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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.
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 the public.
Legislation regarding the conduct of litigation
No legislation has been enacted in Germany concerning the conduct of litigation during the pandemic.
Judiciary’s general rules in response to the pandemic
The German courts did not publish special procedural rules or guidelines regarding litigation. Instead, the courts published general rules regarding distance keeping and access to the courthouse in general.
The Federal Court of Justice (Bundesgerichtshof) published guidelines on its homepage and so did the other courts.
Some individual oral hearings have been cancelled and postponed to ensure public participation and the maintenance of safe distances. For those oral hearings that were/are not cancelled, they continue to be held in public, although in individual cases, registrations must be made in advance. Distance and hygiene rules are in place.
The ministries of justice of the respective states (Bundesländer) published guidelines. In those, they suggested limiting scheduled oral hearings to those urgently necessary. Again, those guidelines are rather suggestions regarding distance-keeping.
Any judge may, within the limits of judicial independence, take sessional measures at their discretion, such as a reasonable limitation of the public or the duty to wear mouth/nose protection in their specific hearings. Also, it remains every judge’s own decision to cancel and postpone an already scheduled oral hearing.
German legislation arising from the pandemic
There have been the following changes to the laws of Germany resulting from or stimulated by the pandemic:
• Default in payment obligations: Rent and lease agreements could not be terminated due to rent or lease default in the period between 1 April 2020 and 30 June 2020 if the default resulted from the pandemic. Repayments from a consumer loan agreement in the period between 1 April 2020 and 30 June 2020 were deferred for three months if the consumer could not reasonably pay its loan due to the pandemic and this deferral was not unacceptable to the lender.
• Insolvency: The obligation to file for insolvency according to the German Insolvency Act (Insolvenzordnung or InsO) and the German Civil Code (Bürgerliches Gesetzbuch or BGB) was suspended until 30 September 2020 if the occurrence of insolvency was based on the consequences of the pandemic and there was a prospect of eliminating existing insolvency. This period may be extended by regulation if this seems to be required.
• Other: VAT rates have been reduced from 19 to 16 per cent, limited to the period from 1 July 2020 to 31 December 2020. Parties who are liable to pay VAT will benefit from this reduced rate.
Sweden – a civil law jurisdiction:Stefan Brocker, Mannheimer Swartling Advokatbyrå, Stockholm
Outline of the Swedish court system
The judicial system in Sweden consists of three types of courts: the courts of general jurisdiction; the administrative courts; and courts of limited jurisdiction. Of greatest relevance here, the courts of general jurisdiction are divided into three instances: the district courts; the appellate courts; and the Supreme Court.
Changes to the practice and procedure of Swedish commercial litigation and related ADR in response to the Pandemic
Regarding the practice and procedure for filing and the conduct of proceedings before any evidentiary hearing or final determination in Sweden, no changes have been made in legislature or by soft law instruments, such as guidelines. Before the pandemic, both practises were already done virtually, to a large extent.
As to the practice and procedure for conducting evidentiary hearings in Sweden, courts, parties and counsel have more and more opted to use virtual options, such as video or telephone conferences.
As to the cost of any changes to the practice and procedure of commercial litigation resulting from the pandemic in Sweden, the increased use of virtual options entails that primarily counsel need not travel as much, resulting in a decreased cost. On the other side, the technology necessary to conduct meetings virtually sometimes carry a cost.
As to related ADR matters, what has been noted above under this heading applies also with regard to, for example, mediation.
Accelerated use of ICT in Swedish litigation
It is noticeable that while the use of ICT in proceedings before Swedish courts was prevalent before the pandemic, Covid-19 has helped to further increase the interest in it by the courts, parties and counsel.
As to the technology used, including technology standards applied, in Sweden, prior to the pandemic the courts already had certain requirements that had to be met in order for the parties to conduct a hearing or other parts of the proceedings virtually.
As to data security and confidentiality of ICT, the technical requirements applied demand that the technology used is compatible with
As to court protocols in Sweden, the courts have not changed their handling of cases or similar. However, as a result of the pandemic, the courts have issued guidelines for their interaction with the public. Such guidelines may indirectly encourage parties to conduct meetings before the court virtually.
Most interesting innovation
The most interesting innovation in practice and procedure resulting from the pandemic has been the increased interest and tolerance for the use of virtual options in conducting hearings as well as other meetings before the courts, as well as meetings between clients, including witnesses, and counsel.
Also in the wake of delays caused in the public courts by the pandemic, several experienced dispute resolution lawyers have established the ‘Arbitration Tribunal Alternative’ to relieve the courts and to give the parties in dispositive civil cases the opportunity for a quick settlement in online proceedings.
Swedish law expressly provides for (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (3) online enforcement
Swedish law does expressly provide for litigation by telephone or video, and delivery of judgments online/online enforcement in summary as follows: Pursuant to the Swedish Code of Judicial Procedure (Rättegångsbalken), the chair of the court can decide that a party or a witness may participate through audio or video transmission. The decision to hold a hearing, or any other meeting before the court, virtually is made in each individual case. The chair is to take particular note of circumstances, such as the costs or inconveniences that would arise if the person attending the hearing had to appear in court.
Lastly, the rulings of Swedish common courts were already made available to the parties prior to the pandemic by means of email, besides being available in physical form at the court. Swedish law does not expressly provide for online enforcement.
Sweden’s online court services
The Swedish Code of Judicial Procedure does allow for meetings before the court (eg, hearings) to be conducted virtually. Therefore, in practice, there exists a form of ‘online court’. The answers below are given in that context.
From the substantive perspective, proceedings by use of technical aid follow the same rules as physical proceedings. Under Swedish law, there exist no provisions regulating the court’s evaluation of evidence or witnesses.
From the procedural perspective, virtual proceedings are not more costly than physical proceedings, as the cost for the court’s involvement in a virtual proceeding is included in the fee for initiating a proceeding in the courts (which is at most SEK 2,800).
However, a virtual proceeding may entail that the cost of travel decreases, while the cost of technical equipment increases. Furthermore, because the courts had issued technical requirements for virtual hearings before the pandemic, and since the technical maturity of the systems used are actively monitored by a designated group at the Swedish courts, the technology used caters well to the needs of the parties.
Does Swedish law specifically allow ‘document-only’ litigation?
Under Swedish law, ‘document-only’ litigation may be permissible under certain circumstances, for example, when an oral hearing is not required with respect to the case and if it is not requested by either party. However, it should be noted that the requirement that ‘document-only’ litigation be suitable with respect to the case usually means that larger disputes, with a great number of legal issues or factual circumstances, must be heard orally.
Swedish law’s requirements for physical or ‘in-person’ hearings in litigation
Under Swedish procedural law, at the outset the attending persons should be physically present in the courtroom. However, as has been described above, the chair may decide that a party or witness may participate by means of audio or video transmission.
No legislation concerning the conduct of Swedish litigation during the pandemic
No such legislation has been passed during the pandemic.
Swedish courts’ guidelines concerning the impact of the pandemic
The Swedish courts have issued guidelines centring on how the courts interact with parties, counsel and members to reduce the risk of contagion; they do not concern the conduct of litigation (or the court proceedings in any other types of cases).
No changes to Swedish substantive laws, but increasing insolvency
There have been no express changes to the substantive laws of Sweden in response to the pandemic. However, the economic impact on most sectors of Swedish industry has led to an increased number of companies defaulting on their payment obligations.
The pandemic has also caused an increased number of companies to enter into insolvency proceedings. In April 2020, some 880 companies entered into such proceedings, compared with 667 companies during the same month in 2019, an increase of 32 per cent.
While, for a long time, we as a society have hailed the advent of information technology, the pandemic has in my mind made it clear that it can never fully replace the importance of human interaction. The business of litigation is one of trustworthiness as well as trust, and in that regard, nothing beats being in the same room as a witness or judge. I believe that now, as we see even more of the capability of technology, we risk losing that element.
Egypt – a civil law jurisdiction:Mohamed S Abdel Wahab, Zulficar & Partners Law Firm, Cairo
Egypt is a civil law jurisdiction and the principles of Sharia law constitute the main source of legislation as per Article 2 of the 2014 Egyptian Constitution as amended in 2019.
The Egyptian judicial system
Regarding the courts’ system in Egypt, the Egyptian judiciary is comprised of administrative courts, civil, economic and commercial courts, personal status and family courts, national security courts, labour courts and military courts, as well as other specialised courts and the Supreme Constitutional Court. The Egyptian court system has three tiers: (1) the courts of first instance; (2) courts of appeal; and (3) the Court of Cassation, which sits at the apex of the judiciary. There is also the State Council, which consists of administrative courts vested with the power to decide over administrative disputes.
While there have been no changes to Egyptian laws as a result of the pandemic, the government has passed a number of decrees to impose measures aimed at mitigating the exposure to the pandemic and controlling its spread. There have also been changes to time-bar periods and procedural deadlines before the courts, where the Minister of Justice issued decisions regarding the postponement of all court hearings and suspension of time limits. To that effect, the Prime Minister issued Decree No 1295 of 2020, dated 29 June 2020 considering the duration from 17 March 2020 until 24 June 2020 as a suspension period for all procedural deadlines, timebar periods and limitation periods (except for time bars related to pre-trial detention and challenging criminal judgments).
Conduct of hearings
Moreover, all hearings before the State Council (administrative courts) were suspended from 16 to 28 March 2020 by Decree No 206 of 2020 from the President of the State Council. The said decree was extended to 22 April 2020 by Decree No 252 of 2020, dated 12 April.
Thereafter, the Supreme Judicial Council issued Decision No 159 of 2020, dated 13 May 2020, whereby it provided for courts to resume work gradually as of 1 June 2020, taking all precautionary measures imposed by the state, including disinfecting courtrooms, wearing masks being mandatory to enter a courtroom, and restricting access to courtrooms to lawyers and concerned parties to control the number of people present in closed rooms.
Facility options to mitigate losses of businesses and individuals
The government initiated some facilitating options for different sectors in Egypt in order to mitigate some of the losses sustained by these sectors and individuals. Given the impact of the lockdown measures on business, it is now permissible for a merchant who is asked to restructure their business or to declare insolvency to apply for the dismissal of said request on the basis that the failure to pay the due debts was caused by an unforeseen event, that is, the pandemic. The merchant may also claim that the failure to fulfil their due debts – being one of the conditions to request restructuring or declare insolvency – cannot be legally satisfied because such failure to perform was not due to the merchant’s imbalanced financial status.
Acceleration of use of ICT and online services
On another note, there has been an acceleration in the use of ICT in light of the physical distancing mandated by the pandemic.
The Court of Cassation has launched a package of online services available to litigants, lawyers and judges that does not require their physical attendance inside courts. Instead, litigants, lawyers and judges may use their mobile phones to access the newly launched website and benefit from online civil and criminal judicial services.
Also, litigants, their lawyers and the public at large can track cases by number and follow the schedule of hearings. Moreover, certain legal principles set by the Court of Cassation are now available online through electronic compilations. There is also an online database of ongoing cases, detailed statements on each appeal, as well as a smart search for all appeals and scheduled hearings. Such services aim at reducing the need for physical visits to courts amid the pandemic.
The said online services provided by the Court of Cassation are in line with the state’s plan to digitise and automate court services. The state is currently reviewing a proposed draft law aimed at introducing amendments to the Criminal Procedures Law. The said draft law provides that the competent investigating authority or trial authority may take all or part of the investigations or trial procedures remotely, with the accused, victims, witnesses, experts and civil rights’ plaintiffs participating online as deemed necessary by the competent authority.
It is also worth mentioning thatprior to the pandemic, the recent Law No 146 of 2019 was enacted to amend Law No 120 of 2008 establishing the Economic Courts. Among the innovative amendments introduced by the 2019 law was the possibility of conducting the proceedings before the Economic Courts electronically. This includes submitting briefs, documents, defences and claims, and so hearings can be conducted remotely. However, no remote or virtual hearings have been held as yet. The present cost for these online services range between EGP 100 (around US$6) to a maximum of EGP 1,000 (around US$60).
Coronavirus crisis management higher committee
The Prime Minister constituted the Coronavirus Crisis Management Higher Committee to address all related Covid-19 legislation and decrees. The Committee is presided over by the Prime Minister, with the membership of 15 ministers and the Presidential Adviser of Health and Prevention Affairs. The committee is entrusted with following up on the implementation of the precautionary measures taken by the government to fight Covid-19, and to work out emergency plans to address any situation that might occur during the pandemic. Further, the committee is tasked with issuing official statements to refute rumours related to the pandemic.
US federal courts – a common law jurisdiction: Meg Utterback, King & Wood Mallesons, New York
Outline of the US court system
The US is a common law system. The federal court system has three main levels: district courts (the trial court); circuit courts (the first level of appeal); and the Supreme Court of the US (SCOTUS – the final level of appeal in the federal system). Federal courts hear cases where there is diversity jurisdiction among the parties (eg, a foreign party) and a claim in excess of a threshold amount. The federal courts also hear: cases involving the constitutionality of laws; cases involving the laws and treaties of US ambassadors and public ministers; disputes between two or more states; admiralty law (also known as maritime law); and bankruptcy cases. This summary addresses changes at the federal courts. Each state has its own state courts handling mostly domestic matters and causes of action arising under specific state legislation.
Impact of the pandemic on federal court litigation in the US
US federal courts around the country have taken measures to cope with the spread of the virus.
These are procedural changes implemented by the US courts and not new legislation. In some instances, the courts have suspended some legislation, for example, the right to speedy trial in criminal cases has been modified in some courts. Any case requiring a jury is continued to a time when the courts can implement effective social distancing measures to allow juries to be empanelled.
In some courts, judges are allowing bench trials and dispositive motions to be heard online, subject to the agreement of the parties. Overall, it seems court litigants are more reluctant to engage in online hearings than parties in arbitration.
Federal Rule of Civil Procedure 43(a) provides that ‘[f]or good cause and compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location [emphasis added]’. The Advisory Committee Notes, however, state that ‘[t]he importance of presenting live testimony in court cannot be forgotten’ and that contemporaneous transmission ‘is permitted only on showing good cause and compelling circumstances’. Accordingly, a court may apply the foregoing and allow remote testimony on a case-by-case basis.
Other than using online platforms for certain hearings, the process remains unchanged. The federal courts had online filing systems and online dockets prior to the pandemic. However, the courts are extending deadlines for some filings. For example, SCOTUS has extended the deadline for filings of petitions for certiorari due on or after 19 March 2020 for 150 days from the date of the lower court judgment or the order being appealed.
Online filing/dispensing with paper filing
In many courthouses, in-person filings and drop box or mail filings are being suspended in favour of online filing.
SCOTUS guidance dated 15 April 2020 states that certain categories of documents if filed through the court’s electronic filing system, need not be submitted in paper form at all.
Impact on US federal court procedure
For a comprehensive review of some court ordered changes in response to the pandemic, please refer to the online review of court orders regarding procedural changes in response to the pandemic.
Counsel are still engaged in document production and depositions. Some courts have stayed proceedings where the courts are closed or operating with fewer staff. Most trials on the merits and dispositive motions are continued unless the parties otherwise agree to an online proceeding.
