The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Seven Months
|Dispute Resolution International homepage » October 2020|
Kim M Rooney, Editor, Dispute Resolution International
Part I: Introduction
In 2020, nearly all the world’s countries and jurisdictions had to respond to the severe disruption caused by the Covid-19 pandemic (the ‘pandemic’), an infectious disease caused by a newly discovered coronavirus that first emerged in late December 2019. The pandemic poses enormous health and socio-economic challenges for the world. As of September 2020, it is not known when the pandemic will end.
Globally, judiciaries and arbitral institutions have been under great pressure to continue operating during the pandemic, notwithstanding the impact of social distancing, restrictions on movement and other measures intended to suppress, if not eliminate, the pandemic. They will need to continue to adapt to the Pandemic and continually assess their priorities.
This is the first of a series of articles to be published in Dispute Resolution International (DRI) about the profound impact of the pandemic on litigation, arbitration and associated alternative dispute resolution (ADR), including the issues of law, practice, technology, unequal access tofinancial and technological resources, and public policy that are arising, and how different jurisdictions and institutions responses evolve.
Contributors and approach to preparing the article
Twenty-seven arbitration and litigation practitioners from 15 jurisdictions have contributed to this article reviewing the impact of the pandemic in the first seven months of 2020 on commercial litigation, arbitration and associated ADR in Australia, Brazil, China, Egypt, England and Wales, Germany, Hong Kong SAR, India, Nigeria, Kenya, Singapore, South Korea, Sweden, the United Arab Emirates (UAE) and the United States (the ‘15 jurisdictions’).
Contributors to this article have generally completed a detailed litigation and/or arbitration questionnaire and then prepared a litigation and/or arbitration summary for their jurisdiction; the summaries are published in this article. Extracts from the completed questionnaires appear in the article’s two appendices.
DRI’s review of the response of jurisdictions to the pandemic is a work in progress. We will include additional jurisdictions in the May 2021 issue of DRI and provide updates as to any relevant developments in the 15 jurisdictions.
Impact of the Pandemic on dispute resolution
To date, the pandemic appears to have had a greater impact on the conduct of litigation proceedings than on arbitration proceedings in the jurisdictions reviewed.
Impact on litigation
Some jurisdictions have deemed the courts to be essential services that must continue to operate, and which must be open to the public even when conducted online. To continue operating, many court systems have had to move from purely physical operations to conducting at least some proceedings by telephone or videoconference online within a few weeks; this has required adaptation by judges, administrators, counsel, parties and witnesses, among others. However, at least during the first wave of the pandemic, other jurisdictions have largely closed down their courts for extended periods to address health and social distancing concerns.
The factors that appear to have impacted upon whether, and to what extent, the conduct of litigation proceedings has been moved online include whether a jurisdiction treats litigation as an essential service, whether its laws clearly provide for online litigation (and if so, what aspects of it, including as to cross-examination of witnesses); whether it is feasible for the public to be given access to online proceedings (where this is a fundamental principle of a jurisdiction’s legal system); the extent to which a jurisdiction’s judicial practice and procedure included electronic filing and online proceedings before the pandemic; and the financial resources and infrastructure available to a jurisdiction to invest in the necessary information and communications technology (ICT) needed to conduct proceedings online, including in rural areas.
In all the jurisdictions reviewed, the courts have issued practice directions and guidelines for the conduct of litigation during the pandemic.
Impact on arbitration
By comparison, to date the impact of the pandemic on the conduct of arbitration appears primarily to have been to accelerate a move to online proceedings that was already under way before the pandemic in many jurisdictions, particularly for cross-border arbitration. There appear to be differing approaches as to whether parties may be required by a tribunal to participate in online evidentiary hearings (particularly as regards cross-examination of witnesses).
At least two jurisdictions are developing online arbitration platforms to provide an alternative to litigation for the resolution of commercial disputes (particularly low- and medium-value disputes).
All but one of the arbitral institutions that contributors discuss have issued guidelines (or similar) on how to conduct arbitral proceedings during the pandemic, including how to conduct arbitral hearings online.
The laws of some, but not all, of the jurisdictions reviewed appear to allow enforcement of awards rendered in arbitration conducted wholly online.
There does not yet appear to have been time for dispute resolution services to have increased their use of innovative technology, such as artificial intelligence and blockchain.
No contributor reported a material increase in the overall cost of conducting proceedings online rather than in physical proceedings.
Legislation enacted in response to the pandemic in the surveyed jurisdictions has largely focused on public health and control of border issues; these are generally of temporary duration (which may be extended).
Around half of the jurisdictions surveyed have enacted amendments to their laws, including with regard to statutory limitations, time bars, suspension of payment deadlines and insolvency triggering events, once again of limited duration.
Structure of article
After explaining some definitions and terminology used in this article, the rest of this article is structured as follows:
• Part II – summaries of litigation and ADR developments for 13 jurisdictions in the Asia Pacific, Europe/the UK, the Middle East and North Africa (MENA), North America, South America and Sub-Saharan Africa.
• Part III – summaries of arbitration and ADR developments for 13 jurisdictions in the Asia Pacific, Europe/the UK, MENA, North America, South America and Sub-Saharan Africa.
