May 1, 2020

COVID-19 Global: Arbitration and court impacts

The outbreak of Covid-19 is affecting litigation and arbitration in various ways, ranging from an increased use of remote hearings to general court closures, depending on the countries and institutions concerned.

Last updated: 01 May 2020

The following is a brief overview of the key measures that are being taken across the world, both in general and specifically in relation to legal proceedings.  It covers courts in the following countries: UK, USA, EU (France, Germany, Italy, Spain), Middle East (Dubai, Israel, Qatar), Argentina, Australia, Canada, Chile, mainland China, Hong Kong, India, Mexico, Singapore and South Africa.  Also included is basic information about the following international arbitral institutions: HKIAC, ICC, ICSID, LCIA, SCC and SIAC.

The challenges facing everyone involved in litigation and arbitration during this period are unprecedented. As the authorities and institutions react, new measures are being put in place daily. If you have any specific questions regarding the impact of the measures on existing or new cases, please contact us.

UK

General measures

  • The Prime Minister has ordered the British people to stay at home, and all shops to shut except for those selling food and medicine.
  • Letters have just been sent to 1.5 million people who are particularly vulnerable, asking them to take special measures.
  • The Foreign and Commonwealth Office has also advised against non-essential travel abroad, and those who are already abroad should return to the UK as soon as possible.

Courts

  • The work of the courts and tribunals has been consolidated into fewer buildings.
  • The Supreme Court building has now closed for the foreseeable future.  Meanwhile cases and judgment hand-downs will be conducted by video link.
  • Three new Practice Directions have been introduced.  PD 51Y provides for hearings to be conducted remotely (whether by video or audio); PD 51Z stays certain possession proceedings for 90 days; and PD51ZA allows parties to agree time extensions of 56 days in certain circumstances.  Where a longer extension is needed, the courts will deal with applications on paper.
  • The government's new Coronavirus Act also provides for greater use of video/audio hearings - see this official summary and its webpage on these hearings, which has recently been updated.
  • The position regarding civil and family matters was clarified by the Lord Chief Justice on 23rd March.  Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure the safety of all concerned.
  • The Lord Chief Justice has also ordered that no new trials should start in the Crown Courts, and no jury trials are currently running there. However, a working group has now been set up to examine how they might restart in a safe manner. Magistrates' Courts continue to deal with urgent work.
  • The High Court and Court of Appeal are also only covering urgent work.
  • Although the Royal Courts of Justice are open, manned by a skeleton staff of senior administrators, QB Masters are all working remotely from home, without much support.  As a result, electronic filings have not been kept up to date.
  • In the Business & Property Courts a special protocol should be followed.
  • The UK has suspended the service of documents from other contracting states under the Hague Service Convention.  It has also stopped responding to foreign requests for evidence under the Hague Evidence Convention.
  • In Scotland, the Court of Session was initially hearing only essential business.  It is now possible for appeals and procedural business to proceed, although not in person.
  • For further information about Scotland, see the Covid-19 page on the official court website.  For the position in England, click here.

US

General measures

  • The lockdown has been relatively loose by European standards, and is beginning to be raised. National social distancing guidelines are not being renewed, and businesses in some states are already beginning to open. 
  • US citizens have been warned that if they travel outside the country, they may have to stay abroad for an indefinite period.

Courts

  • The US Supreme Court has announced that it will hear oral arguments remotely in May in relation to a few of the cases that were postponed in March and April.
  • Other appeal courts have introduced different measures.  For example, in the Federal Circuit Court of Appeals, all cases scheduled for argument during the April and May 2020 sitting will be conducted remotely.  In addition, no physical hearings will be held during that period, and rules have been changed so that parties are no longer obliged to file paper copies of documents that have been lodged electronically.
  • Courts in most states have now suspended or cancelled jury trials.
  • A number of federal courthouses have closed, either because someone in the building had caught the virus, or because they have been shut down pre-emptively by local judges on public health grounds.
  • For more information on how the US courts are responding to the health crisis, see this page on the US Courts website.

European Union

General measures

  • The European Commission has banned foreigners from entering the Schengen zone, which compromises most EU member states as well as Iceland, Norway, Liechtenstein and Switzerland.
  • Internal border controls have also been erected between individual Member States.  The European Commission has commented that it "may issue an opinion with regard to the necessity of the measure and its proportionality but cannot veto such a decision if it is taken by a Member State".

Courts

  • The ECJ has postponed a number of cases and is currently prioritising urgent, expedited and interim proceedings.  The General Court is also prioritising urgent cases. 
  • In the ECJ, deadlines for lodging appeals are unaffected, but others have been extended by one month.  Hearings listed for dates in April were postponed.
  • The buildings housing the courts are closed and staff are working from home.

