The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year

Kim M RooneyWednesday 2 June 2021

Kim M Rooney, Editor, Dispute Resolution International^[1]

Part I: Introduction

As of April 2021, the severe disruption caused by the Covid-19 pandemic^[2] continues.^[3] Various public health measures provide hope that the pandemic can be contained in most parts of the world before the end of 2021, if not eliminated or eradicated. The pandemic continues to pose enormous health and socio-economic challenges for the world.

This is the second of two articles published in Dispute Resolution International (DRI) about the profound impact of the pandemic on litigation, arbitration and associated alternative dispute resolution (ADR). These include the issues of law, practice, technology confidentiality and cybersecurity; unequal access to financial, human and technological resources; and public policy that are arising, and how different jurisdictions and institutions responses are responding to the challenges posed by these issues.

The first article, titled ‘The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Seven Months’ was published in DRI’s October 2020 issue.^[4] It reviewed the global impact of the pandemic upon commercial dispute resolution in Australia, Brazil, Egypt, England and Wales, Germany, Hong Kong SAR, India, China, Kenya, South Korea (litigation), Singapore, Sweden, the United Arab Emirates (UAE) (arbitration) and the United States. It also provided information as to Nigeria (arbitration and litigation), the UAE (litigation) and South Korea (arbitration) in the three legislation, practice and guidelines appendices.

This article reviews a further eight jurisdictions for litigation and nine for international arbitration (Argentina, France, Indonesia, Japan, the Philippines, Russia, Saudi Arabia and Turkey for litigation, and these jurisdictions plus South Korea for international arbitration), provides updates as to 11 of the 15 jurisdictions discussed in the October 2020 article, and outlines trends emerging from the review of 23 jurisdictions.

Impact of the pandemic on commercial dispute resolution in the first year

During the first wave of the pandemic in 2020, courts largely suspended their operations in the 23 jurisdictions reviewed (save in a few essential areas primarily related to criminal law). In later waves of the pandemic, the courts of most jurisdictions adapted to enable them to continue operating, albeit with some backlog of cases. The conduct of international arbitration has been less affected, as a move to online proceedings was already underway before the pandemic was accelerated. Online mediation has proven to be highly effective.

While the pandemic’s impact upon commercial dispute resolution in each of the jurisdictions reviewed has been affected by how high the rate of infection has been, its period and severity, there have been marked contrasts among jurisdictions as to their openness to innovation and capacity to rapidly adapt. This has been affected by their respective financial, technological and human resources, the flexibility of their legal framework and culture.

The primary trends that have emerged from the 23 jurisdictions surveyed are:

• the development and accelerated use of online platforms for the commencement and conduct of proceedings, document management and hearings;
• the development of practice notes, codes, protocols and guidelines; and
• increasing adoption of innovative technology, practices and scheduling.

The emergence of the pandemic accelerated and, in some jurisdictions (eg, Australia and India), initiated the provision of electronic filing, document exchange and storage, and communications services in litigation. It also accelerated the provision of these services in arbitration and mediation. Online (also known as remote or virtual) and hybrid (a mixture of online and physical or in person) hearings have become increasingly common. One contributor commented that, in the context of arbitration, the pandemic has multiplied the pace of changes, pushing arbitral institutions to be adaptive and more aligned to international best practices.

Detailed protocols as to the conduct of online hearings have been almost universally developed by both courts and arbitral institutions, focusing on fairness, efficiency, use of innovative technology, confidentiality and cybersecurity. Legislation enacted in response to the pandemic in the surveyed jurisdictions has largely focused on public health and control of border issues; these are generally of temporary duration (which may be extended). Most of the jurisdictions surveyed have enacted amendments to their laws, including with regard to statutory limitations, time bars, suspension of payment deadlines and insolvency-triggering events, once again of limited duration. A minority of the jurisdictions reviewed introduced legislative amendments in response to the pandemic that affected dispute resolution: England and Wales, Turkey and the US did so for litigation; China, Hong Kong SAR and Saudi Arabia did so for arbitration.

As the pandemic’s impact has continued, many stakeholders have increasingly used innovative digital technology, flexible scheduling and flexible cost structures. Innovative digital technology being used for dispute resolution proceedings includes auto-transcription, document management and automated docketing, blockchain, inferential artificial intelligence (AI), natural language processing (NLP) and visual perception tools (including facial recognition technologies, radar, light detection and ranging (LIDAR) and ultrasound sensors).

While some costs may be reduced because no travelling or accommodation is required, it is not clear whether online proceedings are cheaper than physical hearings. Additional costs may be incurred for the online hearing platform and third-party online services – such as transcription services and document sharing during the hearing. Hearings may also take longer.

Structure of the article

After explaining some definitions and terminology used in this article, the rest of this article is structured as follows:

• Part II:

– Summaries of litigation and ADR developments for eight jurisdictions in Asia Pacific, Europe/the United Kingdom, the Middle East, North Africa and Turkey (MENAT) and South America.

– Updates for 11 of the 15 jurisdictions reviewed in the October 2020 article in Asia Pacific, Europe/the UK, MENAT, North America and South America.

• Part III:

– Summaries of arbitration and ADR developments for nine additional jurisdictions in the Asia Pacific, Europe/the UK, MENAT, North America and South America.

– Updates for 11 of the 15 jurisdictions reviewed in the October 2020 article in Asia Pacific, Europe/the UK, MENAT, North America and South America.

• Conclusion.
• Schedule 1: Substantive and temporary laws and regulations during the pandemic.
• Appendix 1: Litigation, which outlines the relevant legislation and regulations, court practice directions and guidelines issued in response to the pandemic for the 21 jurisdictions reviewed, as well as for Nigeria and the UAE.
• Appendix 2: Arbitration, which outlines the relevant legislation, regulations and arbitral institutions’ guidelines issued in response to the pandemic for the 22 jurisdictions reviewed, as well as Nigeria.
• Appendix 3: List of contributors and their contact details, with acknowledgement of other assistance.

Definitions used

The terms in English used around the world for proceedings conducted physically include ‘in person’, ‘physically’, ‘orally’ and ‘offline’. This article generally uses the terms ‘in person’ and ‘physically’ to describe such proceedings.

The terms in English used around the world for dispute resolution conducted online (ODR) include: ‘online, on-line, on line’, ‘electronically’, ‘virtual’, ‘virtually’, ‘remote’ and ‘remotely’. This article primarily uses the term ‘online’ in this regard.

The summaries of various contributors have retained the definitions that they used.

UNCITRAL

The United Nations Commission on International Trade Law (UNCITRAL) Technical Notes on Online Dispute Resolution 2016 define ODR at paragraph 24 as:^[5]

‘a mechanism for resolving disputes through the use of electronic communications and other information and communication technology [ICT]. The process may be implemented differently by different administrators of the process and may evolve over time.’

In 2020 and 2021, UNCITRAL has been conducting a series of kick-off discussions on dispute resolution in the digital economy to assist it to formulate its future work programme in this area.^[6]

Part II: Impact of the pandemic on commercial litigation

As outlined in the introduction, Part II of this article provides summaries of the impact of the pandemic on litigation in the following eight jurisdictions (the additional litigation jurisdictions):

• Asia Pacific: Japan, Indonesia and the Philippines;
• Europe/the UK: France and Russia;
• MENAT: Saudi Arabia and Turkey; and
• South America: Argentina.

Appendix 1 to this article outlines the relevant legislation, courts’ practice directions and guidelines issued in response to the pandemic in the additional litigation jurisdictions.

Part II also provides updates for the following jurisdictions that were reviewed in the DRI October 2020 article:

• Asia Pacific: Australia, China, Hong Kong SAR, India, Singapore and South Korea;
• Europe/the UK: England and Wales, and Germany;
• MENAT: Egypt;
• North America: the US; and
• South America: Brazil.

Additional jurisdictions

Asia Pacific

Japan – a civil law jurisdiction:^[7] Akihiro Hironaka, Nishimura & Asahi, Tokyo

The Japanese court system consists of district courts, high courts and the Supreme Court.

The impact of the pandemic on commercial litigation

The government issued a basic policy on 25 February 2020 as a countermeasure to prevent the pandemic,^[8] and the courts began to take caution in holding hearings in open court but made great efforts to maintain operations. However, on 7 April 2020, the government declared a state of emergency. The Supreme Court issued a circular on the same date containing a fundamental change of course, and the courts cancelled existing hearings up to 6 May 2020. This policy caused significant delays, confusion, and criticism from the public. On 1 June 2020, courts started to return to normal business,^[9] but the courts limited open hearings to only every other week; the capacity was reduced and a backlog of cases piled up. The government again issued a declaration establishing a state of emergency in Tokyo and three neighbouring prefectures on 7 January 2021, but the Supreme Court issued a circular on 8 January 2021 announcing that courts would maintain operations as much as possible, with caution taken to prevent infection among participants by making use of telephone and web services where possible.

Impact of the Covid-19 pandemic on the use of ICT

The Japanese court system has been archaic in terms of using ICT. A hard copy of a complaint must be served on the defendants to commence litigation. There is no electronic filing system and the parties must submit hard copies of preparatory briefs and documentary evidence by hand delivery, postal mail, or facsimile. The Japanese Government issued ‘Follow-up on the Growth Strategy’ in June 2019, which included promotion of the use of ICT in the dispute resolution process.^[10] In response to this decision, which was made before the pandemic, the Japanese Government started preparations to introduce electronic proceedings for the following procedures:
(1) conducting hearings; (2) filing documents; and (3) managing court records and proceedings. The nine major courts first started to hold closed hearings (not evidentiary hearings) online in February 2020, and gradually expanded this capability nationwide. The parties can submit preparatory briefs and documentary evidence at the online closed hearings, but the courts cannot officially treat these submissions as officially stated or examined; the court must do that later, at in-person hearings. Furthermore, only one ID, which is required to access to the court’s online system, is given to each party, as opposed to one per counsel, unless a special reason exists to do otherwise. Thus, the judges, and multiple counsel for each party, must be in the same place at a single location, which means the participants must wear masks even for online hearings. It is difficult to see the faces of masked participants on a small screen. Nevertheless, the use of online hearings has become common due to the pandemic. This will accelerate the use of ICT in court proceedings.

It is necessary for the courts to hold in-person evidentiary hearings, with a few exceptions, as explained below. Judges are strict about instructing participants, including witnesses, to wear masks during all proceedings. It is difficult to conduct effective cross-examination of masked witnesses, because the masks conceal their facial expressions.

Electronic filing of complaints, filings of documents, and management of court records and proceedings are not yet possible.

Online service of judgments and enforcement in Japan

Japanese law does not provide for online service of judgments and enforcement.

Online courts in japan

No online court exists.

Does Japanese law specifically allow ‘document-only’ litigation?

No general document-only litigation exists.

Does Japanese law require physical or ‘in-person’ hearings in litigation?

As explained above, in-person evidentiary hearings are necessary. Exceptions exist where the witness lives in a remote place or where the witness may be overly mentally disturbed by examination.^[11] Furthermore, examination in writing is allowed where the court determines it proper and the parties have no objection.^[12]

Legislation and other circulars concerning the conduct of litigation

No new legislation has been enacted, but the Supreme Court has published general guidance for lower courts on how to handle cases during the pandemic from time to time.^[13]

Any changes to laws resulting from or stimulated by the pandemic in Japan?

The government added Covid-19 to the diseases covered by the Act on Special Measures to Counteract Novel Influenza on 13 March 2020, and the government can issue a declaration establishing a state of emergency due to the pandemic. The government enacted laws to respond to this special circumstance, including deferral of taxes.^[14]

Indonesia – a civil law jurisdiction:^[15] Debby Sulaiman, Hiswara Bunjamin and Tandjung in association with Herbert Smith Freehills, Jakarta

Impact of the pandemic on commercial litigation in Indonesia

The practice and procedure of commercial litigation and ADR in Indonesia has not changed noticeably due to the pandemic other than the steady increase of utilisation of the e-Court platform, as provided by Supreme Court Regulation No 1 of 2019 regarding Electronic Administration of Cases and Trials in Court (SCR 1/2019). However, it is worth noting that SCR 1/2019 was issued prior to, and therefore is not a result of a direct response to, the pandemic.

The only regulation issued by the Supreme Court pertaining to litigation during the pandemic to date is Supreme Court Regulation No. 4 of 2020 regarding Electronic Administration and Trial of Criminal Cases in Courts. This allows criminal proceedings to be examined online. The rest of the reactions are, to date, made on ad hoc basis.

More for its internal operations, the Indonesian Supreme Court issued sets of circular letters to address the impact of the pandemic by, among others: (1) providing guidelines for chairman of district courts to manage work-from-home policies for court employees; (2) granting authority to judges to manage the number of attendees in a physical hearing and to extend certain deadlines for cases as necessary; (3) allowing court attendees to wear masks and medical gloves when necessary; and (4) urging justice seekers to utilise the e-Court platform for civil, civil religious and state administrative cases.

The circular letters did not directly address or encourage the use of ICT and ODR, but the common theme is the Supreme Court’s urges to justice seekers in Indonesia to utilise the e-Court system for ‘contactless’ proceedings. Case examination through the e-Court system allows disputing parties to agree on the delivery of their respective pleadings via the e-Court system, the conduct of witness/expert testimony through videoconference and the receipt of the judgment through the e-Court system. In comparison with the usual physical hearings, the e-Court system promises a more time and cost-efficient approach. Unfortunately, information regarding the number of commercial cases examined via this platform is not publicly available to date. A major challenge in having a full ‘contactless’ proceeding is the fact that it is not possible to examine and resolve litigations in Indonesia by way of written submissions only.

Given that the Indonesian law does not expressly provide for litigation by telephone or ODR, SCR 1/2019 helps in bridging the gap. SCR 1/2019 permits the examination of civil disputes, civil religious disputes, state administrative disputes and military state administrative disputes through the e-Court platform. In practice, the application of e-Court is still limited to submission of pleadings and court judgment, and, to a certain extent, examination of fact witnesses and experts (although this is still quite rare). The most obvious challenge would be the unfamiliarity of the courts and public with using the virtual platform. There is no specific online court that could assist the acceleration of the use of a virtual platform.

Other than the above directions, specific courts have also implemented specific and ad hoc rules as a reaction to the pandemic. As an example, the Tax Court of Indonesia and Commission for the Supervision of Business Competition (Komisi Pengawas Persaingan Usaha or KPPU) issued respective guides. The chairman of the Tax Court issued decrees regarding extension of the time limit for appeal or civil review in instances when the pandemic forces the temporary closure of the Tax Court. For justice seekers whose appeal or civil review deadline falls within the period when the court is closed, the Tax Court will still accept their submissions once the court is open and the court will also add a cover letter explaining the extraordinary situation prior to sending the case dossier to the Supreme Court. On the other hand, the KPPU issued KPPU Regulation No 1 of 2020 to regulate the examination of KPPU cases online.

The Philippines – a primarily civil law jurisdiction:^[16] Teodoro Regala, Patricia Tysmans-Clemente, Antonio Jose Gerardo Paz, Angelmhina Lencio and Henry Oaminal, Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Taguig

Outline of the court system

The Philippines has a mixed legal system. It has first-tier courts (metropolitan, municipal or municipal circuit trial courts, regional trial courts and Sharia courts), second-tier courts (the Court of Appeals and the Court of Tax Appeals) and a top-tier court (the Supreme Court). The Supreme Court is a constitutional court with original and appellate jurisdiction. It is the court of last resort, and cases involving arbitration, mediation and alternative dispute resolution often reach it.

Philippine court system and jurisdictional thresholds

Municipal trial courts have jurisdiction over claims not exceeding US$8,300, while regional trial courts have jurisdiction over claims above US$8,300 and appeals from the municipal trial courts. Generally, the decisions of the regional trial courts may be appealed to the Court of Appeals, and the decisions of the latter may be appealed to the Supreme Court.

The power to regulate pleadings, practice and court procedure rests solely with the Supreme Court.

Changes to the practice and procedure of commercial litigation and related ADR

The pandemic ushered in a new mode of conducting litigation. The Supreme Court issued Guidelines on the Conduct of Videoconferencing (the ‘Guidelines’),^[17] which allows the conduct of hearings via videoconferencing as an alternative to in-court proceedings. Whether proceedings would be conducted in person is discretionary on the court. Parties are required to file a motion, which is generally granted in our experience. The Guidelines would continue to be applicable even after the Covid-19 crisis is resolved.

Conduct of online hearings

A substantial number of hearings are conducted online via the Microsoft Teams application. Hearings that involve the presentation of witnesses and documents are also conducted on this platform. Documentary exhibits may be presented via the share screen function, while object evidence may be displayed on screen. Documentary evidence and affidavits may also be uploaded in a shared document repository of the court. Hearings may not be conducted by telephone.

The conduct of hearings via videoconference ensures the safety of court staff and litigants. It has reduced instances wherein hearings are cancelled due to the unavailability of the parties or their lawyers who reside far away from where the court is located or where the lawyers or litigants do not receive notices from the court on time. Costs relating to in-person court appearances such as transportation have been eliminated. Courts do not also charge any fee for the conduct of online hearings. On the downside, hearings are sometimes cancelled due to poor internet connectivity; courts and litigants have to invest in equipment to participate in videoconferences; and the ability of the judges to observe the conduct of the witnesses and counsel may be impaired. There have also been instances where courts and litigants are unable to view documents presented because of problems uploading them for sharing.