Some courts are continuing with regular service depending on the location and the extent of Covid-19 risk. Most courts in operation are requiring that anyone entering the courthouse wear a mask.
Impact on ADR associated with federal court litigation
Court-ordered mediation is often proceeding online, again depending on the court and how the court is managing its response to the pandemic.
Use of ICT and scope of online hearings
Section 15002 of the Coronavirus Aid, Relief and Economic Security Act (the ‘CARES Act’) authorises the use of videoconferencing and telephone conferencing, under certain circumstances and with the consent of the defendant, for various criminal case events during the course of the pandemic. Such events include detention hearings, preliminary hearings, waivers of indictment, arraignments, probation and supervised release revocation proceedings, pre-trial release revocation proceedings, misdemeanour pleas and sentencing.
The CARES Act also provides that the authorisation of video and telephone conferencing will end 30 days after the date on which the national emergency ends, or the date when the Judicial Conference finds that the federal courts are no longer materially affected, whichever is earlier.
Federal courts have adopted their own rules pursuant to section 15002; for example, the Eastern District of Pennsylvania published a standing order, and the 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.
Online hearings are available in most courts where the parties agree. The many technology options being used and tested by the judiciary include AT&T Conferencing, Court Call, Skype for Business, Cisco Jabber and Zoom.
Judges and counsel have acclimated to scheduling conferences and motions hearings online. Counsel manage to prepare and depose witnesses remotely. Usually, the court reporting service provides the facility for the online platforms for depositions.
Counsel are still reluctant to agree to online merits hearings that involve witness cross-examination due to the challenges of presenting an effective cross-examination online.
Publication of judgments and enforcement
Judgments are rendered online and noted in the online court dockets. Enforcement matters are being heard if the courts are open and may be heard online if the judge so orders. Delays in enforcement may occur if the third parties involved in the seizure of assets are not available to take the steps ordered by the court.
No specialist online courts or international commercial courts
The US does not have specialist standalone online courts within the judiciary. The US also does not have any international commercial courts within the judiciary.
Brazil – a civil law jurisdiction:Sergio Nelson Mannheimer and Maria Proença Marinho, Mannheimer, Perez e Lyra Advogados, Rio de Janeiro/São Paulo
As of August 2020, Brazil was the second-worst affected country in the world by the pandemic, surpassed only by the US. Moreover, it is a wildly diverse country, with different regions, socio-economic backgrounds and, also, Covid-19 infection rates. These differences pose an additional challenge to the fight against Covid-19 and regulation of the functioning of the judiciary during this period.
As to material law, it is worth mentioning Act No 14.010/2020, which provides for emergency and transitory rules during the pandemic. This act suspends time-bar periods from 10 June 2020 to 30 October 2020, allows for electronic general assemblies and establishes rules for consumer relations and competition legislation, among others. Currently, there is also a bill (No 1397/20) submitted to Congress that regulates insolvency and judicial reorganisations during the pandemic.
Civil law system
Brazil is a civil law jurisdiction. The court system is divided between state courts, federal courts and labour courts, all of which include first instance judges and courts of appeal. The judgments rendered by a court of appeal (both state and federal) may, in limited cases, be submitted to the Superior Court of Justice, which is the country’s highest court for federal legislation, and/or the Supreme Court, the country’s constitutional court.
As in most civil law jurisdictions, litigation procedure in Brazil is anchored on written submissions and documental evidence. Unless otherwise agreed on by the parties or decided by the judge, every lawsuit has a conciliation hearing at the beginning of the procedure, a hearing for the taking of evidence – especially witness depositions – after the submissions phase, as well as physical judgments by courts of appeal and high courts, with the opportunity for the presentation of oral arguments by counsel.
Impact of the pandemic on Brazilian litigation
In summary, even before the pandemic, online files and submission were already a reality in most of the Brazilian court system, for which reason it rapidly adapted to the challenges posed by the current circumstances. A clear effect of the pandemic is the increase of online hearings and judgments, which were previously almost exclusively held in person as discussed further below. Only time will show if this becomes a new practice or if courts will go back to the way they once were.
In view of the pandemic, the majority of courts established specific regulations concerning the conduct of litigation during this period. Although the ordinary courts have autonomy to define their practices considering local peculiarities, the National Council of Justice has enacted regulations outlining parameters to be followed by all courts. To date, some of the main acts by the National Council of Justice are Act No 52 of 12 March 2020, Resolution No 313 of 19 March 2020, Act No 91 of 22 March 2020, Act No 61 of 31 March 2020, Resolution No 314 of 30 April 2020 and Resolution No 318 of 7 May 2020.
Suspension of procedural deadlines
The National Council of Justice decided to suspend all procedural deadlines from 19 March 2020 to 30 April 2020, with a postponement until 15 May 2020 for cases with physical files. As stated above, each court may, upon authorisation, postpone these suspensions, considering regional circumstances.
Electronic filing and proceedings
Electronic files have been a reality in the Brazilian court system for years. Therefore, even before the pandemic, the majority of lawsuits were already electronic, although physical hearings and judgments were maintained.
Currently, the filing and conduct of proceedings before Brazilian courts is working normally for the majority of cases. This is mainly because most files were already exclusively electronic; submissions are made in a written manner, with electronic signatures; and documents are presented in electronic format. Also, all decisions in proceedings – including interim and emergency measures, as well as decisions on the merits – are delivered in written form and made available to counsel and parties through the court’s electronic system.
It should be noted, however, that some courts are still applying suspensions to cases with physical files (normally ongoing cases initiated many years ago), considering the difficulties in access in light of isolation measures.
Online litigation hearings
Regarding hearings, as said above, in-person hearings were the rule before the pandemic. This is currently more flexible and, although each court may apply a different system, most provide the possibility of online hearings, which are becoming increasingly common. As an example, the Supreme Court’s Amendment to Internal Rules No 53 of 18 March 2020 and the National Council of Justice Act No 61 of 31 March 2020 expressly allow online hearings.
Deposition of witnesses
It should be noted, however, that hearings for the deposition of witnesses, albeit allowed, are mostly being postponed, considering the difficulties encountered by individuals who do not have the necessary technology available at home. Another reason may be the fear that it is difficult to be sure that no one is communicating with a witness during a hearing.
Online appellate proceedings
On the other hand, the courts of appeal and high courts are rapidly adapting to online judgments held via videoconference. An interesting consequence is that this allows counsel based in other cities the opportunity to present their oral arguments to the court, without incurring additional costs, such as travel expenses.
Online procedural proceedings
Many judges, in all instances, are also making themselves available for appointments with counsel via telephone or the internet, altering the prior consolidated practice of almost solely in-person appointments. Some court statistics even show that the productivity of judges has risen during this period.
Kenya – a common law jurisdiction: Ndanga Kamau, Ndanga Kamau Law, The Hague, and Benjamin Ng’eno, Independent Practitioner, Nairobi
The Kenyan superior courts include the Supreme Court, the Court of Appeal, and High Court. Kenyan superior courts also include the Employment and Labour Relations Court, and the Environmental and Land Court. The Kenyan subordinate courts include magistrates’ courts, district magistrates’ courts, Kadhis’ courts and children’s courts.
Changes to the practice and procedure of commercial litigation and related ADR in Kenya arising from the pandemic
The practice and procedure for filing and conduct of proceedings before evidentiary hearings in Kenya has changed as the judiciary has adopted an e-filing system. However, the practice and procedure for conducting evidentiary hearings has not changed, nor has the cost of the practice and procedure of commercial litigation resulting from the pandemic.
A significant challenge to remote proceedings is the challenge with internet connectivity in some parts of Kenya, especially outside the main urban centres.
The pandemic has accelerated the use of (1) ICT and (2) ODR in Kenya
The pandemic has accelerated the use of ICT in Kenya, and courts have adopted an e-filing system and conducted hearings via video link.
Covid-19 has not yet resulted in a change in the data security or confidentiality framework for ICT. Further, court proceedings are usually public.
No protocol has been established by the courts resulting from the shift to e-filing and hearing by video link. However, in 2018, the judiciary developed an ICT policy which set out a framework for regulating the use of ICT resources by the courts.
The impact of the use of ODR in Kenya on judges’ availability has been relatively low. Judges have, however, had to adapt to managing proceedings online, while also recording parties’ submissions in writing. The impact of ODR on counsel’s availability has been relatively low.
However, in some court stations outside the main urban centres, counsel do not have access to necessary technology for online hearings. Those courts have continued in person, maintaining health regulations and imposing a limit on the number of matters heard. Access to these courts is limited to advocates, in contrast to being open to the general public as before Covid-19.
The impact of the pandemic on witnesses has been relatively high in some cases. Cases requiring the physical presence of witnesses will not proceed. There are also other factors to consider, including access to VCF and travel restrictions where a witness cannot travel to a venue that may have such facilities, for example, counsel’s office.
The impact of the pandemic on parties has been relatively high, in some cases. Whereas lawyers in the main urban centres may have access to technology for videoconferencing, the same may not be true for all parties (litigants). Further, in courts outside the main urban areas, access has been limited to advocates, in contrast to being open to the general public as before the pandemic.
The impact on costs has been relatively low. However, the judiciary has had an increase in costs arising from printing submissions that were previously submitted by litigants in hard copies. This cost is being mitigated by using both e-filing and submitting physical copies where necessary.
The impact on the approach to preparation for hearings has been moderate. Although the hearing process remains the same, the use of videoconferencing requires that counsel (or parties) be acquainted with the necessary technology.
The approach to the production of documents, cross-examination and approach to submissions has not changed. While the timetable of proceedings has not changed, the time taken to handle daily proceedings has substantially increased owing to some technological glitches, such as connectivity speeds.
Kenyan law expressly provides for (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (3) online enforcement
Kenyan courts have issued practice directions that expressly provide for litigation by telephone, ODR – delivery of judgments online –
online enforcement by Direction No 19 (Gazette Notice No 3137a, and Practice directions for the protection of judges, judicial officers, judiciary staff, other court users and the general public from the risks associated with the pandemic), issued on 20 March 2020.
Kenyan law does not provide for online courts.
Does Kenyan law (1) require physical or ‘in-person’ hearings and (2) expressly allow ‘document-only’ litigation?
Under Kenyan law, physical hearings are required where the examination of witnesses is necessary. Further, as a general rule under the Evidence Act in Kenya, documents must be produced in court by their authors. However, in practice, parties can dispense with this requirement by consenting to admission of the documents.
Kenyan law does not specifically allow ‘document-only’ litigation.
Legislation relating to conduct of litigation
No legislation has been enacted concerning the conduct of litigation during the pandemic.
Judicial procedural practice notes and similar
The Court of Appeal and the High Court have issued practice notes directing the conduct of court business during the pandemic. These directions provide for conduct of court hearings through video link and directions on electronic filings of cases.
Any changes to the laws of Kenya?
There have been two changes in the laws of Kenya that have been prompted by the pandemic. First the Kenyan government waived court filing fees in commercial disputes where the value of the suit did not exceed KES1m (approximately US$10,000). The Kenyan government also reduced the effective rate of VAT from 16 per cent to 14 per cent. These two pandemic-related legislative changes may result in a (marginal) reduction in the cost of litigation and/or arbitration proceedings.
Part III: Impact of the pandemic on commercial arbitration
As outlined in the introduction, Part III of this article provides summaries of the impact of the pandemic on arbitration and associated ADR in the following 13 jurisdictions (the ‘13 arbitration jurisdictions’):
• Asia Pacific: Australia, China, Hong Kong SAR, India and Singapore;
• Europe/the UK: England and Wales, Germany and Sweden;
• MENA: Egypt and the UAE;
• North America: the US;
• South America: Brazil; and
• Sub-Saharan Africa: Kenya.
Appendix 2 to this article outlines the relevant legislation and regulations, and arbitral institutions’ guidelines issued in response to the pandemic for the 13 arbitration jurisdictions, and in Nigeria and Korea.
Australia – a common law jurisdiction: Jo Delaney, Baker & McKenzie, Sydney
Impact of the pandemic on Australian arbitration
There have been minimal changes to the practice and procedure for filing and the conduct of arbitration seated in Australia. The filing of a notice of arbitration, submissions and evidence in an arbitration seated in Australia would have been done by email or by e-filing systems prior to the pandemic. For example, the Australian Centre for International Commercial Arbitration (ACICA) has requested new filings made after 19 March 2020 to be through its e-filing system or by email, which includes payment of the filing fees. ACICA is providing a 25 per cent discount on registration fees for cases commenced from 1 May to 31 October 2020.
Since the pandemic, there has been an accelerated move to virtual hearings in Australia.
Overall the costs of hearings may decrease. Costs for hiring facilities, travel and accommodation have been saved. Technology costs have increased. For example, the Australian Disputes Centre (ADC) provides an ODR platform (‘ADC Virtual’) with online rooms for the hearing, including retiring rooms, for a fee.
Related ADR matters
Parties have continued with virtual mediation and expert determination, for example, using ADC Virtual.
Impact of the pandemic on the use of (1) ICT and (2) ODR
Thepandemic has accelerated the use of (1) ICT and (2) ODR in arbitration seated in Australia. All hearings are now being conducted virtually, using online platforms such as ADC Virtual and/or Cisco Webex Meeting Rooms.
The technology used largely depends on the parties’ agreement. Relevant factors to consider for choosing technology include: the number of arbitrators; the number of counsel, witnesses and experts attending; the extent of cross-examination expected; and the length of the hearing. Parties may agree to use a more expensive but comprehensive service for a longer, complex hearing with extensive cross-examination of witnesses.
Data security and confidentiality
Data security and confidentiality of (1) ICT and (2) ODR are factors that are relevant when considering which option to choose for a virtual hearing. For example, ADC Virtual is specifically designed to address issues of data security and confidentiality.
Arbitral institution rules, guidelines and protocols
ACICA has published a guidance note on online arbitration and a draft protocol order for use in online arbitration. ACICA has also produced an information sheet on ‘Managing the Impact of Covid-19: Use of Arbitration to Mitigate Risk’.
Conduct of online arbitration
Arbitrators, counsel, witnesses and parties tend to be more available due to less travel time and more flexibility for virtual hearings; there is also less waiting for witnesses. Costs may have decreased. Technology costs replace costs for hearing rooms, travel and other hearing costs. However, legal costs may have increased due to additional preparation time, including discussions, and implementation of technical logistics and arrangements. There may also be additional preparation for submissions and cross-examination as the approach to virtual hearings is different to maximise the use of an online platform.
Document production has been similar as production is already done electronically in Australia (due to the use of e-discovery in court proceedings). Documents will usually be produced by file transfer or through a database system such as Ringtail.
Cross-examination has been similar, although counsel may change their approach to maximise the benefit of the cross-examination process. It may be necessary to agree to a protocol and logistics for cross-examination to ensure that witnesses provide their evidence independently (to the extent that this is possible). Presentations of submissions have been similar in a virtual hearing, with reference to PowerPoint presentations and/or documents by sharing screens. The timetable of proceedings has been similar. In some cases, virtual hearings have replaced in-person hearings. There may be timetabling changes to take account of time zones. For example, the hearing may be spread out over more but shorter days.
