Global Court Functioning and the Impact of COVID-19 on Arbitration
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Global Court Functioning and the Impact of COVID-19 on Arbitration

Health and safety are the highest concern today for all as the ongoing impact of COVID-19 continues to expand every day. The impact of the COVID-19 pandemic also has the unavoidable and related effect of delaying existing contested settlement processes in both the national courts and in arbitration. The trials were postponed or moved as far as possible. When lockdowns are extended into the near future, however, hearings will also have to take place. Many national courts and arbitration institutions are now aware of these problems and are looking for solutions particularly technology to address them. But a question arises here: can COVID-19 be an opportunity for the judiciary to make use of its new technological progress to streamline processes and reduce the delays in justice that have been growing worldwide over the past few years? The following article is a brief overview of the key actions taken in legal proceedings worldwide. It covers courts in the following countries: India, the UK, the USA, France, Germany, the United Arab Emirates, Australia, Canada, Hong Kong, The Netherlands and China(mainland). Basic information about the following international arbitration institutions is also included: the Hong Kong International Arbitration Centre (HKIAC), the International Chamber of Commerce (ICC), the Australian Centre for International Commercial Arbitration (ACICA), the London Court of International Arbitration (LCIA) and the American Arbitration Association (AAA).

India

The full bench of the Supreme Court of India has, in its application by video order dated 23 March 2020, extended the restriction to petitions, applications, appeals and all other proceedings in the context of further decisions before all courts, tribunals and administrative bodies in the country with effect from 15 March 2020. Limited operations were adopted by national courts. Different courts, along with a limited number of judges, have given orders restricting the operation of courts to matters of urgency. Typically, it is considered urgent to deal with only matters involving life, imminent dispossession or destruction of property. Most courts follow restricted entry procedures and, unless inevitable, access to courts is prohibited by private parties or litigants.

The United Kingdom

Tribunals and courts have consolidated their function into fewer buildings. Judges have been dismissed by the Lord Chief Justice. The courts of the judges must, however, begin urgent work. Increased use of video/audio hearings in criminal trials and judicial appeals is provided for in the current Government Coronavirus Law. A special procedure is followed in the Business & Property Courts. QB Masters perform a range of actions, including demands from parties to postpone non-urgent proceedings and warn of e-filing delays. On visits to their buildings the Supreme Court issued an update that indicates the court actually is operating as usual, but this is subject to change. A notice outlining several provisional changes was released by the Queen’s Bench.

The USA

In May, the US Supreme Court announced that, in certain cases postponed in March and April, it will hear oral arguments remotely. Different measures were taken by other courts of appeal. For example, all cases scheduled for review during the sitting in April and May 2020 are being carried out remotely in the Federal Circuit Court of Appeals. Furthermore, during this period, no physical hearings will be held and rules are changed so that parties are no longer obliged to file paper copies of documents. Courts have postponed or canceled jury trials in most states. A number of federal court houses have been shut down because either the virus was found in a building or because local judges shut the courthouse down preemptively to protect public health.

France

The French courts have been closed since 16 March 2020, except in essential disputes such as “pre-trial and judicial review proceedings,” “immediate appearances,” “appearances before the investigating judge and a custody judge” and “hearings of the sentence enforcement judge for emergency management.”

Germany

The courts are still functioning. Nevertheless, in-person hearings are up to six months delayed. The tribunals have some geographical variations with respect to the particular treatment of these delays. Oral inquiries are usually held only for matters of urgency. In the case of German civil law proceedings, video conferencing is rarely used. This is partly because the courts do not have the capacity to do so and partly because the law does not have application if the parties or the testimonials are outside Germany.

The United Arab Emirates

On 17 March 2020, Decision No 30 of 2020 by the Dubai courts Managing Director declared that all current cases and court cases would be temporarily postponed until 16 April 2020. Since April 19, 2020, the Dubai courts have reported that all hearings are conducted electronically using Microsoft Teams. This helps parties to attend video-conferencing hearings. All new lawsuits are also being filed electronically.

The Dubai International Financial Centre (DIFC) Court is still open, but all staff work remotely. The DIFC courts and offices of the Registry were closed physically by 26 April 2020. Nonetheless, hearings are expected to continue. The DIFC Court said in its most recent update that all the hearings held after 17 March 2020 will generally be held via teleconference. The court calls on practitioners to use e-bundling. The DIFC has long allowed both judges and supporters to attend video conferencing hearings when it is considered necessary to do so with the approval of the court.