Data security

Hearing invites are only sent to the parties. While the public can have access and view videoconference hearings, they have to submit a request to do so at least three days before the hearing. Proceedings are recorded but eventually encrypted, and master copies are stored in a safe location. Generally, confidential documents may not be served by email.

Filing and service by email

The 2019 Amendments to the 1997 Rules of Civil Procedure, which took effect on 1 May 2020, also gave litigants the option of filing and serving pleadings via email.^[18] While the pandemic did not bring about this innovation, the pandemic accelerated the use of email as a means of communication. The Supreme Court provided courts with Microsoft Office 365 accounts to accommodate electronic filings. Orders, writs and decisions must still be served personally or by registered mail, with electronic service allowed only with prior court permission.

Does Philippine law specifically allow ‘document-only’ litigation?

In limited instances, such as when there is no genuine factual issue, the court may render a judgment after pre-trial, a judgment on the pleadings or a summary judgment.

Court-annexed mediation

As part of the court proceeding, parties are referred to the Philippine Mediation Center to encourage them to settle their disputes through mediation. Presently, there are no guidelines on the conduct of online mediation proceedings and parties still appear before the mediators in person.

Legislation on extending payments on loans and rent during the quarantine period; tax payments

Legislature did not pass any law amending or affecting contractual time bars or the statutes of limitations. Laws were, however, passed to give general relief to the public for debt payment and taxes. Under Republic Act No 11469, a 30-day interest and penalty-free grace period was extended to payments of all loans and residential rent falling due during the quarantine period.^[19] Republic Act No 11494 was subsequently passed to provide a 60-day grace period for the payment of loans to financial institutions and a 30-day grace period for the payment of utilities, residential rents and commercial rents of non-essential businesses.^[20] Our Bureau of Internal Revenue also extended the period for filing tax returns and payment of certain taxes.

Europe

France – a civil jurisdiction:^[21] José Feris and Marie-Claire Da Silva Rosa, Squire Patton Boggs, Paris

The court system in France

The French judicial civil system is divided into three tiers: first instance (local court or regional court); court of appeal (regional court or higher regional court, which hear cases on appeal from lower courts); and a Supreme Court divided into six chambers (Cour de cassation, which is the last resort court hearing appeals from the courts of appeal on the interpretation of law).

Impact of the pandemic on litigation

When the pandemic started, the French Government ordered on 16 March 2020 the shutdown of all jurisdictions for two months, except for the handling of ‘essential litigation’. This significantly impacted all commercial litigation pending before French courts. This has also prevented new ‘non-essential’ claims from being introduced before French courts.

As a result, and in order to protect the litigants that could not continue their proceedings or that could not bring an action before French courts, the French Government issued an order whereby it decided to put in place a protected period until 23 June 2020 at midnight for the litigant to be able to carry out any legal action within the limit of two months after the end of the protected period without being time barred (Order No 2020-306 of 25 March 2020 as amended by Order No 2020-560 of 13 May 2020).

Online courts, physical proceedings and document-only proceedings

Another government order provided judges with the possibility to decide whether the hearing would be virtual, while in proceedings where representation by a lawyer is mandatory, the judge could opt for a procedure without a hearing at all (Order No 2020-304 of 25 March 2020).

With regard to the procedure for filing and the conduct of proceedings before any evidentiary hearing, the above-mentioned order expressly stated that ‘the parties may exchange their writings and documents by any means as long as the judge can ensure that the adversarial process is respected’.

In practice, where representation by a lawyer is mandatory, the Réseau Privé Virtuel Avocats (Lawyer Virtual Private Network – e-Barreau portal) exists, through which filings and other exchanges with the courts, including official communications between lawyers, should be made. At the end of 2020, the e-Barreau portal was amended to offer the possibility of centralising in a single file all the documents exchanged in the course of the procedure, including submissions and exhibits.

In proceedings where representation by a lawyer is not mandatory, the litigants have been able to communicate with the courts and counterparts through emails. Moreover, in May 2019, the platform ‘Portail des Justiciables’ was launched and, upon express consent to the use of the platform, the court could send communications to the litigant via this platform. In February 2020, other modalities were added to this platform, providing litigants with the ability to submit applications by electronic means to certain civil courts.

The release of the new version of the e-Barreau portal at the end of 2020 was also accompanied by the simultaneous release of the ‘dematerialised mediation’ platform. The latter was completely integrated into the e-Barreau portal for perfect interoperability. The e-mediation platform enables 100% virtual mediation, in particular by offering the possibility of carrying out exchanges by videoconference.

It must be noted that no additional costs have been incurred by the litigants resulting from these changes to the practice and procedure of commercial litigation resulting from the pandemic.

Changes to French law in response to the pandemic with respect to payment obligations or insolvency proceedings

On 25 March 2020, the government issued Order No 2020-306 (as amended and completed by Order No 2020-427 of 15 April 2020), aimed, among other things, at suspending certain penalty mechanisms for breach of contract and extending the time limits relating to contract termination and renewal.

In the event of a breach of contract occurring between 12 March 2020 and the date falling one month after the end of the protected period (which ended on 23 June 2020 at midnight), the affected party would not be able to claim penalty payments or to benefit from penalty clauses, resolution clauses and acceleration clauses intended to sanction such a breach.

With regard to insolvency, Order No 2020-341 of 27 March 2020 introduced a number of adjustments to the rules relating to the difficulties of businesses in the context of the health emergency. Order No 2020-596 of 20 May 2020 updated these measures in terms of deadlines and completed the range of measures applicable in an attempt to limit bankruptcies and job losses in the short term.

It should also be noted that the French state has set up loans guaranteed by it, which basically benefit companies operating under an insolvency plan, provided that their banks accept their loan applications.

Russia– a civil law jurisdiction:^[22] Oleg Todua and Andrey Ushakov, White & Case, Moscow

Outline of court system

As far as commercial litigation is concerned, Russia’s court system comprises first instance commercial courts, 21 commercial courts of appeal, ten cassation (circuit) commercial courts, one specialised intellectual property court and the Supreme Court (which, while not a specialised commercial court, nevertheless hears commercial cases). In addition, there are so-called general jurisdiction courts that also consider certain commercial disputes, for example, involving individuals. However, they are less relevant for commercial litigation. Accordingly, we focus below on the commercial courts.

Changes to the practice and procedure of commercial litigation arising from the pandemic

The pandemic has prompted the Russian commercial courts to actively use online dispute resolution (ODR) (most importantly, to conduct online hearings). Other than that, it has had no long-term effect on the practice and procedure of commercial litigation in Russia.

As a result of the pandemic, the Russian commercial courts were closed for most visitors between March and May 2020.^[23] The judges, however, continued to work from the courts as usual and resolved urgent matters, in most cases ex parte. The courts typically adjourned hearings on matters where online hearing was not an option.

For safety reasons, the Russian courts also suspended in-person hard copy filings and encouraged the parties to submit documents electronically (which had become common practice long before the pandemic), by mail or by delivery to the courts’ mailbox.

In May 2020, Russian courts started to operate in a more ‘normal’ way.^[24] Since then, visitors, including parties and counsel, are allowed into the courts, albeit with certain restrictions, for example, with a limit of one representative per party at a hearing.^[25]

Has the use of (1) ICT and (2) ODR by Russian commercial courts been accelerated by the pandemic?

Following the outbreak of the pandemic, the commercial courts developed their own online hearings tool based on Jitsi Meet, which was sanctioned by the Supreme Court.^[26] This enabled the parties to participate in hearings from any location. The judges, however, join online hearings from the courts, and anyone is entitled to join such online hearings physically from the same location as the judges.

In order to participate in an online hearing, applicants must file a special motion and identify themselves, for example, through an electronic governmental and public services portal. If granted, the online hearing will otherwise proceed as usual.

Online (as opposed to physical) access to case files, whereby parties can access scanned copied of documents on the record, including submissions and exhibits, is becoming more frequently available.

The courts conduct online hearings and grant online access to case files at no additional cost. Accordingly, there are fewer business trips, which has resulted in a slight decrease in costs.

Russian law does expressly provide (and did so long before the pandemic) that, as a general rule, judgments are delivered to parties by way of publication on a special publicly available website.^[27]

‘Document-only’ litigation and ‘in-person’ hearings in Russia

Generally, Russian commercial courts conduct in-person hearings.^[28] However, there are certain categories of cases (typically variations of expedited proceedings where ‘document-only’ litigation is expressly permitted)^[29] and certain types of matters (eg, requests for interim measures) which, as a rule, do not require in-person hearings. In any event, a party’s failure to attend a hearing does not prevent the court from considering and resolving the case on the merits.^[30]

New rules concerning the conduct of litigation during the pandemic

As of February 2021, there were no changes to legislation directly relating to the conduct of litigation during the pandemic. A number of related legislative amendments were enacted, for example, in relation to insolvency and enforcement proceedings. Certain officials suggested formalising online hearings through legislation.

On the other hand, the Russian courts, including the Supreme Court, published numerous circulars and guidelines to address the impact of the pandemic on litigation, including the following:

1. as noted above, in April 2020, the Supreme Court and the Council of Judges issued joint guidelines addressing, among other things, online hearings;^[31]

2. in April 2020, the Supreme Court issued two reviews of court practice on Covid-related issues noting, among other things, the following:

(i) courts may adjourn hearings and suspend proceedings due to Covid-related restrictions;^[32]

(ii) Covid-related measures, including the so-called non-working days declared by the Russian President, do not suspend procedural deadlines;^[33] and

(iii) likewise, Covid-related measures do not automatically suspend or postpone non-procedural time periods or deadlines, such as payment deadlines or limitation periods; however, the former may be extended by virtue of special statutes;^[34]

3. in February 2021, the Supreme Court issued the third review of court practice on Covid-related issues specifying, among other things, that the courts are entitled to adjourn hearings rather than suspend proceedings if an expert or a witness is unable to attend a hearing because of Covid-related measures;^[35] and

4. most Russian commercial courts issued their own guidelines discussing the practicalities of litigation in each particular court during the pandemic.

Numerous amendments to Russian substantive laws have been enacted in response to the pandemic. These include the following:

1. a moratorium on the filing of insolvency petitions applied to certain debtors from 6 April 2020 through 7 January 2021;

2. credit holidays: certain borrowers were entitled, until 30 September 2020, to request that lenders suspend (reduce) payments under loans for up to six months with no penalties, and the lenders were obliged to grant such a request subject to the borrowers’ compliance with certain formal criteria; and

3. deferral or exemption from lease payments. Landlords were obliged to grant a deferral (or, in certain cases, an exemption) of lease payments to certain tenants.

MENAT

Saudi Arabia – a Sharia Islamic Law jurisdiction:^[36] Chris Johnson, Charles Magee and Jeanina Awni, The Law Firm of Mohamed Al-Sharif in association with Johnson & Pump, Riyadh

Outline of legal structure

The King acts as the final court of appeal and as a source of pardon. There is only one Supreme Court in Saudi Arabia, which oversees the implementation of Islamic laws and decrees issued by the Saudi monarch. There is one or more courts of appeal: review verdicts issued by courts of first instance are subject to appeal. Courts of first instance are available in all provinces and regions of Saudi Arabia, and there are five types: general courts; criminal courts; matrimonial courts; 40 circuits of business courts; and labour courts.

Changes to the practice and procedure of commercial litigation arising from the pandemic

Commercial claims need to feed to any of the 40 new commercial categories in order to be filed. The Saudi Ministry of Justice (MoJ) has streamlined its ‘statement of claim’ service by reducing the number of lawsuit categories from 1,300 to only 300 for various courts.^[37]

Due to most physical hearings and manual submissions having been suspended with some exceptions, as per the Implementation Mechanism for Judicial Task for remote work,^[38] the e-service from the MoJ enables more efficiency. This is not applicable to the Supreme Court. The new system permits the filing of the statements of claim, provides digital linking with the data of lawyers and powers of attorney, flexibility in adding various parties, and easy tracking through the client’s Najiz.sa account. This has reduced the required input and verification of data to file a claim.

Communication with the parties of the case is through the Najiz website for Judicial Services, through the communication system (Cisco), the official email of the circuit, or the mail of the secretary or administrative supervisor, depending on the circumstances.

Hearing sessions are conducted online with all litigants linked together through a live circuit, including lawyers and translators. All sessions are recorded and documented electronically by the court system in order to provide safeguards to all the litigants. However, judges have the capability, and use their discretion, to open and close the link as they are taking the testimony from parties or witnesses.

The effect of electronic submission and proceeding has the same effect as written documents submitted in person, as it is already permitted in the 2017 Law of Civil Procedures and Electronic Transactions Law regulations, which implement Article 72 of the Law of Civil Procedures, Royal Decree No M/1, and in accordance with the Electronic Transactions Law, Royal Decree No M/8, issued on 26 March 2007, and The Saudi Arabia Implementing Regulation to the Electronic Transactions Law No 1/1429, issued on 18 March 2008.

The protocols for online hearings are the same as personal hearings, albeit with the additional requirement of an electronic signature. During the hearing session, the attorney will receive a link containing a code. The confirmation of receiving such codes represent the approval of the electronic signature and acceptance to the court minutes.

In the event that the hearing cannot be held online, the circuit shall adjourn the hearing with the reasons indicated in the meeting minutes and, if necessary, schedule a hearing in person.

The MoJ has issued a new circular for all courts for claims arising from obligations and contracts affected by the pandemic. If there is no specific provision, the jurisdiction is restricted to two court circuits and shall proceed to mediation or reconciliation not exceeding 30 days.

The pandemic has accelerated the use of online litigation and other ODR

The effects of the pandemic have accelerated the implementation of online litigation features from 40–50 per cent up to almost 100 per cent, save for small exceptions with the Supreme Court.

Hearing schedules, hearing minutes and judgments are issued faster and electronically. The parties receive a short message service (SMS) with a link to the Najiz portal, where they can view the hearing date or judgment.

Waiting times for hearings have improved to one or two weeks (in some situations to just a few days) from three to four weeks in the past. However, the duration of online hearings is longer than that of the physical hearings, which sometimes goes up to six hours. The average of number hearings scheduled is 2,000–3,000 daily.

All enforcement judges work remotely through its advanced digital infrastructure, promoting the precautions against Covid-19.

E-litigation allows litigants to log online faster using the Najiz.sa portal, file a case, present their documents, complete the pleading electronically, reply to questions asked by the judicial panel and have the time to review and present their cases.

Online litigation videoconferencing enables the judiciary to listen to the parties, complete litigation procedures and issue judgments sooner.

The number of appeals has increased as litigants can appeal electronically and send their objections directly through the Najiz system. The system allows court clerks to electronically attach the appellate court’s decision, making the system even faster.

A new platform, Nafith, has also been created, allowing individuals and corporations to securely create, save and manage enforcement instruments. This reduces disputes as to forgery and notifies issuers in advance, in addition to accelerating the process of collecting dues.

Changes to Saudi Arabian laws resulting from the pandemic

As well as a Supreme Court decision relating to growing difficulties in performing contracts because to the Covid-19 pandemic^[39], there have been several amendments to the Labor Law,^[40] the issuance of a new Commercial Law,^[41] Tax Law^[42] and changes to the Electronic Transactions and Implementing Regulations Law.^[43]

Turkey – a civil law jurisdiction (based on codified laws):^[44] Koray Söğüt and Nisa Nildan Dilaver, Esin Attorney Partnership, Istanbul

Outline of court system

The judiciary of the courts in Turkey is divided as follows: the Constitutional Court; civil and criminal courts; administrative courts; and the Court of Jurisdictional Disputes. There are three instance courts for civil, criminal and administrative courts: the courts of first instance; the regional courts of appeal; and the supreme courts (the Court of Cassation hears civil and criminal disputes, whereas the Council of State hears administrative disputes).

Changes to the practice and procedure of commercial litigation ADR arising from the pandemic

Hearings and on-site examinations were suspended on 15 June 2020. The Law Amending the Civil Procedure Law and Certain Laws No 7251 (Law No 7251)^[45] entered into force on 28 July 2020 and amended the Code of Civil Procedure (CCP),^[46] which allows courts to decide to conduct online hearings upon the request of one of the parties or ex officio without needing all parties’ consent. Pursuant to the amendment, witnesses, experts or expert witnesses can be heard before the court virtually.

Turkey launched a pilot scheme for online hearings in civil proceedings. Upon the update made to the National Judiciary Informatics System (Ulusal Yargı Ağı Projesi or UYAP), lawyers can now file their requests for online hearings through UYAP at the latest 24 hours before the hearing. If the court accepts this request, the hearing will be conducted online.

Although there are no explicit changes to the costs of the practice and procedure of commercial litigation resulting from the pandemic, online hearings cost less for the parties overall, as they do not have to travel and bear the costs for accommodation, food and so on.

There are no online ADR services in Turkey. However, it is possible to conduct the mediation process online if the parties agree to do so.

Accelerated use of (1) ICT and (2) ODR

The MoJ accelerated the transition to online hearings to prevent the spread of Covid-19. Parties’ and lawyers’ willingness to use ODR mechanisms has increased as well.

Updates have been made to UYAP allowing parties to attend hearings virtually. In addition, lawyers can now access documents in the criminal investigation files for which they are registered as counsels through UYAP.

Although there is no explicit regulation regarding data security and confidentiality for ICT and ODR, as the CCP does not permit the parties to video record or photograph the hearing, it is accepted that this prohibition applies to online hearings as well.