France

General measures

  • The lockdown in France is being raised gradually.
  • France is allowing certain employers to force staff to work 60-hour weeks, despite the normal legal maximum of 35 hours.

Courts

  • Only 'essential' litigation is allowed to proceed. That includes hearings for people in custody, urgent cases handled by judges for children and procedures related to the eviction of a violent partner. 
  • On 26th March the French government published a decree extending certain deadlines.

Germany

General measures

  • The lockdown continues, but is being eased slightly.  Some shops are being allowed to reopen under certain conditions.

Courts

  • Hearings in the Federal Court of Justice are continuing, although the building is closed to visitors.
  • The General Administrative Court has started to hold hearings again, although only one or two a day. Social distancing is being imposed within the court buildings.

Italy

General measures

  • The nationwide lockdown is beginning to be lifted in certain places such as Rome and Venice, where some small shops have been allowed to re-open.

Courts

  • The Supreme Court initially suspended its activities, but is beginning to deal with urgent matters again.  It has already started issuing judgments remotely.

Spain

General measures

  • Spain has eased its lockdown slightly, with many non-essential employees returning to work.  However, many shops and all bars remain closed for the time being.

Courts

  • On 16th March, it was announced that proceedings would be suspended, and current deadlines would not apply, while the courts focus on essential services.  However, the courts themselves will not close unless ordered to do so by the health authorities.

Middle East

Dubai

  • In onshore courts, hearings are not going ahead in new cases, and only to a limited extent in existing ones.  However, in the DIFC almost all hearings are going ahead via video telephone or video link.

Israel

  • Israeli Prime Minister Benjamin Netanyahu’s corruption trial has been postponed until 24th May due to concerns about coronavirus.
  • Initially the courts were dealing with urgent matters only, but from 3rd May they are due to start hearing a broader range of cases, including some criminal ones.

Qatar

  • Initially many hearings were suspended, but they are now proceeding using video conferencing.

Argentina

General measures

  • The lockdown continues, although the government is planning to extend the list of essential services that should be provided.  This will allow more businesses to start operating again.
  • The government has banned the sale of all air tickets up to 1 September 2020.  The ban extends to internal as well as international flights.

Courts

  • The Supreme Court of the Nation has suspended most judicial activity throughout Argentina, although the courts are continuing to provide a minimum level of service.

Australia

General measures

  • Australia has banned all foreigners from entering the country.
  • The federal government is planning to ease restrictions slightly, but confirmed that restrictions on international travel and large gatherings will remain in place.  At the state level some restrictions have been eased already.

Courts

  • The Federal Court is putting in place the technology needed to hear all trials, to the extent necessary, via videoconferencing facilities.
  • Some courts do not have online systems, but are encouraging more to be done on paper and the use of video links.

Brazil

General measures

  • Brazil has declared a state of emergency, but most general measures are being taken at state rather than federal level.  However, land borders have closed now, and restrictions have been imposed on non-Brazilians entering the country through airports.

Courts

  • On 20th April the Brazilian National Council of Justice issued a new resolution extending the suspension of certain activities of Brazilian courts until the 15th May. The suspension of court deadlines for legal proceedings with physical files has also been extended until 15th May, but court deadlines for legal proceedings with digital files will only be suspended until 4th May and should resume afterwards. This resolution does not apply to the Supreme Federal Court or the Electoral Courts.

Canada

General measures

  • Canada has closed its borders to all foreign nationals except for US citizens. Citizens are advised against all non-essential travel.
  • Canadians returning from abroad are now obliged to self-isolate for 14 days.
  • Individual provinces have taken their own measures, although some of these are being lifted now with the release of new guidelines on how to reopen businesses and schools safely.

Courts

  • Most courts in Canada are offering a reduced service, dealing only with essential and urgent matters.
  • Filing deadlines have been extended or suspended in some provinces, and in some cases limitation periods have been suspended too.

Chile

General measures

  • A State of Catastrophe has been declared, and the government has imposed a national curfew between 22:00 and 5:00 hours.  In addition, a number of areas of the country have been quarantined.
  • Chile has closed its national borders to non-residents.
  • Chile's constitutional referendum has been postponed.

Courts

  • The Supreme Court is suspending hearings indefinitely in all cases that have already started, with the exception of those that require the immediate intervention of a court.
  • Any evidentiary period during the State of Catastrophe is automatically suspended and will resume 10 days after the State of Catastrophe comes to an end.  This also applies to cases being arbitrated.