Most interesting innovation arising from the pandemic
The most interesting innovation in practice and procedure has been the use of videoconferencing for all hearings, including procedural hearings. Videoconferencing is a more effective form of communication than telephone conference calls.
Does Australian law expressly provide for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement?
Australian law does not expressly provide for ODR/delivery of awards online/online enforcement.
Australian law expressly permits ‘document-only’ arbitration
Australian law expressly permits ‘document-only’ arbitration. The International Arbitration Act 1974 (Cth) and state commercial arbitration legislation are based on the UNCITRAL Model Law. Article 24 permits document-only arbitration if agreed by the parties.
Australian law does not require ‘in-person’ hearings in arbitration
Australian law does not require physical or ‘in-person’ hearings in arbitration.
No legislation has been enacted in Australia concerning the conduct of arbitration during the pandemic
No legislation has been adopted in Australia that addresses the conduct of arbitration during the pandemic.
Arbitral institutions’ procedural rules or similar addressing the impact of the pandemic
ACICA’s draft protocol order for online arbitration addresses the technology to be used, costs, transcripts and recordings, logistics of persons attending the virtual hearing and consent of all parties to the order (see above). ACICA’s guidance note on online arbitration addresses technology issues, transcribing the hearing, translator (if required), internal communications within a legal team, factors to consider for witnesses and experts, and other logistics relating to the virtual hearing (see above).
Temporary changes to Australian laws arising from the pandemic
While there have been no permanent changes to Australian substantive law arising from the pandemic, there have been some temporary changes relating to:
• leases and tenancy agreements;
• increasing the debt threshold for bankruptcy to AU$20,000;
• the formalities for execution of legal documents, including contracts and affidavits; and
• restrictions on movement of people between states and internationally (differing for each state and territory). Most restrictions include mandatory hotel quarantine.
China – a civil law jurisdiction:Gary Gao, Zhong Lun, Shanghai
Changes to the practice and procedure of the conduct of arbitration seated in China
The pandemic provided a great opportunity to promote ODR in China. A common practice has developed to hold online hearings for case management conferences, interim relief applications, urgent applications, merits hearings, witness examinations and so on.
Impact of the pandemic on the use of (1) ICT and (2) ODR
The pandemic has accelerated the use of ICT and ODR in China.
Technology and standards
Because of the pandemic, parties have had to search for steady technical tools to assist in distance communication so that the originally scheduled arbitration timeline is not disturbed. Both a thriving technical service- providing market and a growing number of people using such tools in China have been observed.
Data security and confidentiality of ICT and ODR
Although technical security can be guaranteed to a certain level through continuing development and upgrading, confidentiality is still an open issue. Arbitration participants are under confidentiality obligations. However, in practice, it is difficult to guarantee no unauthorised recording, taping or copying during the use of ODR.
Provision in Chinese law for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement
Chinese law expressly supports ODR in Article 23 of the 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).
However, although an arbitration institution may deliver awards online as a matter of formation and efficiency, the arbitration institution must serve the award in paper form according to Article 87(1) of the Civil Procedure Law.
Chinese law expressly permits ‘document-only’ arbitration
Chinese law permits document-only arbitration byArticle 39 of the Arbitration Law.
Chinese law does not require physical or ‘in-person’ hearings
Chinese law does not have mandatory rules for arbitration hearings being held ‘in person’ due to the party’s autonomy in arbitration, endorsed by Article 39 of the Arbitration Law.
Legislation enacted in China concerning the conduct of arbitration during the pandemic
The Notification of the General Office of the Ministry of Human Resources and Social Security on the Proper Handling of Labour Relations during the Prevention and Control of the Pneumonia Epidemic Caused by the New Coronavirus Infection was enacted and came into effect on 24 January 2020. It regulates that if the parties are unable to apply for arbitration of labour and personnel disputes during the statutory limitation period due to the pandemic, the limitation period for arbitration shall be suspended and will continue to run from the date when the cause of the suspension is eliminated. Where the pandemic has made it difficult for the labour and personnel dispute arbitration institutions to hear the case within the statutory time limit, the time limit may also be extended accordingly.
Procedural rules and similar of Chinese-located arbitral institutions that address the impact of the Pandemic on arbitration
Many arbitration institutions located in China have published procedural rules, circulars and guidelines to address the impact of the pandemic. For instance:
• The China International Economic and Trade Arbitration Commission (CIETAC) has issued: (1) ‘Promotion of Online Arbitration to Effectively Mitigate the Effects of Covid-19 Pandemic’; (2) ‘CIETAC launches Guidelines on Proceeding with Arbitration Actively and Properly during the Covid-19 Pandemic (Trial)’, dated 28 April 2020; and (3) ‘CIETAC Joined the Major International Arbitration Institutions to Initiate Statement of “Arbitration and Covid-19” to Tackle the Pandemic’.
• The Shanghai International Arbitration Centre (SHIAC) has issued a Notification of Work Arrangements for Arbitration during Covid-19 Pandemic Outbreak Prevention and Control Period, dated
28 January 2020.
• The Shenzhen Court of International Arbitration (SCIA) has issued:
(1) Notice on Arbitration Services and Related Matters During the Epidemic Prevention Period, dated 29 January 2020; (2) Notice on Encouraging the Use of Online Arbitration Service, dated 4 February 2020; and (3) Special Decision on Reduction of Arbitration Fees, dated 6 February 2020.
Were any changes to the laws of China made resulting from, or stimulated by, the Pandemic?
With respect to the rules on time-bar periods, limitation periods, default in payment obligations, insolvency and so on, except for the laws and regulations enacted to specifically address the pandemic in China, there have been no changes to Chinese laws and regulations.
Hong Kong SAR – a common law jurisdiction:Kim M Rooney, arbitrator and barrister, Hong Kong SAR
Impact of the pandemic on Hong Kong arbitration and ADR
The pandemic has accelerated the move in Hong Kong from physical filing, communications and in-person hearings to conducting these online, building on an existing procedural and legal framework. The use of ICT has also been accelerated. The Arbitration Ordinance Cap 609 gives tribunals broad discretion as to how to conduct arbitration, subject to the agreement of the parties.
During the pandemic, arbitrators and counsel have generally been more available. There have been more logistical challenges to arrange for witnesses to appear, particularly where lockdowns apply, or where online services, particularly outside large cities, are not powerful enough to support online hearings. Tribunals have been more involved in developing hearing protocols. Oral submissions are often shorter. There has been no material change to cross-examination of witnesses and document production or to the time taken for delivery of decisions and awards.
The cost of online proceedings depends on the platform used. Commercial online platforms are generally available, for example, Zoom and Microsoft Teams.Parties are increasingly participating in online mediation. The technology used in ODR, including the technology standards applied, largely depends on the agreement of the parties.
Confidentiality and security
Parties are obliged to observe confidentiality obligations under Hong Kong law: see section 18 of the Arbitration Ordinance (Cap 609), Article 14 of the Bill of Rights Ordinance (Cap 383) and Personal Data (Privacy) Ordinance (Cap 486). Effective methods for preventing the unauthorised recording of online proceedings have yet to be developed.
Online service of awards and enforcement
It has been held in Hong Kong that an award is delivered when it is ‘made and published’ to the parties, that is, when the arbitrator informs the parties that the award has been made and is ready for collection, with or without the prior payment of fees. Hong Kong law does not provide for online enforcement of awards.
Hong Kong law expressly permits ‘document-only’ arbitration pursuant to section 52 of the Arbitration Ordinance, provided that the parties have agreed that no oral hearing shall be held.
Hong Kong lawrequires a tribunal to hold an ‘oral’ hearing where requested to do so by a party, save where the parties have agreed that no oral hearing shall be held (section 52 of the Arbitration Ordinance).
The Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation Cap 599 exempts arbitrators, mediators and, potentially, witnesses engaged in eligible mediation and arbitration work in Hong Kong, mainland China, Macau and Taiwan from mandatory quarantines.
Arbitral institutions’ publications
The Hong Kong International Arbitration Centre (HKIAC), International Chamber of Commerce (ICC), China International Economic and Trade Arbitration Commission Hong Kong Arbitration Centre (CIETAC HK) and eBRAM International Online Dispute Resolution Centre (eBRAM) have all published Covid-19 guidelines and similar.
Changes to the laws of Hong Kong
There have been no changes to the laws of Hong Kong resulting from the pandemic,
save for health-related border controls and social distancing requirements.
Innovation in response to the Pandemic
In mid-2020, eBRAM was funded by the Hong Kong Department of Justice to provide an online platform for speedy and cost-effective resolution (by online negotiation, mediation and arbitration) of disputes arising from the pandemic, involving claims of HK$500,000 (approximately US$64,500) or less where at least one party is from Hong Kong. The cost to each party of participating is HK$200 (or approximately US$26).
India – a common law jurisdiction: Vikas Mahendra and Prerana Reddy, Keystone Partners, Bengaluru
Impact of the pandemic on Indian arbitration
Prior to the pandemic, virtual hearings of arbitral proceedings were available to arbitration seated in India, but not often preferred. Most parties and arbitrators were inclined to conduct proceedings ‘in person’ especially for larger arbitration involving high stakes and complex legal issues. There was an emerging trend of several standalone institutions providing virtual hearing facilities and encouraging their use for low-complexity arbitration, but these were still very much in their infancy. However, the severe restrictions in place during the pandemic have forced many arbitrators to explore virtual facilities to conduct their arbitral proceedings.
Online arbitration permitted
The Arbitration and Conciliation Act 1996 (the ‘Arbitration Act’) does not place any bar on the mode or platform on which arbitral proceedings are to be conducted. Arbitral tribunals are given a wide range of discretion to conduct arbitral proceedings on any platform, with the consent of the parties. The Arbitration Act, read with the Information Technology Act 2000, permits conduct of the entire arbitration proceedings, including the rendering of the award, virtually.
Freezing of the limitation period for arbitration
However, as arbitrators and parties alike grapple to adapt to the changing practice, the Supreme Court has frozen the limitation period pertaining to all arbitration proceedings from 15 March 2020 until further orders.
Institutions providing ADR by ODR
Several standalone ODR services are available that provide and encourage online mediation, including the Centre for Online Resolution of Disputes (CORD), Centre for Advanced Mediation Practice (CAMP), Indian Dispute Resolution Centre (IDRC), Sama, Presolv 360 and ADResNow. In light of the obvious challenges to conducting physical hearings during the pandemic, more people are opting for online resolutions of their disputes. Further, with an increasing number of laws mandating pre-litigation mediation, and mediation-specific legislation expected shortly, parties are also starting to explore mediation and negotiation. A number of ODR services are starting to cater to this demand as well.
Confidentiality and security
Section 42A of the Arbitration Act makes it mandatory for the arbitrator, arbitral institution and parties to an arbitration agreement to maintain confidentiality of the arbitral proceeding. Online, different platforms provide different methods of ensuring this. Some adopt strict access controls and permissions to protect confidentiality. The platforms also do not usually allow parties to record proceedings on the platform. However, broader limitations on recording and taping are usually left to the arbitral tribunal to impose.
Online service of awards and enforcement
In exercise of their powers of discretion under the Arbitration Act, the arbitrator or tribunal may supply its orders to the parties by email. Section 31(1) of the Arbitration Act provides that an arbitral award is to be made in writing and signed by the members of the arbitral tribunal. However, in an online arbitration, the procedures under the Information Technology Act will also have to be complied with. Therefore, in order to authenticate an award served upon the parties online, the members of the arbitral tribunal may place their digital signature on the award, so as to have the same effect as a paper signature.
Section 24 of the Arbitration Act allows the arbitral tribunal, subject to agreement between the parties, to decide whether to hold oral hearings for the presentation of evidence or to put forth arguments or whether the proceedings shall be conducted on a document-only basis. Notably, document-only arbitration is the default for ‘Fast-Track Arbitration’ pursuant to section 29B of the Arbitration Act.
The Arbitration Act does not require a physical or ‘in-person’ hearing. However, arbitrators are inclined to conducting arbitral proceedings in person as a matter of practice.
There has been no Covid-19 legislation or other legislative changes during the pandemic with respect to the arbitration regime in India. However, most arbitral proceedings have shifted to an online platform, presently, as an ad hoc arrangement.
Arbitration institutions’ publications
The Delhi International Arbitration Centre has published a ‘Guidance Note for Conducting Arbitration Proceedings by Video Conference’, with effect from 8 June 2020, and Maharashtra National Law University (MNLU) Mumbai’s Centre for Arbitration and Research has published ‘Virtual Arbitrations in India: A Practical Guide’.
Changes to the laws of India
There have been no amendments to the Arbitration Act in India on account of the challenges faced due to the pandemic. A number of proposals are presently being mooted and press releases have been put out by the central government’s policy arm. It is expected that legislation of this nature will be passed in the coming months.
There is no government or court-appointed body that has been specifically formed or appointed to consider the impact of the pandemic on arbitration. However, the Niti Aayog, the policy arm of the government, is considering these issues as part of its respective larger mandate.
Singapore – a common law jurisdiction:Tat Lim, Aequitas Law, Singapore
Changes to the practice and procedure of commercial arbitration and related ADR in Singapore
Regarding the practice and procedure for filing and the conduct of proceedings before any evidentiary hearing or final determination, in Singapore the Covid-19 (Temporary Measures) Act 2020 (the ‘Act’) foresees that if served with a notice for relief, the counterparty is prohibited from commencing or continuing any court or arbitral proceedings against a party to the contract, a guarantor or surety, or the issuer of a related performance bond, if applicable. The counterparty is also prohibited from any action to enforce a court judgment, arbitral award or adjudication under the Security of Payment Act. There are additional reliefs for specific contracts under the Act.
Filing a Notice of Arbitration can be done by a party by email. The Singapore International Arbitration Centre (SIAC) has collaborated with other major arbitration centres to increase the use of virtual evidentiary hearings. There has been no change to the Schedule of Fees of SIAC.
The pandemic has accelerated the use of (1) ICT and (2) ODR in Singapore
The pandemic has accelerated the use of (1) ICT and (2) ODR in Singapore in both arbitration and ADR, such as mediation.
There were restrictions on physical attendance during the Circuit Breaker Period from 7 April to 4 May (extended to 1 June) 2020 (mandated by the Act). During this time arbitration proceedings could not be conducted at Maxwell Chambers, Singapore’s arbitration hearing centre.
While SIAC currently does not offer any VCF that can be used for hearings, parties may use Maxwell Chambers’ virtual hearing ‘room’ via BlueJeans, the videoconferencing software.
While using VCF, the person who has received a stay home notice (SHN) or a quarantine order (QO) needs to ensure that the arrangements made for videoconferencing are not in violation of the SHN or QO.
In mediation, the Singapore International Mediation Centre (SIMC) adopted a Covid-19 Protocol for businesses to resolve their disputes during the pandemic. It can complement Covid-19-related legislation anywhere; for example, businesses under the Act can mediate at any time to resolve their disputes, even after an Assessor’s Determination.
Proponents of ODR have argued that mediating disputes online may be faster and easier, and in conformity to the terms of the Singapore Mediation Convention (SMC). Mediation settlement agreements have been signed by the parties electronically, and by hand with the agreement sent to the parties and the mediator, without invalidating the agreements. The main challenge has been finding adequate time for hearings with participants located in various countries.
