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Covid-19: How best to deal with International Arbitration

Posted on: 2 April 2020

Following the briefing international law firm HFW issued on how the English Courts are meeting the challenges posed by Covid-19, and after receiving a high number of requests from clients on the impact to their arbitrations, this new briefing sets out the current issues faced by those engaging in International Arbitration (IA) and offers possible solutions. It also summarises the way in which a number of the key IA Institutions (as well as ICSID) and trade associations are adapting to support parties during the pandemic.

By its very definition IA is international, and so ideally placed to cope with remote hearings, it is, as are most arbitrations, flexible in approach and well used to adapting to the requirements of users in either wishing to, or due to travel restrictions, needing to avoid physical hearings with parties, their legal representatives, and the tribunal. Indeed the Campaign for Greener Arbitrations, to which HFW is a signatory and one of the briefing’s authors, Nicola Gare, is a Steering Committee member, has advocated the use of virtual hearings and electronic bundles (eBundles), long before Covd-19; now more than ever the Campaign is an initiative worth considering.

Options
Parties and their lawyers are likely to be considering the following four options:

  • Adjourning their hearings – thus avoiding the need to put in place the practical steps needed to arrange a remote hearing. However, it is not clear at the moment for how long this pandemic will last and when travel restrictions will be lifted to enable a physical hearing to take place. A distinction should also be made between merits hearings and procedural hearings.
  • Agreeing to have the dispute dealt with on documents alone, this might be a sensible option where factual evidence is not key to the issues.
  • Agreeing to submit only part of the dispute to arbitration, either to be heard on documents alone, or via a reduced remote hearing. This may work well for disputes with distinct heads of claim.
  • Proceeding with a remote hearing.

Follow this link to the full briefing.

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