• Schedule 1 – : Legislation, Regulations & Orders which outlines the relevant legislation and regulations issued in response to the Pandemic for the 15 Jurisdictions discussed.
• Appendix 1: Litigation which outlines the practice directions and guidelines issued in response to the pandemic for the 13 jurisdictions discussed.
• Appendix 2: Arbitration which outlines the arbitral institutions’ guidelines issued in response to the pandemic for the 15 jurisdictions discussed.
The terms in English used around the world for proceedings conducted physically include ‘in person’, ‘physically’, ‘orally’ and ‘offline’. This article generally uses the terms ‘in person’ and ‘physically’ to describe such proceedings.
The terms in English used around the world for online dispute resolution (ODR) include ‘online, on-line, on line’, ‘electronically’, ‘virtually’, ‘remote’ and ‘remotely’. This article primarily uses the term ‘online’.
The United Nations Commission on International Trade Law (UNCITRAL) Technical Notes on Online Dispute Resolution 2016 define ODR at paragraph 24 as ‘a mechanism for resolving disputes through the use of electronic communications and other ICT. The process may be implemented differently by different administrators of the process, and may evolve over time.’
Part II: Impact of the pandemic on commercial litigation
As outlined in the introduction, Part II of this article provides summaries of the impact of the pandemic on litigation and associated ADR in the following 13 jurisdictions (the ‘13 litigation jurisdictions’):
• Asia Pacific: Australia, China, Hong Kong SAR, India, Singapore and South Korea;
• Europe/the UK: England and Wales, Germany and Sweden;
• MENA: Egypt;
• North America: the US;
• South America: Brazil; and
• Sub-Saharan Africa: Kenya.
Appendix 1 outlines the relevant legislation, courts’ practice directions and guidelines issued in response to the pandemic in the 13 litigation jurisdictions, and in Nigeria and the UAE.
Australia – a common law federal jurisdiction:Elizabeth Pearson, New South Wales (NSW) Bar Association, Sydney
Impact of the Pandemic on Australian litigation
The pandemic has prompted unprecedented reliance in Australian courts on ICT, including online platforms and videoconferencing, to ensure the continued delivery of services where in-person hearings and face-to-face interaction have not been possible due to government public health restrictions.
The courts have been considered essential services and continued to operate in all state, territory and Commonwealth jurisdictions, despite a nationwide lockdown lasting several months. However, the way litigation has been conducted has changed substantially.
Acceleration of online services
Justice Perram of the Federal Court of Australia observed in May 2020 that he doubted what had been achieved in the courts in terms of technological take-up over the previous eight weeks ‘could have been achieved in 10 years under normal circumstances’.
Although practices and procedures have varied across Australia’s nine jurisdictions, there has been a clear trend of increased reliance on e-filing and audio-visual link (AVL) hearings, instead of in-person attendance, where possible and in the interests of justice to proceed.
Platforms used to facilitate online hearings vary between courts. Video and telephone appearances and trials have been conducted via platforms including Zoom, Microsoft Teams, Jabber and Cisco Webex. Since March, the NSW Bar Association has published daily a consolidated guide detailing the different processes and protocols in more than 30 NSW and Commonwealth courts and tribunals.
As of July, courts are returning to in-person hearings; however, progress has temporarily halted in Victoria with more stringent health restrictions resuming.
There are currently no online courts.
Victoria’s Supreme Court has temporarily been empowered to determine particular proceedings on written submissions.
ADR serves an important role in promptly resolving matters and assisting courts to manage the disruption to case management caused by the pandemic. Platforms including Zoom and Microsoft Teams have been used to facilitate remote mediation, conciliation and other ADR.
Protocols for online hearings: electronic witnessing and signing
Many courts have developed protocols, in consultation with the legal profession, to govern the conduct of online hearings, including handling e-documents, evidence and cross-examination. These include the High Court of Australia, Federal Court of Australia and NSW Supreme Court. The NSW Bar Association developed a Protocol for Remote Hearings, which has been endorsed by the Chief Justice of NSW.
Electronic witnessing and e-signing of documents have been temporarily allowed; however, there are significant inconsistencies among jurisdictions’ approaches.
The cost of changes to practice and procedure of commercial litigation resulting from the pandemic is difficult to determine presently. Some costs may have been saved due to reduced requirements to travel to physically attend hearings. Conversely, there has been a need to invest in technology and Justice Perram noted that AVL hearings were 20 to 40 per cent slower, resulting in associated costs.
Laws relating to evidence and the use of AVL in hearings existed before the pandemic. However, the use of ICT to facilitate online hearings has significantly increased and some jurisdictions have introduced additional provisions.
More than 800 pieces of legislation, orders, directions and regulations have been enacted across Australia’s jurisdictions in response to the public health crisis.
Legislation enacted to facilitate the ongoing conduct of matters includes to support safe access to courts (eg, temperature testing on entry) and allow emergency regulation-making powers.
Commonwealth bankruptcy law has been amended to provide temporary relief, including increasing the debt level required before a creditor can make someone bankrupt from AU$5,000 to AU$20,000.
Australia’s National Cabinet issued a Code of Conduct on SME Commercial Leasing Principles during Covid-19, enacted through state and territory law, to impose ‘good faith leasing principles’ on existing arrangements.
NSW residential tenants financially disadvantaged by the pandemic were afforded temporary protections, including a 60-day pause on eviction notices due to rental arrears.