Australia

The High Court in Canberra has announced that the High Court of Australia will not sit or circuit in Canberra in April, May and June following the introduction of policies limiting travel and meetings and remote working arrangements. Future sittings are scheduled for consideration in June. The Court has stated that it will continue to deliver judgments and deal with special leave applications and will hear urgent matters using video links including hearings necessary in individual records. “Our counters are closed but we are still functioning,” is what has been announced by the Australian Federal Court and a Special Information Measures Note (SMIN-1) has been issued which establishes provisions for the continued operation of this Federal Court in Australia during the COVID-19 outbreak. Alternative solutions including hearing problems on paper, by phone or other remote access systems are being used as far as possible.

Canada

Appeals and applications continue to be heard by the Court of Appeal, but they will not be heard in person after 23 March 2020. The Court’s Pandemic Answer Plan is being amended to respond to COVID-19 concerns and challenges in order to reduce the negative impact on court and justice operations. The Court has introduced Emergency Practice Directions that will remain in place until they have been removed. All disputes before a single judicial judge are heard in a teleconference and all appeals and demands are electronically heard (via videoconferencing or telephone) before a trialogue.

Hong Kong

On 29 January 2020, cases in the Hong Kong domestic courts were postponed for the so-called General Adjourned Period (GAP). Nevertheless, the length of the GAP remained unknown. At the end of March, however, initial hopes were to return to normal operations. The Court gave some insight into the acts of the courts to enhance court facilities without sacrificing health or safety in a declaration made by the Chief Justice of the Court’s final appeal. Apart from the basic constructive case management steps, the Court considered actively extending the range of the hearings (beyond just urgently or essentially) by allowing telephone, video or similar visual aid submissions and making general use of technology.

The Netherlands

The courts have been closed from 17 March 2020 until (at least) 6 April 2020. As a result, during this period there will be no court hearings except for urgent cases. For example, where a delay of the decision of the court will adversely affect the rights of the defendant or a litigant, the Netherlands’ judicial authorities have confirmed that a matter does not qualify as “urgent.” Those “emergency cases” include the hearing of requests for bankruptcy, criminal suspected custody and some family law (e.g., non-home investment) cases. Only in extraordinary circumstances may a hearing take place in disaster relief proceedings. However, as far as possible, written protocols are continued. All disputes before a single judicial judge are heard at a teleconference and all appeals and demands are electronically heard (via videoconferencing or telephone) before a trialogue. A notice was issued for the public and the profession, outlining the problems and the course of action of the Court.

China (mainland)

The Supreme People’s Court had ordered courts at all levels to direct litigants to file cases or mediate disputes online at the height of the outbreak in February and to allow judges to use on-line litigation platforms entirely, including for the filing and delivery of rulings, to ensure improved legal services and safety to litigants and their lawyers. In many provinces and cities, the Supreme People’s Court has been promoting “mobile micro court” usage on the WeChat social media site to help courts hold internet trials. In China, there are three “internet courts” which deal with online litigation from the filing of a case to the issuance of judgment documents.

International Arbitration Associations

Hong Kong International Arbitration Centre (HKIAC)

HKIAC’s buildings are functioning and open to hearings and meetings at Two Exchange Square, Central and Hong Kong. HKIAC introduced protections for staff and customers. Front-line service staff have been equipped with face masks. Improved center cleaning/sterilization and temperature control of all entry-level individuals has been implemented. Such programs provide state-of-the-art video-conferencing facilities that can confer at up to eight locations. It is also fitted with a high-speed audio conference network that supports up to 30 line communication in more than 80 countries. HKIAC is also taking into account the policy of the Hong Kong government that all persons arriving from all countries outside China (effective 19 March 2020) and mainland China (effective 8 February 2020) must be placed in a mandatory quarantine. This has allowed anyone who is subject to this policy not to join HKIAC for a minimum time of 14 days following their arrival in Hong Kong and thereafter only if they are symptomatic. A Health Statement Form must be completed for all visitors coming to the centre. HKIAC invites parties to make the use of their virtual hearing services, which is significant step.

International Chamber Of Commerce (ICC)

The outbreak immediately prompted the ICC to advise stakeholders, tribunals and other neutrals to “remain assessed and consider addressing their possible implications in ongoing litigation, if and when necessary.” While its own staff work remotely and all meetings at ICC offices worldwide are still on schedule, they remain operational. The parties can decide, or even the tribunal may order some (or even all) telephone or video witnesses instead of requesting a witness to attend the hearing in person. They may also determine whether video or telephone conferences are to be used or what issues should be addressed in doing so. The ICC has released its Coronavirus Recommendations for Business in response to the pandemic, which define key business measures to reduce the virus’s spread. This involve substituting human meetings with virtual meetings. Where it is no longer possible to attend hearings directly, parties can voluntarily use technology instead.