The following ODR changes have taken place in Turkey:

1. Judges’ availability has remained unchanged in terms of online hearings.

2. Counsels’ availability has been affected positively due to the flexibility of online hearings, making it less costly and time-consuming for them to attend hearings.

3. Witnesses’ availability has been affected positively since witnesses from different provinces who are unable to travel can attend the hearings online.

4. Parties save on costs since they do not have to bear additional costs such as travel and accommodation expenses.

5. The costs of proceedings remained unchanged, since online hearings are not subject to additional costs.

6. The approach to preparation has changed. Clients and counsels have started to use online platforms such as Zoom and Skype instead of having a face-to-face meeting.

7. The production of judicial documents has been affected. Currently, a hard copy of the hearing minutes is not provided to the lawyers at physical hearings due to Covid-19 measures. In online hearings, the minutes are being recorded simultaneously and are uploaded to UYAP right after the hearing.

8. Although UYAP allowed counsels to submit their petitions through UYAP before Covid-19, the use of UYAP for submissions has accelerated during the pandemic.

9. Online hearings are shorter than physical hearings as they extinguish the waiting and travelling periods. However, in general, we do not expect online hearings to affect the delivery of court judgments.

The most interesting innovation in practice and procedure resulting from the pandemic has been the pilot scheme for online hearings and the updates made to UYAP for online hearings.

Whether (1) litigation by telephone or ODR; (2) delivery of judgments online; and/or (3) online enforcement is legally permitted in Turkey

While Turkish legislation does not provide for litigation by phone, online hearings are regulated for both civil and criminal proceedings. It is also possible to initiate enforcement proceedings against the debtor through UYAP.

Are there any online courts in Turkey?

No.

Does Turkish law specifically allow ‘document-only’ litigation?

Yes. The court may render its decision in lawsuits subject to simple procedure, such as requests for interim relief, solely based on an examination of the documents submitted to the case file without holding a hearing.

Does Turkish law require physical or ‘in-person’ hearings in litigation?

No. The CCP does not explicitly regulate that hearings should be conducted in a partial manner. However, since online hearings in civil proceedings were only recently put into practice, courts still continue to conduct hearings physically.

Has legislation been enacted concerning the conduct of litigation during the pandemic?

Yes, Law No 7251 amended the online hearing procedure in civil proceedings.

Has any court published any procedural rules, circulars or guidelines to address the impact of the pandemic on litigation?

No. However, the MoJ and certain institutions issued decisions^[47] and announcements^[48] regarding recommended precautions. The MoJ also published a guideline introducing various measures, such as the obligation to wear masks in courtrooms.

Changes to Turkish laws arising from the pandemic

While there have been no changes to the substantive laws of Turkey regarding time limits in legal proceedings resulting from the pandemic, the President of Turkish Republic’s decrees and a transitional provision added to the Amendments to Certain Laws No 7226 (Law No 7226) suspended time limits in legal proceedings until 15 June 2020, including time bar periods, limitation periods, insolvency proceedings and procedural deadlines.

However, the following time limits were excluded from the scope of the Law No 7226: time limits stipulated under the relevant laws for crimes and punishments, misdemeanours and administrative sanctions, and disciplinary imprisonments and preventive detentions; time limits stipulated under the Criminal Procedure Law for precautionary measures; time limits regarding default in payment obligations; and time limits stipulated under the CCP for transactions regarding the completion of interim injunctions.

Other observations

The pandemic demonstrated the importance of online mechanisms in legal proceedings, as well as the parties’ access to and familiarity with technology.

South America

Argentina – a civil law jurisdiction:^[49] Jean-Paul Dechamps and Florencia Wajnman, Dechamps International Law, Buenos Aires and London

Outline of court system

Argentina is a civil law jurisdiction with both federal and provincial courts. The federal courts have jurisdiction to hear cases involving certain matters specified in the National Constitution, and the provincial courts hear ‘ordinary’ matters in accordance with the procedural legislation of each province. Each court system has three levels: courts of first instance, courts of appeal and supreme courts.

Accelerated use of ICT arising from the pandemic

Before the pandemic, it was common for litigants in Argentina to regularly attend court in person and a significant number of cases were still processed only on paper. The migration to electronic proceedings was already under way and some courts already provided an online platform that allowed parties to file submissions, track cases and access decisions online. The pandemic accelerated this transition, resulting in an improvement of the technological resources that has enhanced the speed and reliability of the courts’ online systems.

Court circulars and agreements to address the impact of the pandemic on litigation

As of March 2021, both federal and provincial courts have taken a series of measures to address the impact of the pandemic on the conduct of litigation. In particular, both the Supreme Court of Justice and the Court of Appeals in Commercial Matters have issued a number of rules and guidelines.^[50]

For most of the period between March and August 2020, the courts’ activities were suspended or reserved for urgent matters. With respect to commercial litigation, the National Court of Appeals on Commercial Matters mandated that only urgent lawsuits could be filed during the pandemic, and that proceedings commenced prior to the pandemic could continue at the judges’ discretion and only if the entire file had been digitalised.

The courts put in place measures to accelerate the transition from a physical and paper-based system to an online system. New mechanisms for electronic submissions were implemented as part of this process; litigants were directed to make their submissions by electronic means only.

Judicial activity was resumed gradually from mid-2020 as restrictions started to ease across the country, and judicial terms resumed generally by August 2020. Since then, proceedings have been mostly conducted virtually and online, with parties and litigants only allowed to attend court in person in exceptional circumstances and through prior appointment, with safety protocols being followed. In some cases, this has resulted in faster proceedings, as notifications to the parties and communications between courts and other agencies are now taking place almost exclusively by electronic means. However, some cases have seen little or no progress because they had not been digitalised before the pandemic started.

Online litigation hearings

Most online hearings are currently conducted by online videoconference. There is no general or mandatory protocol, and each court is free to choose the platform its judges deem most convenient to conduct the hearings – including Zoom, Microsoft Teams and Cisco Webex. In general, this practice has achieved a strong level of acceptance by litigants in the few months it has been in place; however, not every court has applied it, resulting in delays in some cases.

Are there any online courts in Argentina?

Argentina has a formal online court system as a service associated with its physical courts, but no dedicated online court.

Does Argentine law specifically allow ‘document-only’ litigation?

Argentinean law does not specifically allow ‘document-only’ litigation, but it does not prohibit it either. The Civil and Commercial Procedure Code provides that a case may not require an oral stage or hearings if it can be resolved ‘as a matter of legal argument’.^[51]

Does Argentine law require physical or ‘in-person’ hearings in litigation?

While there is no explicit provision to this effect, the wording in the procedural rules suggests that hearings are generally meant to be conducted ‘in person’, which has traditionally been the courts’ standard practice.

Legislative changes in response to the pandemic

At the outset of the pandemic, the National Congress transferred a series of time-limited powers to President Alberto Fernández to address a public emergency in a broad range of economic and fiscal matters, including health and social protection. In March 2020, Fernández declared a ‘sanitary emergency’ pursuant to these powers.^[52]

Since then, the Argentine Government has adopted several measures to mitigate the economic impact of the pandemic and to promote economic recovery. These have included implementing regulation granting tenants extensions on the term of expired leases, suspending evictions and freezing rent prices.^[53] Other measures included the establishment of maximum prices for food and other essential goods;^[54] enactment of an emergency family income;^[55] credits to small companies for the payment of salaries;^[56] and a prohibition on dismissals/suspensions from employment for a period of 60 days.^[57]

Updates

Asia Pacific

Australia – a common law federal jurisdiction:^[58] Elizabeth Pearson, New South Wales (NSW) Bar Association, Sydney

The pandemic continues to impact on the operations of Australian courts and tribunals. However, there have been no material changes to the practice and procedure of commercial litigation in Australia in response to Covid-19 since July 2020.

As some government Covid-19 public health restrictions eased across Australian jurisdictions in 2020–2021, and more stringent lockdowns ceased, courts and tribunals have increasingly resumed face-to-face hearings where it has been safe to do so.

From January 2021, many state and federal courts have introduced Quick Response (QR) codes onsite, requiring lawyers and members of the public to ‘check in’ using government Covid-19-safe apps when attending court in person.^[59] On other occasions, lawyers and court attendees have been required to wear fitted face coverings.

While some of the temporary changes to practice and procedure made by the courts and tribunals have eased, temporary measures continue to be invoked on a court-by-court and jurisdiction-by-jurisdiction basis in response to public health advice and local public health orders. The increased reliance on videoconferencing platforms to conduct remote hearings experienced between March and July largely continued throughout 2020 and to date in 2021.

The legal profession has argued that remote hearings should only take place where it is in the interests of justice and the parties that this occur. On 29 January 2021, the Chief Justice of the Federal Court of Australia, the Hon James Allsop, advised the legal profession that:^[60]

‘Members of the profession appearing before the Court should give consideration to whether a matter should be heard remotely or in-person. Some hearings, particularly case management hearings and some trials, will be better suited to the online format in any event and that should continue. If, however, it is necessary for a matter to be heard in-person, representatives should consult with the other side and with the bench.’

The legal profession has also advocated that remote hearings should not compromise the principles of open justice and open courts. To improve public access, the Federal Court of Australia will commence a pilot platform to allow members of the public to livestream hearings through a fixed link on the Court list and website rather than needing a specific Microsoft Teams link.^[61]

Legislative changes across Australian jurisdictions since July 2020 have included further state and territory public health orders, typically to restrict movement in Covid-19 hotspots and to mandate the wearing of masks.

In Australia’s Commonwealth jurisdiction alone, almost 200 pieces of wide-ranging legislation relating to Covid-19 were made or came into force between July and mid-December 2020.^[62] The majority were secondary legislation of some form, including orders, directions, regulations and instruments.

Some temporary laws and regulations put in place by Australian jurisdictions in response to the pandemic have ceased or are due to sunset in the first half of 2021. Federal Parliament has made further changes to the bankruptcy ceiling and temporary debt protections, as temporary changes put in place at the start of the pandemic ceased operation on
1 January 2021.^[63]

There is consideration in some Australian jurisdictions as to whether some temporary provisions should remain in place permanently. For instance, a regulation originally introduced in NSW as a temporary response to the pandemic to facilitate the remote witnessing and attestation of documents including wills was extended by legislation in October 2020 to become a pilot scheme to operate to January 2022.^[64]

China – a civil law jurisdiction:^[65] Gary Gao, Zhong Lun, Shanghai

Material changes to the practice and procedure of commercial litigation resulting from the pandemic since July 2020

The practice and procedure of commercial litigation remains substantially the same. The pandemic’s influence is mainly on the approach to litigation. Chinese courts have swiftly reacted to the spread of the pandemic, promoting online hearing and case review procedures among courts at various levels. After the stabilisation of the pandemic in spring 2020, online commercial litigation has become a popular choice for parties until now, especially in ‘small amount’ disputes. This is one of the biggest changes we observe resulting from the pandemic.

Whether the pandemic accelerated/continued to accelerate the use of online litigation and ODR since July 2020

When Chinese courts promote online litigation, they have also provided the parties with supportive guidance.^[66] Taking evidence examination as an example, after the parties upload their evidence in the electronic version, the opposing party may review the evidence and supplement their cross-examination opinions. If the authenticity of the electronic evidence is challenged, the parties may also request a physical examination of the evidence. On the one hand, such measures promote the usage of online litigation; on the other, it still leaves the parties enough space for the traditional litigation methods they are used to. Since online litigation has proven its maturity and reliability, more and more parties to disputes are choosing it to control costs and promote efficiency.

The increasing use of innovative digital technology tools and solutions

The Chinese courts’ online litigation procedure nowadays could support facial identification verification (a comparison of a litigation participant’s biological facial features to his/her facial image record in the national personal identification system), and more advanced practice such as live transcript recording, audio-to-word conversion, etc.

Legislative changes resulting from the pandemic since July 2020

The Notice on Properly Handling of Tourism Contract Disputes Related to pandemic in Accordance with the Law^[67] was enacted on 13 July 2020 to promote dispute resolution mechanism of ADR, mediation and ODR, and to emphasise contractual damage relief implementations.

The People’s Republic of China (PRC) Supreme Court promulgated Provisions on Some Issues Concerning Online Handling of Cases by People’s Courts (Draft for Comments) on 21 January 2021.^[68] This instrument is at a ‘draft for comments’ phase, but it is worthy of mentioning because its content stipulates in detail the application scope and effectiveness of online litigation, case registration, response procedures, evidence submission, evidence examination, case review, witness testimony, service and filing, etc. It also includes a few clauses on the verification and usage of blockchain evidence and online synchronisation of court filings. We are looking forward to witnessing the draft’s finalisation and implementation.

Hong Kong SAR – a common law jurisdiction:^[69] Matthew Hodgson, Allen & Overy, Hong Kong

Material changes to the practice and procedure of commercial litigation resulting from the pandemic since July 2020

There have been a number of developments in relation to Hong Kong courts. In summary, following the General Adjourned Period (GAP) of the Hong Kong Judiciary (the ‘Judiciary’) from 29 January 2020 to 3 May 2020, and a short adjournment in court business from 20 to 21 July 2020, the courts officially resumed normal business in mid-September 2020, while social distancing and crowd management measures in court buildings are likely to remain in place for some time.

The Judiciary continues to hold remote hearings, using videoconferencing facilities (VCF) and telephone, and dispose of applications based on court papers and paper submissions. There is a greater emphasis on the use of electronic means in conducting court business under the prevailing system in order to reduce court visits. In particular, for civil proceedings, the court will continue to adopt a flexible and multi-pronged approach. Judges and judicial officers will continue to manage their cases proactively and give directions to parties as necessary.

The Judiciary has adopted enhanced social distancing measures with effect from 7 December 2020 in view of the latest public health situation, although it still aims to carry on business as safely as circumstances permit. The court will give directions for individual cases to allow greater use of alternative modes, including remote hearings and/or paper disposals, where appropriate. Some hearings may be adjourned. In December 2020, the Judiciary handed down the Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 3: Wider Video-Conferencing Facilities and Telephone),^[70] which sets out further guidance for the conduct of remote hearings by electronic means.

It appears that these measures are fluid and will continue to remain in place for as long as the public health situation and related developments so require. There has so far been no indication from the Judiciary that these measures are proposed to be made permanent.

Whether the pandemic has accelerated/continued to accelerate the use of online litigation and other ODR since July 2020

The pandemic has accelerated the use of online litigation and other ODR since July 2020 as to the conduct of evidentiary hearings in Hong Kong. The courts recognise that the public health situation in places other than Hong Kong may impact the ability of witnesses and other participants to travel to and appear in the Hong Kong courts. The Judiciary has handed down some recent judgments providing guidance relating to witnesses giving evidence via VCF. For example, courts have clarified that: VCF remains an exception to the general rule that evidence should be given in court; health concerns may amount to sufficient grounds for VCF; inconvenience is not a valid ground for VCF; and delay may lead to an application for VCF being rejected.

Judgments are uploaded onto the Judiciary’s website on the day that they are handed down. Hard copies of judgments are sent by ordinary post to parties who do not come to the court to collect judgments.

The pandemic has not impacted upon communication methods among courts/judges, counsel, parties and others; the protocol or practice to ensure that witnesses giving evidence remotely do so without undisclosed assistance; or the costs of proceedings.

The increasing use of innovative digital technology tools/solutions in litigation

The court now uses a ‘browser-based’ VCF option (a low-cost option) for users to connect to the court for VCF hearings. Otherwise, innovative digital technology tools/solutions have not been used in litigation since July 2020.

Legislative changes resulting from the pandemic since July 2020

There have so far been no changes to the laws of Hong Kong relating to the conduct of litigation as a result of the pandemic.

India, a common law jurisdiction:^[71] Vikas Mahendra and Prerana Reddy, Keystone Partners, India Keystone Partners, Bengaluru

Material changes to the practice and procedure of commercial litigation resulting from the pandemic since July 2020

A number of states have now resumed normal physical operations. Some courts are continuing to provide litigants with the option of participating via a videoconference link while some courts have completely abandoned videoconferencing and have resumed fully fledged physical hearings.

It is proposed that the option of videoconferencing be made a permanent feature, especially for simpler matters, but there has been no final decision on such a proposal.

Whether the pandemic has accelerated/continued to accelerate the use of ODR since July 2020

Witness examinations

It is rare for witness examination to be conducted virtually.

Communication methods among courts/judges, counsel, parties and others

A number of counsel are continuing to embrace videoconferencing facilities to interact with their instructing counsel and parties. This is a significant departure from past practice and looks like it will become a permanent feature.

The protocol or practice to ensure that witnesses giving evidence remotely do so without undisclosed assistance

No new protocols have been put in place since July 2020. Protocols previously in place, like the Delhi High Court Rules on Videoconferencing,^[72] continue to be used to address this issue, including aspects pertaining to examination of witnesses, and steps to be taken to mitigate impact of undisclosed assistance.

Delivery of decisions/judgments

Decisions and judgments were required to be uploaded even before the pandemic, but this is being done more regularly and diligently in recent times.

Costs of proceedings

Some counsel have begun charging separate (and often lower) fees for virtual hearings as compared to physical hearings and this has, in turn, reduced the cost of some proceedings.

Other

Innovative digital technology tools/solutions have not been increasingly used in court proceedings.

Legislative changes resulting from the pandemic since July 2020

There have been several extensions to the moratorium granted under the Insolvency and Bankruptcy Code.