The Corporations Act 2001 (Cth) was amended to provide directors relief from ‘potential personal liability for insolvent trading’.
Reporting deadlines under the Modern Slavery Act 2018 (Cth) have also been extended.
China – a civil law jurisdiction:Gary Gao, Zhong Lun, Shanghai
The Chinese court system consists of local people’s courts (district or county level), intermediate people’s courts, high people’s courts and the Supreme Court.
Impact of the Pandemic on litigation
China is very lucky to have been able to recover from the pandemic swiftly. The most severe impact of the pandemic upon litigation was mainly between February and May 2020. During that period, the courts opened a channel to hold online hearings for case management conferences, interim relief applications, urgent applications, merit hearings, appeals, witness examinations and so on.
Since the online hearings arranged during the pandemic are an alternative urgent service provided by the court due to the pandemic; it is not a routine service and the cost is covered by the ordinary litigation court fees.
Has the pandemic accelerated the use of (1) ICT and (2) ODR in China?
The pandemic has accelerated the use of (1) ICT and (2) ODR in the PRC. The court system reacted efficiently and speedily to engage third-party technical service providers to offer online litigation platforms. Along with the use of these online platforms, service providers also improved the technical maturity of the platforms according to user feedback. Although court proceedings have returned to normal physical proceedings in the PRC, the advantages of online approaches will give the court system some motivation to consider the implementation of ODR in the future, especially for cases in summary procedures.
Chinese law regarding (1) litigation by ODR; (2) delivery of judgments online; and (3) online enforcement
Chinese laws and regulations expressly permit virtual or non-physical litigation hearings, for example, Article 23 of Circular of the Supreme People’s Court on Issuing the Implementing Measures for the Pilot Reform of Civil Proceedings for the Separation of Complicated Cases from Simple Ones (dated 15 January 2020).
As for the delivery of judgments online, courts have to physically serve paper judgments to the parties according to Article 87(1) of the Civil Procedure Law. Yet the rules for online courts are special, and hence an online court may serve judgment documents electronically after it has informed parties of their rights and obligations and obtained their consent to electronic service. Where a party raises a request that it needs paper judgment documents, the online court shall provide the paper judgment documents.
Online courts in China
Chinese law provides for online courts as a service associated with physical courts. They are available for courts in Beijing, Guangzhou and Hangzhou.
From the substantive perspective, compared with ordinary physical court proceedings, online courts obey the same substantive laws and regulations. From the procedural perspective, compared with ordinary physical court proceedings, online courts take an online approach to cases, including case registration, service, exchange of evidence, court preparation, hearings and rulings.
Does Chinese law specifically allow ‘document-only’ litigation?
Chinese law requires first instance cases (including summary procedures) to be heard in court, that is, the court will hold hearings.
‘Document-only’ litigation occurs in special circumstances provided for certain second instance cases pursuant to Article 169(1) of the Civil Procedure Law.
Does Chinese law require physical or ‘in-person’ hearings in litigation?
Although Chinese law emphasises that hearings shall be held, it does not mandatorily require in-person hearings. In practice, there are other types of hearing options available, such as online court hearings – see Article 136 of the Civil Procedure Law.
Legislation enacted concerning the conduct of litigation during the pandemic
A few sets of legislation have been enacted concerning the conduct of litigation during the pandemic, including: (1) Circular of the Supreme People’s Court on Strengthening and Regulating Work on Online Litigation during the Period of Prevention and Control of the Novel Coronavirus Pneumonia (Covid-19) Epidemic, dated 14 February 2020; (2) Circular of the Supreme People’s Court on Issuing the Guiding Opinions (I) on Several Issues concerning the Proper Trial of Civil Cases Related to the Covid-19 Epidemic According to the Law, dated 16 February 2020; (3) Circular of the Supreme People’s Court on Issuing the Guiding Opinions on Several Issues concerning Law-based and Proper Handling of Enforcement Cases Related to the Covid-19 Epidemic, dated 13 May 2020; (4) Circular of the Supreme People’s Court on Issuing the Guiding Opinions (II) on Several Issues concerning the Proper Trial of Civil Cases Related to the Covid-19 Epidemic According to the Law, dated 15 May 2020; and (5) Circular of the Supreme People’s Court on Issuing the Guiding Opinions (III) on Several Issues concerning the Proper Trial of Civil Cases Related to the Covid-19 Epidemic According to the Law, dated 8 June 2020.
The Supreme Court has issued a few judicial interpretations to address the impact of the pandemic, that is, those listed above.
As for the first instance or international commercial courts in China, they have also announced many implementation rules in this regard. However, these implementation rules are more like practical guidance on the detailed measures taken during the pandemic; they follow the rules from higher courts or the Supreme Court.
Changes to the laws of China arising from the Pandemic
Except for the laws and regulations enacted to specifically address the pandemic in China, there have been no changes to Chinese laws and regulations resulting from or prompted by the pandemic with respect to the rules on time bar periods, limitation periods, default in payment obligations, insolvency and so on.
Hong Kong SAR – a common law jurisdiction:Matthew Hodgson, Allen & Overy, Hong Kong SAR
The Court of Final Appeal (CFA) is the final appellate court within the Hong Kong court system. Below the CFA is the High Court, which consists of the Court of First Instance and the Court of Appeal.
