Despite the coronavirus (COVID-19) pandemic, dispute resolution carries on. Read on for a summary of the current (as of 26 March) arrangements in English and Welsh courts, two of the main arbitration institutions, one of the main dispute resolution centres in London, and one of the most popular commercial mediation services.
High Court (Commercial and Civil Cases)
Judicial Guidance on Remote Hearings
- On 20 March, the Judiciary of England and Wales published its guidance on how to conduct remote hearings. This guidance applies to hearings of all kinds, including trials, applications, and those in which litigants in person are involved in the County Court, High Court, and Court of Appeal Civil Division, including the Business and Property Courts.
- While the method by which a hearing is conducted is a matter for the judge(s), it is expected that telephone and video technology will increasingly be used to hold remote hearings where possible, including for final hearings and hearings with contested evidence. The courts remain open, but in-person hearings are only expected where remote hearings are not possible.
- Remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (1) having one person (whether judge, clerk, or official) relay the audio and (if available) video of the hearing to an open courtroom; (2) allowing accredited journalists to log in to the remote hearing; and/or (3) live-streaming the hearing online. The principles of open justice remain paramount. Practice Direction 51Y, approved on 24 March, states that where a hearing is conducted wholly as a video or audio proceeding and it is not practicable for the hearing to be broadcast in a court building, then that hearing should be recorded (either audio or video) and the recording should be made available for viewing in a court building, with the consent of the court.
- Available methods for remote hearings include (non-exhaustively) BT conference call, Skype for Business, a court video link, BT MeetMe, Zoom, and an ordinary telephone call. Any communication method available to the participants can be considered if appropriate.
Expect Changes to Timing of Hearings
- While the aim is for hearings to go ahead where practical, HM Courts & Tribunals Service updated its advice on 26 March to note that at present the High Court and Court of Appeal are only covering urgent work. It may be difficult to maintain the current timetables for trials and final hearings in the short term, not least because of the inability of people to participate. We will continue to provide updates on timing as the situation evolves.
Preparing Evidence for Remote Hearings and E-Filing
- The parties should, if necessary, prepare an electronic bundle of documents and an electronic bundle of authorities for each remote hearing. Each electronic bundle should be indexed and paginated and should be provided to the judge’s clerk, court official, or to the judge (if no official is available), and to all other representatives and parties well in advance of the hearing.
- Electronic bundles should contain only documents and authorities that are essential to the remote hearing. Large electronic files can be slow to transmit and unwieldy to use. Electronic bundles can be prepared in PDF or another format and must be filed on CE-File (the electronic filing and case management system), or sent to the court by link to an online data room (preferred), email, or delivered on a USB flash drive. At present, the CE-File system is operating normally.
International Chamber of Commerce
- The International Chamber of Commerce (ICC) has confirmed in a 17 March news release that all offices of the Secretariat of the ICC Court and the ICC International Centre for ADR remain operational. All staff members will be working remotely, and any business travel has been suspended.
- The ICC has requested that all future communications be conducted via email. This includes any new requests for arbitration which, along with exhibits, should be filed with the Secretariat at arb@iccwbo.org; applications for emergency arbitration which, along with exhibits, should be filed with the Secretariat at emergencyarbitrator@iccwbo.org; and any requests in other ADR proceedings which should be filed with the ADR Centre at adr@iccwbo.org.
- If any correspondence in pending proceedings is required to be sent via courier or post, the ICC has requested that parties notify the relevant case management team promptly before the correspondence is dispatched.
- Any meetings or hearings that are currently scheduled to take place at the ICC Hearing Centre in Paris have been postponed or cancelled; this will remain in effect until 13 April. Meetings scheduled at other ICC offices worldwide will continue virtually.
- Hearings will be arranged by the appointed arbitrators, and extensive use of conference call and video services is expected.
London Court of International Arbitration
- From 19 March, the London Court of International Arbitration (LCIA) office is closed and expects to remain operational with staff members working remotely. The LCIA has confirmed that in all but exceptional cases, correspondence with parties and arbitrators will be conducted over email only, and individuals should avoid contacting the LCIA by telephone. Any questions, documents, or other correspondence should be sent to either casework@lcia.org or accounts@lcia.org.
- Any new case requests should be filed through the LCIA online filing system or via email, alongside payment of the relevant fee. In addition, the LCIA has requested that any new case request filed as a PDF also be provided in Microsoft Word format without attachments in order to assist in its processing.
- If a party intends to make an application request under LCIA Article 9, they should notify the LCIA in advance via email to casework@lcia.org.
- The LCIA has requested that arbitrators deliver any awards by email, and have confirmed that in all but exceptional cases, parties will receive awards electronically. The LCIA will subsequently deliver original and certified copies of awards once the LCIA office has reopened.
- Hearings will be arranged by the appointed arbitrators, and extensive use of conference call and video services is expected.
Centre for Effective Dispute Resolution
- The Centre for Effective Dispute Resolution (CEDR) has confirmed that mediations will continue as usual, but will be conducted via telephone or online. The CEDR has additionally confirmed that such online and telephone mediations will carry no additional cost.
International Dispute Resolution Centre
- As of 24 March, the International Dispute Resolution Centre (IDRC) premises remain closed. Staff members will continue to work remotely and are able to respond to any enquiries and booking requests.
- The IDRC has confirmed it is able to arrange virtual hearings and meetings to enable scheduled bookings to continue as expected; alternatively, it is able to reschedule hearings and meetings where required. In addition, the IDRC is working closely with Opus 2 to offer virtual ADR solutions, including an online case management platform, and virtual hearing or meeting room services.
Coronavirus COVID-19 Task Force
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
Contacts
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
London
David Waldron
Robert Bolgar-Smith