Singapore – a common law jurisdiction:^[73] Tat Lim, Aequitas, Singapore

Changes to the practice and procedure of litigation in Singapore since July 2020

Whether hearings are held online or by physical attendance

Both the Supreme Court and the state courts of Singapore have previously issued their respective Registrar’s Circulars setting out the types of hearings that may be conducted via videoconferencing means and those that must be heard physically.^[74] For example, videoconferencing is the default option for the conduct of pre-trial conferences and certain hearings (other than trials and hearings involving the examination of witnesses).

In respect of civil trials and hearings involving examination of witnesses: (1) in the state courts, videoconferencing is available if all parties consent to the same; and (2) in the Supreme Court, the Court may order for the entire trial or hearing or part thereof to be conducted by videoconferencing (eg, where only certain witnesses appear by videoconferencing).

Notwithstanding the above circulars, the courts retain full discretion to decide whether to conduct a particular hearing by videoconferencing and/or with one or more parties attending by videoconferencing and any other party attending physically in the court.

Pilot programmes for dispensation of attendance and/or asynchronous processing and hearing of certain matters

In order to streamline proceedings and reduce physical court hearings, the state courts of Singapore have implemented various pilot programmes for:^[75] (1) the dispensation of attendance of counsel and/or parties at specified hearings; and/or (2) the asynchronous processing and hearing of certain matters such as ex parte summonses and summonses for directions. These pilot programmes, which were initially scheduled to conclude in December 2020 or January 2021, have been extended to continue until around the middle of 2021.^[76]

The Supreme Court of Singapore continues to utilise electronic means of communication to conduct hearings to ensure court services and hearings remain available while reducing person-to-person contact.^[77]

Singapore courts continue to use digital technology tools for online litigation and ODR

The Supreme Court and state courts of Singapore continue to utilise video-conference hearings via a videoconferencing platform, Zoom, to minimise or dispense with physical attendance in the courtroom.

Legislative changes relating to litigation resulting from the pandemic since July 2020

Since July 2020, new amendments to the Covid-19 (Temporary Measures) Act 2020 (the ‘Act’) and related subsidiary legislation were steadily introduced in response to the Covid-19 pandemic.

The Covid-19 (Temporary Measures) (Amendment No 2) Act 2020,^[78] passed by Parliament on 18 September 2020 and assented to on the same day,
inter alia, introduced targeted relief and/or mechanisms in respect of certain contracts, such as construction contracts and tenancy agreements.

The Covid-19 (Temporary Measures) (Amendment No 3) Act 2020,^[79] passed by Parliament on 3 November 2020 and assented to on 12 November 2020, inter alia, introduced measures targeted at supporting the built environment sector, which had been affected by disruptions in construction timelines due to the pandemic. The Act now provides for a universal extension of time of 122 days for eligible construction contracts.

Alongside the introduction of the amendments to the Act, in October 2020, Singapore’s Ministry of Law (‘MinLaw’) extended the temporary relief periods for certain contracts (upon service of a Notification of Relief on the other party) by one to five months, depending on its category.^[80] Further extensions for certain categories were made by MinLaw in November 2020^[81] and December 2020.^[82]

South Korea – a civil law jurisdiction:^[83] Inhoe Jeong, KCL and Joongi Kim, Yonsei Law School, Seoul

There have been no changes since July 2020.

England & Wales – a common law jurisdiction:^[84] Rick Gal, Allen & Overy, London

Changes to the practice and procedure of English commercial litigation since July 2020

Since July 2020, the default position in the English commercial courts has been to hold remote hearings. An astounding 493 remote hearings were held in the Commercial Court in the six months between 23 March and 30 September 2020. The Business and Property Courts began to reintroduce in-person or hybrid hearings over the second half of 2020: there were ten fully physical hearings in the Commercial Court between 23 March and 25 November 2020.^[85] However, since the second UK lockdown in November 2020, remote attendance by all or some of those involved in hearings is firmly the default position once again.^[86]

The caseload of the Business and Property Courts remained broadly consistent between March and November 2020, with courts processing cases within standard timescales.^[87] The Commercial Court conducted more hearings between the end of March and the end of September 2020 than the same period last year.^[88] However, the current delays to the listing of trials of two weeks or more indicate that the pandemic has impacted the work volume of this court.^[89]

The guidance that was issued to court users before July 2020 remains in place, although in updated form. For example, Her Majesty’s Courts and Tribunals Service (HMCTS) has regularly updated its guidance in relation to social distancing and the use of face coverings.^[90] The courts have also produced updates for court users on their revised practices.^[91]

The courts have undertaken physical adaptations to accommodate participants in a pandemic-secure manner. Judges have continued to adapt their practices to adjust to the norm of remote hearings.^[92] The courts appear to have become increasingly receptive to different electronic platforms.

Changes to the approaches of the English business and property courts since July 2020

As it has become clear that the pandemic will impact court proceedings for some time to come, it has been necessary for the courts to provide further guidance in relation to the conduct of and approach to remote hearings.

The courts have, on several occasions, reminded parties that a remote court hearing is a formal public process that should be conducted as close as possible to the pre-pandemic norm. This means refraining (absent court permission) from providing the hearing link to individuals outside the jurisdiction^[93] and refraining from making or publishing a recording of the proceedings,^[94] such as a screenshot from a hearing.^[95] However, the court has been pragmatic in relation to the attendance of fully remote hearings by participants who are located abroad (subject to appropriate safeguards).^[96]

The courts have shown a desire to be involved with the arrangements for remote hearings rather than leaving this to the parties. In one Commercial Court judgment, the judge made clear that it is for the court to control how it receives the evidence of witnesses called before it, and that any arrangement in which a witness is not on their own when they give evidence should be approved by the court.^[97] This reflects a continued concern that the integrity of witness examination is not undermined when cross-examination is conducted virtually.

The courts appear more reluctant than ever to allow applications to adjourn hearings and are prepared to take steps to ensure that physical attendance is possible. In one case, the judge rejected an application to adjourn (for a second time) a hearing due to take place in person, as he could ‘sufficiently control the circumstances in which the witnesses give evidence so as to assuage any reasonable person’s concerns about Covid-19 infection through giving evidence in person’.^[98] The judge nevertheless agreed to the evidence being given remotely in light of the need to reduce footfall in the courts in January 2021 and the health concerns of the witnesses.

Changes to laws and rules relevant to the pandemic since July 2020

Practice Direction (PD) 51ZA, which was introduced to allow parties to agree to extend time to a court deadline by up to 56 days, expired in October 2020 and has not been replaced.^[99] This reflects a desire to return to business as usual.^[100] While PD 51ZA also directed courts to take into account the impact of Covid-19 when considering adjournment of hearing applications and applications for relief for sanctions, there is no reason to believe that judges will stop doing so now that it has expired.

By contrast, PD 51Z, which contained temporary provisions in relation to proceedings for the recovery of the possession of land, was replaced by Civil Procedure Rule (CPR) 55.29 and, subsequently, PD 55C.^[101] The temporary insolvency PD has also been extended.^[102]

Various statutory instruments have continued to be introduced since July 2020 to reflect changes to the approach of the UK Government towards the current public health emergency.^[103]

Germany – a civil law jurisdiction:^[104] Anna Masser, Jana Loewer and Carolin Happ, Allen & Overy, Frankfurt, Germany

Regarding the practice and procedure of commercial litigation in Germany, there have not been major changes compared to the situation in July 2020. We have witnessed a continued acceleration in the conduct of online hearings and regarding the use of electronic communication methods.

Further, the German government tried to mitigate the impact of the pandemic, for instance, by implementing a travel voucher solution; a provision that reverts the burden of proof in the field of rent and lease agreements; and further rules regarding the suspension of the obligation to file for insolvency.

MENAT

Egypt – a civil law jurisdiction:^[105] Mohamed S Abdel Wahab, Zulficar & Partners Law Firm, Cairo

Generally, there have not been material changes to the practice and procedure of commercial litigation in Egypt resulting from the pandemic since July 2020. The situation remains more or less the same: there are no changes to Egyptian laws, there are only measures imposed aiming at mitigating the exposure to the pandemic and controlling its spread.

In this regard, the measures that have been taken during the peak of the first wave until summer, that is, from March until June/July 2020, were somewhat temporary. For instance, as per Decree No 1295 of 2020 dated 29 June 2020, the suspension of all procedural deadlines, time bar periods and limitation periods (except for time bars related to pre-trial detention and challenging criminal judgments) was for the duration between 17 March 2020 to 24 June 2020. Then, courts resumed work gradually as of 1 June 2020, taking all precautionary measures imposed by the state, including disinfecting courtrooms, mandatory mask wearing in order to enter a courtroom, and restricting access to courtrooms to lawyers and concerned parties only to control the number of people present in closed rooms and to maintain the social distancing between them. The same precautionary measures continue to be implemented to date.

Moreover, in line with the precautionary measures implemented by the government, the President of the Court of Cassation has limited the number of monthly hearing sessions for examining cases brought before the different circuits of the court as of 1 January 2021. The first session of the month is for examining cases brought before the criminal circuits and the second session is for cases relating to suspension of action and pleadings before civil circuits.

In the same vein, to limit crowds and to ensure social distancing at the notary public offices, the MoJ issued Circular No 436 of 2020 dated 17 December 2020, imposing new measures, which include the following: limiting access to the notary public offices by distinguishing between entry and exit gates; determining two different times for attendance for all employees, to avoid crowding at the time of arrival and the time of leaving the office; dedicating a group of employees responsible for ensuring that everyone is wearing masks and to restrict the number of public accessing the notary public offices (ie, to only allow entry of concerned parties only from the public); and, as of 19 December 2020, reducing the number of employees at the notary public offices to a minimum of 25 per cent of normal, provided that such reduction in the number of employees does not affect the work flow.

Nevertheless, the pandemic has accelerated the use of information and communication technologies in litigation services. In addition to the online services launched by the Court of Cassation, the Ministerial Decree No 8547 of 2020, dated 22 November 2020, mandated the creation of an electronic registry for all economic courts for the registration of cases online and the registration of addresses of the parties who will be notified of all procedures online. The decree provides for all needed documentation/information to register a case online, which varies depending on whether the user is a ministry, public entity, governorate, bank, Egyptian company, foreign company, sports club or academy, educational institution, association, embassy or consulate, law firm or any other entity.

Also, a Protocol for Cooperation between the Court of Cassation and the Ministry of Telecommunication and Information Technology was signed in November 2020 to develop and improve the online judicial services of the court, to meet the international standards and implement a solid online judicial platform in Egypt.

North America

The United States (US Federal Courts) – a common law jurisdiction:^[106] Meg Utterback, King and Wood Mallesons, New York

The US has not had significant changes to court and arbitral processes since July 2020 arising from the pandemic.

Activities are more institutionalised and are running more smoothly as all adjust to remote working. There continue to be challenges with use of technology – such as the recent viral ‘cat lawyer’ video – but on the whole, courts and tribunals and counsel are adjusting well.

The protocol or practice in litigation to ensure that witnesses giving evidence remotely do so without undisclosed assistance

In a federal court, the use of remote video testimony at trial is governed by Federal Rule of Civil Procedure (FRCP) 43(a). Under this rule, in order to justify the presentation of witness testimony remotely, the proponent of the video testimony must establish ‘good cause’ and ‘compelling circumstances’ and show that ‘appropriate safeguards’ will be taken to preserve the veracity of the witness’ testimony. Citation to circumstances caused by the pandemic likely satisfies the ‘good cause’ and ‘compelling circumstances’ requirement. The Advisory Committee Note to FRCP 43(a) provides that the parties must adopt adequate safeguards for the taking of remote witness testimony, including: (1) ensuring accurate identification of the witness; (2) protecting against influence by persons present with the witness; (3) exploring videoconferencing technologies and establishing procedures to test them before trial; and (4) assuring that witnesses can be properly sworn in prior to providing testimony and their testimony not influenced by unknown or undisclosed bystanders.^[107]

Remote depositions have become prevalent during the pandemic, Perkins Coie put together a US Remote Deposition and Oath Status List. This tracks the various state and federal authorities that govern remote depositions and the administration of oaths or affirmations when the court reporter or notary is not in the same room as the witness.^[108]

In Texas, courts allow public access to hearings by streaming proceedings live on YouTube before deleting the videos. Texas courts provide an access code for the proceeding, a teleconference line for those without computer access, and its YouTube channel for live streaming. However, public access to virtual court proceedings poses unique privacy and security issues.

Courts practice directions for conducting online proceedings including as to cybersecurity and confidentiality

Please see:

1. North Carolina Administrative Office of the Court (NCAOC)’s Office of General Counsel Remote Juvenile Hearings and Confidentiality of Exhibits;^[109]

2. District of Columbia Superior Court Remote Hearing Information;^[110]

3. New York State Unified Court System Technology Support Webinars;^[111] and

4. Minnesota Judicial Branch Remote Hearing Information.^[112]

Developments in the use of artificial intelligence (AI)

Auto-transcription: Zoom offers auto-transcription features for conversations that transcribes online meetings as they happen. However, this feature also allows the conversion of a participant’s speech to text and provides the transcript to the meeting hosts without that participant’s knowledge.

Document management and automated docketing: Some tech companies also provide services including discovery management and document review, verification services for images and digital documents. One AI technology, optical character recognition (OCR), which is the electronic process used to capture information from typed, printed or handwritten text, has been used to scan, process and automatically docket e-filings made by parties. Palm Beach County, Florida has been utilising AI-empowered software to classify and docket e-filed documents. The system verifies the case number, and extracts and captures the document title with other required information that is then automatically docketed to the court’s case management system.

Inferential AI: Inferential AI uses computers to calculate probabilities. Several courts are exploring potential uses of inferential AI to identify ‘red flags’ in guardianship or conservatorship cases, triage cases for automated case management and provide mediation suggestions for online dispute resolution.

Natural language processing (NLP): NLP is a technology used to extract meaning of human speech. Sophisticated language processing capabilities including sentiment analysis and automated summarising are being used in online dispute resolution proceeding apps to de-escalate interactions between parties.

Visual perception: Multiple technologies, such as facial recognition technology (FRT), radar, light detection and ranging (LIDAR) and ultrasound sensors have made the application of visual perception in virtual court settings possible. For example, judges in Marion County, Oregon, already sign into their virtual court systems using facial recognition.

Sources

• Albert F Chan and Melissa Giddings, ‘Virtual Justice: Online Courts During Covid-19’.^[113] and

• JTC Resource Bulletin, ‘Introduction to AI for Courts’.^[114]

South America

Brazil – a civil law jurisdiction:^[115] Sergio Nelson Mannheimer and Maria Proença Marinho, Mannheimer, Perez e Lyra Advogados, Rio de Janeiro/São Paulo

National Council of Justice recommendations

National Council of Justice (Conselho Nacional de Justiça or CNJ) Recommendation No 70, of 4 August 2020,^[116] provides that Brazilian tribunals regulate virtual services for lawyers, public attorneys, public defenders, members of the Attorney General’s office, judiciary police and parties during the period of the Covid-19 pandemic.

Since it is a recommendation, with no obligatory force, it merely establishes guidelines that should be taken into consideration. The recommendation was passed in light of the constitutional principles of efficiency and celerity, especially considering that tribunals already have the technological requirements needed to materialise this service. More specifically, it establishes that: (1) tribunals should regulate virtual services in the exercise of parties’ jus postulandi, their right to address the judiciary power; (2) priority should be given to the platform already utilised by each respective tribunal in the judgment sessions; and (3) the magistrates’ agendas be respected, but with attention given to guarantee the effective dialogue with the parties.

CNJ Recommendation No 71, of 5 August 2020,^[117] provides for the creation of centres for alternative methods of dispute resolution (Centros Judiciários de Solução de Conflitos e Cidadania – Cejusc Empresarial or CEJUSC) and encourages the use of adequate methods of dispute resolution in commercial conflicts. Since it is a recommendation, with no obligatory force, it merely establishes guidelines that should be taken into consideration. The recommendation was passed in light of: (1) the establishment and success of centres for alternate dispute resolutions in the state tribunals of São Paulo, Paraná, Rio de Janeiro, Espírito Santo and Rio Grande do Sul; and (2) facilitating the efficiency of the resolution of commercial conflicts that have been aggravated by the pandemic.

The CEJUSC is created to allow negotiations, mediation and conciliations in individual or collective modalities, either in person or through videoconference, allowing the parties (and their respective attorneys) to solve their disputes amicably. The centres should also allow for the capacitation of conciliators and mediators in commercial matters, or to register already existing conciliation or mediation chambers that are already specialised.

Federal and state courts

In federal and state courts, there have been normative acts passed to regulate: (1) the return of in-person activities; (2) temporary measures to reduce the spread of Covid-19; and (3) virtual services.

In the state of Paraná, for example, the presidency of the Court of Justice signed Decrees 400/2020^[118] and 401/2020^[119] on 5 August 2020. The first establishes rules for the occurrence of virtual audiences in the first and second jurisdictions while the state of calamity remains, including rules as to the gradual return of in-person hearings, specifically in cases of urgency. The second provides for the return of in-person activities for those who work in the courts, including magistrates, to be done gradually and in rounds.