Does Singapore expressly provide for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement?
While Singapore law does not expressly provide for ODR, the delivery of awards online or online enforcement, in practice awards have been delivered online.
Does Singapore law expressly permit ‘document-only’ arbitration
SIAC allows parties to agree to ‘document-only’ arbitration pursuant to Rule 5: Expedited Procedure of the SIAC Rules.Rule 5.2.c provides that: ‘The Tribunal may, in consultation with the parties, decide if the dispute is to be decided on the basis of documentary evidence only, or if a hearing is required for the examination of any witness and expert witness as well as for any oral argument.’
Does Singapore law require physical or in-person hearings in arbitration
Article 24(1) of the Model Law provides that an arbitral tribunal has discretion to decide whether to hold oral hearings, subject to the parties’ agreement. In practice, oral hearings are usually held unless the parties opt to proceed with arbitration on a document-only basis. SIAC Rules provide that the tribunal shall, unless the parties have agreed on document-only arbitration, hold a hearing for the presentation of evidence or oral submissions, or both, on the merits of the dispute, including, without limitation, any issue as to jurisdiction.
No legislation enacted in Singapore concerning the conduct of arbitration during the pandemic
No legislation has been enacted in Singapore concerning the conduct of arbitration during the pandemic.
SIAC’s procedural rules, circulars and similar addressing the impact of the Pandemic
On 28 May 2020, SIAC published its Guidelines on Covid-19 Measures.
Parties are also free to adopt:
• the Chartered Institute of Arbitrators (‘CIArb’) Guidance Note on Remote Dispute Resolution Proceedings;
• Seoul Protocol on Videoconferencing in International Arbitration released by the KCAB on 18 April 2020; and
• ICC International Court of Arbitration’s 9 April 2020 Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic.
Changes to Singapore’s laws in response to the Pandemic
The Act was passed by the Singapore Parliament and commenced on the same day, 7 April 2020.
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 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.
England and Wales, and Europe
England and Wales – a common law jurisdiction:Mark Clarke and Viv Thien, White & Case, London
Impact of the pandemic on English arbitration and ADR
Prior to the pandemic, virtual hearings and electronic filings were available to arbitration seated in England and Wales. Although most filings are electronic and procedural conferences are commonly conducted remotely, the traditional common law preference for face-to-face cross-examination meant that, prior to the pandemic, substantive hearings were typically held in person. However, the prospect of long (and uncertain) adjournments caused by the pandemic has, for the time being, displaced this preference, with parties now embracing the use of virtual hearings, even in cases involving lengthy and complex cross-examination of witnesses or experts.
Under the Arbitration Act 1996 (the ‘Act’), tribunals have a wide procedural discretion. In exercising their discretion, tribunals have to strike a balance between the duties set out in section 33(1) of the Act, on the one hand, giving each party a reasonable opportunity to present its case, while on the other, adopting procedures suitable for the case that avoid unnecessary expense or delay. Failure to strike the right balance could result in an award being susceptible to challenge under section 68 of the Act for serious procedural irregularity. Helpfully, the English courts: (1) consider that video evidence is not restricted to exceptional circumstances; and (2) generally support tribunals’ procedural discretion by setting a high bar for successful section 68 challenges.
As a result of the travel restrictions imposed in light of the pandemic, arbitrators and counsel to some extent have better availability than might otherwise have been the case. However, where participants are located in multiple jurisdictions, the breadth of time zones can limit the length of virtual hearings, resulting in additional hearing days being needed. Setting up a framework for virtual hearings also requires substantial engagement by counsel and the tribunal to agree protocols to mitigate the impact of technical difficulties. This means that any cost savings from avoided travel may be offset by the heavier administrative burden of preparing for electronic hearings.
Arbitral institutions have also taken steps to facilitate parties’ access to arbitration remotely: the London Court of International Arbitration (LCIA) has been fully accessible throughout the pandemic, allowing for all new cases to be commenced electronically (without the need for paper copies), payments to be received online and correspondence to be handled almost exclusively by email. In addition, the LCIA Arbitration Rules 2020, effective from 1 October 2020, now require electronic submission of the Request for Arbitration and the Response, and the express prior written approval of the Registrar is required to submit either of these documents by any other means. Further, any written communication must now be transmitted via email or other recordable electronic means unless the tribunal, or the Registrar prior to the tribunal’s constitution, directs otherwise.
With respect to ADR, institutions such as the Centre for Effective Dispute Resolution (CEDR) have been actively promoting online mediation, and some commentators are predicting that such mediation will ‘come into [its] own’ as a result of the pandemic. In addition, the LCIA’s Mediation Rules 2020 also now designate electronic communications as the default approach and grant mediators discretion to determine whether to hold virtual or in-person mediation. The UK government has also issued guidance encouraging parties to deal with disputes through ADR during the pandemic.
Confidentiality and security
Although the Act does not address confidentiality, English law has long implied a duty to maintain the confidentiality of arbitration on its participants. Maintaining confidentiality and data security should be paramount among counsel’s concerns in preparing for virtual hearings and considering platform service providers. In addition, the LCIA Arbitration Rules 2020 specifically address data protection and confidentiality. The new Article 30A.4 requires the tribunal to consult with the parties (and potentially the LCIA) at an early stage of the arbitration on whether it should order specific information security measures and any means to address personal data processing ‘in light of applicable data protection or equivalent legislation’.
Online service of awards and enforcement
Absent parties’ agreement to the contrary, electronic notification of awards is permitted under section 55 of the Act. The LCIA has confirmed that in the current pandemic, almost all awards will be transmitted electronically to parties until its physical office has reopened. Article 26.6 of the LCIA Arbitration Rules 2020 provides that an award may be signed electronically unless the parties agree or the tribunal or LCIA Court directs otherwise. Consistent with this, Article 26.7 mandates that awards shall be delivered electronically unless it is not possible to do so or if any party requests otherwise. A notable development in the LCIA Arbitration Rules 2020 is that, in the event of any disparity between the electronic and paper forms of an award, the electronic version now prevails.
Consistent with the wide procedural discretion afforded to tribunals under the Act and, in particular, section 34(2)(h) of the same, subject to the parties agreeing otherwise, arbitration may proceed without oral submissions or evidence, on a document-only basis.
The Act does not require tribunals to hold ‘in-person’ hearings, although, as noted above, prior to the pandemic participants generally preferred to conduct substantive hearings in-person.
Article 19.1 of both the 2014 and 2020 versions of the LCIA Arbitration Rules provides that unless the parties have agreed to document-only arbitration, any party has a right to an oral hearing before the tribunal. Both the 2014 and 2020 versions of Article 19.2 make clear that, upon the direction of the tribunal, such a hearing may be conducted virtually. The revised Article 19.2 refines this further by specifying that the hearing may be conducted ‘in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form)’.
From 8 June 2020, the UK government imposed a mandatory 14-day period of self-isolation for travellers arriving in the UK, unless they arrive from certain countries covered by the travel corridor exemption. Participants in the arbitral process are not exempt from the self-isolation period.
Arbitration institutions’ publications
The LCIA, International Dispute Resolution Centre (IDRC), London Maritime Arbitrators Association (LMAA), CIArb and ICC have all published guidance and regular updates relating to proceedings during the pandemic.
Changes to the laws of England and Wales
Neither the Coronavirus Act 2020 nor UK government regulations amend the Act or other existing English arbitration law.
Germany – a civil law jurisdiction:Anna Masser, Jana Loewer and Carolin Happ, Allen & Overy, Frankfurt
Impact of the pandemic on practice and procedure of commercial arbitration and related ADR in Germany
Case management conferences and procedural hearings were regularly conducted via telephone or videoconference prior to the pandemic. This practice has further increased.
As regards evidentiary hearings for arbitration seated in Germany, (urgent) hearings have taken place online. Where possible, tribunals tend to postpone an evidentiary hearing. This is true, in particular, where the parties do not agree to an online merits hearing. While it can be argued that the tribunal’s power to organise the proceedings as it deems fit encompasses the power to order an online hearing at its discretion, there are some voices of concern that an award might be prone to challenge if one party does not agree to an online hearing.
Where online hearings have been conducted, the experience has been rather positive and they have been held without major limitations.
Change in German VAT rates
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 who are liable to pay VAT to arbitrators will benefit from this reduced VAT rate.
Impact of the pandemic on the use of (1) ICT and (2) ODR in Germany
Before the pandemic, electronic transmission to the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit or DIS) was already foreseen as the standard procedure. Now, the DIS in addition requests that parties refrain from transmissions by mail or courier. The DIS Rules, however, still require parties to file a hard copy of the Request for Arbitration for the other parties, the DIS refrains from requesting a hard copy for itself and the electronic transmission of the Request for Arbitration suffices for the commencement of the arbitration.
Does German law expressly provide for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement?
German law does not provide for ODR or online enforcement. Tribunals have ordered that merits hearings go ahead online where the parties agree or where the tribunal held to have the discretion to so order even if one party does not agree.
German law does not expressly provide for delivery of awards online. The DIS will carry out the notification of the award in electronic form, provided that all parties agree.
Does German law expressly permit ‘document-only’ arbitration
Under Article 29 of the DIS Rules, an oral hearing has to take place at the request of one of the parties unless all the parties have agreed not to hold oral hearings. In expedited proceedings, an oral hearing may be dispensed with if all parties so agree. An oral hearing has to take place if the parties agree upon holding one. In all other cases (no agreement not to hold and no agreement to hold), the tribunal has discretion to rule on the basis of documents only.
Does German law require physical or ‘in-person’ hearings and if so, please describe?
A physical hearing is not required for arbitration seated in Germany – it is within the tribunal’s power to organise the proceedings as it deems fit to also provide for an online hearing. However, some voices are of the opinion that in the case in which a tribunal orders an online hearing in spite of one party requesting a physical one, this might lead to a violation of the right to be heard and an award might be prone to challenge. There is no jurisprudence on this issue.
Has any legislation been enacted in Germany concerning the conduct of arbitration during the pandemic?
No such legislation has been enacted during the pandemic.
Has any arbitral institution located in Germany published any procedural rules, circulars or guidelines to address the impact of the Pandemic on arbitration?
The DIS published an Announcement of Particular Procedural Features for the Administration of Arbitrations in View of the Covid-19 Pandemic, dated 31 March 2020, updated on 1 July 2020. This announcement addresses the available services, encourages electronic communication, reduces the necessity of hard copies and provides for automatic extensions of time limits based upon the pandemic. Also, it announces the VAT reduction from 19 to 16 per cent.
Changes to the laws of Germany made resulting from or stimulated by the pandemic
The following changes have been made to German laws as a result of the pandemic:
• Default in payment obligations: rent and lease agreements cannot be terminated due to rent or lease default in the period between
1 April and 30 June 2020 if the default resulted from the pandemic. Repayments from a consumer loan agreement in the period between 1 April and 30 June 2020 were deferred for three months, if the consumer could not reasonably pay its loan due to the pandemic and this deferral was not unacceptable to the lender.
• Insolvency: the obligation to file for insolvency is suspended until 30 September 2020 if the occurrence of insolvency is based on the consequences of the pandemic and there is a prospect of eliminating existing insolvency. This period may be extended by regulation if this seems to be required.
• ‘Other’: VAT rates are reduced from 19 to 16 per cent, limited to the period from 1 July 2020 to 31 December 2020.
Sweden – a civil law jurisdiction:Stefan Brocker, Mannheimer Swartling Advokatbyrå, Stockholm
Changes to the practice and procedure of Swedish commercial arbitration and related ADR
Regarding the practice and procedure for filing and the conduct of proceedings before any evidentiary hearing or final determination in Sweden, the impact of the pandemic has been noticeable in the use of electronic filing; proceedings leading up to a hearing and the final award have to an even greater extent been carried out by means of Skype or similar services.
As to the practice and procedure for conducting evidentiary hearings in Sweden, it is noticeable that parties have more and more opted for virtual options to conduct hearings.
As to the cost of any changes to the practice and procedure of commercial arbitration resulting from the pandemic in Sweden, the cost of travel has gone down, while at the same time many virtual alternatives to a physical hearing carry a cost.
Accelerated use of ICT in Swedish arbitration and its impact
It is clear that the situation with the pandemic has not only increased the number of online services available but, most importantly, has also increased the willingness of parties to use such services.
As to the technology used, including technology standards applied, there has been no change involving mandatory standards or similar. However, as the need and interest has increased, more sophisticated technical solutions have been presented.
As to data security and confidentiality of ICT, the increased interest has meant that more sophisticated options have become available. In such more advanced options, parties can opt for greater security during the proceedings.
As to arbitral institution rules, guidelines and protocols, the Stockholm Chamber of Commerce (SCC) has issued a statement urging parties to keep in mind the option of a virtual hearing, and it has also issued guidelines specifically for conducting such a hearing.
The impact of the use of ICT in Sweden is as follows:
• arbitrators: they have become more open to conducting hearings virtually, even at times urging parties to keep such alternatives in mind;
• counsel: most clearly, their work of preparing proceedings has become somewhat easier, as travel to meet witnesses, the client and to the hearing itself is no longer necessary at all times;
• witnesses: a person giving testimony has had to be prepared through a virtual meeting, which is perhaps the most noticeable change, as the giving of testimony at a hearing is focused on more than merely the spoken word;
• parties: as with witnesses, representatives for the client have increasingly realised that it is not necessary to hold an in-person meeting in all situations;
• costs: as noted above, overall costs have sunk as the need for in-person meetings has gone down; indeed, clients have realised that meetings, to a large extent, can be carried out virtually;
• approach to preparation: it is done virtually, to a larger extent;
• approach to production of documents: this is unchanged;
• approach to submissions: this is unchanged, save that to an even greater extent these have been filed by means of virtual options;
• timetable of proceedings: technology has given the parties, but even more so, arbitral tribunals, a way to keep to the timetable in a time where physical meetings are not possible; and
• approach to cross-examination: this has likely changed. It is more difficult to cross-examine a witness not appearing in person. My feeling is that counsel have been more reluctant than before to cross-examine witnesses and, as a result, witnesses more frequently than before have not been called at the hearing but replaced in their entirety by written witness statements. This, in turn, has led to a speedier process, which is preferable. However, it has also led to a process that relies, to a larger extent, on written documents and, to a lesser extent, on the principle of an oral hearing.
Most interesting innovation
The most interesting innovation in practice and procedure arising from the pandemic has been the more advanced options for virtual hearings. For example, in a joint initiative to support online proceedings during the pandemic, the SCC and Thomson Reuters have offered the SCC Platform to ad hoc arbitration free of charge for any ad hoc arbitration commenced during the Covid-19 outbreak. Any ad hoc arbitration registered by 31 December 2020 will have all fees waived in relation to the use of the platform.
Also, in the wake of delays caused in public courts by the pandemic, several experienced dispute resolution lawyers have established the ‘Arbitration Tribunal Alternative’ to relieve the courts and to give the parties in dispositive civil cases an opportunity for quick settlement in online proceedings.
Does Swedish law expressly provide for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement?
