Ben Knowles looks at how the Coronavirus outbreak is affecting international arbitration and the challenges being faced by the industry
The adverse impact on global business of Covid-19, along with the financial crisis exacerbated by the oil price crash, will undoubtedly lead to a rise in international arbitrations. In the meantime, the arbitral process will need to flex and adapt in order to accommodate rapidly changing ways of working. The main challenges currently being seen are technological and are arising at each stage of the process. These include the adaptation to electronic filing and documentation in the stages of commencement and disclosure, and the use of virtual courtrooms at the hearing and enforcement stages.
Institutional rules have previously required the filing of hard copy documents. The ICC for example have already had to adapt to permit electronic filing – they implemented this in 24 hours. Other institutions will struggle if they don’t have access to their offices and are unable or reluctant to adapt to electronic methods so swiftly.
For disclosure, most law firms are now comfortable with this happening electronically. However, the challenge lies in clients' gaining access to hard copy documents or taking the necessary steps to convert the documents into digital form without access to their offices.
Conducting hearings and enforcement proceedings is where the biggest challenge lies. Although the technology is available it is not common practice to run hearings without people in the room. This will have to change to keep arbitrations moving forwards and to retain confidence in the system. Lawyers and tribunals will need to work together to achieve alternative solutions.