Similar dispositions can be found, for example, in the Federal Court for the First Region, which, through Presidential Resolution 11771439,^[120] determined that the gradual reopening should extend until 20 January 2021, with measures still being taken to maintain virtual services and hearings. Likewise, the presidency of the Court of Justice of São Paulo has passed Provision No 2.587/2020,^[121] which establishes that the established ‘staggered system of return to in-person work’ (Sistema Escalonado de Retorno ao Trabalho Presencial) shall remain in effect until 28 February 2021. Other tribunals have also passed similar measures.^[122]

Part III: The impact of the pandemic on commercial arbitration

As outlined in the Introduction, Part III of this article provides summaries of the impact of the pandemic on commercial arbitration in the following nine jurisdictions (the additional arbitration jurisdictions):

• Asia Pacific: Japan, Indonesia, South Korea and the Philippines;

• Europe/the UK: France and Russia;

• MENAT: Saudi Arabia and Turkey; and

• South America: Argentina.

Appendix 1 outlines the relevant legislation, arbitral institutions’ protocols and guidelines issued in response to the pandemic in the Additional Jurisdictions.

Part III also provides updates for the following jurisdictions that were summarised in the DRI October 2020 article:

• Asia Pacific: Australia, China, Hong Kong SAR, India and Singapore;

• Europe/the UK: England and Wales, and Germany;

• MENAT: Egypt;

• North America: the US; and

• South America: Brazil.

Review of the additional arbitration jurisdictions

Asia Pacific

Japan – a civil law jurisdiction:^[123] Akihiro Hironaka and Mihiro Koeda, Nishimura & Asahi, Tokyo

The impact of the pandemic on arbitration and ADR, and Use of ICT and ODR

Since the outbreak of the pandemic, the use of electronic means for sending notices and exchanging documents via email, rather than hard copy, have accelerated in arbitration practices in Japan. Tribunals and parties are generally inclined to use ICT to hold online evidentiary hearings and move cases forward instead of postponing in-person hearings. In arbitral proceedings administered by the Japan Commercial Arbitration Association (JCAA), 26 online hearings (ten of which were evidentiary hearings) were held between January and November 2020.^[124]

In February 2018, the Japan International Dispute Resolution Center (JIDRC) was established as the first international arbitration hearing venue in Japan. JIDRC operates two hearing venues; the Osaka venue, opened in May 2018, and the Tokyo venue, launched in March 2020. JIDRC has adapted to the irregular environment caused by the Covid-19 pandemic and offers state-of-the-art venues and facilities for hybrid online hearings.

In June 2019, the Japanese Government issued its ‘Follow-up on the Growth Strategy’, in which Japan manifested its intention to develop and promote the use of IT and AI in dispute resolution proceedings, including ADR.^[125] To achieve this goal, in September 2019 the government established a study group to develop and promote ODR. The study group published a report in March 2020,^[126] which stated that ODR should first be promoted in areas such as the sharing economy. The Japan Federation of Shiho-Shoshi’s Associations and a legal technology company entered into a collaboration agreement and launched an ODR service in December 2020. Thus, the promotion of ODR began even before the pandemic; however, the pandemic may accelerate the development and use of ODR in Japan.

Does Japanese law expressly permit ‘document-only’ arbitration?

Under the Japanese Arbitration Act (the ‘Act’), hearings can be dispensed with unless a party requests otherwise.^[127] The JCAA’s Commercial Arbitration Rules (the ‘JCAA Rules’), revised in January 2019 prior to the pandemic, provide for ‘document-only’ arbitration if the tribunal considers it appropriate, unless a party requests otherwise.^[128] The JCAA Rules also provide for expedited procedures under which, in principle, arbitral proceedings shall be conducted on a ‘document-only’ basis.^[129] Under the JCAA Rules, the threshold for the expedited procedures is JPY 50m.^[130]

Does Japanese law expressly require ‘in-person’ hearings?

Article 32(1) of the Act provides that:

‘[t]he arbitral tribunal may hold oral hearings for the presentation of evidence or for oral argument by the parties. Provided, where a party makes an application for holding oral hearings, including the request in article 34, paragraph (3), the arbitral tribunal shall hold such oral hearings at an appropriate stage of the arbitral proceedings.’

A commentary^[131] authored by persons who were engaged in drafting the Act explains that:

‘“Oral hearing” refers to the procedures conducted orally, (it is naturally possible to include documentary hearings), when the arbitral tribunal and both parties meet at a specified place, which include amongst other matters, the submission of the parties’ presentations (claims) to the arbitral tribunal, questioning of the parties by the arbitral tribunal, and the hearing and examination of statements from witnesses, the parties themselves, and experts’ [emphasis added].

The description ‘the arbitral tribunal and both parties meet at a specified place’, if literally interpreted, means that the drafters of the Act believed that the Act prohibits online or hybrid hearings. However, Japanese scholars and practitioners do not believe that this description (which was written approximately 17 years ago, when ICT had not developed to the extent of its current form) was intended to prohibit online or hybrid hearings. In reality, online hearings are held regularly in Japan, and Article 50(3) of the JCAA Rules expressly provides that ‘[w]here the hearings are to be held, the arbitral tribunal should select appropriate means for holding a hearing, including by video conference or other methods’.

Legislation or institutional rules concerning arbitration

No legislation has been enacted concerning the conduct of arbitral proceedings or online enforcement during the pandemic. The JCAA Rules already provide for sufficient measures to allow proceedings to adapt to the irregular environment caused by the pandemic, such as online filings and hearings. Japanese arbitration practitioners and scholars gathered information about practices and guidelines on online hearings in overseas jurisdictions and summarised them in a report in Japanese for the convenience of Japanese practitioners during this difficult period.^[132] As an appendix to the report, these practitioners also proposed a model protocol for online hearings in Japanese.^[133]

Indonesia – a civil law jurisdiction:^[134] Debby Sulaiman, Hiswara Bunjamin and Tandjung in association with Herbert Smith Freehills, Jakarta

The impact of the pandemic on arbitration

The Indonesian Arbitration Law remains the same: there have been no amendments to the law due to the pandemic. However, arbitration institutions in Indonesia have implemented protocols to allow electronic and virtual hearings in order to comply with the Indonesian Government’s policy, especially in Jakarta, which limits office activity and the number of people that may be present in the office. Prior to the pandemic, online hearings were unheard of. Even then, parties would rarely conduct case management conferences (CMCs) via telephone call or video call. Parties generally preferred to conduct hearings of any kind in person.

The use of technology has certainly increased when conducting hearings and meetings since the start of the pandemic. In particular, while there are no restrictions on conducting ‘document-only’ arbitration, the most common proceeding requires physical appearance of parties, including to submit parties’ written submissions. However, the pandemic multiplies the pace of the changes and pushes the arbitration institution to be adaptive and more aligned to the international best practices. Parties are expected to accept simultaneous crossing of submissions through email exchanges. They also must agree on virtual hearing protocols and timetables, especially when the involved parties, the arbitration institution and the tribunal are spread across different time zones.

Indonesian arbitration law does not expressly and specifically address delivery of awards by way of online nor does it specify online enforcement. The traditional concept of award delivery is by way of delivery of hard copy of the award. Fair to say that post-pandemic, we have not seen any changes to this practice.

South Korea – a civil law jurisdiction:^[135] Inhoe Jeong, KCL and Prof. Joongi Kim, Yonsei Law School, Seoul

Changes to the practice and procedure of commercial arbitration and related ADR arising from the pandemic

Korea has had an increase in virtual procedural and merits hearings since the beginning of the pandemic. The Seoul International Dispute Resolution Center (IDRC) reported that demand for its virtual hearing services increased significantly, with the number of cases in 2020 being nearly five times that of 2019.^[136]

Online hearings have made the availability of parties, counsel, witnesses and experts easier because they no longer need to be physically present at a designated location. Since parties, counsel, witnesses, experts and tribunals members may no longer be in one country, this requires an accommodation for all the different time zones where they may be located.

The overall cost for arbitral proceedings has decreased, as travelling and accommodation expenses have not been incurred. The only expenses involved were those to conduct the virtual hearings.

Due to the pandemic, the time taken to deliver hard copies of documents, including decisions/awards, among arbitral tribunal and parties increased drastically as many countries were on lockdown and postal services were not available to certain countries.

Accelerated use of (1) ICT and (2) ODR in South Korea

The pandemic has accelerated the use of ICT and ODR in South Korea. Many online hearings proceeded under the Seoul Protocol on Videoconferencing in International Arbitration (the ‘Seoul Protocol’),^[137] a protocol intended to serve as a guide to best practice for planning, testing and conducting videoconferences in international arbitration. The protocol covers the general principles involved in videoconferencing from technical requirements to preparatory arrangements.

The Seoul Protocol was first introduced at the seventh Asia Pacific ADR Conference held in Seoul on 5–6 November 2018, and was revised and upgraded to reflect comments from Seoul IDRC and other experts in March 2020.

Whether Korean law expressly provides for (1) ODR; (2) delivery of awards online; and/or (3) online enforcement

Korean law does not expressly provide for ODR or delivery of awards online or for online enforcement.

Whether ‘document-only’ arbitration is expressly permitted in South Korean law

Korean law expressly permits ‘document-only’ arbitration. Article 25(1) of the Arbitration Act^[138] states that subject to any contrary agreement by the parties, the arbitral tribunal may decide between holding evidentiary hearings and having all proceedings conducted on the basis of documents only.

Article 41(1) of the Korean Commercial Arbitration Board (KCAB) International Arbitration Rules^[139] states that unless otherwise agreed by the parties, where neither party’s claim exceeds KRW 50m^[140] the dispute shall be resolved on the basis of documentary evidence only, provided, however, that the arbitral tribunal may hold a hearing at the request of a party or on its own initiative.

Whether physical or ‘in-person’ hearings are expressly required in South Korean law

Korean law does not require physical or ‘in-person’ hearings. Yet, pursuant to Article 25(1) of the Arbitration Act, unless the parties have agreed that no oral hearings shall be held, the arbitral tribunal shall hold oral hearings at an appropriate stage of the proceedings, if so requested by a party.

Whether any legislation has been enacted concerning the conduct of arbitration during the pandemic

Korea has not enacted any new legislation concerning the conduct of arbitration during the pandemic.

Whether any arbitral institution has published any procedural rules, circulars or guidelines to address the impact of the pandemic on arbitration

KCAB International published its ‘Announcement on Covid-19 Information’^[141] on 16 March 2020 regarding the Secretariat’s case management capacities and operations and Seoul IDRC’s operational capacity. On 16 April 2020, KCAB International, together with Cairo Regional Centre for International Commercial Arbitration (CRCICA), German  Arbitration Institute (Deutsche Institution fur Schiedsgerichtsbarkeit or DIS), International Chamber of Commerce (ICC), International Centre for Settlement of Investment Disputes (ICSID), American Arbitration    Association (AAA), London Court of International Arbitration (LCIA), Milan Chamber of Arbitration (CAM), Hong Kong International Arbitration Centre (HKIAC), Stockholm Chamber of Commerce (SCC), Singapore International Arbitration Centre (SIAC), Vienna International Arbitral Centre (VIAC) and Institute of Chartered Financial Analysts of India (IFCAI) jointly published a statement, ‘Arbitration and Covid-19’,^[142] a commitment by institutions to work together and to encourage parties and arbitrators to discuss any impact of the pandemic and potential ways to address it in an open and constructive manner.

Seoul IDRC published an announcement called ‘Seoul IDRC’s Precautionary Measure in Response to the Covid-19’^[143] on 24 February 2020, and a ‘Notice on the Seoul IDRC relating to the Covid-19’^[144] on 8 September 2020, introducing the precautionary measures and management policy it has adopted in response to the pandemic.

Changes made to the laws arising from the pandemic

Korea has not changed its laws related to arbitration resulting from, or stimulated by, the pandemic.

The Philippines – a primarily civil law jurisdiction:^[145] Patricia-Ann Prodigalidad, Jose Martin Tensuan, Antonio Eduardo Nachura and Arianne Dominique Ferrer, Angara Abello Regala Concepcion Regala & Cruz (ACCRALAW), taguig

Impact of the pandemic on procedure, practice and cost of arbitration, and other ADR

Philippine arbitration laws^[146] give parties ‘freedom to make their own arrangements to resolve their disputes’.^[147] Prior to the pandemic, these arrangements included filing electronically and holding conferences online. Thus, there were no changes in the allowed procedure for filing and conducting proceedings.

The pandemic and the consequent community quarantine served as a catalyst for a sudden change of mindset in Philippine arbitration. From reluctance to use ICT, practitioners and participants shifted to acceptance of the virtual world and paperless proceedings. Although presenting testimonial and documentary evidence was previously predominantly done ‘in-person’, evidentiary hearings are currently conducted primarily online.

Typically, arbitral institutions now incorporate cloud storage (Dropbox, OneDrive, Google Drive and iCloud) and videoconferencing platforms (Microsoft Teams, Zoom, Google Meetings and the like) into their standard suite of services. Presently, arbitral institutions absorb the cost thereof and no additional fee is charged to parties. Costs to attend online hearings and comply with protocols (eg, secondary cameras, computers/devices and the like) are generally borne by the parties.

Confidentiality and security

Philippine law mandates the confidentiality of arbitration proceedings, including the records and evidence subject to limited exceptions.^[148] A similar confidentiality obligation is imposed on mediation proceedings. ^[149] The Data Privacy Act of 2012 imposes the obligation to secure personal information and limit disclosure.^[150] These confidentiality and security obligations persist despite the increased use of ICT. Arbitral institutions have resorted to setting restrictions to minimise, if not prevent, unauthorised recording of proceedings.

ODR and other online innovations

No legislation expressly provides for ODR, delivery of awards online or online enforcement. Although the pandemic accelerated the use of ICT, it has not been an effective stimulus for ODR or for authorising the delivery or enforcement of arbitral awards online. Despite the absence of legislation, the Supreme Court recognised its legality when it defined ODR as ‘all electronic forms of ADR, including the use of the internet and other web or computer-based technologies for facilitating ADR’^[151] and declared that the Special ADR Rules govern ODR when ‘applicable and appropriate’.^[152]

Whether ‘document-only’ arbitration is expressly permitted in Philippine law

‘Document-only’ arbitration is expressly allowed by Philippine arbitration law. Section 19 of Republic Act No 9285 provides that international commercial arbitration in the Philippines shall be governed by the UNCITRAL Model Law, adopted on 21 June 1985 (the ‘Model Law’). Article 24 of the Model Law explicitly allows an arbitral tribunal to conduct arbitration proceedings on the basis of documents and materials alone, at its discretion and subject only to the parties’ agreement to the contrary.

Whether physical or ‘in-person’ hearings are expressly required in Philippine law

Philippine law does not expressly require ‘in-person’ hearings for arbitration.

Relevant legislation on Philippine arbitration

From the start of the pandemic to date, no legislation has been passed specifically concerning the conduct of arbitration.

Relevant arbitral institutions’ issuances

Arbitral institutions have published issuances to address the pandemic’s impact on proceedings they administer.

The Construction Industry Authority Commission (CIAC) issued guidelines for virtual hearings,^[153] under which arbitrators have complete discretion to conduct virtual hearings.^[154] The CIAC declared that proceedings would continue, even if parties refused to participate.^[155] It discussed best practices for conducting virtual hearings and presenting documentary evidence, with particular regard to security and confidentiality.^[156] The CIAC recommended applications (Microsoft Teams, Zoom, iCloud Meetings, Skype, Messenger and Viber) to facilitate arbitration but authorised its arbitrators to choose any ‘publicly available platform’ after consulting the parties.^[157]

The Philippine Dispute Resolution Center (PDRC) issued a note confirming arbitrators’ discretion to conduct virtual hearings, despite lack of concurrence from the parties, whenever the circumstances prevented ‘in person hearings’.^[158] However, the default remained to be ‘in person’ hearings.^[159] It provided minimum standards for submissions and hearings using ICT.^[160] It required hearings to be recorded by its secretariat, which recordings formed part of the parties’ online case record.^[161] PDRC declared that administrative expenses covered the cost of virtual hearings.^[162]

The Philippine International Center for Conflict Resolution (PICCR) also issued a note on virtual hearings^[163] and an advisory on online arbitration services. It permitted virtual hearings, provided: (1) the parties agreed in writing or the arbitrators determine that virtual hearings are warranted; and (2) the applicable arbitration law and rules do not prohibit virtual hearings.^[164] The arbitrators are required to use the PICCR’s recommended ICT system ‘except for compelling reasons’.^[165]

Substantive law changes affecting arbitration

There have been no changes to substantive Philippine law affecting arbitration resulting from the pandemic. Republic Act No 11469^[166] and Republic Act No 11494^[167] both empowered the President, among others, to extend statutory deadlines for filing documents during the community quarantine. Periods to file actions were not amended by any Covid-related law or issuance. During certain periods of the community quarantine, deadlines for court filings were automatically extended upon the Supreme Court’s directive. Thus, deadlines in court proceedings related to arbitration proceedings were impacted.

Concerns and challenges

Although the Philippine ADR industry has not actually implemented ODR, a standalone ICT system to seamlessly resolve disputes from end to end was launched in 2019 for disputes involving credit reports of the Credit Information System of the Credit Information Corporation (CIC).^[168] It is hoped that good feedback from users of the ODR system (ODRS) of the CIC, along with the recent warm reception to the use of ICT, will lead to full-fledged ODR in arbitration including online delivery of awards and online enforcement.

Europe

France – a civil law jurisdiction:^[169] José Feris and Marie-Claire Da Silva Rosa, Squire Patton Boggs, Paris

General framework

With regard to arbitration proceedings, legal professionals had to adapt very quickly when the lockdown was announced in France on 16 March 2020 so that justice though arbitration could continue to be done and arbitration procedures could take their course.