The Swedish Arbitration Act (Lag om Skiljeförfarande or the ‘Act’) contains no provisions regarding ODR. Instead, it is up to the parties to decide the form of the proceeding; although, Section 24 of the Act provides that an oral hearing rather than document-only litigation is to be conducted if a party requires it and if the parties have not agreed otherwise.
Furthermore, while the Act does provide that the award be made available to the parties immediately, it is a requirement that can be fulfilled by sending it to the parties. In practice, it is very common that the award is sent by email to the parties, or that it is made available by means of a virtual data room.
Swedish law does not provide for online enforcement.
Does Swedish law expressly permit ‘document-only’ arbitration
Under the Swedish Arbitration Act, the parties may decide that the arbitral tribunal is to decide the case merely on the written material. However, if the parties have not agreed otherwise, and a party demands an oral hearing, such a hearing must be held. It should thereto be noted that the provision under the Act is non-mandatory and may be amended by the parties’ agreement.
Does Swedish law require physical or in-person hearings
As has been described above, the Swedish Arbitration Act contains a provision stating that an oral hearing is to be conducted in some cases. It does not state if such an oral hearing as required by it must be physical; in Swedish legal literature, most writers are of the opinion that a videoconference is sufficient to satisfy the requirements of the act. Either way, the parties are free to agree to a virtual hearing.
No legislation concerning the conduct of arbitration during the pandemic
No laws have been enacted in Sweden concerning the conduct of arbitration during the pandemic.
SCC’s procedural guidelines in response to the pandemic
In response to the pandemic, the SCC has issued guidelines. In summary, the SCC urges parties to keep in mind the alternative of a virtual hearing, reminding them that proceedings are expected to be carried out as planned. Further, the guidelines stress that there are no changes in how proceedings under the SCC Rules are managed.
No substantive changes to Swedish laws
There have been no express changes to the substantive laws of Sweden in response to the pandemic.
However, the impact of the pandemic on the economy of most sectors of Swedish industry has led to an increased number of companies defaulting on their payment obligations.
The pandemic has also caused an increased number of companies to enter into insolvency proceedings. In April 2020, some 880 companies entered into such proceedings, compared to 667 companies during the same month in 2019; an increase of 32 per cent.
While the pandemic has shown the possibilities of technology in arbitral proceedings, it has also shown that not all meetings in person may be replaced with virtual meetings, for example, meetings with witnesses.
Egypt – a civil law jurisdiction:Mohamed S Abdel Wahab, Zulficar & Partners Law Firm, Cairo
Egypt is a civil law jurisdiction and the principles of Islamic Sharia constitute the main source of legislation as per Article 2 of the 2014 Egyptian Constitution as amended in 2019.
Impact of the pandemic on practice and procedure of commercial arbitration and related ADR in Egypt
At the outset, there were no significant changes to the practice and procedure of commercial arbitration in Egypt resulting from the pandemic, other than an accelerated access to and use of ICT, especially with respect to virtual hearings. However, owing to the measures taken by the Egyptian state during the pandemic, there has been postponement of hearings and changes made to procedural timetables to the extent warranted in the circumstances. Many arbitration users opted to proceed with their ongoing arbitration cases in the most efficient manner within available (permissible) means and tools.
Has any legislation been enacted in Egypt concerning the conduct of arbitration during the pandemic?
No legislation has been enacted in Egypt concerning the conduct of arbitration during the pandemic.
Publication of guidance notes by the Cairo Regional Centre for International Commercial Arbitration (CRCICA) to address the impact of the pandemic on arbitration administered under the auspices of the CRCICA in Egypt
Despite the absence of new or specific Covid-19 legislation in relation to arbitration, the leading dispute resolution institution in Egypt, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), has adopted some measures and adapted some of its services in response to the pandemic by offering guidance notes to arbitration users to ensure smooth administration of ongoing proceedings and the filing of new cases.
The CRCICA strongly recommended and encouraged arbitration users to file notices of arbitration, written submissions and exhibits online via email and, to the extent possible, to hold hearings online (in reference to Articles 17.1 and 28.4 of the CRCICA Arbitration Rules granting such authority and possibility to arbitral tribunals). In this respect, physical hearings at the CRCICA premises have been suspended from 20 March until 30 May 2020, that is, during the period of closure of the CRCICA premises. From 31 May 2020, some physical in-person hearings have been held at the CRCICA premises with a minimum number of participants depending on the hearing facilities in use, to ensure safety and physical distancing.
Does Egyptian law expressly provide for (1) ODR; (2) document-only arbitration; and/or (3) physical hearings?
Under Egyptian law, there are no specific regulations or requirements in relation to online proceedings other than the already existing requirements under the Egyptian Arbitration Law No 27 of 1994 (EAL) or the applicable institutional arbitration rules.
It is interesting to note that the EAL grants the parties to an arbitration the freedom to determine the conduct of their proceedings, whether by choosing institutional arbitration rules or leaving it in the hands of the arbitral tribunal (Article 25). The EAL expressly provides that the arbitral tribunal may proceed on a ‘document-only basis’ provided the parties have not agreed otherwise (Article 33). However, if one party requests a hearing, the arbitral tribunal is expected to order one, if so warranted or justified. Furthermore, the EAL does not provide for a specific manner of conducting hearings, whether online (virtual) or offline (physical). Accordingly, the absence of prohibition to conduct online hearings suffices to enable arbitral tribunals to proceed with an online hearing upon consultation of the parties and after careful consideration of the applicable procedural rules and insofar as the circumstances of the case so warrant.
Impact of the Pandemic on the use of (1) ICT; (2) ODR in Egypt; and (3) conduct of evidentiary hearings
Hitherto, and strictly speaking, no ODR services are on offer in Egypt, no technology specific standards are enacted and no specific data security mechanisms are announced.
While there are still no protocols adopted in Egypt for virtual hearings, the Africa Arbitration Academy Protocol on Virtual Hearings as well as the ICC Guidance Note on the Possible Measures Aimed at Mitigating the Effects of the Pandemic have been flagged as useful texts to consider and apply with respect to the standards and options available to parties, counsel and arbitrators.
In practice, arbitral tribunals are either proceeding: (1) with online hearings; (2) on a document-only basis; (3) with hybrid forms of hearings (physical and virtual or remote); or (4) with a postponement of the hearing until it is physically possible to meet in person.
However, it has been noticed that during the pandemic, participants in an arbitration have been more available owing to the curfew and lockdown measures, which has facilitated the scheduling of virtual arbitration hearings, and most submissions and filings have been made electronically.
As to witnesses and experts, there is no specific requirement for physical presence of both; it is possible to cross-examine witnesses or experts via videoconferencing tools and online platforms. When proceeding with online hearings, the following has been noticed: (1) counsel have proceeded with more focused oral advocacy and cross-examination of witnesses and experts; (2) counsel have made informed choices as to who they wish to cross-examine; and (3) the duration of hearings and cross-examination have been reduced.
Impact on costs
As to the costs of arbitration, these are usually calculated as agreed with the parties in ad hoc proceedings or in accordance with costs schedules included in institutional rules. However, expenses for online hearings have been reduced, to some extent, owing to the absence of travel costs and any hard copy bundle-related costs.
Does Egyptian law permit (1) electronic delivery of awards and/or (2) online enforcement?
The delivery of arbitral awards was slightly delayed during times of lockdown and curfew periods as arbitral awards must be authenticated and cannot be issued or delivered electronically. In the same vein, there are no online enforcement procedures for arbitral awards.
Establishment of ODR services in Egypt
To conclude, it is worth noting that currently there are no specific platforms exclusively offering ODR services in Egypt. However, the Egyptian state is inclined towards creating dedicated ODR services. This has been illustrated by the establishment of the new Egyptian Centre for Voluntary Arbitration and Settlement of Non-Banking Financial Disputes (before the pandemic), which is expected to offer specialised ODR services for financial non-banking disputes arising between partners and shareholders in relation to capital market transactions.
UAE – a hybrid legal system:Hassan Arab, Al Tamimi & Co, Dubai
The UAE has a hybrid legal system. The onshore UAE courts, both at federal and local Emirate levels, follow the civil law tradition, while the Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) courts in the UAE follow the common law tradition.
Impact of the pandemic on dispute resolution in the UAE
The pandemic has undoubtedly accelerated the use of ICT in the UAE as a result of restrictions on movement. In this regard, the Dubai courts issued Resolution No 30/2020 for the postponement of all court hearings at cassation, appeal and first instance from 22 March 2020 to 16 April 2020.
All hearings and the filing of new cases are to be conducted electronically.
The Abu Dhabi courts issued an administrative decision and provided that all court procedures, court hearings and notary public ratifications shall be done through electronic means, including the filling of new cases.
Arbitration and ADR
This unprecedented global pandemic has had an impact on the manner in which arbitral proceedings, as well as other forms of ADR, have been conducted in the UAE. Such an impact has resulted in having these proceedings conducted for the most part in virtual form.
In line with the measures adopted by the UAE government’s efforts to circumvent the spread and impact of Covid-19, the arbitration institutions in the UAE adopted measures and issued press releases and guidance notes to arbitration users to warrant and safeguard the smooth operation of the conduct of the ongoing proceedings and commencement of new proceedings.
Arbitral institutions’ publications
Regionally and locally, the DIFC–LCIA Arbitration Centre (DIFC–LCIA) Notice on temporary office closure as precautionary measures during the pandemic urged arbitration users to file all correspondences and written submissions with respect to the pending proceedings, new requests for mediation or arbitration and emergency proceedings to be made electronically.
The Dubai International Arbitration Centre (DIAC) issued a press release  on measures during the pandemic, which provided that any new requests for arbitration, including supporting documents, should only be filed electronically and submitted through the institution’s website, and any case-related documents in ongoing cases should be submitted by email only.
At the international level, the International Court of Arbitration of the ICC, which has its MENA regional representative office in Abu Dhabi, issued a Guidance Note on Possible Measures aimed at Mitigating the Effects of the Covid-19 Pandemic dated 9 April 2020, which addresses issues relating to the efficiency of arbitral procedure, electronic service, electronic notification of the award, and means and protocol on virtual hearings.
Most of the arbitral institutions in the UAE remained fully operational during the pandemic and all filings and new requests were submitted.
Impact of the pandemic on the use of ODR
Arbitrators and counsel remained generally available during the pandemic. There have been more logistical challenges to arrange for witnesses to appear, particularly during the lockdown, as a result of logistical issues, including accessibility to reliable connection points. There are no material changes regarding the techniques for cross-examination of witnesses and production of documents. The hearing by the arbitral tribunal is mostly conducted through ODR mechanisms, including virtual hearings, and the use of ICT has been accelerated in the UAE.
‘In-person’ hearings and ‘document-only’ arbitration under the UAE Arbitration Law
Pursuant to Article 33 of UAE Federal Law No 6 of 2018 on Arbitration (the ‘UAE Arbitration Law’) regulates the conduct of hearings as well as arbitration proceedings conducted on a document-only basis. Article 33(2) of the UAE Arbitration Law provides that arbitral tribunals shall decide whether to hold oral hearings for the presentation of evidence or whether the proceedings shall be conducted on the basis of documents and other materials, provided that parties have not agreed otherwise. The arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party. The UAE Arbitration Law expressly provides that hearings may be held through modern means of communication without the physical presence of the parties at the hearing. The arbitral tribunal shall give the parties sufficient advance notice of any hearings.
Online service of awards and enforcement
Under the UAE Arbitration Law, the arbitral tribunals shall notify the parties of the award by communicating to each party, an original or a copy of the arbitral award within 15 days from the date of issue of the award (Article 44). Hard copy delivery of the award is taking more time during lockdown as a result of restrictions on movement.
There is no provision for the online enforcement of awards under the Arbitration Law that is a matter regulated under the civil procedures framework.
Impact on costs
While, generally, virtual proceedings tend to be more cost effective, the costs of online proceedings depend on the technology used and charges imposed by institutions (if any) and third-party service providers. The majority of online platforms in the UAE are operated by third-party providers; however, it is noteworthy that these platforms should comply with international standards. Certain online platforms are not available in the UAE.
Parties are obliged to observe confidentiality obligations under UAE Arbitration law and applicable arbitration rules. Article 33 of the UAE Arbitration Law states that arbitral hearings shall be held in camera unless the parties agree otherwise. Arbitrators’ awards are confidential and cannot be published in whole or in part except with the written consent of the parties (Article 48).
Legislative framework and protocols
While there have been no changes to the legislative framework of arbitration in the UAE resulting from the pandemic, there have been protocols issued at both the local and regional level by arbitration centres relating to safety measures and guidelines to ensure the smooth operation of the conduct of the ongoing proceedings and filing of new cases.
US – a common law jurisdiction:Meg Utterback, King & Wood Mallesons, New York
The 50 US states each have distinct laws; federal law governs many national and international matters to the extent that such matters are within the federal government’s powers delegated in the US Constitution.
The impact of the Pandemic on arbitration in the US and ADR
The US has been one of the hardest-hit countries in terms of the number of cases and deaths associated with the pandemic. The executive branch of the federal government elected early in the pandemic to push the bulk of the response to the pandemic to the states to manage. Despite regular and frequent cooperation among some state governors, the effect has been an uncoordinated response that has varied widely from state to state, and even city to city.
Many courts, such as the state courts in New York, limited their operations for a period to only essential filings. By contrast, arbitral institutions moved swiftly to online platforms, including online merits hearings where both parties agreed. Most of the institutions already had robust online filing systems, and tribunals were already accustomed to remote or virtual meetings for administrative matters and non-dispositive motions. In response to the pandemic, dispositive motions, temporary restraining orders (TROs), requests for preliminary injunctions and even merits hearings have moved online.
For the most part, counsel and clients seem to be acquiescing to online hearings. The institutions have issued online protocols that are then further refined by individual tribunals before the hearing. The guidance provided seeks to ensure the integrity of witness testimony and the process for presenting evidence at hearing. In US arbitration proceedings, the use of depositions is more common than the submission of witness statements. Depositions are taken remotely, usually following document production.
At hearing, there has been no material change to the proceedings arising from being online. Direct and cross-examination are more challenging online due to the limitations of technology, and accommodations are made to address the challenges of the online platform, for example, allowing more time between the question and answer to allow the other side to object.
Commercially available online platforms are generally used, for example, Zoom and Microsoft Teams. The institutions seem to prefer that the parties arrange the facility through court reporting services. Parties pay special attention to the number of connections and the availability of virtual breakout rooms when considering which court reporting service to use.
Tribunals meet virtually to discuss the case and reach a decision. Awards seem to be issued in a timely manner, with the drafting process largely unchanged.
Online mediation is also growing in popularity. Due to the economic stress placed on many disputants by the pandemic, mediation has become a cheaper alternative to finding a resolution for parties that find the costs of arbitration too daunting.
Confidentiality and security
The Federal Arbitration Act, 9 USC ss 1–16, does not contain an express confidentiality requirement for arbitration. Institutions such as the American Arbitration Association (AAA) and JAMS both have rules that empower the tribunal to determine what matters must be kept confidential (AAA Commercial Arbitration Rules, Rule 23; JAMS Comprehensive Arbitration Rules and Procedures, Rule 26(b)). Both institutions also require that the privacy of the hearings be maintained by the arbitrators and the institution and that only those with a direct interest in the proceedings may attend (AAA Commercial Rule 25; JAMS Rule 26(a)).
