Aside from simple steps of proactive case management, the Court has actively considered expanding the scope of hearings (beyond just urgent or essential matters) by hearing submissions by telephone, by video-conferencing or similar means of visual aid and generally making use of technology.
Arbitral institutions – Hong Kong International Arbitration Centre
HKIAC’s premises at Two Exchange Square, Central, Hong Kong remain operational and accessible for hearings and meetings. HKIAC have enacted precautionary measures to protect staff and clients. These include, all front-line service staff wearing face-masks, increased cleaning/sterilization of the Centre, and temperature checks on all persons entering the Centre. Taking into account the Hong Kong government’s policy of imposing compulsory quarantine on all persons arriving from all places from outside of China (effective March 19, 2020) and from Mainland China (effective February 8, 2020), any person to whom such policy applies shall not be permitted to enter HKIAC for at least 14 days of their arrival in Hong Kong and thereafter only if asymptomatic. All guests coming to the Centre are required to complete this Health Declaration Form.
Importantly, HKIAC is encouraging parties to consider using their virtual hearing services. These services include state of the art video conferencing facility capable of conferencing in up to eight different locations. It also boasts an audio conferencing system with high-speed connectivity to more than 80 countries, supporting up to 30 lines on a single call.
The High Court in Canberra, has announced that following the adoption of policies restricting travel and meetings and remote workplace arrangements, the High Court of Australia will not be sitting in Canberra or on circuit in the months of April, May and June. The question of future sittings is intended to be reviewed in June. The Court has indicated that it will continue to deliver judgments and deal with special leave applications including hearings as necessary at individual registries and will hear any urgent matters that may arise by video link.
The Federal Court of Australia has announced that “Our counters are closed, but we're still working” and has published a Special Measures Information Note (SMIN-1) which sets out arrangements for the continued operation of the Federal Court during the COVID-19 outbreak in Australia. These include to the extent possible, alternative arrangements such as hearing matters on the papers, by telephone or by other remote access technology.
Arbitral institutions – The Australian Centre for International Commercial Arbitration (ACICA)
The ACICA has issued its COVID-19 (Coronavirus) Precautionary Protocol which seeks to prevent high-risk persons from participating in any ACICA hearings in person. The ACICA’s business continuity plan seeks to ensure that services can continue, remotely if required, which it says includes telephone and video conferencing and live simulcast and webinars.
While not specifically addressed in the ACICA Rules, the ACICA has embraced Online Dispute Resolution since before the coronavirus and includes in its rules a draft Procedural Order for the Use of Online Dispute Resolution Technologies which includes the use of video conferencing as an alternative to in-person hearings. The draft Order notes that video conferencing can be used for both interim and final arbitration hearings and is sufficiently capable of enabling parties to assess demeanour and a witnesses' credibility.
The national courts have adopted restricted operations. Several Courts have issued notifications to restrict the functioning of the Courts to urgent matters with a limited number of judges. Ordinarily, only matters relating to life/liberty/imminent dispossession or demolition of property are considered urgent. Routine matters are being adjourned to dates beyond March 2020. Most court premises are adopting restricted entry procedures and visit of private parties or litigants to Courts is discouraged, unless unavoidable.
Arbitral institutions – Indian Council of Arbitration (ICA)
The Indian Arbitration Forum has appealed to all Arbitral Tribunals to adjourn any hearing scheduled in the ensuing eight weeks and advised video conferencing, wherever necessary.
While filings in Courts are, to an extent, ongoing and petitions seeking orders under various provisions of the Arbitration and Conciliation Act, 1996, may be filed. However, these may be listed and heard based on demonstrated urgency as explained above.
The courts have been closed since March 17, 2020 and will remain closed (at least) up to and including April 6, 2020. As a result there will be no court hearings during this period with the exception of urgent cases. The Dutch judicial authorities have stated that a case will only qualify as “urgent” in exceptional circumstances, for instance if the delay of the court decision would have a negative impact on the rights of a suspect or litigant. Such “urgent cases” include the hearing of bankruptcy applications, matters of custody of suspects in criminal cases and certain family law matters (such as out-of-home placements). In emergency relief proceedings, only in exceptional cases a hearing will be held. Written procedures, however, are continuing as much as possible.
Arbitral institutions – Netherlands Arbitration Institute (NAI)
The NAI Secretariat is following the guidelines of the National Institute for Public Health and the Environment and has taken precautionary measures in light of COVID-19. The NAI secretariat remains operational but is working remotely until April 6, 2020. The hearings and meetings that would take place at NAI offices have been relocated or postponed. The NAI noted that, until further notice, it would strongly prefer electronic and telephone communication only.
The Court of Appeal continues to hear appeals, applications and motions but as of March 23, 2020, these are not in person. The Court’s Pandemic Response Plan is being adapted to meet concerns and challenges of COVID-19 with a view to mitigating negative effects on Court operations and the delivery of justice. The court has implemented Emergency Practice Directions (EPDs) which will remain in effect until terminated. All matters set down before a single judge will be heard by telephone conference and all appeals and applications before a three judge panel will be heard electronically (by videoconference or by telephone). A Notice to Public and the Profession was published setting out, in detail, what matters were affected and how the Court intends to proceed with its operations.
Arbitral institutions – The British Columbia Commercial Arbitration Centre and ADR Institute
The BCICAC remains open for normal operations during the social distancing measures currently in place in British Columbia. Current arbitration cases continue to be administered in the ordinary course, subject to the social distancing guidelines. The ADR Institute of Canada is working entirely remotely, however have not made any announcement regarding hearings.
There will undoubtedly be parties who take advantage of the present pandemic to needlessly delay hearings in courts or arbitrations. As such, applications for permission to proceed by way of video or telephone conferencing may well become necessary and common place. If parties are not taking this step themselves, or there is illegitimate opposition to a request of this nature, Courts or Tribunals are generally within their powers to make appropriate orders to permit this. The current crisis will cause inevitable disruption to some dispute resolution proceedings. Video-conferencing is a technology available to mitigate some of that disruption while causing minimal prejudice to the parties. The law generally provides for it and technology makes it possible. The only thing that remains is for parties to embrace its use and dispel the perceptions of its inadequacy.