The French Government or legislators have not enacted any specific arbitration rules to adapt arbitration proceedings to the impact of the pandemic. In that respect, arbitrations seated in France have followed similar trends to those experienced elsewhere in the world.

Experience with online hearings

Case management conferences and procedural hearings were regularly conducted via telephone or videoconference prior to the pandemic. That trend increased after the pandemic started. With respect to evidentiary hearings, parties and counsel in many cases tended initially to request the arbitral tribunals to postpone evidentiary hearings in the hope of being able to hold such hearing in person at a later date. Nonetheless, other parties that did not wish to delay further their proceedings requested to have virtual hearings.

Virtual hearings are not forbidden in France-seated arbitration proceedings. In fact, French law does not even mandate the holding of a hearing. It is within the parties’ autonomy and, failing any agreement by them, the arbitral tribunal’s discretion whether to hold one. The e-platform that has been the most used for virtual hearing has been Zoom.

Arbitral tribunals have tended to issue protocols and procedural orders to set up the rules applicable to online hearings and specify the rules for virtual cross-examination of witnesses in order to ensure the confidentiality of the proceedings. Arbitral tribunals have organised test sessions with all hearing participants to make sure everyone is familiar and conformable with the operation of the platform. They have also put in place back-up plans in the event that the participants have temporary lost an adequate connection to the platform.

A guidance note issued by the ICC Court to help mitigate the effects of the pandemic on arbitration proceedings was widely used in France in order to prepare these procedural orders (ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the pandemic of 9 April 2020, the ICC Guidance Note).

One of the main advantages of virtual hearings is that they are considerably less expensive than in-person hearings, since no hearing rooms, travel or accommodation expenses are incurred. This experience will lead users to consider hearings beyond the pandemic for certain types of arbitrations, particularly those involving low amounts in dispute.

Filing of documents

While French law does not address the issue of electronic filings, the ICC Secretariat expressly required that new requests for arbitration (including pertinent exhibits) and other documents be filed with the Secretariat in electronic form and has encouraged the parties to use electronic means of communication for submissions and exhibits to the fullest extent possible.

In practice, there has been a notable change in the filing of documents. Whereas prior to the pandemic parties submitted their submissions both electronically and in hard copy, hard copies have been abandoned since the beginning of the pandemic, making way for electronic filings only.

Whether ‘document-only’ arbitration is expressly permitted in French law

As indicated above, French law neither expressly permits nor forbids ‘document-only’ arbitration. The parties may choose which rules are applicable to their arbitration proceedings. Article 1509 of the French Code of Civil Procedure provides the following:

‘The arbitration agreement may, directly or by reference to arbitration rules or rules of procedure, regulate the procedure to be followed in the arbitral proceedings.

If the arbitration agreement is silent, the arbitral tribunal shall regulate the procedure as far as necessary, either directly or by reference to arbitration rules or rules of procedure.’

In practice, it is very rare for arbitration proceedings to proceed without an evidentiary hearing.

Delivery of awards online/online setting aside proceedings

French law does not address the issue of notification or delivery of awards online. The ICC Guidance Note, which has been prepared taking into consideration French law, provides that ‘the parties may agree that: (i) any award be signed by the members of the tribunal in counterparts, and/or (ii) all such counterparts be assembled in a single electronic file and notified to the parties by the Secretariat by email’.

Under French law, even during the pandemic, the starting point of the time limit for filing a challenge against an award shall therefore be the date on which the award is notified by service, unless the parties agree otherwise.

For international arbitrations seated in France, parties can start setting aside proceedings within three months from the date of the notification of the award. The authorised representative of the party is required to submit a declaration (de saisine) before the Paris Court of Appeal, requesting the setting aside of the award that can be made online via the e-Barreau platform.

Changes to French law in response to the pandemic with respect to payment obligations or insolvency proceedings

The French Government adopted specific rules to suspend certain penalty mechanisms for breach of contract and extend the time limits relating to contract termination and renewal during a protected period that corresponded approximately to the lockdown period. France also set up a range of measures in an attempt to limit bankruptcies and job losses.

Russia – a civil law jurisdiction:^[170] Oleg Todua and Andrey Ushakov, White & Case, Moscow

Outline of arbitral institutions

There are currently five licensed Russian arbitral institutions:

1. the Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation;
2. the Sports Arbitration Chamber;
3. the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (the ‘ICAC’);
4. the Russian Arbitration Centre at the Russian Institute of Modern Arbitration (the ‘RAC’); and
5. the Arbitration Centre at the Russian Union of Industrialists and Entrepreneurs (the ‘RSPP’).

Given that the first two institutions are specialised, only the remaining three – ICAC, RAC and RSPP – are discussed in this note.

Changes to the practice and procedure of commercial arbitration arising from the pandemic

There have been no significant changes to the practice and procedure of commercial arbitration in Russia.

Since the March–May 2020 lockdown, the Russian arbitral institutions have encouraged: (1) parties to submit their documents electronically; and (2) tribunals to postpone hearings or hold them remotely.^[171] In practice, some parties opted for document-only arbitration, some chose remote hearings and some requested adjournment of the relevant hearings.^[172]

Since June 2020, the arbitral institutions have been returning to normal operation with conventional precautions (eg, temperature testing, face masks and social distancing).

ICAC observed that: (1) tribunals are entitled to limit the number of hearing attendees in the interests of safety; and (2) attendees (including parties and counsel) would be admitted to the ICAC premises only ten minutes before the hearing.^[173]

Whether use of ICT and ODR had been accelerated by the pandemic

The pandemic has accelerated the use of ODR by the Russian arbitral institutions, but not drastically.

Two institutions, the RAC and RSPP, have enhanced/developed their own online arbitration platforms with: (1) tools for communication and file sharing between the institution, the parties and the tribunals; and (2) videoconferencing based on TrueConf and Mind, respectively.

The ICAC has no ‘official’ platform for videoconferencing or ODR. However, tribunals and parties are free to agree (and in fact do agree) to use any suitable tools, including only in relation to some, but not all, attendees.

ODR, ‘document-only’ arbitration and ‘in-person’ hearings

While Russian law does not expressly provide for ODR, delivery of awards online or online enforcement, Russian arbitral institutions have encouraged the parties to opt for ODR, including in relation to filings and hearings. For example, in 2020, the RSPP heard 170 out of 350 cases,^[174] and the RAC heard 156 out of 394 cases, by videoconference.^[175]

The Russian laws on arbitration (both domestic and international) expressly permit ‘document-only’ arbitration as long as: (1) this is consistent with the parties’ agreement (and no party requests a hearing) and (2) the arbitral tribunal considers it the best option.^[176]

The Russian laws on arbitration (both domestic and international) do not require physical or ‘in-person’ hearings. On the contrary, tribunals are generally entitled to proceed with considering and resolving the case even if a party fails to attend the hearing.^[177]

Legislation or procedural rules concerning the conduct of arbitration during the pandemic

No legislation concerning the conduct of arbitration during the pandemic has been enacted in Russia.

However, the Russian arbitral institutions have published numerous letters, circulars and guidelines – between the three relevant institutions more than 15 have been published in Russian and in English – to address the impact of the pandemic on arbitration.^[178] In short, they have encouraged parties and tribunals to postpone hearings or conduct them remotely; invited parties to use available online arbitration platforms and videoconferencing and/or to file documents electronically (typically via email or a special online platform); and discussed applicable precautionary measures, such as face masks, social distancing and temperature measurement.

MENA

Saudi Arabia – a Sharia Islamic Law jurisdiction:^[179] Chris Johnson, Charles Magee and Jeanina Awni, The Law Firm of Mohamed Al-Sharif in association with Johnson & Pump, Riyadh

Changes to the practice and procedure of commercial arbitration arising from the pandemic

The New Commercial Courts Law (CCL) encourages parties to resort to ADR and impose mandatory conciliation and mediation under certain instances, such as disputes involving commercial contracts among merchants whenever the original claim value exceeds SAR 1m (approximately US$267,000).

To encourage the early settlement of claims, the CCL provides that the claimant must send a notice to the defendant requesting them to pay or perform the claimed entitlement at least 15 days prior to filing the case. Although obtaining this written proof creates unnecessary delays, as the defendant expresses its unwillingness to honour the agreement anyway, encouraging early settlements and making mediation mandatory in some cases may serve to raise awareness of ADR in the Kingdom and reduce the amount of unnecessary litigation. In addition, the CCL permits commercial courts to utilise the services of the private sector in relation for ADR such as reconciliation and mediation.

Due to the pandemic, the Saudi Center of Commercial Arbitration (SCCA) allows hearings and mediation conferences to be held remotely using a secure videoconferencing system provided by the SCCA. The SCCA has reduced its mediation fees, and prepared its staff and facilities to complete the mediation and settlement processes on a virtual basis.

The accelerated use of ODR arising from the pandemic

In May 2020, the SCCA launched its ‘Covid-19 Emergency Mediation Program (EMP)’ to help reduce the pandemic’s impact on the business sector.^[180] The EMP is a cost-effective programme providing remote mediation with enforceable outcomes. It is available for both domestic and international parties.

Under the EMP, parties have the ability to convert their own settlement agreement into an executory deed/bond (Sak Tanfizi) and enforce the bond directly through the enforcement courts in Saudi Arabi.

In August 2020, the SCCA opened an additional branch in the Eastern Province, which provides reassurance to investors that their investments will be protected by both local and international law.

Legislative changes arising from the pandemic

The Commercial Courts Law and Implementing Regulations dated were promulgated on 8 April 2020.^[181] These encourage early dialogue between the parties and, hopefully, the settlement of claims before litigation is necessary.

On 5 May 2020, Saudi Arabia ratified the UN Convention on International Settlement Agreements Resulting from Mediation (the ‘Convention’), which entered into force in Saudi Arabia on 5 November 2020. The Convention provides an effective mechanism for the enforcement of international settlement agreements resulting from mediation. As a result of Saudi Arabia’s ratification of the Convention, international settlement agreements falling under the Convention and involving assets located in Saudi Arabia may be enforced directly by the courts of Saudi Arabia.

There were several amendments to the Labour Law. However, the most relevant is the amendment issued on 4 November 2020 by the Saudi Arabian Ministry of Human Resources and Social Development, launching a labour reform initiative replacing the existing sponsorship system (kafala in Arabic), which governs worker mobility in Saudi Arabia.^[182]

Turkey – a civil law jurisdiction:^[183] Yalın Akmenek, Demet Kaşarcıoğlu and Ceyda Sıla Çetinkaya, Esin Attorney Partnership, Istanbul

Changes to the practice and procedure of commercial arbitration and related ADR arising from the pandemic

The impact of the pandemic had a noticeable effect in the use of electronic filing. Many proceedings leading up to a hearing and the final award have been conducted through online communication applications such as Zoom, Skype or similar services. However, still almost all arbitral institutions ask for hard copies of documents, even if these were signed via secure electronic signature, which is valid like a wet-ink signature under the Electronic Signature Law No 5070.^[184] We have also observed a tendency for the parties and arbitral tribunals to prefer online hearings, and also cases where online hearings were almost imposed by the tribunals due to Covid-related concerns.

Regarding the cost of any changes to the practice and procedure of commercial arbitration resulting from the pandemic in Turkey, there is a decrease in travel expenses. Moreover, in institutional arbitration, none of the arbitral institutions ask for additional costs for the online hearings and they provide the infrastructure for free.

There are no online ADR services either for arbitration or mediation in Turkey. However, in our opinion, it is possible to conduct the mediation process online, if the parties agree to do so, since the law does not prohibit it.

The accelerated use of ICT and ODR

The pandemic has increased participants’ willingness to use ODR. Although there is no specific legislation or special means regarding the use of ICT or ODR, in practice arbitral tribunals have conducted arbitration proceedings through online means from the beginning of the pandemic.

There has been no change involving technology standards involved in ICT or ODR. There has been no change regarding the data security and confidentiality of ICT and ODR. However, since the use of ICT and ODR has increased on a daily basis, the necessity for stipulating specific data security and confidentiality standards will be an issue. In practice, the arbitral tribunal determines the necessary measures to ensure the confidentiality of the hearing.

The Istanbul Arbitration Center (‘ISTAC’) introduced Online Hearing Rules and Procedures on 17 April 2020.^[185]

ODR in Turkey has affected the following:

• Arbitrators residing in a country other than the country where the hearing will be held are willing to accept foreign-seated arbitrator nominations since there is no need to travel abroad.
• Since online hearings are less costly and more time efficient, it has had a positive impact on counsels and clients.
• Witnesses are able to attend hearings by sparing just a few hours. This is significant, because sometimes in physical hearings important witnesses might be unable to travel for the hearing.
• Parties save on costs, since their counsels’ travel expenses were reduced.
• Costs sank overall as the need for in-person meetings decreased.
• The approach to preparation was to use common online mechanisms.
• The approach to the production of documents was unchanged in principle. However, for instance, the production of documents might prove to be difficult in certain cases if a document needs to be obtained from a company but the company is on remote working.
• The approach to cross examination changed. It is more difficult to cross-examine a witness online due to difficulties regarding clear communication, internet connection and judging the witness’s reactions. Hybrid and case-specific solutions have been implemented. For example, counsels attend counterparty witness testimonies to ensure that the witness is not being directed by the counterparty.
• The approach to hearings has changed since they are now generally held online. It is easier to show documents online to the arbitral tribunal during the online hearing instead of preparing hearing bundles.
• Generally speaking, the timetable of proceedings has been accelerated. The parties and arbitral tribunal can keep to the timetable when physical meetings/hearings are not possible.

The most interesting innovation in practice and procedure arising from the pandemic has been an innovative approach to online hearings. ISTAC led this approach and supported online hearings by introducing the Online Hearing Rules and Procedures.

Whether Turkish law expressly provides for (1) ODR; (2) delivery of awards online; and/or (c) online enforcement?

Neither the Turkish International Arbitration Law No 4686 (the ‘IAL’)^[186] nor the Turkish Code of Civil Procedure No 6100 (the ‘CCP’)^[187] expressly provides for ODR. Neither the IAL or CCP nor the rules of the arbitral institutions stipulates that the hearings should be conducted in a particular manner (physical or online).

Although not regulated under the law, awards are sent to parties by email in practice. Yet, this may not always be possible for enforcement purposes.

There is no regulation for online enforcement under Turkish law.

Whether ‘document-only’ arbitration is permitted in Turkish law

Pursuant to the IAL, the parties can agree that no hearings shall be held. Pursuant to the CCP, unless otherwise agreed by the parties, the arbitral tribunal can decide to hold a hearing at the request of any party. Therefore, it is possible to conduct ‘document-only’ arbitration. In addition, the rules of the arbitral institutions in Turkey permit ‘document-only’ arbitration. This being the general rule, case-specific considerations need to be observed to ensure that the ‘right to defence’ and similar concepts are not shadowed during the proceedings, which in turn may end up leading to enforcement concerns.

Whether physical or ‘in-person’ hearings are required under Turkish law

Neither the IAL nor the CCP expressly stipulates that the hearings should be conducted in a particular manner (physical or online). However, the general understanding was that the hearing would be made physically until the pandemic.

Whether legislation has been enacted concerning the conduct of arbitration during the pandemic

Nothing directly specific to the conduct of arbitration has been enacted, although various legislation has been enacted that ended up indirectly impacting upon pending or to-be-filed arbitral proceedings.

Publication by any arbitral institution of procedural rules, circulars or guidelines addressing the impact of the pandemic on arbitration

ISTAC introduced the Online Hearing Rules and Procedures on 17 April 2020, a guideline for parties and arbitrators consisting of ten provisions that address issues such as hearing preparations, attendees, conducting a hearing, and witnesses and experts’ testimony, to prevent the negative effects of the pandemic.

Other observations

The pandemic demonstrated the importance of being familiar with technology and that ODR proceedings allow for business continuation, despite difficult and unforeseen events. We believe remote and/or virtual hearings will continue to play a vital role.

South America

Argentina – a civil law jurisdiction:^[188] Jean-Paul Dechamps and Florencia Wajnman, Dechamps International Law, London and Buenos Aires

Changes to Argentinean laws arising from the pandemic

Argentina has passed no specific legislation in respect of the conduct of arbitration during the pandemic. Only the regulation of the compulsory judicial mediation process has been amended, to allow for such mediations to be held electronically and through online hearings.

Impact of the pandemic in the practice and procedure of commercial arbitration and ADR in Argentina

The impact of the pandemic in the practice of arbitration in Argentina has been varied. Some arbitral institutions adapted quickly and continued to run their caseload remotely, while others suspended their proceedings during the March to August 2020 general lockdown. For example, one of the main arbitral institutions, the Centro Empresarial de Mediación y Arbitraje (CEMA), announced that proceedings could continue to be conducted remotely, including through virtual hearings. By contrast, another large arbitral institution, the Bolsa de Comercio de Buenos Aires, imposed a blanket suspension of proceedings throughout the lockdown, before implementing a system of electronic submissions in August 2020 (which still does not include virtual hearings).

Also worth noting is the opening of a Permanent Court of Arbitration (PCA) office in Buenos Aires in early 2020, which also includes hearing facilities. This provides a physical location for in-person hearings in cases administered by the PCA in the region, avoiding the need for long-distance travel to the PCA’s headquarters in The Hague.

