April 7, 2020

COVID-19 Disputes: 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: 7 April 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), Argentina, Australia, Brazil, Canada, Chile, mainland China, Hong Kong, India and Mexico.  Also included is basic information about the following international arbitral institutions: ICC, LCIA, HKIAC 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. We will update this summary to capture these changes once a week, but in the meantime 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.
  • 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.  Magistrates' Courts will 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.
  • In Scotland, only essential civil business will be dealt with in the courts, and all hearings involving witnesses are adjourned. In the Court of Session, essential civic business is defined as: child abduction petitions, interim interdicts, and other urgent matters on cause shown (for further details, see the Court of Session's Guidance Note for Practitioners issued on 25th March).  Meanwhile, business in Scotland's Sheriff Courts has been consolidated into ten Sheriff Courts.   
  • 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 president has said that federal guidelines on social distancing and other coronavirus matters will continue to apply until at least 30 April.
  • Most US citizens are living under some form of lockdown imposed at state level.
  • US citizens have been warned that if they travel outside the country, they may have to stay abroad for an indefinite period.

Courts

  • In the US Supreme Court, oral arguments were postponed for the 23rd – 25th march and 30th March – 1st April sessions.  The court is also closed to tourists until further notice, but the building remains open for official business.
  • Other appeal courts have introduced different measures.  For example, in the Federal Circuit Court of Appeals, all cases scheduled for argument during the April 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. Travel between the UK and EU will be unaffected.
  • Internal border controls are also being 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

  • Both the ECJ and the General Court have partially closed, and only urgent matters will be heard until further notice. 
  • In the ECJ, deadlines for lodging appeals are unaffected, but others have been extended by one month.  Hearings listed for dates in April have also been postponed.
  • The buildings housing the courts are closed and staff are working from home.

France

General measures

  • France has imposed a lockdown.  Citizens are only allowed to leave their homes for necessary activities such as shopping for food or going to work.
  • France is allowing certain employers to force staff to work 60-hour weeks, despite the normal legal maximum of 35 hours.

Courts

  • On 15th March, the Justice Minister said that only "essential" litigation will 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 government has advised people to stay at home and cancel any holidays. It has banned public gatherings and ordered non-essential businesses and shops to shut.

Courts

  • Germany's Federal Administrative Court has cancelled hearings from 18th March to 19th April except for urgent matters that cannot be postponed. The building is closed to the public.  However, it is still possible to lodge documents.

Italy

General measures

  • The entire country is in lockdown. No one is allowed to leave their home except for work, medical reasons, or in case of emergency.  All non-essential businesses have closed.

Courts

  • The justice minister has suspended all court hearings with very limited exceptions. He recommended videoconferences or other remote hearings for urgent criminal matters.
  • The Supreme Court initially suspended its activities, but will shortly start dealing with some urgent matters again.  It has already begin issuing judgments remotely, and the use of videoconferencing may also be allowed.

Spain

General measures

  • Spain is in lockdown after declaring a state of emergency on 14th March. People may not leave their houses except to buy essential items or to go to hospital. Only essential workers are allowed to travel to their place of work.

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 Dubai, some on-shore hearings are being adjourned while others are being conducted remotely.  Courts in the DIFC courts are operating almost entirely now on a remote basis. 

Israel

  • Israeli Prime Minister Benjamin Netanyahu’s corruption trial has been postponed until 24th May due to concerns about coronavirus. The courts are dealing only with urgent matters.

Qatar

  • Initially many hearings were suspended, but the courts have now begun to hold them using video conferencing.

Argentina

General measures

  • On 20th March, the government put the country into lockdown, which was described by the President as "social, preventive and compulsory isolation".

Courts

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

Australia

General measures

  • Australia is banning all foreigners from entering the country.
  • Further restrictions on indoor and outdoor gatherings have been introduced, and certain types of shops and other businesses have been ordered to close.
  • The Department of Foreign Affairs has also ordered Australians not to travel overseas and called for Australians abroad to return home or risk being stranded. 
  • New South Wales and Victoria are particularly badly affected and have tightened their existing lockdowns.

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 will be imposed on non-Brazilians entering the country through airports. 

Courts

  • On 19th March the Brazilian National Council of Justice issued a resolution suspending certain activities of the Brazilian courts and all court deadlines until 30th April.  In addition, only urgent and exceptional matters will be handled by the courts.  However, the 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 additional steps. For example, all non-essential businesses in Quebec have been ordered to close.

Courts

  • Most courts in Canada are offering a reduced service, dealing only with essential and urgent matters.
  • The Ministry of the Attorney General has suspended limitation periods and procedural time periods for the time being, subject to court discretion.

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.
  • 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.

Courts

  • Courts have generally been shut from Chinese New Year (25-28 January).  However, urgent and essential court hearings and business have continued.
  • The planned general re-opening of the courts has been postponed, and is now scheduled for 6th April.
  • All Hong Kong Judiciary press releases arising from coronavirus can be accessed here.

India

General measures

  • On 24th March, Prime Minister Modi announced a 21 day national lockdown.
  • 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.
  • In Delhi, the High Court has suspended its activities as well as those of district courts in the capital.  Many other High Courts in India have said they will only deal with urgent matters.
  • The Supreme Court has suspended limitation periods and has issued general guidelines on the use of video conferencing.

Mexico

General measures

  • An emergency has been declared, and nonessential activities have been suspended for 30 days.  Citizens are being told to remain at home wherever possible.
  • The land border with the US closed to all non-essential traffic on 21st March.
  • 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, and is forbidding anyone from entering 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

  • On 15 March 2020 the South African government declared a national state of disaster. 
  • A national lockdown commenced on 26th March.
  • Only those who provide essential goods and services are allowed to infringe the general rules of the lockdown. Lawyers are classified as offering essential services in some contexts, but need a permit to benefit from the exception.
  • 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

ICC

  • The ICC International Court of Arbitration, which has set up a COVID-19 response group, has published a statement in which it encouraged parties and tribunals to keep appraised of developments and “consider discussing their potential impact on pending proceedings, if and when necessary”.
  • It said, “With particular regard to attendance of scheduled hearings, other in-person meetings and any related travel by parties, arbitral tribunals, neutrals and others involved in pending proceedings, we urge you to consult any official recommendations or directives applicable (i) at the place of their departure and any transit points; and (ii) at the place where they will be held.”
  • 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.

LCIA

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

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.

ICSID

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

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.