Impact of the pandemic
In light of the pandemic, the Hong Kong courts applied a general adjournment period (GAP) from 29 January to 3 May 2020, restricting services and adjourning all proceedings other than certain urgent and essential business. During the GAP, the courts only accepted urgent applications to file originating documents where the limitation period for a cause of action might have expired during the GAP. The courts also heard urgent applications (eg,ex parte injunctions) and handled certain types of bankruptcy-related proceedings during the GAP. Other in-person hearings, such as case management conferences, interim relief applications, trials, appeals and hearings relating to other matters (eg, insolvency), were suspended. In general, procedural deadlines were extended until after the resumption of court business.
During the GAP, most hearings could not take place as scheduled. There was, therefore, an apparent drop in the busyness of judges after the GAP, and parties have generally had to wait longer (approximately a month) for a judge to be available for a hearing. The availability of counsel, witnesses and parties remains much the same for attending remote hearings as it was prior to the GAP, as does the approach to the preparation and production of documents, the length of proceedings, the conduct of hearings, communication among counsel and clients, and the time taken for delivery of decisions. Although parties may have had to incur extra costs to set up videoconferencing facilities (VCF) for remote hearings, the costs of solicitors attending telephone hearings fell because they did not have to travel to the court for in-person hearings. Some solicitors may have felt that presentation of submissions by way of telephone was more relaxed.
Online courts, physical proceedings, document-only proceedings and enforcement
Hong Kong law does not expressly provide for litigation by telephone or online enforcement. Prior to the GAP, Practice Direction 29 (PD 29) allowed parties to apply to the court to examine a witness via videoconferencing link in the Technology Court. However, PD 29 does not expressly provide for the conduct of full hearings by video link.
In addition, the judiciary has been publishing its decisions and judgments on its website.
Hong Kong law does not recognise online courts as a service associated with physical courts or as dedicated courts in the ordinary course of things. However, there is no express provision in the High Court Ordinance or Rules of the High Court that requires court hearings to be held with physical attendance of parties or their representatives.
Hong Kong law does not specifically allow document-only litigation. However, during the GAP, on-paper disposals were considered suitable for many civil cases not involving live witnesses.
Accelerated use of ICT and ODR
The pandemic has accelerated the use of ICT as the judiciary has permitted parties to submit certain documents by email during the GAP. In addition, an electronic platform for lodging documents with the court called the ‘e-Lodgement Platform’ was made available for parties and legal representatives to lodge with the court their submissions, authorities, hearing bundles and other documents as the court directed.
As to the use of ODR in Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co Ltd  HKCFI 347, Coleman J took a considered and pragmatic view on the conduct of hearings in civil cases during the GAP after balancing the interests of public health and open administration of justice. The court ordered, on its own motion, a directions hearing by phone in circumstances where the trial had been adjourned due to the GAP. Coleman J ordered the hearing to be conducted by phone, not by videoconferencing, taking the view that VCF are relatively less widely used in the Hong Kong legal profession. Coleman J stressed that it was not in the interest of justice to halt all court work simply because hearings normally require physical attendance, given court hearings can be dealt with by telephone effectively and fairly. This decision confirms the court’s flexible approach to its own jurisdiction and the procedural rules of litigation. In CSFK v HWH  HKCA 207, the Hong Kong Court of Appeal conducted its first remote hearing in the Technology Court (located inside the High Court building). The judges and clerks sat inside the courtroom, while the barristers and solicitors attended by videoconference or telephone conference. The parties had to bear their own costs for using VCF or telephone conferencing facilities. The costs of using VCF in this particular hearing were approximately HK$8,000 (US$1,032) per party.
Legislative amendments: judicial guidance notes
The only change to the substantive laws of Hong Kong in response to the pandemic is the exemption provided to qualified legal practitioners of litigation proceedings from complying with mandatory quarantine requirements.
The judiciary has issued various announcements, guidance notes and notifications updating the court arrangements in light of the GAP. The judiciary has issued guidance notes governing the conduct of remote hearings in civil cases. Phase 1 took effect during the GAP and entails using the courts’ existing VCF; the guidance notes also envisage the potential use of other technology in the future, provided it is feasible and secure. Phase 1 applied to all interlocutory applications or appeals that could be concluded within two hours. Phase 2 took effect after the GAP and entails expanding the use of remote hearings by video or telephone in civil cases to all levels of civil courts. It also applies to trials as well as civil appeals and interlocutory applications in the Court of Appeal that could be completed within one day. In the Chief Justice’s statement of 25 March 2020, he agreed there should be greater use of technology in the judiciary and that ‘information technology security issues must be addressed’.
India – a common law jurisdiction:Vikas Mahendra and Prerana Reddy, Keystone Partners, Bengaluru
The court system
The judicial system is a single integrated system comprising the Supreme Court, high courts for each state, trial courts under the control of each high court and specialised tribunals created by statutes. Decisions of the Supreme Court are binding on all courts and tribunals of the country and decisions of the high courts are binding on all trial courts and tribunals under the jurisdiction of that high court.
