As the UK now enters its fourth week of lockdown, I’m sure I am not alone in being surprised how quickly most of us have grown accustomed to this ‘new normal’. Whether that’s working from home, only being able to leave the house once day for shopping or using phrases like ‘flattening the curve’ or ‘social distancing’ that previously would have seemed alien.
Whilst it’s hard to ignore the ever changing and often tragic news regarding COVID-19, all of us are trying to the best of our ability to continue as normal.
However, the policies currently in place to prevent further spread of the Coronavirus have affected some practice areas more than others, and the effects can be felt profoundly when it comes to pending and future proceedings in international arbitration. It is therefore prudent to discuss what problems may arise and the best way to tackle them.
International arbitration by its nature often equates to international travel for counsel, arbitrators, witnesses and travel restrictions will undoubtedly affect some people's ability to attend arbitrations in person. Further complications arise when you take into consideration that there hasn’t been a uniform response to the crisis; some countries have restrictions based not just on where you’re flying from but trips you’ve made previously. It’s also worth bearing in mind that government policy on someone's ability to travel might not line up with a witness's contractual obligations to their employer, with some firms barring international travel for staff.
As such, best practice would be to ascertain as soon as possible how feasible it will be for all sides to attend a hearing in person. There are a few ways that you can respond to this; delay until a time that all parties can meet face to face, relocate proceedings to a different Arbitral Institution or (if possible) have some persons participate virtually. Providing all sides agree that it is safe and fair to conduct matters online & the proper planning is done, it is probably the most expedient option at present.
Whilst some people may have apprehensions about conducing E-hearings, some major arbitration organisations (notably the LCIA and ICDR) already allow for hearings to take place in this way and there is no requirement for witnesses to be ‘physically present’. In an instance where you are unsure whether an e-hearing can take place it’s always worth asking the question, organisations across the globe are having to adapt to conducting work remotely and (bar a few exceptions) video & conference calls make a more than sufficient alternative.
Deciding to conduct an E-hearing with one or more people attending via video link is also likely to affect the way that physical evidence is provided. Whilst there is currently no evidence to suggest that Coronavirus can spread via packages or post, it is important to bear in mind that courier services may be understaffed or may have trouble making deliveries across border.
You must therefore ensure that all parties can provide necessary documents digitally and securely if required. It may be best to do away with the hard-copy evidentiary bundle altogether, shift away from paper submissions and operate entirely online.
To conclude, the Covid-19 pandemics effect on arbitration cases has been significant, however with proper planning and an open mind, it is entirely possible to utilise technologies to ensure continuity.
To a certain extent, arbitration's response to the current situation has been to accelerate trends that were happening already. Even when things return to normal, people may begin to question the need for international travel if it’s far faster, cheaper and more convenient to appear digitally.