The Australian Centre For International Commercial Arbitration (ACICA)

ACICA has adopted its precautionary protocol COVID-19 (Coronavirus) to prevent high-risk individuals from taking part in person in any ACICA hearing. The Continuity Plan of ACICA is aimed at ensuring that services can continue, if necessary remotely, including mobile, video and webinars. Although not specifically discussed in the ACICA Regulation, since before the coronavirus, the ACICA has taken up Electronic Dispute Settlement and incorporated in it a draft Order to Use Electronic Dispute Settlement Technology, which offers an alternative of on-line hearings for video conferencing. This draft order states that all temporary and final arbitration proceedings will take place in video conferences and is appropriate for parties to determine conduct and the integrity of witnesses.

London Court Of International Arbitration (LCIA)

The LCIA stated that, although they anticipate being operational, they require all contacts to be online or over the telephone to deal with matters as normal. The LCIA rules cover the risk that the proceedings do not take place in person, as long as it involves proceedings. In its Guidance Note to the Arbitrariness, the LCIA acknowledges that it may be acceptable for hearings to be held through telephone or video conference rather than in person. Article 19 [Oral Hearings] states that “as a matter of nature, a hearing can be done through video conferencing.” The court should also consider “whether any or all those who are expected to attend a meeting or hearing may be able to do that through video conferencing rather than in person (for example, if a witness is not able to travel because of health problems).

American Arbitration Association (AAA)

The AAA International Centre for Dispute Resolution (AAA-ICDR) continues to be active and operational, but AAA-ICDR hearings will not be conducted until at least June 2020. The AAA case management team meets parties and arbitrators to negotiate alternate solutions, such as video use, teleconferences or adjournments. As of April 25, the recommendation “to discuss with one another any questions about their involvement” for parties and arbitrators was “promptly”. Those with symptoms were prohibited from attending in-person hearings. The AAA Rules provide for the use of “Alternative media such as film, screen, telephone conferences and means other than an individual presentation…when considered necessary…[may be used for] the presentation of facts.” The AAA boasts an electronic archive, teleconference, Internet contact and other means, in order to make it possible to provide a “completely fair chance for all.” Consequently, the AAA recognizes that these are appropriate times in which viable alternatives to personal hearings are permitted (indeed required). The AAA published some guidance on how virtual listening, Zoom, and a Virtual Hearing Order (VHO) might be used through a video conference.

Accelerating Justice and Curtailment of Delays?

Justice systems in governments worldwide are some of the most important organizations. They give nations a mechanism that seeks to be as equitable and possible to those involved with dealing with criminal activity and civil disputes. These systems are sadly not always perfect. The history of cases that hold courts, hearings and other court proceedings running at a slow pace is one of the main challenges facing justice systems worldwide. Potential suspects also have to wait months or even years for trials. This gives rise to all kinds of problems from public security issues to prison overcrowding and much more.

Fortunately, innovations have a way to boost the performance of all forms of procedures and court rooms may benefit greatly. In the courtroom and judicial systems worldwide, video conferencing is being implemented as a revolutionary way of speeding up procedures. The benefits of video conferencing are numerous – users are able to express more thoughts in a more naturally occurring atmosphere for one thing. It also saves money otherwise spent on transportation and travel. It also enhances protection. If any prisoner is known to be violent or mentally ill, it is a much better way of going about trials and hearings to hold him or her in jail and link them to the court room with a video conference. It isn’t just straightforward to use video conferencing in court rooms and jails.

The reality is that most courts often struggle with the pressure of large case backlogs and other problems. Anything that can be used to accelerate matters is a boon to this governmental business. This is why video conferencing has made such an significant change. Digital communications technology can improve the speed and efficiency of court proceedings, rather than the current model of waiting for a specific date or period when police officers are available to bring suspects or parties into a hearing or court case. The consequence seems to be a justice system that deals more efficiently and more effectively with hearings every day. Smart use of the technology will enhance the court process worldwide substantially

Conclusion

There will certainly be groups taking advantage of the current pandemic to unnecessarily postpone court trials or arbitration proceedings. As such, it can well become mandatory and commonplace to apply for permission to proceed via video or telephone conferencing. When parties do not take this action themselves, or an initiative of this type is illegitimately challenged, courts or tribunals usually have the power to make reasonable orders to allow it. Some dispute resolution procedures will be inevitably disrupted by the current crisis. Video-conferencing is a tool that is available to alleviate some of the disturbance, while causing the parties minimal harm. It is normally provided for under the law and technology makes it possible. The only remaining thing is that parties accept its usage and dispel the myths of its inadequacy.

For more on COVID-19, see our special coverage.

 

Sayra Kakkar is a first-year law student at Amity University in Noida, India.

 

Suggested citation: Sayra Kakkar, Global Court Functioning and the Impact of COVID-19 on Arbitration, JURIST – Student Commentary, May 17, 2020, https://www.jurist.org/commentary/2020/05/sayra-kakkar-court-functioning-covid19/


This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org


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