Impact of the Pandemic on Indian litigation
Before the pandemic, litigation in India was almost wholly conducted by way of in-person hearings, with some courts hearing between 300–400 cases
per day. Virtual hearings, if permitted, were only in exceptional circumstances. All filings were mandatorily to be made physically, in the court premises.
However, the pandemic has forced a shift in this trend. With physical hearings being suspended in courts across the country until further orders and the resultant heavy backlog of cases, the courts have begun to accept electronic filing of new cases and conducting hearings by videoconferencing, albeit for a limited number of matters, on the basis of urgency.
The procedural laws in India do not provide for document-only litigation. Therefore, the closure of courts on account of the pandemic required a paradigm shift in the conduct of proceedings. The need to shift to virtual hearings came with its challenges in the form of a heavy backlog of cases, a lack of infrastructure for videoconferencing, unfamiliarity with the new system and a lack of permanent rules and guidelines to govern virtual hearings.
Since the pandemic, most courts in the country have disallowed the holding of in-person hearings. Even the courts that permit them provide for and encourage the use of videoconferencing for hearings. However, due in part to the poor infrastructure available and the inherent scepticism of lawyers, the courts have shown significant reluctance to shift to virtual hearings and have continued to choose physical hearings and/or adjourning matters, where possible.
There has been a significant shift in the way that hearings have been conducted by the courts during the pandemic: a number of courts have expressed a preference to avoid matters requiring lengthy arguments and as a result a greater percentage of counsel are insisting on filing written arguments to supplement their brief oral arguments. Some high courts have even permitted counsel to submit their arguments by way of a video recording of a set duration to replace/limit the scope of discursive hearings, physically or by videoconferencing. Counsel are also required to mandatorily file requisite documents a few days prior to their hearing so they can be sent to the judges in time for the hearing.
Due to non-availability of all judges each day and the non-accessibility of case files to many counsel, the courts are taking up restricted matters, often at the stage of arguments. On the other hand, some courts have specifically disallowed listing of matters for final hearing, instead focusing only on hearings requiring urgent interim relief. Recording of evidence by way of videoconferencing was disallowed until recently; however, now that many high courts have formed rules pertaining to recording evidence by videoconferencing, these matters may go on, provided both parties consent. In addition to the limited listing on matters, in most cases courts have only taken up matters for hearing when both counsel are present. Courts have been reluctant to pass adverse orders in the absence of a counsel – even where no legitimate excuse has been provided by the counsel for its absence. As a result, there is often a greater willingness on part of a counsel to be absent when it is not keen to push the matter through.
The progress of cases during the pandemic has been slow, even in matters where the courts have moved to virtual hearings – especially for civil/commercial matters since courts are unwilling to hear matters at all stages. However, due to the lower number of matters being heard, the time taken between hearing and delivery of judgment for those matters has been reduced.
Guidelines to address litigation during the pandemic
There is no Covid-19 specific legislation in India that deals with court litigation. In the absence of such legislation, the conduct of litigation during the pandemic is governed by standard operating procedures issued by the Supreme Court and the high courts from time to time. The Supreme Court and many high courts have also published procedural guidelines to govern electronic filing and hearing of matters, including recording of evidence, by videoconferencing.
Working group to address Covid-19 issues in litigation
Although there is no government or court-appointed body that has specifically been formed to consider the impact of the pandemic on litigation, bodies such as the Niti Aayog (the policy arm of the government) and the E-Courts Committee of the Supreme Court are considering these issues as part of their respective mandates.
Changes to substantive law
The courts and the government have ordered a number of interim protections to various stakeholders, that have been extended from time to time, including: extension of time limits for interim stages during court proceedings until further orders(by notifications of the high courts); extension of limitation periods; circulars permitting banks and financial institutions to refrain from taking legal action for default of loan payments for that period; and making significant changes to the insolvency regime, that is, increasing the threshold for initiating insolvency proceedings and entirely suspending corporate insolvency resolution filing for six months for debt defaults post 25 March 2020 (when the first nationwide lockdown was imposed).
Singapore – a common law jurisdiction: Tat Lim, Aequitas Law, Singapore
Changes to the practice and procedure of Singapore commercial litigation and related ADR
Regarding the practice and procedure for filing and the conduct of proceedings before any evidentiary hearing or final determination, in Singapore parties continue to both commence and pursue court proceedings by filing documents electronically using the courts’ online case management system (the ‘eLitigation system’).
The Covid-19 (Temporary Measures) Act 2020 (the ‘Act’) has allowed court proceedings to be conducted using remote communication technology (eg, teleconference, videoconference and email) such that physical attendance in the courtroom could be minimised or dispensed with.
Videoconference hearings were commonly conducted in the Singapore International Commercial Court (SICC) before the pandemic and have since been extended to trials in suitable cases.
The Supreme Court has issued guidance in its Registrar’s Circular No 3 of 27 March 2020: ‘For hearings which are to be conducted by video conferencing, telephone conferencing may be available to solicitors, where appropriate. Video conferencing [is] available to litigants in person. Certain matters may be dealt with without hearing oral arguments. Directions may be given by correspondence.’
Evidentiary hearings in Singapore litigation have not been postponed, and have taken place with the help of the technology available.
The costs of using technologies in Singapore litigation have remained nominal and shared between the parties.
Accelerated use of (1) ICT and (2) ODR in Singapore
The pandemic has accelerated the use of ICT and ODR in litigation.