China (mainland)

General measures

  • China is relaxing travel restrictions in the province of Hubei, sending thousands of workers back to jobs at factories desperate to get production going again.  The lockdown in Wuhan itself (the provincial capital) is slowly opening up.
  • Gyms and swimming pools have closed in Beijing, because of concerns that a second wave of infections will spread through the city.  Cities close to the Russian border are also subject to severe restrictions because of infected people crossing the border.
  • China has closed its borders to all foreigners.

Courts

  • During the height of the outbreak in February, the Supreme People’s Court of China ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.
  • The Supreme People’s Court has promoted the use of ‘mobile micro court’ on the social media platform WeChat in a number of provinces and cities to help courts conduct trials on the Internet.
  • There are three "internet courts" in China, which handle litigation procedures online from filing a case to issuing judgment documents.

Hong Kong

General measures

  • Hong Kong has banned foreign visitors to the city, and is quarantining those people it lets in for 14 days. There is a four person limit on public gatherings and some bars are closed.

Courts

  • The General Adjourned Period (GAP) has been extended to 3rd May.  This means that  all court and tribunal hearings will be postponed during this period unless they are urgent or deemed 'essential business'.  If that is the case, parties will be notified if their scheduled hearings are going ahead.
  • All Hong Kong Judiciary press releases arising from coronavirus can be accessed here.

India

General measures

  • The lockdown in India will is being eased slightly, to allow manufacturing, construction and farming to resume in rural areas.  Some shops are also being allowed to open.  Meanwhile the restrictions on movement within India are also being relaxed to a limited extent.
  • Indian citizens have been advised to avoid all travel abroad that is not strictly necessary.  Meanwhile, visas for foreigners have been suspended until mid-April.

Courts

  • India’s Supreme Court is only dealing with important matters, and is using video conferencing.
  • The Supreme Court has suspended limitation periods and has issued general guidelines on the use of video conferencing and permitted this to be used in a wide range of situations.

Mexico

General measures

  • The lockdown has intensified as the government has moved to 'Phase 3', restricting citizens' freedom of movement further.
  • Further measures have been taken at the local level, for example by the mayor of Mexico City.

Courts

  • Mexico's Supreme Court initially suspended court activities from 18 March.  Shortly afterwards, other federal courts did the same. The courts will, however, continue to deal with certain urgent matters, for example criminal procedures involving detained individuals.

Singapore

General measures

  • Singapore has imposed several social distancing measures on its residents, including wearing face masks outside the home.
  • No-one is currently allowed to enter the island for a short visit.

Courts

  • The Chief Justice has announced a number of measures to safeguard the health of court users.

South Africa

General measures

  • South Africa moved from Level 5 to a Level 4 lockdown on 1 May 2020.  Level 4 makes provision for limited economic activity.
  • Foreigners are banned from entering South Africa from certain countries.

Courts

  • The Courts remain open during the national lockdown in relation to certain urgent matters.  However, physical access to the courts is restricted.
  • Civil cases that are not urgent may not be placed on the court roll during lockdown. However, teleconferences or videoconferences are occasionally being used.

Arbitration

HKIAC

  • The HKIAC has made a further announcement re the measures it is taking to ensure continuity of service.   These include holding a series of webinars.  See above for the general measures being taken by the government of Hong Kong.

ICC

  • The ICC has published a detailed note on virtual hearings and related matters  -  see Guidance, below
  • All hearings scheduled until the end of June in Paris or an affected area are being postponed or changed to virtual meetings. 
  • On 17th March, the ICC issued an urgent communication stating that all offices of the Secretariat of the ICC Court and the ICC ADR Centre are operational and that staff members are healthy and working remotely via mobile posts.

ICSID

LCIA

  • The LCIA has announced that they are still operating normally, subject to a few precautionary measures concerning, for example, the filing of Requests.

SCC

SIAC

  • SIAC has closed its offices, but remains fully operational with all staff working remotely.  See above for the general measures being taken by the government of Singapore.

Guidance

  • The ICC has released a Guidance Note helping parties, counsel and arbitral tribunals progress their cases despite the current crisis.  It includes two annexes containing a checklist for a protocol on virtual hearings and suggested clauses for cyber-protocols and relevant procedural orders.
  • The Seoul Protocol on Video Conferencing in International Arbitration has been published by the Korean Commercial Arbitration Board.  The protocol provides detailed guidance on best practice in this context.
  • Delos Dispute Resolution has produced a useful checklist on holding arbitration and mediation hearings during the outbreak.

We will continue to update this note on a weekly basis. If you have any questions on the impact of Covid on existing cases or the filing of new cases, please speak to your usual Clyde & Co contact or contact us.