For purposes of the hearing, the parties and the tribunal decide if and how the proceedings may be recorded, whether by video or only by stenographic means.
Online service of awards and enforcement
Electronic delivery of the award to the parties was standard even before the pandemic.
Recognition and enforcement proceedings are submitted to a court in the state where the losing party has assets. The courts in the states, federal and state, have adopted varying approaches to managing their dockets during the pandemic. Some courthouses have closed entirely, some are open for essential matters only and others remain in full operation. If a court has adopted online proceedings for civil matters, the courts may hear matters relating to enforcement. Depending on the nature of the asset and the courts and authorities involved in the process, the actual enforcement and seizure may be delayed.
The institutions offer expedited proceedings. For example, the AAA allows proceedings on documents where no party’s claim exceeds US$25,000, exclusive of interest, fees and costs (AAA Commercial Rule E-6). JAMS has a set of Streamlined Arbitration Rules and Procedures where no claim exceeds US$250,000, exclusive of interest, fees and costs. Under both institutions’ rules, the parties must agree to proceed based on written submissions only (AAA Commercial Rule E-6; JAMS Streamlined Rule 18).
In-person hearings are not mandated by the Federal Arbitration Act or the institutional rules. The institutions have adopted online merits hearings. An online hearing will not be set if one or both parties object to it. Many of the institutions are planning to reopen in the autumn if they can manage the complexities of social distancing and other protections against the spread of the pandemic. It remains to be seen when in-person hearings will again return. Parties, counsel and arbitrators are acclimating to online platforms, and, for costs and logistical reasons, some arbitration may continue to be heard through online platforms rather than returning to physical hearing rooms.
No specific arbitration-related legislation has been issued on the national level as a result of the pandemic. Many states have adopted rules that require quarantining for two weeks after travelling from one state to another.
Arbitral institutions’ publications
The major arbitral institutions operating in the US are the AAA, JAMS, the International Institution for Conflict Prevention and Resolution (CPR) and the ICC. Each has published Covid-19 pandemic guidelines, which can be found as follows:
• AAA: https://go.adr.org/covid-19-resource.html?utm_source=website&utm_medium=featurebox&utm_campaign=website_covid19-resource-adr&_ga=2.227919389.1622464339.1595873589-552712897.1579561215 [accessed 22 September 2020];
• JAMS: www.jamsadr.com/online [accessed 22 September 2020];
• CPR: www.cpradr.org/resource-center/protocols-guidelines/model-procedure-order-remote-video-arbitration-proceedings [accessed 22 September 2020]
• ICC: https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other-neutrals [accessed 22 September 2020].
Brazil – a Civil Law Jurisdiction:  Laura Helena Pinheiro de Oliviera, LP Consultoria, and Sergio Nelson, Mannheimer, Perez e Lyra Advogados, Rio de Janeiro/São Paulo
As of August 2020, Brazil is the second-most affected country in the world by the pandemic, surpassed only by the US. With its continental size, Brazil is witness to different Covid-19 infection rates, leading to different approaches by the regional authorities on the rules for quarantine. This brings challenges to the functioning of the arbitration institutions during this period.
Brazil is a civil law jurisdiction. For further information on the Brazilian court system, please refer to the Brazilian litigation article.
Changes to Brazilian laws resulting from, or stimulated by, the Pandemic
According to Article 3 of Law No 14.010/2020, which provides for emergency and transitory rules for the period of the pandemic, time-bar periods were suspended from 10 June 2020 to 30 October 2020. Also, there is a bill of law (No 1.397/20) regarding the regulation of insolvency and judicial reorganisation during the pandemic currently being examined by the Brazilian Congress.
Has Brazil enacted legislation concerning the conduct of arbitration during the pandemic?
Brazil has not enacted any specific changes to the Arbitration Law because of the pandemic.
Does Brazilian law allow ‘document-only’ arbitration
In general, arbitration procedures in Brazil are anchored on written submission and documental evidence. Although the Brazilian Arbitration Law does not expressly provide for a ‘document-only’ arbitration, the parties may agree to apply this concept to their procedure.
Impact of the Pandemic on the use of (1) ICT and (2) ODR in arbitration seated in Brazil: costs
In spite of the Brazilian Arbitration Law being silent as to the use of ICT, electronic submission of files and online hearings are allowed, but not obligatory, even though the same are already consolidated practice in this jurisdiction.
The costs involved in having the procedure carried out online will mostly depend on the technology agreed by the parties to be used to such effect, but using it certainly lowers the cost of travel expenses for all parties involved in the procedure.
Arbitral institutions’ rules and similar
Most of the main arbitration institutions in Brazil have enacted various acts addressing the impact of the pandemic on proceedings. Major examples are the resolutions put into practice by Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (Centro de Arbitragem e Mediação Brasil-Canadá or ‘CAM-CCBC’), Brazilian Centre for Mediation and Arbitration (Centro Brasileiro de Mediação e Arbitragem (CBMA)), Chamber of Conciliation, Mediation and Arbitration (Câmara de Conciliação, Mediação e Arbitragem (or CIESP/FIESP)) and Chamber of Commercial Mediation and Arbitration – Brazil (Câmara de Mediação e Arbitragem Empresarial – Brasil or ‘CAMARB’).
As the pandemic is still evolving, we are sure that new resolutions will be enacted in order to cater for any new needs and challenges that may arise during this period. For the sake of consistency, the CAM-CCBC and CBMA’s regulations will be used in this article whenever applicable.
Changes to the practice and procedure of the conduct of arbitration in Brazil
As required by arbitration institutions in Brazil, all filings should now be made via email. The CAM-CCBC has organised an e-document repository, to which all submissions and documents should be uploaded. Online filings, electronic services and electronic notices to the parties are all allowed in Brazil. Any and all notices to the parties shall also be made via email.
As of 10 July 2020 all physical hearings were suspended. However, each arbitral tribunal may, on a case-by-case basis, decide on whether to hold online hearings or wait to have a physical hearing. In Brazil, online hearings may be conducted by audio or videoconference, and how to proceed will depend on the arbitral tribunal and the parties’ agreement.
Availability of arbitrators, counsel and witnesses
From the start of the pandemic, practitioners have not noticed any changes to the availability of arbitrators, counsel or witnesses. The presentation of submission and the production of documents are currently mostly made in electronic form.
Encouragement of online hearings
One change noticed is that many arbitral tribunals are presently encouraging online hearings. The standard before the pandemic was to use this possibility mainly for the execution of the Terms of Reference.
No impact on time
All this has not been perceived to have impacted negatively on the time taken for the delivery of the decision award.
Online mediation in Brazil
As to the possibility of online mediation, Rio de Janeiro State Court has recently published a resolution allowing for online mediation related to insolvency and judicial reorganisation proceedings. On 17 April 2020, São Paulo State Court published Resolution No 11/20, which establishes a project for online mediation for corporate disputes. The first Brazilian online mediation institution, Mediação On Line, has made its conciliation and mediation platform available at no cost to all bodies of the judiciary in Brazil due to the pandemic. Surfing this wave of online need to resolve conflict, the São Paulo Lawyers Association (Associação de Advogados de São Paulo or AASP), launched its platform for mediation online at the beginning of July 2020.
As seen above, even before the pandemic, arbitral procedures carried out in Brazil were already substantially using online tools to fulfil their purpose. Of course, new paths are being discovered and followed, which may lead to more permanent changes to how arbitral procedures look in the future. It seems that some improvements that bring swiftness and easiness to the parties will for sure become the new normal in
Kenya – a common law jurisdiction:Ndanga Kamau, Ndanga Kamau Law, The Hague, and Benjamin Ng’eno, Independent Practitioner, Nairobi
Have there been any changes to the practice and procedure of commercial arbitration and related ADR resulting from the pandemic?
There has been no material change to the practice and procedure for filing and conducting proceedings before any evidentiary hearing or final determination, or for conducting evidentiary hearings in Kenya.
Impact on costs
There has been no material change to the cost of the practice and procedure of commercial arbitration resulting from the pandemic in Kenya, except the elimination of expenses that would otherwise have been incurred for travel and physical hearing facilities.
Has the pandemic accelerated the use of (1) ICT and (2) ODR in Kenya?
The pandemic has accelerated the use of ICT, notably electronic submissions and videoconferencing.
Tribunals, parties and counsel have made use of videoconferencing for case management conferences and evidentiary hearings.
No specific technology standards have been developed or applied. As to data security and confidentiality of (1) ICT and (2) ODR, no specific protocols or standards have been developed or implemented.
Arbitration institutions, rules and similar
As to arbitral institution rules, guidelines and protocols, there have been no changes arising from the pandemic.
Impact of the use of ODR in Kenya where used
The impact of ODR in Kenya in cases where parties and tribunals have opted for them is as follows:
• arbitrators: significant impact as tribunals have had to adapt to remote hearings, remote case management conferences, remote deliberations and electronic documents;
• counsel: significant impact as they have had to adapt to remote hearings and filing electronic documents in a context where paper submissions have been the norm;
• witnesses: significant impact as they have had to adapt to giving testimony and being examined remotely;
• parties: significant impact as they have had to adjust to remote proceedings, including limited access to counsel;
• costs: relatively low impact, except where parties, counsel and tribunals have had to acquire equipment to participate in remote hearings;
• approach to preparation: moderate impact as counsel and parties have had to adapt to remote meetings and consultations;
• approach to production of documents: unchanged;
• approach to cross-examination: unchanged;
• approach to submissions: unchanged; and
• timetable of proceedings: moderate impact. The availability of ODR has meant that the arbitral process need not be delayed where remote hearings are agreed or ordered. However, challenges with internet connectivity have had an impact on the smooth running of proceedings.
Does the law of Kenya expressly provide for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement?
The Arbitration Act 1995 (Kenya) does not expressly provide for ODR, delivery of awards online or online enforcement.
Does Kenyan law expressly permit ‘document-only’ arbitration
Subject to the agreement of parties, section 25(1) of the Arbitration Act, 1995 allows the tribunal to proceed on a document-only basis.
Does Kenyan law require physical or ‘in-person’ hearings in arbitration
Under Kenyan law an ‘in-person’ hearing is not mandatory if parties agree that no oral hearing shall be held.
Has any legislation been enacted in Kenya concerning the conduct of arbitration during the pandemic?
There have been no changes to the laws of Kenya concerning the conduct of arbitration during the pandemic.
Were any changes to the laws of Kenya made resulting from the Pandemic?
There have been twochanges in the laws of Kenya that have been prompted by the pandemic. First, the Kenyan government waived court filing fees in commercial disputes where the value of the suit does not exceed KES1m (approx. US$10,000). The Kenyan government also reduced the effective rate of VAT from 16 per cent to 14 per cent. These two pandemic-related legislative changes may result in a (marginal) cost reduction of litigation or arbitration proceedings.
As observed in the introduction to this article, as of September 2020, the pandemic has already had a great impact on litigation globally, causing many jurisdictions to conduct proceedings online at least in part, for the first time, and accelerated the use of online proceedings in arbitration and mediation. As of September 2020, the pandemic continues; it is not clear that its impact has peaked nor the extent to which there will be subsequent waves of infection.
Dispute resolution systems will need to continue to adapt and assess their priorities in responding to the pandemic and how best to manage the potential tension between health concerns, parties’ access to justice, public access generally and ensuring due process, among other issues. It may be that such adaptation will include an accelerated use of innovative technology, such as artificial intelligence and blockchain, where available resources permit this. There may be a continuing and growing divergence in the extent to which various jurisdictions regard in-person or physical proceedings as being an indispensable aspect of at least part of the conduct of dispute resolution. These are among the issues that DRI will explore in its May 2021 issue.
 The work of 27 contributors is included in this article and its appendices. The contributor/s of each of the summaries in this article are stated in each summary’s heading. Appendix 3 lists the names and details for all contributors to the summaries and completed questionnaires for the 15 jurisdictions reviewed.
 Countries/areas with reported cases of Coronavirus Disease-2019 (Covid-19) (Last updated on August 2, 2020, 11 am) www.chp.gov.hk/files/pdf/statistics_of_the_cases_novel_coronavirus_infection_en.pdf accessed 5 August 2020.
 World Health Organization, ‘Timeline of WHO’s response to Covid-19 – Last updated 30 June 2020’www.who.int/news-room/detail/29-06-2020-covidtimeline accessed 5 August 2020.
 Summaries as to the impact of Covid-19 on litigation in Nigeria and the UAE will be published in the May 2021 edition of DRI.
 Summaries as to the impact of Covid-19 on arbitration for Nigeria and South Korea will be published in the May 2021 edition of DRI.
 See www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf accessed 5 August 2020.
 Abayomi Okubote of Olanywan Ajayi, Nigeria, contributed the completed questionnaire for litigation in Nigeria. Hassan Arab of Al Tamimi & Co, Dubai, UAE, contributed the completed questionnaire for arbitration in the UAE. Summaries for these jurisdictions will be published in the May 2021 issue of DRI.
 Date at which Australian law is stated: 14 July 2020.
 Justice Perram, ‘Video Justice: Ten Years of Progress for Courts in Eight Weeks’, Australian Financial Review (Sydney, 14 May 2020) www.afr.com/companies/professional-services/video-justice-ten-years-of-progress-for-courts-in-eight-weeks-20200513-p54spa accessed 5 August 2020.
 See https://nswbar.asn.au/uploads/pdf-documents/Covid_Court_Guide.pdf accessed 5 August 2020.
 Covid-19 Omnibus (Emergency Measures) Act 2020 (Vic) https://content.legislation.vic.gov.au/sites/default/files/2020-04/20-011aa%20authorised.pdf accessed 5 August 2020.
 Video Connection Hearings Protocolwww.hcourt.gov.au/assets/registry/information/VC_Hearings_Protocol.pdf accessed 5 August 2020.
 Special Measures Information Note: Appeals and Full Court Hearingswww.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/smin-3.pdf accessed 5 August 2020.
 Protocol on Court Operations during Covid-19www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/Protocol_v4_09_June_2020.pdf accessed 5 August 2020.
 See https://nswbar.asn.au/uploads/pdf-documents/remote_hearing_protocol.pdf accessed 5 August 2020.
 See, eg, Corporations (Coronavirus Economic Response) Determination (No 1) 2020 (Cth); Coronavirus Economic Response Omnibus (Measures No 2) Act 2020 (Cth) Sch 5; Electronic Transactions Amendment (Covid-19 Witnessing of Documents) Regulation 2020 (NSW) https://legislation.nsw.gov.au/regulations/2020-169 accessed 5 August 2020.
 See n 11 above.
 See www.fedcourt.gov.au/covid19/legislation accessed 5 August 2020.
 Covid-19 Omnibus (Emergency Measures) Act 2020; Covid-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 https://content.legislation.vic.gov.au/sites/default/files/2020-06/20-045sra%20authorised.pdf accessed 5 August 2020.
 Covid-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) www.parliament.nsw.gov.au/bill/files/3745/Passed%20by%20both%20Houses.pdf accessed 5 August 2020.
