Courts and arbitration institutions continue to adapt in response to the COVID-19 pandemic

Courts and arbitration institutions continue to adapt their activities in response to the current global health crisis.  Recent measures include postponing physical hearings, publishing guidelines on pending arbitrations and electronic filing, the unveiling of a platform for virtual hearings and a protocol on video conferencing for arbitration, as well as virtual court meetings and trials.

On 7 April 2020, the International Court of Justice (ICJ) announced that the period of no physical hearings or judicial meetings would be extended to 31 May 2020.  More recently, on 22 April 2020, the ICJ held the first virtual plenary meeting in its history, in which all its members, excluding the President and the Registrar, participated remotely.  The ICJ stated that the necessary arrangements had been put in place to adapt its working methods to the current crisis.

On 16 April 2020, several international arbitration institutions, including the International Centre for Settlement of Investment Disputes (ICSID), the Stockholm Chamber of Commerce (SCC), and the Hong Kong International Arbitration Centre, issued a joint statement on COVID-19.  The institutions affirmed their commitment of ensuring that their respective digital resources are used efficiently for working remotely.  They also urged parties and tribunals to mitigate to the largest extent possible the effects of the pandemic, with a view to ensuring the efficiency of arbitral proceedings.  Parties and tribunals are encouraged to use the full extent of the institutions’ respective arbitration rules and consult the guidelines and information on the institutions’ websites.

On 13 March 2020, ICSID announced that electronic filing will be the default procedure for proceedings.  The Centre indicated that it is constantly reaching out to parties and arbitrators in pending cases, to inform them of ICSID’s services for remote hearings, sessions and deliberations.

On 27 April 2020, the SCC launched its platform for virtual hearings.  The platform will cover all aspects of a traditional hearing — including presentations, document sharing and virtual break-out rooms — through a remote connection, with the possibility for each participant to share a secure space with his or her respective party between sessions.  Earlier, on 6 April 2020, the SCC Secretary General wrote to parties and tribunals regarding proceedings under its rules.  The SCC encouraged tribunals to manage arbitrations using digital meeting facilities and outlined its expectation that timetables established for pending cases would continue to be respected.  The SCC also encouraged parties to try to adhere to established timetables, including cooperating with tribunals and conducting arbitrations using a digital platform, where necessary.

On 18 March 2020, the Korean Commercial Arbitration Board (KCAB) released a protocol on video conferencing, which consists of guidelines for virtual arbitration hearings and meetings (Protocol).  The Protocol provides guidance on, inter alia, video conferencing venues, equipment, witness examination and how to avail of documents to which a witness might need to refer.

Domestic courts in popular jurisdictions for international disputes have also taken significant procedural steps in response to the pandemic.  Between 29 March and 1 April 2020, the High Court in London held its first ever virtual trial, in a case in which Moldovan investors seek to enforce a 2013 Energy Charter Treaty award against Kazakhstan (Anatolie Stati and others v. Kazakhstan).  Following the UK government’s emergency Coronavirus Act of 25 March 2020 — which permits, inter alia, courts to broadcast virtual hearings to the public — Mr Justice Teare ordered the parties to post a YouTube link to a live broadcast of the trial, conducted using Zoom videoconferencing set up by the parties.  The court remotely heard oral evidence from witnesses in the United States, Belgium and Kazakhstan.

The United States Supreme Court (US Supreme Court) has postponed all oral arguments previously scheduled for March and April 2020.  Also, on 13 April 2020, the US Supreme Court announced that, for a limited number of postponed cases, it would hear oral arguments by telephone conference.  All Justices and counsel will participate remotely, and a live audio feed of the arguments will be provided to news media.

The Supreme Court of Singapore, alongside all State Courts and Family Justice Courts, has announced that it will hear only “essential and urgent matters” until 1 June 2020, while all other cases are to be postponed.  These urgent matters will be heard remotely, without requiring the physical presence of parties or their counsel.

The ICJ’s latest announcement on virtual meetings is available here; its latest measures on physical hearings are available here.

The joint statement of the arbitration institutions is available here.

ICSID’s release on electronic filing is available here.

The SCC’s updates on arbitration proceedings are available here; its announcement on virtual hearings is available here.

The KCAB’s videoconferencing protocol is available here.

Transcripts of English High Court’s virtual trial are available here.

The US Supreme Court’s decisions are available here and here; the list of cases to be heard remotely is available here.

The Supreme Court of Singapore’s decisions to postpone are available here and here.

Fietta’s previous COVID-19 post is available here.