Further, with respect to compulsory judicial mediation, in April 2020 the Ministry of Justice and Human Rights issued a resolution providing for hearings to be conducted electronically.^[189] Voluntary mediation has also been provided remotely by CEMA since the beginning of the pandemic.

Impact of the pandemic on the use of ICT

In general terms, the pandemic has encouraged the development of ICT in Argentina. A number of arbitral and mediation institutions have adopted practical measures to conduct their proceedings remotely issuing guidelines and rules for the efficient use of new technologies.

In fact, while most institutions used to require the submission of physical documents, some of them suppressed this requirement and now allow documents to be submitted electronically only.

Whether there is legislative provision for ODR, delivery of awards online and/or online enforcement

Argentine law does not include specific provisions with respect to these matters. However, the International Commercial Arbitration Law recognises the arbitrators’ power to conduct the arbitration in the manner they deem appropriate.^[190] On the basis of this powers, it is possible to conduct cases remotely, provided that the parties’ due process is respected.

The same applies to domestic arbitrations, governed by Code of Civil and Commercial Procedure, which allows both the parties and the arbitrators to decide on the characteristics of the proceedings.^[191] This flexibility has allowed the continuity throughout the pandemic of international arbitrations seated in Argentina.

Impact on costs

The pandemic has not resulted in material changes to the cost of arbitration and mediation practice in Argentina. Institutions have not increased their costs as a result of the migration to electronic proceedings or for other reasons. The main impact of electronic proceedings has been the elimination of certain expenses that would normally be incurred on traditional paper proceedings, such as courier costs, and travel and organisation of in-person hearings.

Whether ‘document-only’ arbitration is permitted in Argentine law

Article 72 of the Argentine International Commercial Arbitration Law, which is based on the UNCITRAL Model Law, provides for ‘document-only’ arbitration, if agreed by the parties.

Domestic arbitrations are governed by the Code of Civil and Commercial Procedure, which, while not expressly permitting ‘document-only’ arbitration, it does not prohibit it either. Therefore, ‘document-only’ domestic arbitrations are likewise permissible if agreed by the parties and provided that the parties’ due process is respected.

Whether physical or ‘in person’ hearings are required under Argentine law

Argentine law does not require physical or ‘in-person’ hearings in arbitration.

Arbitral institutions’ protocols

A special committee from CEMA is currently working on a protocol for the conduct of hearings in emergency contexts such as the pandemic and for the use of technology in arbitration. The Bolsa de Comercio de Buenos Aires also reports to be working on a protocol for the conduct of ‘in-person’ hearings in the context of the pandemic.

Legislative changes resulting from the pandemic

At the outset of the pandemic, the National Congress transferred a series of time-limited powers to President Alberto Fernández to address a public emergency in a broad range of economic and fiscal matters, including health and social protection. In March 2020, Fernández declared a ‘sanitary emergency’ pursuant to these powers.

Since then, the Argentine Government has adopted several measures to mitigate the economic impact of the pandemic and to promote economic recovery. This has included implementing regulation granting tenants extensions on the term of expired leases; suspending evictions and freezing rent prices. Other measures included the establishment of maximum prices for food and other essential goods; enactment of an emergency family income; credits to small companies for the payment of salaries and prohibition on dismissals/suspensions from employment for a period of 60 days.

Updates

Asia Pacific

Australia – a common law jurisdiction:^[192] Jo Delaney, Baker & McKenzie, Sydney

There have been no changes since July 2020.

China – a civil law jurisdiction:^[193] Gary GAO, Zhong Lun Law Firm, Shanghai

Whether there have been any material changes to the practice and procedure of commercial arbitration since July 2020

The pandemic’s impact on China mainly took place at the beginning of 2020. There have not been any material changes to commercial arbitration practice in China resulting from the pandemic since July 2020.

Accelerated use of ODR since July 2020

Life and routine work in China have returned to normal since March 2020. Even though people could travel within China freely in the second half of 2020, the experience of ODR made more parties s choose approaches such as online meetings and online hearings to reduce travel costs and promote problem-solving efficiency.

Increased use of innovative digital technology tools/solutions since July 2020

There has been an increased use of innovative digital technology tools/solutions since July 2020. For instance, the Shenzhen Court of International Arbitration’s (SCIA’s) online hearing platform incorporated a real-name authentication step, which requires identification verification, phone number verification and facial recognition verification. Many online hearing platforms in China also support fast audio-to-text transcription conversion, which swiftly facilitates the instant production of transcripts right after a hearing completes.

Legislative changes resulting from the Covid-19 pandemic since July 2020

In China, no major changes to arbitration-related laws and regulations have been made resulting from the pandemic since July 2020.

Hong Kong SAR – a common law jurisdiction:^[194] Kim Rooney, Arbitrator and Barrister, Hong Kong

The trend toward conducting arbitration hearings online^[195] or in a hybrid format (partly online and partly in person) has continued. For example, parties regularly obtain the assistance of the Hong Kong Arbitration Centre (HKIAC) to conduct such hearings, irrespective of whether they are being conducted under the HKIAC Arbitration Rules. For a fee, the HKIAC can provide a dedicated virtual hearing room, with technical support and access to third-party service providers for the online platform and transcripts (among other services).

Hong Kong eBRAM International Online Dispute Resolution Centre Limited (eBRAM)

On 29 June 2020, eBRAM commenced the Covid-19 Online Dispute Resolution Scheme (the ‘Covid-19 Scheme’).^[196] Its mission is to fairly, efficiently and cost-effectively deal with disputes related to the pandemic, using a three-phase process of negotiation, mediation and arbitration on an expedited basis, where:

1. a dispute is directly or indirectly related to the pandemic;
2. the claim amount is HKD 500,000 (around US$64,400) or less; and
3. rither one of the parties in the dispute (claimant or respondent) must be a Hong Kong resident or company.

The registration fee for each Party is HKD200 (around US$25). eBRAM has received a grant from the Hong Kong Government to pay the fees of neutrals.

Update on the HK–PRC interim measures arrangement

On 27 August 2020, the HKIAC reported that, since 1 October 2019, it has processed 25 applications made to the mainland Chinese courts for interim measures under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (the ‘Arrangement’). ^[197] This Arrangement is unique.

Pursuant to the Arrangement, parties to arbitral proceedings seated in Hong Kong administered by one of six qualified institutions with offices in Hong Kong (HKIAC, China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center, International Court of Arbitration of the International Chamber of Commerce – Asia Office, Hong Kong Maritime Arbitration Group, South China International Arbitration Center (HK) and eBRAM) may apply to mainland Chinese courts for interim measures in relation to the arbitral proceedings.^[198]

In February 2021, the HKIAC reported^[199] that since its entry into force on 1 October 2019, the HKIAC had processed 37 applications made to the mainland Chinese courts for interim measures. Among other things, 34 applications were made for preservation of assets. Two were for preservation of evidence and one was for preservation of conduct.

The total value of assets sought to be preserved across all applications was RMB 12.5bn or approximately US$1.9bn. HKIAC was aware of 24 decisions issued by the intermediate people’s courts (IPCs). In 22 out of 24 applications, the courts granted the applications for preservation of assets upon the applicant’s provision of security and two rejected such applications. The total value of assets preserved amounts to RMB 10bn or approximately US$1.6bn.

Approximately 27 per cent of the applications were made by parties from mainland China and 73 per cent were made by parties from jurisdictions outside of mainland China (the British Virgin Islands, the Cayman Islands, Hong Kong, Samoa, Singapore, Switzerland and Taiwan). Approximately 60 per cent of the applications concerned assets or evidence owned by mainland Chinese parties, 24 per cent concerned assets on the mainland owned by non-mainland parties (ie, from the British Virgin Islands, the Cayman Islands, France, Hong Kong and the Netherlands), and 16 per cent concerned assets owned by both mainland and non-mainland parties (ie from the British Virgin Islands, the Cayman Islands, Hong Kong, the Netherlands, and St. Kitts and Nevis). The applications were made to 17 different IPCs in the following mainland Chinese cities: Beijing, Dalian, Dongying, Guangzhou, Hangzhou, Jinan, Lianyungang, Nanjing, Shanghai, Shenzhen, Xiamen, Yantai and Zhaoqing. Twenty-three applications were submitted to the IPCs by the applicant directly and 14 were submitted by HKIAC to the IPCs upon their request.

Arbitration ordinance amendments

On 24 February 2021, the Hong Kong Government introduced into the Hong Kong Legislative Council amendments to the Hong Kong Arbitration Ordinance. As stated in the Hong Kong’s Government’s press release,^[200] it is stated that:

‘The amendment aims to fully implement the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region signed between the Hong Kong SAR Government and the Supreme People’s Court of the People’s Republic of China last year.

The purpose of signing the supplemental arrangement is to bring it more fully in line with the current practice of international arbitration, including aligning the definition of the scope of arbitral awards with the prevalent international approach of ‘seat of arbitration’ under the New York Convention.

It also allows parties to make simultaneous applications to both the courts of the Mainland and the Hong Kong SAR for enforcement of an arbitral award.’

India, a common law jurisdiction:^[201] Vikas Mahendra and Prerana Reddy, Keystone Partners, India Keystone Partners, Bengaluru

Whether there have been any material changes to the practice and procedure of commercial arbitration since July 2020

There have been no material changes.

Whether the pandemic accelerated/continued to accelerate the use of ODR since July 2020

A number of arbitrators and arbitration institutions have now resumed normal physical operations. Some arbitrators are continuing to provide parties an option of participating via a videoconference link. On the institutional front, the Nani Palkhivala Arbitration Centre has tied up with the Centre for Online Resolution of Disputes and launched an arbitration-specific virtual hearing room facility for its users.

Conduct of evidentiary hearings

In arbitrations where videoconferencing is being used, parties have also used them for conduct of evidentiary hearings.

Communication methods among institutions/arbitrators, counsel, parties and others

A number of counsel are continuing to embrace videoconferencing facilities to interact with their instructing counsel and parties. This is a significant departure from past practice and looks like it will become a more permanent feature.

Protocols or practices to ensure that witnesses giving evidence remotely do so without undisclosed assistance

No new protocols have been put in place by arbitration institutions in India since July 2020.

Delivery of decisions and awards

In high-value arbitrations, decisions and awards continue to be provided in hard copy, except on rare occasions. In a positive development, a High Court has recognised and acted upon an arbitral award that was provided virtually. However, in a number of very low-value disputes, arbitrators and institutions have started using digital signatures for execution of awards.

Costs of proceedings

Some counsel have begun charging separate (and often lower) fees for virtual hearings as compared to physical hearings and this has in turn reduced cost of some proceedings.

Increasing use of innovative digital technology tools/solutions since July 2020

Some institutions offer transcription using technology tools, and the use of technology platforms for documents sharing is becoming more common. Otherwise, there have been no significant developments.

Legislative changes resulting from the pandemic since July 2020

There have been several extensions to the moratorium granted under the Insolvency and Bankruptcy Code. Periods of limitation have continued to be extended even post July 2020.

Singapore – a common law jurisdiction:^[202] Tat Lim, Aequitas, Singapore

Changes to the practice and procedure of commercial arbitration and related ADR in Singapore since July 2020

There have been no material changes to the practice and procedure of commercial arbitration in Singapore as a result of the pandemic since July 2020.

Restrictions on whether arbitration proceedings must be heard physically are determined in accordance with the applicable arbitration rules which parties have agreed to in their arbitration agreement.

For example, in relation to arbitrations conducted in accordance with the procedural rules set by the SIAC, there is no prohibition against holding hearings electronically under the SIAC Rules so long as the arbitration is conducted in a manner that is appropriate to ensure the fair, expeditious, economical and final resolution of the dispute.^[203]

While the SIAC does not have a suggested protocol for virtual hearings, it has published a guide setting out various considerations parties should take into account on whether their case is suitable for virtual hearing.^[204] This may include, but is not limited to, the procedure for witness testimony and measures to ensure the security and confidentiality of the hearing.

Mediation

While there have been no material changes to the practice and procedure of related ADR solutions, such as mediation, as a result of the pandemic, the Singapore Convention on Mediation came into force on 12 September 2020. The Singapore Convention on Mediation aims to provide a uniform and efficient framework for internal settlement agreements resulting from mediation and applies to international settlement agreements resulting from mediation, concluded by parties to resolve a commercial dispute.^[205]

Mediation of disputes online is in conformity with the terms of the Singapore Convention on Mediation. Mediation settlement agreements can be signed by parties electronically and/or by hand, with the agreement sent to the parties and the mediator, without invalidating the agreements.

The pandemic continues to accelerate use of online litigation and ODR

The pandemic continues to accelerate the use of ODR in Singapore.

Arbitration

Previously, Maxwell Chambers had offered fully virtual hearing ‘rooms’ via the videoconferencing platform, BlueJeans. In September 2020,^[206] Maxwell Chambers announced that it would now offer both hybrid and virtual hearing solutions at its videoconferencing facilities. In a hybrid hearing setup, Maxwell Chambers is able to accommodate clients’ request to conduct hearings with the appropriate safe distancing measures in place. In addition, the videoconferencing platform Zoom has now been added as possible software to conduct both hybrid and virtual hearing solutions.

As Covid-19 measures in Singapore have eased to facilitate business operations and enabled more employees to return to the workplace, the SIAC^[207] has reopened its physical offices – albeit with restricted operating days and hours – to facilitate the delivery, where necessary, of physical copies of documents or facsimiles. Regardless, the SIAC continues to request that all communications with it continue to be conducted by email or other means until its physical offices fully reopen.

Mediation

The Singapore International Mediation Centre (SIMC) continues to adopt its SIMC Covid-19 Protocol to provide route for business to resolve commercial disputes amid the pandemic.

In September 2020, SIMC announced^[208] its collaboration with the Japan International Mediation Center (JIMC) in signing a Memorandum of Understanding to operate a joint protocol, the JIMC-SIMC Joint Protocol. The joint protocol aims to provide cross-border business, including companies along the Singapore-Japan corridor, with a route for resolving commercial disputes amid the pandemic.

Increasing use of digital technology tools

To bolster its hybrid and virtual hearing solutions in respect of arbitration hearings, Maxwell Chambers also provides a range of services including remote transcription, interpretation and a digital hearing solution to facilitate the hybrid or virtual hearing.^[209] In addition, a dedicated moderator and Maxwell Chambers staff member is present during the hearings to render technical assistance.

Changes to arbitration law due to the pandemic since July 2020

There have been no changes to the law of Singapore concerning the conduct of arbitration since July 2020.

Europe/the UK

England and Wales – a common law jurisdiction:^[210] Mark Clarke, Viv Thien and Thomas Harper, White & Case, London

Practice and procedure of English arbitration and ADR

There have been no material changes to the legislation governing arbitration in England and Wales since July 2020. As to arbitral practice, the following trends have continued.

Prevalence of virtual hearings

The pandemic has continued to increase the use of virtual hearings, although where possible, some hearings have been conducted in part in-person (eg, with counsel teams congregating – at appropriate social distances – in the same conference room, while the tribunal, client teams, fact witnesses and/or experts remain in different locations). Because tribunals are becoming increasingly comfortable with virtual hearings, it seems likely that procedural or interim hearings will continue to be conducted online, particularly when this would enable an earlier date for the hearing to be set. However, in-person hearings are likely to remain the preferred option for substantive merits hearings, particularly those involving cross-examination of fact witnesses and experts.

Arbitral institutions have taken steps to facilitate parties’ access to arbitration remotely. The LCIA has been fully accessible throughout the pandemic, and the LCIA Arbitration Rules 2020 (the ‘LCIA Rules’, which came into effect on 1 October 2020) expressly provide for electronic submission of the Request for Arbitration^[211] and Response,^[212] virtual hearings,^[213] and electronic signing^[214] and transmission^[215] of awards. The London Chamber of Commerce and Industry has recently launched the London Chamber of Arbitration and Mediation (LCAM), which has published its own set of Arbitration Rules that are similar to the LCIA Rules and expressly refer to virtual hearings.^[216]

Use of innovative technology solutions

Arbitral institutions continue to experiment with different forms of technology. For example, the LCAM promotes an application called MARCO as a case management platform. This is the first example of an arbitral institution advertising blockchain technology for this purpose,^[217] and may offer a robust cybersecurity solution to arbitration proceedings.^[218] More generally, AI is increasingly being utilised in document production in England and Wales to improve predictive coding and minimise review time.^[219]

International travel restrictions

As of 18 January 2021, all travel corridors were suspended and any travellers arriving into the UK from anywhere except Ireland, the Channel Islands and the Isle of Man are required to quarantine in either: (1) the place they are staying; or (2) a UK Government-approved hotel for ten days. Incoming travellers must also have proof of a negative coronavirus test before travelling, and get two coronavirus tests after they arrive – the first on day two and the second on day eight of quarantining.^[220] Participants in arbitration are not exempt from the self-isolation period.^[221] Furthermore, any traveller that has been in or passed through any of the countries listed on the ‘Red List’ on the UK Government website will be refused entry into the UK altogether.^[222] From 8 March 2021, anyone travelling abroad from England must complete a form to declare their legally permitted reason for overseas travel.^[223]

Brexit and data protection

Under the terms of the EU–UK Trade Cooperation Agreement, personal data can continue to flow freely from the European Economic Area (EEA) to the UK until the earlier of either: (1) the date the European Commission issues its adequacy decision regarding the UK; or (2) 1 May 2021 (which automatically extends to 1 July 2021 unless either side objects). As a practical matter, entities can continue to transfer personal data from the EEA to the UK during this period. As for personal data transfers from the UK to the EEA, because the UK has effectively transposed the General Data Protection Regulation, there should be few changes to the current regime – even after the transition period.^[224]

Germany – a civil law jurisdiction:^[225] Anna Masser, Jana Loewer and Carolin Happ, Allen & Overy, Frankfurt

Regarding the practice and procedure of commercial arbitration in Germany, there have not been major changes compared to the situation in July 2020. We have witnessed a continued acceleration in the conduct of online hearings and regarding the use of electronic communication methods.