 Coronavirus Economic Response Package Omnibus Act 2020 (Cth) schedule 12 www.legislation.gov.au/Details/C2020A00022 accessed 5 August 2020.
 See www.pm.gov.au/sites/default/files/files/national-cabinet-mandatory-code-ofconduct-sme-commercial-leasing-principles.pdf accessed 5 August 2020.
 See, eg, Retail and Other Commercial Leases (Covid-19) Regulation 2020 (NSW); Covid-19 Omnibus (Emergency Measures) (Commercial Leases & Licences) Regulations 2020 (Vic).
 Covid-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) www.legislation.nsw.gov.au/acts/2020-1.pdfaccessed 5 August 2020.
 The Corporations Act 2001 (Cth) http://legislation.gov.au/Details/C2020C00137; ‘Directors duties in the context of Covid-19’, ASIChttps://asic.gov.au/about-asic/news-centre/articles/directors-duties-in-the-context-of-covid-19; Coronavirus Economic Response Package Omnibus Act 2020 (Cth) www.legislation.gov.au/Details/C2020C00139 accessed 5 August 2020.
 Assistant Minister for Customs, Community Safety and Multicultural Affairs, (Media Release, 28 April 2020) https://minister.homeaffairs.gov.au/jasonwood/Pages/government-extends-reporting-deadlines.aspx accessed 5 August 2020.
 Date at which Chinese law is stated: 13 July 2020.
 Art 23 of the 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) stipulates that:
‘People’s courts may adopt online videos to try cases in court, but under any of the following circumstances, an online trial in court shall not apply: 1. both parties explicitly express disagreement on the online trial or one party expresses disagreement on the online trial and has justifiable reasons for such disagreement; 2. both parties do not have the technical conditions and ability to participate in the online trial; 3. it is necessary to find out identities, check the originals and examine physical objects on the spot; or 4. People’s courts hold that there are other circumstances that are not suitable for the online trial. If only one party chooses an online trial, the people’s court may, according to the case situation, hold the trial with one party being online and the other party offline. For cases where an online trial is adopted, if one of the above circumstances occurs in the course of the trial, the people’s courts shall change the trial of the cases to an offline trial. Already completed online trial activities shall have legal effect.’
 Chinese Civil Procedure Law, Art (87(1), provides that: ‘[s]ubject to the consent of the person on which a procedural document is to be served, the document may be served by way of facsimile, electronic mail or any other means through which the receipt of the document may be acknowledged, with the exception of judgments, rulings and mediation statements’.
 Art 169(1) of the Chinese Civil Procedure Law provides: ‘During the hearing of an appeal, the people’s court of the second instance shall form a collegiate bench for the hearing. Where, upon reviewing the case files, conducting investigations and questioning the parties, no new facts, evidence or reasons are submitted, the collegiate bench may decide not to hold a hearing if it deems unnecessary.’
 Art 136 of the Chinese Civil Procedure Law, ‘When trying a civil case, the people’s court shall notify the parties and other participants in the action three days prior to the hearing. If the case is to be tried in public, the names of the parties, the cause of action and the time and place of the hearing shall be publicly announced.’
 Date at which Hong Kong law is stated: 17 July 2020.
 See https://legalref.judiciary.hk/lrs/common/pd/pdcontent.jsp?pdn=PD29.htm&lang=EN accessed 5 August 2020.
 See https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=126927&QS=%2B&TP=JU accessed 5 August 2020.
 See https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=127353&QS=%2B&TP=JU accessed 5 August 2020.
 Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap 599C).
 See www.judiciary.hk/en/court_services_facilities/gap_archive.html JU accessed 5 August 2020.
 See www.judiciary.hk/doc/en/court_services_facilities/guidance_note_for_remote_hearings_phase1_20200402.pdf JU accessed 5 August 2020.
 See www.judiciary.hk/doc/en/court_services_facilities/guidance_note_for_remote_hearings_phase2_20200608.pdf JU accessed 5 August 2020.
 See www.info.gov.hk/gia/general/202003/25/P2020032500594.htm JU accessed
5 August 2020.
 Date at which Indian law is stated: 21 July 2020.
 Supreme Court of India Standard Operating Procedures dated 23 March 2020, 15 April 2020, 16 May 2020, 14 June 2020 and 4 July 2020 https://main.sci.gov.in/notices-circulars accessed 5 August 2020.
 Supreme Court of India Circulars and Notifications https://main.sci.gov.in/pdf/LU/04072020_153040.pdf; Supreme Court of India, order dated 6 April 2020
in Suo Motu Writ Petition (Civil) No 5/2020 https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf accessed 5 August 2020.
 High Court of Delhi, ‘Videoconferencing Rules, 2020’ http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_ULDC4UVQWZ9.PDF; High Court of Karnataka, ‘Rules for Videoconferencing for Courts, 2020’ www.karnatakajudiciary.kar.nic.in/govtNotifications/egazette-vc-rules-2020-v1.pdf accessed 5 August 2020.
 Pressreleases dated 7 June 2020 https://pib.gov.in/PressReleasePage.aspx?PRID=1630080 and https://niti.gov.in/catalysing-online-dispute-resolution-india accessed 5 August 2020.
 The Supreme Court of India, vide order dated 23 March 2020 in Suo Motu Writ Petition (Civil) No 3/2020 https://main.sci.gov.in/supremecourt/2020/10787/10787_2020_1_12_21570_Order_23-Mar-2020.pdf accessed 5 August 2020.
 Covid-19 Regulatory Package by the Reserve Bank of India dated 23 May 2020 https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NT2455D86E6F80D9D4BC29C0DFAA43D76D9A4.PDF accessed 5 August 2020.
 Ministry of Corporate Affairs Notification dated 28 March 2020 www.mca.gov.in/Ministry/pdf/Notification_28032020.pdf accessed 5 August 2020.
 Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 https://ibbi.gov.in//uploads/legalframwork/741059f0d8777f311ec76332ced1e9cf.pdf accessed 5 August 2020.
 Date at which Singapore’s law is stated: 10 July 2020.
 The period of limitation is extended by virtue of s 5(7) of the Act, which states:
‘(7) Any period of limitation prescribed by any law or in any contract for the taking of an action in relation to the subject inability is extended by a period equal to the period beginning on the date of service by A of the notification for relief in accordance with section 9(1) and ending on the earliest of the following:
(a) the expiry of the prescribed period;
(b) the withdrawal by A of A’s notification for relief;
(c) on an application under section 9(2), the making of a determination by the assessor that the case in question is not one to which this section applies.’
 The obligation to pay interest is stated under s 7A(2) of the Act:
(1) This section applies to a case mentioned in section 5 where —
(a) the scheduled contract is within a description of contracts prescribed as contracts to which this section applies; and
(b) the subject inability is the inability to pay any money at the time it becomes due and payable, being a time within the prescribed period.
(2) Where the contract requires A to pay B any interest or other charge (however described).’
 Date at which the law of South Korea is stated: 1 July 2020.
 Date at which the law of England and Wales is stated: 20 July 2020.
 See the daily/weekly operational summaries that have been issued by HM Courts & Tribunals Service www.gov.uk/guidance/hmcts-weekly-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak accessed 5 August 2020.
 See, eg, the High Court Business Contingency Plan for Maintaining Urgent Court Hearings dated 26 March 2020 www.judiciary.uk/wp-content/uploads/2020/03/High-Court.Contingency.final_.26thMarch2020-002.pdf accessed 5 August 2020.
 Commercial Court User Group Meeting, June Meeting Minutes, 15 June 2020, p 2 www.judiciary.uk/wp-content/uploads/2020/06/CCUG-Minutes-150620.pdf accessed 5 August 2020.
 ‘Protocol Regarding Remote Hearings’ dated 26 March 2020 (updated 31 March 2020), Judiciary of England and Wales www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1.pdf accessed 5 August 2020.
 Including the steps to be taken before and at a remote hearing.
 One of the few major trials taking place in a hybrid format has been the case of PCP Capital Partners v Barclays Bank Plc.
 See, eg, Re Blackfriars Ltd  EWHC 845 (Ch), where the judge rejected an adjournment after considering the health and safety concerns of holding a physical hearing, the technological challenges of holding a remote hearing, the impact of a remote hearing on fairness, the sums involved and the importance of witness evidence. By contrast, an adjournment was allowed in Conversant v Huawei  EWHC 728 (Pat) and  EWHC 741 (Pat) because of the need for rigorous witness cross-examination.
 Re Blackfriars Ltd  EWHC 845 (Ch), para 23.
 Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division, 23 March 2020 www.judiciary.uk/wp-content/uploads/2020/04/Message-to-CJJ-and-DJJ-9-April-2020.pdf accessed 5 August 2020.
 See www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51z-stay-of-possession-proceedings,-coronavirus accessed 5 August 2020.
 PD 51ZA, para 2 www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-51za-extension-of-time-limits-and-clarification-of-practice-direction-51y-coronavirus accessed 5 August 2020.
 PD 51ZA, para 4.
 An increase in the settlement rate for this year has been reported. See www.judiciary.uk/wp-content/uploads/2020/06/CCUG-Minutes-150620.pdf accessed 5 August 2020.
 ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency’ (published by the Cabinet Office on 7 May 2020 and updated 30 June), para 13 www.gov.uk/government/publications/guidance-on-responsible-contractual-behaviour-in-the-performance-and-enforcement-of-contracts-impacted-by-the-covid-19-emergency accessed 5 August 2020.
 ‘Coronavirus (Covid-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts’, 19 March 2020 www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts accessed 5 August 2020.
 ‘Review of court arrangements due to Covid-19, message from the Lord Chief Justice’, 23 March 2020 www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice accessed 5 August 2020.
 Press release, ‘10 “Nightingale Courts” unveiled’, 19 July 2020 www.gov.uk/government/news/10-nightingale-courts-unveiled accessed 5 August 2020.
 ‘General Guidance on PDF Bundles’, Courts and Tribunals Judiciary www.judiciary.uk/wp-content/uploads/2020/05/GENERAL-GUIDANCE-ON-PDF-BUNDLES-f1-1.pdf accessed 5 August 2020.
 See, eg, Re Blackfriars Ltd  EWHC 845 (Ch), in which the judge refused an application to adjourn a five-week hearing.
 Municipio de Mariana v BHP Group plc (formerly BHP Billiton)  EWHC 928 (TCC), para 32(iii).
 Although travel costs may be saved, there may be costs associated with hiring third-party providers to assist with the effective running of a remote hearing.
 See n 74 above, para 32(vii).
 See www.legislation.gov.uk/ukpga/2020/7/contents/enacted accessed 5 August 2020.
 See n 61 above.
 ‘How to join telephone and video hearings during coronavirus (Covid-19) outbreak’ (published on 8 April 2020 and updated on 10 July 2020), HMCTS www.gov.uk/guidance/how-to-join-telephone-and-video-hearings-during-coronavirus-covid-19-outbreak accessed 5 August 2020.
 ‘HMCTS telephone and video hearings during coronavirus outbreak’ (published on 18 March 2020 and updated on 30 June 2020), HMCTS www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak accessed 5 August 2020.
 PD 51Y is due to expire on the date the Coronavirus Act ceases to have effect, while PD 51Z and 51ZA will cease to have effect on 30 October 2020.
 See n 77 above, para 24.
 See n 80 above.
 Laws and regulations have been enacted to address, eg, the widening of public powers in relation to health protection, changes to taxation and employment rights and requirements for the conduct of businesses.
 Temporary Practice Direction Supporting the Insolvency Practice Direction www.judiciary.uk/wp-content/uploads/2020/04/Temporary-IPD-April-2020_.pdf accessed 5 August 2020. It provided, among other things, that unless otherwise ordered all insolvency hearings would be conducted remotely and that matters would be adjourned for relisting based on urgency.
 See www.legislation.gov.uk/ukpga/2020/12/contents/enacted accessed 5 August 2020.
 ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency’ www.gov.uk/government/publications/guidance-on-responsible-contractual-behaviour-in-the-performance-and-enforcement-of-contracts-impacted-by-the-covid-19-emergency accessed 5 August 2020. Acting responsibly and fairly in relation to the performance and enforcement of the contract during the pandemic is said to include being reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with disputes), acting in a spirit of cooperation and aiming to achieve equitable contractual outcomes. The guidance states that an equitable adjustment or accommodation in contractual arrangements impacted by Covid-19 should be considered in preference to a formal dispute.
 HMCTS, Annual Report and Accounts 2019-20, p 8 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/902301/HMCTS_Annual_Report_and_Accounts_2019-20_WEB.PDF accessed 5 August 2020. See also the Lord Chancellor and Secretary of State for Justice written statement dated 1 July 2020.
 Government press release dated 1 July 2020 www.gov.uk/government/news/coronavirus-recovery-in-her-majesty-s-court-and-tribunal-service accessed 5 August 2020.
 Covid-19: Overview of HMCTS response, July 2020 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/896779/HMCTS368_recovery_-_Covid-19-_Overview_of_HMCTS_response_A4L_v3.pdf accessed 5 August 2020.
 Eg, using buildings on a temporary basis to expand the number of cases that can be heard, reopening existing court buildings and extending operating hours.
 Date at which German law is stated: 9 July 2020.
 Date at which Swedish law is stated: 1 July 2020.
 Date at which Egyptian law is stated: 31 July 2020.
 Date at which US law is stated: 20 July 2020.
 See ‘Covid-19 Roundup: Court closures and procedural changes’ (24 June 2020) www.thomsonreuters.com/content/dam/ewp-m/documents/thomsonreuters/en/pdf/other/covid-19-roundup-court-closures-continue.pdf accessed 5 August 2020.
 See www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic accessed 5 August 2020.
 See www.justice.gov/usao-edpa/page/file/1268756/download accessed 5 August 2020.
 See www.cafc.uscourts.gov/sites/default/files/announcements/2020/Notice-May2020CourtSession-04212020.pdf accessed 5 August 2020.
 See www.uscourts.gov/news/2020/04/08/courts-deliver-justice-virtually-amid-coronavirus-outbreak accessed 5 August 2020.
 Date at which Brazilian law is stated: 10 July 2020.
 See https://covid19.who.int accessed 5 August 2020.
 Date at which the law of the Republic of Kenya is stated: 30 April 2020.
 The Kenyan Supreme Court has original jurisdiction over presidential petitions and appellate jurisdiction over appeals from the Court of Appeal involving constitutional interpretation, applications or questions having a public interest.
 The Kenyan Court of Appeal has appellate jurisdiction on matters from the High Court.
 The Kenyan High Court has both original and appellate jurisdiction from the subordinate courts, commercial claims in excess of KES20m, and jurisdiction to enforce and set aside arbitral awards.
 The Kenyan magistrates’ courts are the Chief Magistrate’s Court, Senior Principal Magistrate’s Court, Principal Magistrate’s Court, Senior Resident Magistrate’s Courts and Resident Magistrate’s Courts.
 Kadhis’ courts are established by the Constitution of Kenya. The Kadhis’ Courts Act 1967 (Revised 2012), s 5, sets out the jurisdiction of the Kadhis’ courts as follows: ‘A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.’
