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The coronavirus (COVID-19) pandemic has acted as a catalyst for change in the commercial arbitration space in many ways. Since the virus began to spread globally in early 2020, there has been a big shift to virtual proceedings. Arbitration remains a popular method of resolving commercial disputes, due to party autonomy, the ability to appoint industry-specific arbitrators and the enforceability of awards across jurisdictions, among other reasons. The flexibility of arbitration has certainly served to reinforce its standing during the COVID-19 crisis.

UNITED STATES

New York International Arbitration Center (NYIAC)

“As in many countries, the pandemic created opportunities to pivot and reimagine the practice of international arbitration in the US. Since mid-March 2020, proceedings shifted to remote platforms, with 360-degree rotating cameras and Wi-Fi hotspots sent to witnesses, against the backdrop of arbitral institutions maintaining resilience with a robust offering of online best practice protocols. In May 2020, international organisations called for a moratorium on investor-state dispute settlement (ISDS) claims to allow states to focus funds and attention on the pandemic.”

ARGENTINA

Marval O’Farrell Mairal

“Between 2015 and 2018, Argentina modernised its arbitration legislation with the enactment of the Civil and Commercial Code and the International Commercial Arbitration Law, based on the UNCITRAL Model Law. Following these legislative milestones, Argentine courts have issued several rulings interpreting this legal framework in a way that is favourable to arbitration. Among other key aspects, many judges have analysed a restrictive application of the grounds for non-arbitrability, the recognition of the competence-competence principle and a limited judicial control of the arbitral award.”

UNITED KINGDOM

RPC

“A combination of technological advances, significant judgments and innovative institutional rules marked 2020 out as an exceptional year. Even though there was a hesitance to move to virtual hearings at the start of the pandemic, as time went on, they became the norm and are now the default mode of arbitration. There have been a plethora of webinars, podcasts and protocols supporting the use of technology in commercial arbitration, most notably from the Chartered Institute of Arbitrators (CIArb). The winners in all of this are the environment and the clients.”

FRANCE

Latham & Watkins LLP

“Like many other jurisdictions around the world, the international arbitration practice and related judicial activity in France has been heavily impacted by the COVID-19 pandemic over the past year. The Paris Court of Appeal postponed all hearings, as well as the issuance of pending judgments in set-aside proceedings and cases relating to the recognition and enforcement of arbitral awards. These cases were rescheduled from September 2020 onward. Consequently, we expect a significant reduction of the case law in matters relating to arbitration in 2020. By contrast, the arbitration community did not suspend its activity.”

GERMANY

Heuking Kühn Lüer Wojtek

“Despite the coronavirus (COVID-19) pandemic restrictions, the arbitration scene in Germany, like in many other parts of the world, has been very active. In the city of Hamburg, for example, the Hamburg International Arbitration Centre (HIAC) was founded with a hybrid inauguration ceremony and the online participation of many distinguished speakers, including Franco Ferrari, and participants. The HIAC at the Hamburg Chamber of Commerce is the home of several arbitration institutions, such as the Chinese European Arbitration Centre (CEAC) and fosters arbitration as a dispute mechanism.”

SWITZERLAND

Prager Dreifuss Ltd

“With travel restrictions, quarantine requirements and other COVID-19-related measures, it has been very difficult, if not impossible, to carry out physical hearings. Consequently, 2020 was the year of virtual hearings. While parts of arbitration proceedings have previously already been carried out remotely, such as procedural conferences by phone or witnesses examined by videoconference, the pandemic left arbitration users with no option other than to carry out fully-fledged virtual, or at least hybrid, hearings.”

ITALY

CMS Adonnino Ascoli & Cavasola Scamoni

“Recently, commercial arbitration in Italy does not seem to have experienced particular changes with reference to its diffusion, which still appears quite limited. In order to facilitate the use of this instrument, the national arbitration institutions have launched a series of initiatives aimed at streamlining the procedure. For example, new simplified procedures have been introduced, which are generally applicable when the value of the dispute is relatively low. Such procedures generally involve lower costs, the appointment of a single arbitrator, halving procedural timeframes and a single hearing except for special cases.”

RUSSIAN FEDERATION

Allen & Overy

“Local courts in Russia are not very supportive of arbitration. Thus, statistically between 25 and 35 percent of challenges brought against the awards are successful. Russian courts are also usually reluctant to issue interim measures in support of arbitration or assist in collecting the evidence. Licensed international arbitral institutions, such as the Hong Kong International Arbitration Centre (HKIAC) and the Vienna International Arbitration Centre (VIAC), do not administer domestic commercial disputes in Russia, so those should be referred to arbitration under the rules of Russian institutions.”

SINGAPORE

Ashurst LLP Singapore

“While South East Asia has been relatively successful in managing the impacts of coronavirus (COVID-19), ongoing travel bans and associated economic uncertainty have disrupted the progress of commercial disputes in the region. Parties contemplating, or engaged in, commercial disputes are less likely to be able to meet in person to amicably resolve their grievances, and national lockdowns have, in some countries, led to court backlogs and to arbitrations being put on hold. Levels of acceptance of virtual hearings vary across the region.”

HONG KONG

Hogan Lovells

“One important trend and development is the use of technology in international arbitration. In 2020, the international arbitration community used technology to help overcome the various challenges related to COVID-19 to continue to resolve disputes. For example, in 2020, the Hong Kong International Arbitration Centre (HKIAC) hosted 117 hearings, of which 80 were fully or partially virtual hearings. Arbitration has generally embraced technology more regularly and rapidly than national courts. Videoconferencing by witnesses and teleconference directions hearings are the norm in international arbitration.”

QATAR

Horizons & Co

“While the COVID-19 pandemic has caused operational disruption, domestic arbitral centres such as the Qatar International Center for Conciliation and Arbitration (QICCA) and Qatar International Court and Dispute Resolution Centre (QICDRC) have been quick to adopt online measures to ensure continuance of arbitration proceedings. Regarding other key trends and developments, the commercial arbitration domain within Qatar has evolved over the last few years, owing to circumstances including recent amendments to legislation governing arbitration.”

SOUTH AFRICA

Herbert Smith Freehills

“South Africa continues to develop its law on international arbitration as a distinct area of law which in many respects differs from the law governing purely domestic arbitration. The International Arbitration Act of 2017 (New Act) introduced the UNCITRAL Model Law which laid the platform for better alignment with international best practice. The Arbitration Act of 1965 (1965 Act) continues to govern purely domestic arbitrations. The recent re-establishment of the Commercial Court – as a division of the High Court – has further stimulated development.”

CONTRIBUTORS

Allen & Overy

Ashurst LLP Singapore

CMS Adonnino Ascoli & Cavasola Scamoni

Herbert Smith Freehills

Heuking Kühn Lüer Wojtek

Hogan Lovells

Horizons & Co

Latham & Watkins LLP

Marval O’Farrell Mairal

New York International Arbitration Center (NYIAC)

Prager Dreifuss Ltd

RPC