Further, the German Government tried to mitigate the impact of the pandemic, for instance by implementing a travel voucher solution, a provision that reverts the burden of proof in the field of rent and lease agreements, and further rules regarding the suspension of the obligation to file for insolvency.

MENA

Egypt – a civil law jurisdiction:^[226] Mohamed S Abdel Wahab, Zulficar & Partners Law Firm, Cairo

There have not been any material changes to the practice and procedure of commercial arbitration in Egypt resulting from the pandemic since July 2020. In this respect, the accelerated access to (and use of) information and communication technologies continued to grow, especially with respect to virtual hearings. This has been confirmed by a recent decision of the Egyptian Court of Cassation, rendered on 27 October 2020, where the court expressly acknowledged the increased use of virtual hearings in arbitrations across the globe and was keen on incorporating an express reference to the expression ‘virtual hearings’ in English language in its decision, which proves that the conduct of virtual hearings is consistent with the Egyptian Arbitration Law.

Despite the absence of new or specific Covid-19 legislation in relation to arbitration, the leading dispute resolution institution in Egypt, the CRCICA, continued to adopt precautionary measures and adapt some of its services in response to Covid-19 by offering guidance notes to arbitration users to ensure smooth administration of ongoing proceedings and the filing of new cases. The CRCICA resumed work normally as of 1 September 2020; however, it continued to encourage arbitration users to file notices of arbitrations, written submissions and exhibits online via email, and also, to the extent possible, hold hearings online (in reference to Articles 17.3 and 28.4 of the CRCICA arbitration rules granting such authority and possibility to arbitral tribunals).

On 25 January 2021, due to the second wave of the pandemic, and in order to ensure the health and wellbeing of arbitration users as well as employees, the CRCICA implemented new temporary measures in relation to conducting hearings/meetings at its premises. The CRCICA limited the number of party representatives in hearing rooms to two people in small rooms and three people in the large room, such that party representatives exceeding these numbers will not be admitted in the hearing rooms. Also, case meetings and deliberations conducted at the CRCICA premises shall not exceed seven persons, provided that attendees shall maintain physical distancing and wear masks in addition to the measurement of their body temperature. In this respect, in 2020, the CRCICA witnessed and provided technical assistance to a significant number of virtual hearings which were held using videoconferencing and various virtual platforms, such as Zoom, Webex and Microsoft teams.

As to the use of ODR services in Egypt, it is worth noting that the statutes of the new Egyptian Centre for Voluntary Arbitration and Settlement of Non-Banking Financial Disputes (the ‘Centre’), as well as its arbitration and mediation rules, were issued by virtue of the Prime Ministerial Decree No 2597 of 2020 dated 10 December 2020 (the ‘Decree’). More specifically, Article 20 of the Decree provides for the establishment of an electronic registry for the Centre to register all data related to arbitration or mediation procedures under the auspices of the Centre, including:

• the names of the parties;
• their addresses;
• their contact details;
• their legal representatives and contact details thereof;
• the case numbers of the arbitration or mediation cases;
• a summary of the claims/relief sought;
• the names of the arbitrators or mediators; and
• the dates of issuance of the arbitral award or the settlement.

Article 21 of the Decree provides for the establishment of an official website for the Centre, and Article 48 grants the arbitral tribunal the right to decide to examine witnesses and experts through means of telecommunication that do not require their physical presence at the hearing (eg, video-conference). Also, Article 89 of the Decree acknowledges that notices and correspondences which are sent to the chosen electronic address (email) of a party are deemed delivered and produce their legal effect. Finally, Article 91 of the Decree expressly recognises electronic submissions allowing parties to submit online any memorial, including the request for arbitration or answer thereto, the statement of claim or statement of defence and counterclaim.

Nevertheless, arbitral awards must be authenticated and cannot be issued or delivered electronically. In the same vein, there are no online enforcement procedures for arbitral awards.

UAE – a hybrid legal system:^[227] Hassan Arab, Al Tamimi & Co, Dubai

The impact of the pandemic on ADR

The pandemic has undoubtedly accelerated the use of information and communications technologies in the UAE as a result of restrictions on movement. In this regard, the Dubai Courts issued Resolution No 30/2020^[228] for the postponement of all court hearings at Cassation, Appeal and First Instance from Sunday 22 March 2020 to Thursday 16 April 2020. All hearings and the filing of new cases are to be conducted electronically. The Abu Dhabi Courts issued Administrative Decision^[229] and provided that all court procedures, court hearings and notary public ratifications shall be done through electronic means including the filling of new cases.

This unprecedented global pandemic has had an impact on the manner in which arbitral proceedings, as well as other forms of ADR, have been conducted in the UAE. Such an impact has resulted in having these proceedings conducted for the most part in virtual form.

In line with the measures adopted by the UAE Government’s efforts to circumvent the spread and impact of the pandemic, the arbitration institutions in the UAE adopted measures, and issued press releases and guidance notes to arbitration users, to warrant and safeguard the smooth operation of the conduct of the ongoing proceedings and commencement of new proceedings.

Arbitral institutions publications

A Dubai International Financial Centre (DIFC)–LCIA Notice^[230] dated 8 April 2020 on temporary office closure as precautionary measures during Covid-19 urged arbitration users to file all correspondences and written submissions with respect to the pending proceedings, new requests for mediation or arbitration and emergency proceedings to be made electronically.

The Dubai International Arbitration Centre (DIAC) issued a press release^[231] on 26 March 2020 on measures during Covid-19, which provided that any new requests for arbitration, including supporting documents, should only be filed electronically and submitted through the institutions’ website and any case-related documents in ongoing cases should be submitted by email only.

The DIFC-LCIA Arbitration Centre (‘DIFC-LCIA’) unveiled the latest arbitration rules (DIFC-LCIA Arbitration Rules 2021) which took effect on 1 January 2021 replacing the Arbitration Rules 2016. The DIFC-LCIA Arbitration Rules 2021 aims to improve the efficiency and effectiveness of arbitration conducted under the DIFC-LCIA arbitration centre. The new set of rules provides for any written communication in relation to the arbitration to be delivered by email or any other electronic means of communication that provides a record of its transmission (Article 4.2).^[232] Similarly, the new amendment provides for the arbitral tribunal’s authority to decide on the conduct of a hearing, and the hearing may take place in person, or virtually by conference call, videoconference or using other communications technology (Article 19.2).^[233]

At the international level, the ICC launched its revised Rules of Arbitration (the ‘Revised ICC Rules of 2021’) on 1 December 2020, which entered into force on 1 January 2021. Article 26 of the Revised ICC Rules of 2021^[234] provides discretion for the arbitral tribunal to decide, after consultation with the parties and based on the facts and circumstances, to conduct hearings remotely by videoconference, telephone or other appropriate means of communication. This provision will assist to improve the efficiency in the conduct of arbitration during the pandemic, particularly taking into account the travel restrictions imposed in certain jurisdictions. The Revised ICC Rules of 2021 have also incorporated amendments aimed at enhancing the use of technology with respect to the written communications exchanged between parties (Article 3).^[235]

The ICC – which has its MENA Regional representative office in Abu Dhabi – issued ‘Guidance Note on Possible Measures aimed at Mitigating the Effects of the Pandemic’^[236] on 9 April 2020, which addresses issues relating to the efficiency of arbitral procedure, electronic service, electronic notification of the award, and means and protocol on virtual hearings. Most of the arbitral institutions in the UAE remained fully operational during the pandemic and all filings and new requests were submitted electronically.

The impact of pandemic on the use of ODR

Arbitrators and counsel remained generally available during the pandemic. There have been more logistical challenges to arrange for witnesses to appear, particularly during the lockdown, as a result of logistical issues, including accessibility to reliable connection points. There are no material changes regarding the techniques for cross-examination of witnesses and production of documents. The conduct of the hearing by the arbitral tribunals is mostly conducted through ODR mechanisms including virtual hearings and the use of information and communications technologies has been accelerated in the UAE.

‘In-person’ hearings and ‘document-only’ arbitration under the UAE arbitration law

Article 33 of the UAE Federal Law No (6) of 2018 on Arbitration (the ‘UAE Arbitration Law’) regulates the conduct of hearings, as well as arbitration proceedings conducted on a document-only basis. Article 33(2) of the UAE Arbitration Law provides that arbitral tribunals shall decide whether to hold oral hearings for the presentation of evidence or whether the proceedings shall be conducted on the basis of documents and other materials, provided that parties have not agreed otherwise.^[237] The arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party. The UAE Arbitration Law expressly provides that hearings may be held through modern means of communication without the physical presence of the parties at the hearing Article 33(3). The arbitral tribunal shall give the parties sufficient advance notice of any hearings.

Online service of awards and enforcement

Under the UAE Arbitration Law, the arbitral tribunals shall notify the parties of the award by communicating to each party an original or a copy of the arbitral award within 15 days from the date of issue of the award (Article 44). Hard copy delivery of the award is taking more time during lockdown as a result of restrictions on movement.

There is no provision for the online enforcement of awards under the UAE Arbitration Law, which is a matter regulated under the civil procedures framework.

Impact on costs

While virtual proceedings generally tend to be more cost effective, the costs of online proceedings depend on the technology used, and charges imposed by the institution (if any) and third-party services providers. The majority of the online platforms in the UAE are operated by third-party providers; however, it is noteworthy that these platforms should comply with international standards. Certain online platforms are not available in the UAE.

Confidentiality

Parties are obliged to observe confidentiality obligations under UAE arbitration law and applicable arbitration rules. Article 33 of the UAE Arbitration Law states that arbitral hearings shall be held in camera unless the parties agree, otherwise arbitrators’ awards are confidential and cannot be published in whole or in part except with the written consent of the Parties (Article 48).^[238]

Conclusion

While there have been no changes to the legislative framework of arbitration in the UAE resulting from the pandemic, given that the framework had paved the way for the virtual conduct of certain aspects of arbitration proceedings. However, protocols have been issued at both the local and regional level by arbitration centres relating to safety measures and guidelines to ensure the smooth operation of the conduct of the ongoing proceedings and filling of new cases.

North America

US – a common law jurisdiction:^[239] Meg Utterback, King & Wood Mallesons, New York

The US has not had significant changes to court and arbitral processes arising from pandemic restrictions since July 2020.

Activities are more institutionalised and running more smoothly as all parties adjust to remote work. There continue to be challenges with the use of technology (eg, the recent viral ‘cat lawyer’ video), but on the whole, courts and tribunals and counsel are adjusting well.

The protocol or practice in arbitration to ensure that witnesses giving evidence remotely do so without undisclosed assistance

The American Arbitration Association’s (AAA) Virtual Hearing Guide for Arbitrators and Parties^[240] and Model Order and Procedures for a Virtual Hearing via Videoconference^[241] provides that:

• each witness shall disclose at the start of the virtual hearing all people in the room with the witness;
• at any time, the chair may ask a witness to orient their webcam to provide a 360-degree view of the remote venue in order to confirm that no unauthorised persons are present;
• any authorised persons in the room with the witness must be identified at the start of the witness’ testimony;
• a witness will be directed to testify sitting at an empty desk or table and, during the videoconference, the witness shall always be in view of the camera to maintain integrity of the proceeding;
• a witness may not use a ‘virtual background’; instead, the remote venue from which the witness is testifying must be visible;
• if more than one person is attending the videoconference together in one room, they shall use one camera which shall provide a view of a reasonable part of, if not the entire room;
• at the arbitrator’s request, unknown attendees shall identify themselves by showing a piece of identification to the camera or by responding to the arbitrator’s questions regarding their identity; and
• before the hearing begins, counsel will be directed by the arbitrator to provide each witness with a clean, unannotated hard-copy set of exhibits to be referred to during the witness’s testimony and a copy of the witness’s statement, if any. During the hearing, the arbitrator may ask a witness to display the set of exhibits and the witness statement to confirm there are no annotations. A witness may not be aided by notes unless, upon a motion for good cause submitted by a party, the arbitrator has approved the use of notes.

Further arbitration, mediation or ADR institutions practice directions for conducting online proceedings including as to cybersecurity and confidentiality

• The AAA’s Virtual Hearing Guide for Arbitrators and Parties;^[242]
• International Council for Commercial Arbitration (ICCA)-New York City (NYC) Bar-CPR’s Protocol on Cybersecurity in International Arbitration;^[243]
• AAA-International Centre for Dispute Resolution (ICDR) Best Practices Guide for Maintaining Cybersecurity and Privacy;^[244]
• AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM;^[245]
• ICCA-IBA’s Joint Task Force on Data Protection in International Arbitration Proceedings;^[246] and
• American Bar Association’s (ABA) Privacy and Confidentiality Tips for Virtual Hearings.^[247]

Developments in use of AI for online proceedings for transcription, data security and privacy, data retention or communications

Please see the discussion of use of AI for online proceedings in Part II, covering:

• auto-transcription;
• document management and automated docketing;
• inferential AI;
• natural language processing (NLP); and
• visual perception.

Sources

• Albert F. Chan & Melissa Giddings, ‘Virtual Justice: Online Courts During Covid-19’^[248]
• JTC Resource Bulletin, ‘Introduction to AI for Courts’.^[249]

South America

Brazil – a Civil Law Jursidiction:^[250] Laura Helena Pinheiro de Oliviera, LP Consultoria, and Sergio Nelson Mannheimer, Mannheimer, Perez e Lyra Advogados, Rio de Janeiro and São Paulo

Arbitral chambers

Câmara de Arbitragem Empresarial – Brasil (CAMARB or Business Mediation and Arbitration Chamber – Brazil) passed Resolution No 15/2020 on 2 September 2020,^[251] which determined the continued suspension of in-person hearings due to the pandemic. This consideration was made based on the success of the hearings and meetings held remotely using virtual platforms since the beginning of 2020. The resolution also states that it will remain in force until expressly revoked by the presidency.

Part IV: Conclusion

As observed in the introduction to this article, as of April 2021, the pandemic has had an enormous impact on litigation globally. It has caused many jurisdictions to conduct proceedings online for the first time, at least in part, and accelerated the use of online proceedings in arbitration and mediation.

Many of the changes in the practice and procedure of dispute resolution systems triggered by the pandemic’s impact are likely to be preserved. After one year, such adaptation increasingly includes use of innovative digital technology.

A paradigm shift in commercial dispute resolution globally is underway arising from the combined effect of innovative digital technology and the pandemic. Online proceedings in international commercial dispute resolution encourage the adoption of international best practices. However, there is a growing divergence in the resources available to commercial dispute resolution stakeholders that needs to be addressed to ensure a fair, efficient and trusted international commercial dispute resolution system. International multilateral agencies have an important role to play in this work.

Schedule 1: substantive and temporary laws and regulations during the pandemic in 23 jurisdictions

Schedule 1 outlines the substantive and temporary laws and regulations passed during the pandemic in Argentina, Australia, Brazil, China, Egypt, England and Wales, France, Germany, Hong Kong SAR, India, Indonesia, Japan, Kenya, Nigeria, the Philippines, Russia, Saudi Arabia, Singapore, South Korea, Sweden, Turkey, the UAE and the US.

Appendix 1: Litigation

Appendix 1 outlines the legislation and regulations, court practice directions and guidelines issued in response to the pandemic for litigation and associated ADR in Argentina, Australia, Brazil, China, Egypt, England and Wales, France, Germany, Hong Kong SAR, India, Indonesia, Japan, Kenya, Nigeria, the Philippines, Russia, Saudi Arabia, Singapore, South Korea, Sweden, Turkey, the UAE and the US.

The information in Appendix 1 has been extracted from the completed questionnaires and summaries submitted by contributors to the two DRI articles in October 2020 and May 2021 unless otherwise stated.

Appendix 2: Arbitration

Appendix 2 outlines the relevant legislation and regulations, and arbitral institutions’ guidelines for arbitration and associated ADR issued in response to the pandemic in Argentina, Australia, Brazil, China, Egypt, England and Wales, France, Germany, Hong Kong SAR, India, Indonesia, Japan, Kenya, Nigeria, the Philippines, Russia, Saudi Arabia, Singapore, South Korea, Sweden, Turkey, the UAE and the US.

The information in Appendix 2 has been extracted from the completed questionnaires and summaries submitted by contributors to the two DRI articles in October 2020 and May 2021 unless otherwise stated.

Appendix 3

Dispute Resolution International is most grateful to the following contributors to this article who have gathered together the information to complete the questionnaires, extracts of which are in Appendix 2, and/or who compiled the summaries appearing in this article.

Litigation

Arbitration

The Editor also thanks Yik On Chan (Bobo), a PCLL student at the Chinese University of Hong Kong, for her kind assistance in proofreading and research. The editor also thanks Yik On Chan (Bobo) and Cheuk-Fai Chan (Jeffrey), a Postgraduate Certificate in Laws (PCLL) student at City University of Hong Kong, for their assistance in the preparation of the October 2020 article’s Appendices 1 and 2 (which have been expanded upon in this article).