 Direction No 19 provides that: ‘Teleconferencing, videoconferencing and other appropriate technologies: Where practicable and taking into account the prevailing circumstances, the Court may make use of teleconferencing, videoconferencing and other appropriate technologies to dispose of any matter.’
 Kenyan judicial practice notes in response to the Covid-19 pandemic include: (1) ‘Practice directions for the protection of judges, judicial officers, judiciary staff, other court users and the general public from the risks associated with the global corona virus pandemic’, issued on 20 March 2020; (2) ‘Practice notes for the conduct of court business during the global coronavirus pandemic’, issued on 21 April 2020; (3) ‘Practice note on e-filing of commercial cases to mitigate Covid-19 in the Commercial Justice Sector’, issued on 16 March 2020; (4) ‘Practice Directions on Electronic Case Management’ issued on 4 March 2020; and (5) ‘Milimani law courts and Milimani commercial courts court standard operating procedures during Covid-19 pandemic’ (undated).
 See http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2020/LN59_2020.pdf accessed 5 August 2020.
 See http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2020/LN35_2020.pdf accessed 5 August 2020.
 Abayomi Okubote of Olanywan Ajayi, Nigeria, contributed the completed questionnaire for litigation in Nigeria. Professor Joongi Kim of Yonsei University, Republic of Korea, contributed the completed questionnaire for litigation in the Republic of Korea. Summaries for these jurisdictions will be published in the May 2021 issue of DRI.
 Date at which Australian law is stated: 10 July 2020.
 See https://acica.org.au/wp-content/uploads/2020/05/ACICA-Online-Arbitration-Guidance-Note.pdf accessed 5 August 2020.
 See https://acica.org.au/wp-content/uploads/2016/08/ACICA-online-ADR-procedural-order.pdf accessed 5 August 2020.
 See https://acica.org.au/wp-content/uploads/2020/04/Managing-the-Impact-of-Covid-19_Use-of-Arbitration-to-Mitigate-Risk.pdf accessed 5 August 2020.
 Date at which Chinese law is stated: 13 July 2020.
 It provides that ‘[p]eople’s courts may adopt online videos to try cases in court.’
 It provides that ‘Subject to the consent of the person on which a procedural document is to be served, the document may be served by way of facsimile, electronic mail or any other means through which the receipt of the document may be acknowledged, with the exception of judgments, rulings and mediation statements.’
 It provides that ‘an arbitral tribunal shall hold a tribunal session to hear an arbitration case. If the parties agree not to hold a hearing, the arbitration tribunal may render an award in accordance with the arbitration application, the defence statement and other documents.’
 See www.cietac.org.cn/index.php?m=Article&a=show&id=16917&l=en accessed 5 August 2020.
 See www.cietac.org.cn/index.php?m=Article&a=show&id=16919&l=en accessed 5 August 2020.
 See www.cietac.org.cn/index.php?m=Article&a=show&id=16961&l=en accessed 5 August 2020.
 Chinese version www.shiac.org/SHIAC/news_detail.aspx?id=873 accessed 5 August 2020.
 See www.scia.com.cn/index.php/En/Index/newsdetail/id/3610.html accessed 5 August 2020.
 See www.scia.com.cn/index.php/En/Index/newsdetail/id/3612.html accessed 5 August 2020.
 See www.scia.com.cn/index.php/En/Index/newsdetail/id/3614.html accessed 5 August 2020.
 Date at which Hong Kong law is stated: 14 July 2020.
 Among other things, Hong Kong law permits electronic signatures: Electronic Transactions Ordinance Cap 553, s 6
 Hong Kong has a unitary arbitration system. The Arbitration Ordinance is based on the UNCITRAL Model Law on International Commercial Arbitration 2006 (the ‘UNCITRAL Model Law’). Section 47 of the Arbitration Ordinance provides that Art 19(1) of the UNCITRAL Model Law concerning ‘Determination of rules of procedure’ has effect.
 Po Fat Construction Co Ltd v The Incorporated Owners of Kin Sang Estate, HCCT 15/2013, para 9..
 See www.doj.gov.hk/eng/public/20200519_sjo1.html#_ftn2 accessed 5 August 2020.
 HKIAC: (1) Press release ‘HKIAC Measures and Service Continuity during Covid-19’, dated 27 March 2020 www.hkiac.org/news/hkiac-service-continuity-during-covid-19; (2) ‘Precautionary measures at HKIAC in response to Covid-19’ www.hkiac.org/content/precautionary-measures-hkiac-response-covid-19; (3) Press release ‘HKIAC Guidelines for Virtual Hearings’, dated 15 May 2020 www.hkiac.org/news/hkiac-guidelines-virtual-hearings; (4) HKIAC Guidelines for Virtual Hearings (last updated 14 May 2020) www.hkiac.org/sites/default/files/ck_filebrowser/HKIAC%20 Guidelines%20for%20Virtual%20Hearings_2.pdf; and (5) Joint Statement of Arbitral Institutions on 17 April 2020 https://iccwbo.org/content/uploads/sites/3/2020/04/covid19-joint-statement.pdf accessed 5 August 2020.
 ICC: (1) ‘ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic’, dated 9 April 2020 https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf; (2) ‘Urgent Covid-19 message to DRS community’, dated 17 March 2020 https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other-neutrals; and (3) Joint Statement of Arbitral Institutions on 17 April 2020 https://iccwbo.org/content/uploads/sites/3/2020/04/covid19-joint-statement.pd accessed 5 August 2020.
 CIETAC HK: (1) ‘Update on Hearings Arrangement at CIETAC Hong Kong Arbitration Centre’, dated 1 February 2020 www.cietachk.org/portal/newsPage.do?pagePath=\en_US\news\47c3fb37ae218b7f001&type=centre accessed 5 October 2020; and (2) ‘Update on Current Case Administration at CIETAC Hong Kong Arbitration Centre’, dated 5 February 2020 www.cietachk.org/portal/newsPage.do?pagePath=\en_US\ news\47c3fb37af6eaa7f001&type=centre accessed 5 August 2020.
 eBRAM: (1) Covid-19 ODR Scheme www.ebram.org/covid_19_odr.htm; and (2) eBRAM Draft Rules for the Covid-19 ODR Scheme www.ebram.org/download/Covid-19+Rules+(draft).pdf accessed 5 August 2020.
 Date at which Indian law is stated: 21 July 2020.
 Arbitration and Conciliation Act 1996 http://legislative.gov.in/sites/default/files/A1996-26.pdf accessed 21 July 2020.
 Ibid, s 19 of the Arbitration and Conciliation Act, 1996.
 Order dated 23 March 2020 in Suo Motu Writ Petition (Civil) 3/2020, Supreme Court of India https://main.sci.gov.in/supremecourt/2020/10787/10787_2020_1_12_21570_Order_23-Mar-2020.pdf accessed 21 July 2020.
 See https://resolveoncord.com/#/home accessed 21 July 2020.
 See https://campmediation.in accessed 21 July 2020.
 See www.theidrc.com accessed 21 July 2020.
 See www.sama.live/about-us.php accessed 21 July 2020.
 See www.presolv360.com accessed 21 July 2020.
 See www.adresnow.com accessed 21 July 2020.
 Information Technology Act 2000, ss 3 and 5 https://meity.gov.in/content/digital-signature accessed 21 July 2020.
 Delhi International Arbitration Centre, ‘Guidance Note for Conducting Arbitration Proceedings by Video Conference’ http://dacdelhi.org/DataFiles/CMS/file/guidancenote.pdf accessed 21 July 2020.
 Centre for Arbitration and Research, MNLU Mumbai, ‘Virtual Arbitration in India: A Practical Guide’, http://mnlumumbai.edu.in/pdf/Virtual%20Arbitration%20in%20India,%20CAR%20MNLU%20Mumbai.pdf accessed 21 July 2020.
 Press releases dated 7 June 2020 https://niti.gov.in/catalysing-online-dispute-resolution-india and https://pib.gov.in/PressReleasePage.aspx?PRID=1630080 accessed 21 July 2020.
 Date at which Singapore’s law is stated: 28 July 2020.
 Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules 6th Edition, 1 August 2016 www.siac.org.sg/our-rules/rules/siac-rules-2016 accessed 5 August 2020.
 CIArb’s Guidance Note on Remote Dispute Resolution Proceedings www.ciarb.org/media/8967/remote-hearings-guidance-note.pdf accessed 5 August 2020.
 Seoul Protocol www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU002420200730DRICovid19globalDR ImpactConsolidated.doc accessed 5 August 2020.
 ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic 9 April 2020 https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf accessed 5 August 2020.
 See n 56 above.
 Date at which the law of England and Wales is stated: 15 August 2020.
 S 34(1) of the Act provides that ‘[i]t shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.’
 S 33(1) of the Act provides as follows: ‘[t]he tribunal shall – (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.’
 See, eg, Ian McGlinn v Waltham Contractors Ltd  EWHC 2322 (TCC) 11, 12; following the approach of the UKHL in Polanski v Condé Nast Publications Ltd  1 WLR 637.
 See, eg, Francis Russell, Russell on Arbitration (24th edn, Sweet & Maxwell 2015) 8-085.
 ‘LCIA Services Update: Covid-19’ (LCIA, 18 March 2020) www.lcia.org/lcia-services-update-covid-19.aspx accessed 16 July 2020.
 LCIA Arbitration Rules 2020, Art 1.3.
 Ibid, Art 2.3.
 Ibid, Art 4.1.
 Adrian Lifley, ‘Dispute Resolution and Covid-19: Resolving Commercial Disputes through Remote Mediation’ (Lexology, 8 April 2020) www.lexology.com/library/detail.aspx?g=ea7e8450-ee4e-490a-b21e-0ec1ce37c933 accessed 15 July 2020.
 LCIA Mediation Rules 2020, Arts 1.2, 2.2, 3.1, 3.2, 6.2 and 8.3.
 Cabinet Office, ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency’ (UK government, 7 May 2020) para 17 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/883737/_Covid-19_and_Responsible_Contractual_Behaviour__web_final___7_May_.pdf accessed 15 July 2020.
 See n 165 above, 5-124.
 See, eg, Protocol for Online Case Management in International Arbitration (Working Group on LegalTech Adoption in International Arbitration, July 2020), para 59(i) (Data Privacy/Security) and Annex 4 (Platform provider data security and privacy questions) https://sites-herbertsmithfreehills.vuturevx.com/20/21553/landing-pages/platforms-protocol---working-group-on-legaltech-in-international-arbitration-consultation-draft-01072020.pdf accessed 15 July 2020.
 See n 166 above.
 LCIA Arbitration Rules 2020, Art 26.7. This is in contrast to Art 26.7 of the LCIA Rules 2014 where the paper form of the award would prevail in the event of inconsistency.
 This list is regularly updated. ‘Coronavirus (Covid-19): Travel Corridors’ (UK government, 3 July 2020, updated 11 July 2020) www.gov.uk/guidance/coronavirus-covid-19-travel-corridors#arrival-in-the-uk accessed 15 July 2020.
 ‘Coronavirus (Covid-19): Travellers Exempt from Border Rules in the UK’ (UK government,updated 10 July 2020) www.gov.uk/government/publications/coronavirus-covid-19-travellers-exempt-from-uk-border-rules/coronavirus-covid-19-travellers-exempt-from-uk-border-rules accessed 15 July 2020.
 LCIA Notes for Arbitrators (LCIA, nd) www.lcia.org/adr-services/lcia-notes-for-arbitrators.aspx#6.4%20Meetings%20and%20hearings accessed 15 July 2020, para 33. ‘Covid-19 Update: Recalibrating and Resilience – LCIA Continues to Deliver the Highest Quality Services for Users’ (LCIA, 14 May 2020) www.lcia.org/News/covid-19-update-recalibrating-and-resilience-lcia-continues-to.aspx accessed 15 July 2020. Updates to the LCIA Arbitration Rules and the LCIA Mediation Rules (2020), (LCIA, nd) www.lcia.org/lcia-rules-update-2020.aspx accessed 15 August 2020.
 ‘IDRC continues closely to monitor the coronavirus emergency’ (IDRC, 23 June 2020) www.idrc.co.uk/news-and-events/news/coronavirus-(covid-19)-updated.aspx accessed 15 July 2020. The IDRC has also published an addendum relating to Covid-19 in its Terms and Conditions. See ‘IDRC Terms and Conditions (effective 1 July 2020),’ (IDRC, 1 July 2020) www.idrc.co.uk/terms-and-conditions.aspx#IDRC accessed 15 July 2020.
 Guidelines for the Conduct of Virtual and Semi-Virtual Hearings (LMAA, 9 July 2020) www.lmaa.org.uk/uploads/documents/LMAA%20Guidelines%20for%20Virtual%20Hearings%20V1.pdf accessed 15 July 2020.
 Guidance Note on Remote Dispute Resolution Proceedings (CIArb, 2020) www.ciarb.org/media/8967/remote-hearings-guidance-note.pdf accessed 15 July 2020.
 ‘ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic’ (ICC, 9 April 2020) https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf accessed 15 July 2020. ‘Urgent Covid-19 Message to DRS Community’ (ICC, 17 March 2020) https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other-neutrals accessed 15 July 2020.
 Date at which German law is stated: 9 July 2020.
 Date at which Swedish law is stated: 1 July 2020.
 Date at which Egyptian law is stated: 30 July 2020.
 Egyptian Arbitration Law No 27 of 1994 was issued on 18 April 1994.
 Date at which UAE law is stated: July 2020.
 The Dubai Courts by Resolution No (30) of 2020 issued on 17 March 2020.
 Administrative decision No 61 for 2020.
 DIFC–LCIA Arbitration Centre Notice dated 8 April 2020.
 Dubai International Arbitration Centre Press Release dated 26 March 2020.
 International Court of Arbitration of the ICC Guidance Note dated 9 April 2020 https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possiblemeasures-mitigating-effects-covid-19-english.pdf accessed 5 August 2020.
 Art 19.1 of the DIFC-LCIA Arbitration Rules 2016; Art 25.6 of the Sharjah International Commercial Arbitration Centre Rules provides for document-only arbitration.
 Art 30 of the DIFC–LCIA Arbitration Rules 2016; Art 41 of DIAC Arbitration Rules provides for confidentiality.
 Date at which US law is stated: 10 July 2020.
 Date at which Brazilian law is stated: 10 July 2020.
 See https://covid19.who.int accessed 5 August 2020.
 Please refer to CAM-CCBC’s Resolutions No 39/2020 (16 March 2020) and 40/2020 (2 April 2020); CBMA’s Resolution No 01/2020 (16 March 2020); FIESP’s Resolution Nos 01/2020 (16 March 2020) and 02/2020 (25 March 2020); and CAMARB’s Resolution Nos 08/2020 (17 March 2020), 09/2020 (31 March 2020), 10/2020 (14 April 2020) and 13/2020 (22 May 2020).
 See www.mediacaonline.com accessed 5 August 2020.
 See www.aasp.org.br accessed 5 August 2020.
 Date at which the law of Kenya is stated: 30 April 2020.
 See http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2020/LN59_2020.pdf accessed 5 August 2020.
 See http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2020/LN35_2020.pdf accessed 5 August 2020.