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The dispute resolution community has continued to respond admirably to the COVID-19 pandemic. Throughout the pandemic, courts, arbitrators and mediators have taken the necessary steps to ensure that the business of resolving disputes has been able to continue. The rapid adoption of technology has enabled virtual proceedings to take place across many jurisdictions. Though no industry has escaped the pandemic unscathed, the litigation and alternative dispute resolution space has adapted to keep cases moving. Largely due to the pandemic and government response measures, there has been an influx of disputes arising out of supply chain and service disruptions, business interruption, and in connection with commercial leases, among many others.

UNITED STATES

Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

“The coronavirus pandemic and environmental, social and corporate governance (ESG) issues have dominated the last 12-18 months, influencing the types of commercial disputes that have arisen. The pandemic dealt blows to many businesses, resulting in an influx of business interruption litigation and disputes arising out of supply chain and service disruptions and commercial leases. While these disputes disproportionately affected the entertainment, retail and service industries, no industry is immune from ESG-related disputes.”

MEXICO

Bufete Asali S.C.

“There is no area of law which has not been profoundly affected by the COVID-19 pandemic, and commercial disputes have been no exception. There has been a significant increase in disputes in the financial services and real estate sectors, as a result of the disruption caused by the pandemic, both to long-term contractual relationships and the expectations that parties had at the time of drawing up their commercial agreements. Most of these disputes have revolved around technical discussions of issues such as force majeure, the enforcement of material adverse effect clauses and the suitability of different methods for real estate valuation.”

ARGENTINA

Marval O’Farrell Mairal

“Over the past year, we have seen a marked increase in state interventions in regulated sectors, such as the energy and telecommunications industries. Many of these regulations have been related to the COVID-19 pandemic. As a result, the number of disputes in these sectors has increased considerably. On the one hand, a significant portion of these cases involve disputes between private parties in which they discuss the impact of the new regulations on their relationships and who will bear those consequences. Arbitration is the preferred dispute resolution method for these types of complex disputes, as they involve confidential or highly technical subjects.”

UNITED KINGDOM

Winston & Strawn LLP

“In addition to the infrastructure and energy industries, private equity houses continue to play a key role in a significant number of disputes. It is not uncommon to see these investors run into various joint venture disputes. The disruption caused by the pandemic is also likely to increase the number of disputes over the terms of earn-out payments. By the same token, it would not be surprising to see more cases involving insolvent parties. This can result in some interesting and difficult legal issues as the jurisdiction of insolvency is often not the jurisdiction of the underlying dispute.”

IRELAND

Mason Hayes & Curran LLP

“Pre-pandemic, regulatory disputes including financial services, data privacy or competition law matters were trending. The pandemic has done little to change this, but it has brought forward other areas of dispute. The pandemic has also led to a growth in commercial property disputes. Early on, we saw tenants attempting to negotiate deals with landlords and now we are seeing landlords, particularly those operating in the retail sector, taking legal proceedings against high profile, non-performing tenants. Unfortunately, these rental disputes are going to continue for the foreseeable future, and as government subsidies come to an end, we are likely going to see an increase in insolvencies.”

FRANCE

FLV & Associés

“The COVID-19 pandemic and the health and safety measures subsequently introduced have had a significant, disruptive impact on most business contracts. As a result, many litigations have been launched in relation to the lack of proper or timely contractual performance. The crisis has also caused an unusual trend of disputes. For instance, the shutdown of so-called ‘non-essential businesses’ has led to an increase in commercial leases disputes. In most situations, commercial tenants that had their activity stopped or slowed, ceased to pay their rent, often with the help of government measures which allowed small and medium-sized enterprises (SMEs) to suspend their rent under specific conditions.”

SWITZERLAND

Wenger & Vieli Ltd

“The last 12-18 months have primarily been shaped by the consequences of the COVID-19 pandemic. While certain large industries may not have experienced any immediate consequences, other industries have suffered and seen a significant increase in the number of disputes. We saw, for instance, several big construction projects, as well as entire supply chains, suffering from COVID-19-related delays, particularly in the production, delivery and distribution and sale of goods on an international level. Airport-related businesses were also hit very hard, many of which are now increasingly appearing as parties in arbitration cases.”

RUSSIAN FEDERATION

Allen & Overy

“Over the last 12-18 months, the dispute resolution landscape in Russia, understandably, has been dominated by COVID-19. Even though many contracting parties would have found mutually acceptable compromises to help get them through the pandemic-related restrictions, we have also seen an increase in the number of commercial disputes caused by COVID-19. Commercial real estate disputes, particularly with respect to the reduction of lease payments, are notable examples.”

SINGAPORE

Ashurst LLP Singapore

“Arbitration in Singapore has enjoyed something of a ‘bumper harvest’ over the last 12-18 months, with record numbers of new cases being referred to arbitration. Notably, applications for processes involving accelerated decision making, such as the appointment of emergency arbitrators and the use of the Singapore International Arbitration Centre’s (SIAC’s) expedited procedure and early dismissal, have been on the rise. This could, in part, reflect a greater consciousness among arbitration practitioners of the time and cost savings to be gained by their use.”

HONG KONG

Quinn Emanuel Urquhart & Sullivan, LLP

“We have seen an increasing number of fund-related arbitrations given the enormous impact that COVID-19 has had on portfolios. Liquidity has become a major priority. Similarly, as governments are intensifying their efforts to rein in cryptocurrency, we are receiving more interest from parties to file and defend claims as the value of digital currencies continues to fall. From a broader perspective, arbitration continues to thrive in, and shift toward, Asia. The Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre (SIAC) and China International Economic and Trade Arbitration Commission’s (CIETAC’s) 2020 figures were record-breaking.”

UNITED ARAB EMIRATES

Horizons & Co Law Firm

“From a local law firm perspective, we have seen a significant rise in litigation before the onshore federal courts, across the United Arab Emirates (UAE). A noticeable upward spike has been discernible in commercial lease terminations due to the ongoing effects of the COVID-19 pandemic as well as a noticeable rise in shareholder disputes and contractual termination cases across various industry sectors. There has also been a significant spike in construction disputes, with many main contractors complaining of a lack of payments and unlawful terminations of their respective contracts.”

SOUTH AFRICA

Herbert Smith Freehills

“Because of the COVID-19 pandemic and the hard lockdown imposed by the South African government in 2020, we have seen a steady rise in insurance disputes arising mainly from the repudiation of business interruption claims. The hospitality, leisure, tourism and restaurant industries appear to be the hardest hit by these repudiations. We have already seen instances where insurance policies have been amended and reworded by insurers, however it is likely that both insurers and insured alike will pay much closer attention to their policy wordings relating to business interruption cover, in the future.”

CONTRIBUTORS

Allen & Overy

Ashurst LLP Singapore

Bufete Asali S.C.

FLV & Associés

Herbert Smith Freehills

Horizons & Co Law Firm

Marval O’Farrell Mairal

Mason Hayes & Curran LLP

Quinn Emanuel Urquhart & Sullivan, LLP

Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

Wenger & Vieli Ltd

Winston & Strawn LLP