The judges of the High Court have been divided into two separate teams. No judge from the first team will be in physical proximity or in close contact with a judge from the second team to ensure continuity of the judicial system. There have been court proceedings with a bench of three judges, where one judge attends by video link.
A timetable of proceedings has been adapted, and a system of staggered hearings and remote hearings has been adopted.
The most interesting innovation in Singapore’s litigation practice and procedure
Since March 2020, in accordance with the Registrar’s Circulars, the courts in Singapore have heard essential and urgent matters, with the majority of such hearings using remote communication technologies such as Zoom (‘virtual hearings’). Zoom trials have proven effective, although they have raised some unique issues and challenges (eg, some jurisdictions do not allow the taking of evidence of foreign witnesses by video link in Singapore).
All non-essential and non-urgent matters scheduled for hearings before the state courts and the Supreme Court from 7 April 2020 to 4 May 2020 (extended from 5 May 2020 to 1 June 2020) were adjourned.
While 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. Before Covid-19, the courts had enabled lawyers to make applications by video link. The courts are also used to parties or witnesses appearing in court by video link.
The SICC is equipped with cutting-edge technology, including evidence and trial management systems such as Opus 2 Magnum (also used in Global Yellow Pages) and Realtime Platform. The merits of these systems have been brought to light during the pandemic.
Singapore’s law regarding (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (3) online enforcement
Singapore’s law does not expressly provide for litigation by telephone or ODR, or for the delivery of judgments online or online enforcement. However, in practice, some litigation proceedings have been conducted online, as described above.
Does Singapore’s law specifically allow ‘document-only’ litigation?
Parties to Singapore litigation can elect to apply for a ‘Documents-only’ civil trial or assessment of damages (an ‘assessment’). The types of cases that are designated as documents-only civil trials or assessments and the additional steps and procedures have been set out in the State Courts Practice Directions.
Does Singapore law require physical or in-person hearings in litigation?
Parties to a case are normally required to attend the hearing unless their counsel is mandated to represent them.
Singapore legislation enacted concerning the conduct of litigation
The Act was passed by the Singapore Parliament and commenced on the same day, 7 April 2020.
The courts’ procedural rules, circulars or similar to address the impact of the pandemic
At least 15 Registrar’s Circulars have been issued by the state courts and the Supreme Court essentially for ‘Updates on Measures Relating to Covid-19 (Coronavirus Disease 2019)’.
Changes to Singapore’s laws in response to the Pandemic
The Act extends limitation periods from when a notice of relief is served until the notice ceases to be of effect (whether due to the Act expiring, the notice being withdrawn or an assessor determining that the case is not entitled to relief). Should parties ignore the Act and decide to serve proceedings, substantial rights may be lost. It will not be possible to revive the cause of action if a matter is dismissed by a court or tribunal.
Furthermore, the Act provides temporary relief for financially distressed businesses through increased monetary thresholds for corporate insolvency and a longer time period to satisfy a statutory demand from creditors.
Additionally, late payment charges or increased interest rates shall be incurred by businesses even though their payment obligations may be suspended during the prescribed period.
South Korea – a civil law jurisdiction: Inhoe Jeong, KCL, and Joongi Kim, Yonsei Law School, Seoul
Changes to the practice and procedure of commercial litigation and related ADR in Korea
The pandemic has not led to much change in the practice or procedure of litigation or ADR. Some restrictions regarding entrance and use of court facilities have been implemented to prevent the spread of Covid-19. Every person has had to have their body temperature checked before entering the court building and anyone without a mask cannot enter. Parties can enter the courtroom only right before their trial and cannot sit next to each other in the audience seats. Some courtrooms have installed acrylic fences between parties, judges and judicial clerks.
Accelerated use of (1) ICT and (2) ODR in Korea
Both the Korean Civil Procedure Rules under the Civil Procedure Act and the Criminal Procedure Rules under the Criminal Procedure Act state that the examination of witnesses can be conducted via videoconference. The Civil Procedure Rules state that preparatory proceedings, during which the parties and the judge review the issues of the case and plans for pleading and submission of evidence, can be conducted via telecommunication with the consent of the parties.
Some civil courts proceeded with preparatory proceedings via videoconference. There was a case where a court decided to conduct a regular pleading via videoconference upon consent of the parties because an attorney of a party who lived in another city failed to get transport to the court due to the Covid-19 situation. Pursuant to the press report, the parties were satisfied with the proceeding and have decided to proceed with the following pleadings via videoconference.
As to the technology used, an application prepared and managed by the court is used.
As to court protocols, while there is no specific guideline yet, the Supreme Court prepared a draft guideline for video trials (Draft Guidelines for Implementation of Remote Video Trials) and disclosed it on 1 July 2020 for public review. It is likely that it will be issued and effective soon.
However, most courts are pursuing in-person procedures and there have not been any criminal cases that have proceeded with the use of ICT or ODR.
Korean law expressly provides for (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (3) online enforcement
Korean law does expressly provide for litigation by telephone, ODR, delivery of judgments online and online enforcement as follows:
• Act on Special Cases Concerning Remote Video, Act No 10177. This act is only applicable to procedures in city or county courts, where only limited types of cases can be held.
• Both Korean Civil Procedure Rules and Criminal Procedure Rules state that the interrogation of a witness can be conducted via videoconference.
• The Civil Procedure Rules state that the preparatory date for pleadings may be held via telecommunication. Article 70 of the Rules has been revised as of 1 June 2020, explicitly stating that when it is impractical for the parties to attend trial, a panel of judges may decide to proceed with preparatory proceedings via videoconferencing with the consent of the parties.
Korea provides online courts as a service associated with its physical courts
Korean law does not provide dedicated (standalone) online courts, but only a service associated with physically existing courts.
Does Korean law specifically allow ‘document-only’ litigation?
Korean law does not specifically allow ‘document-only’ litigation.
Does Korea require physical or ‘in-person hearings’ in litigation?
As referred to above, Korean law expressly provides for litigation by telephone, ODR, delivery of judgments online and online enforcement.
Has any legislation been enacted regarding the conduct of litigation?
No legislation has been enacted concerning the conduct of litigation during the pandemic.
Korean court’s applicable procedural rules and similar
As explained above, the Supreme Court has prepared guidelines for remote video trials (Draft Guidelines for Implementation of Remote Video Trials), which set out specific procedures for remote interrogation in civil and criminal litigation and preparatory proceedings in civil litigation. The draft has been open for public review since July 2020, and is likely to be issued and become effective soon.
Any changes to substantive Korean laws?
No legislation has been enacted in response to the pandemic.
England and Wales, and Europe
England and Wales – a common law jurisdiction:Rick Gal, Allen & Overy, London
Impact of the pandemic on English commercial litigation
English commercial litigation has continued to operate throughout the pandemic. Although there has been a complete transformation towards the use of remote proceedings, the practice and procedure for the conduct of litigation proceedings has, in many respects, remained the same.
Court business initially focused on more urgent applications and hearings. However, once the Business and Property Courts became more familiar with remote hearings, the impetus was to continue with as many hearings as possible. For example, the Commercial Court has reportedly been doing close to 100 per cent of its expected workload.
The Protocol Regarding Remote Hearings dated 26 March 2020 (updated on 31 March 2020) (‘March 2020 Protocol’) encouraged the court and parties to be more proactive in relation to forthcoming hearings. It stated that the pandemic necessitates the use of remote hearings wherever possible and provided guidance on the conduct of remote hearings. The impact has been clear: there have been very few partly or fully in-person hearings since the end of March 2020 in the Business and Property Courts, with hearings instead taking place remotely.
The decision on whether an application/hearing has gone ahead and, if so, whether it has been partly or fully remote has been a matter for the relevant judge. Judges have considered a variety of factors in deciding whether to proceed virtually and have been guided by the UK government’s expectation for the courts to continue to function through the increased use of technology. Nevertheless, if all parties oppose a remotely conducted final hearing, it appears that this has been a strong reason not to proceed with a remote hearing.
The concept of open justice is a fundamental principle in the English courts. The March 2020 Protocol directed that remote hearings should, so far as possible, still be public. This has been achieved by various means, including allowing a media representative or interested party to join the remote hearing. However, Practice Direction 51Y (‘PD 51Y’) provides the court with discretion to direct that hearings can take place in private where it is not practicable for them to be public.
One of the tweaks to court procedure has been in relation to court deadlines. The introduction of Practice Direction 51ZA (‘PD 51ZA’) has allowed parties to agree to longer extensions to the deadlines that are contained in the Civil Procedure Rules or court orders. It also provides that the court will take into account the impact of the pandemic when considering applications for an extension and adjournments of hearings.
Use of ADR
There have been some indication that parties have been increasingly negotiating their disputes or attempting to reach a settlement, though less evidence that parties are necessarily turning to softer forms of ADR. The Cabinet Office has issued guidance that encourages parties to negotiate or otherwise to have recourse to an early neutral evaluation or mediation before escalating a dispute to formal proceedings.
The acceleration of technology
On 19 March 2020, the Lord Chief Justice informed judges in the civil and family courts that the default position during the pandemic must be that hearings should be conducted with some or all of the participants attending remotely, and that they would need to prepare to use technology to conduct business in a manner that was previously unthinkable.
A few days later, the Lord Chief Justice announced that civil hearings would only take place in person if a remote hearing was not possible and if suitable arrangements could be made to ensure the safety of participants. He noted that all efforts were being made to update and add to the technology currently available.
While some courts have remained open, the courts have been using phone, video or other technology to allow as many hearings as possible to take place remotely. It was recently reported that up to 90 per cent of all hearings have used remote technology. Judges have been open to suggestions by the parties as to the most suitable platform, though the preference in the Business and Property Courts has been for Skype for Business.
Electronic filing and electronic bundles
The courts have for some time been using an electronic court file. However, the move to remote hearings has increased the use of electronic hearing bundles by judges and parties. On 20 May 2020, the judiciary published guidance on the use of electronic bundles.
Impact on judiciary, parties, lawyers and witnesses
Many judges have been positive about the move to remote hearings and have opted to proceed remotely even for longer and more demanding hearings. A large number of participants appear to have been broadly content with the remote working of the courts in the circumstances; it has required them to become more tech-savvy.
Although more has been expected from counsel than in normal circumstances, they have adapted and have learnt how to be effective remote advocates and to use electronic bundles. One challenge for lawyers has been how to communicate with the relevant advocate in real time, while challenges for witnesses have included how to retain the formality of court proceedings and how to avoid off-camera indiscretions. Connectivity problems have also been an issue.
The impact of the move to remote proceedings on costs will be case specific, with cost savings and cost increases to be expected. The court has suggested that it may take longer and require more work to achieve a particular result by remote working, which suggests fees may be greater.
Legislation, rules and guidance enacted to address the conduct of litigation
The Coronavirus Act 2020 was introduced on an emergency basis to deal with the pandemic, with a general expiry date of two years and a six-month parliamentary review. Among other things, it provided clarity as to the courts’ power to order online proceedings and to ensure public access to them.
The judiciary and HM’s Courts and Tribunals Service (HMCTS)have issued a raft of guidance, protocols and updates in relation to the conduct of remote hearings during the pandemic and the operation of the courts, including the March 2020 Protocol. Guidance has been provided to parties in relation to remote hearings, including on how to join remote hearings and how the HMCTS is using virtual technology.
New practice directions under the Civil Procedure Rules have also been issued to provide clarity on the private/public nature and recording of virtual hearings (PD 51Y), provide for a general stay of proceedings relating to the recovery of the possession of land (PD 51Z) and amend the rules relating to extensions of time (PD 51ZA).
The judiciary has provided its own guidance through court judgments addressing the conduct or standards for remote hearings. For example, the court has held that there is to be a rigorous examination of the possibility of a remote hearing and whether it can achieve justice, which can only be assessed case by case.
Other relevant changes to the law
The Coronavirus Act 2020 was introduced to deal with various matters other than remote court proceedings, including in relation to public health, employment and investigatory and police powers. Many other regulations and legislation have since been enacted. Notably, in April 2020, a new temporary practice direction on insolvency proceedings came into force. More recently, the Corporate Insolvency and Governance Act 2020 was rushed through parliament in order to provide businesses with flexibility to continue trading.
The Cabinet Office has also issued non-binding guidance requesting parties to act responsibly and fairly in relation to the performance and enforcement of their contracts during the pandemic.
Speed and permanence of change
Many have been surprised by the speed with which the English court system has adapted to virtual working. The transformation from physical to remote hearings, while providing for a small number of cases to continue to be held in person, has led HMCTS and the Lord Chancellor to suggest that more of the English court system has remained functional through lockdown than in most comparable jurisdictions around the world.
The Lord Chief Justice, among others, has indicated that the use of remote hearings will endure once the pandemic has passed. The view of the UK government is that the court system will emerge as more efficient, more dynamic and more resilient following this crisis. HMCTS has said that remote technology will continue to be used and rolled out beyond autumn 2020. However, the judiciary, HMCTS and the UK government are now looking at recovery options to allow the return of some semblance of normal court business.
Germany – a civil law jurisdiction:Anna Masser, Jana Loewer and Carolin Happ, Allen & Overy, Frankfurt
Outline of the German court system
The German judicial civil system in general has three instances: first instance (local court or regional court); court of appeal (regional court or higher regional court); and court of final appeal (higher regional court or Federal Court of Justice). The amount in dispute and/or the grounds of the dispute are relevant for choosing the competent first instance court.
Impact of the pandemic on German litigation
Regarding the practice and procedure for filing and the conduct of proceedings in Germany, there has been a shift from paper-based submissions to electronic submissions. Also, the correspondence between parties and the court shifted to more electronic correspondence. More online hearings have been conducted, which before the pandemic had rather existed in theory.
Evidentiary hearings were still more likely to be postponed than conducted via videoconference. Courts are cautious and, in light of the easing of the lockdown, will be more likely to proceed in person.
There has been a change in German VAT rates from 19 to 16 per cent, limited to the period from 1 July 2020 to 31 December 2020. Parties that are liable to pay VAT will benefit from this reduced VAT rate.
Acceleration of use of ICT and ODR in Germany
The pandemic has accelerated the use of ICT and ODR in Germany. The possibility of online hearings and electronic communication was enshrined in law before the beginning of the pandemic; however, online hearings remained a theory. Due to the pandemic, parties and courts now tend to use electronic communication and the possibility of online hearings more often.
Does German law expressly provide for (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (c) online enforcement?
German law expressly allows for litigation by videoconference and online enforcement. The images and sound of the hearing shall be broadcasted in real time to another location and to the courtroom. It is possible that parties and witnesses are not physically present but participate via videoconference. The judge has to be present in the courtroom and the room must remain accessible to the public. Regarding electronic enforcement, there are stipulations in German law that enable electronic enforcement, so that the court-appointed enforcement officer can start the enforcement procedure without specific paper documents.
Does German law specifically allow ‘document-only’ litigation?
It is possible to enter into proceedings on claims arising from a deed, in which only documentary evidence may be submitted. Such proceedings are admissible if a claim is brought regarding the payment of a specific amount of money, or the performance of a determined amount of other fungible things that in business dealings are customarily specified by number, measure or weight, or the performance of securities.
Does German law require physical or ‘in-person’ hearings in litigation?
In general, hearings are conducted with the physical presence of all parties. However, it is possible that parties and witnesses are not physically present but participate via videoconference. In any case, the judge has to be present in the courtroom and the room must remain accessible to th