The outbreak of Covid-19 is affecting litigation and arbitration in various ways, ranging from an increased use of remote hearings to general court closures, depending on the countries and institutions concerned.
The following is a brief overview of the key measures that are being taken across the world, both in general and specifically in relation to legal proceedings. It covers courts in the following countries: UK, USA, EU (France, Germany, Italy, Spain), Middle East (Dubai, Israel), Australia, Brazil, Canada, mainland China, Hong Kong and India. Also included is basic information about the following international arbitral institutions: ICC, LCIA, HKIAC, and SIAC.
The challenges facing everyone involved in litigation and arbitration during this period are unprecedented. As the authorities and institutions react, new measures are being put in place daily. We will update this summary to capture these changes as frequently as possible, but in the meantime if you have any specific questions regarding the impact of the measures on existing or new cases, please contact us.
- People are advised to work from home where possible and also advised to stay at home, in strict isolation, for 7 days if they live alone and show symptoms of the virus - possibly longer if they share a home and they or someone else in their home shows symptoms.
- Everyone should engage in 'social distancing', and especially those who are aged 70 or over, have certain health conditions, or are pregnant. Letters have just been sent to 1.5 million people who are particularly vulnerable, asking them to take special measures.
- The Foreign and Commonwealth Office has also advised against non-essential travel abroad.
- According to the Government's guidance, hearings are continuing as normal for now. However, changes to individual hearings may occur due to absences and these will be communicated directly to the parties involved.
- Judges may consider using telephone and video links in a number of circumstances. New government guidance on this topic was issued on 18th March, and the Lord Chief Justice is encouraging one or more of the parties to attend a hearing remotely. In the Business & Property Courts a special protocol should be followed. QB Masters are taking a number of measures, including urging parties to postpone non-urgent hearings and warning of delays with e-filing.
- Another update from the Lord Chief Justice states that due to the difficulty in ensuring full participation, "no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned." Meanwhile, the government's new coronavirus Bill provides for greater use of video/audio hearings for criminal proceedings and magistrate courts appeals.
- The Supreme Court has issued an update on visits to their building. It makes clear that for now, the court is currently functioning as normal, but this is subject to change.
- The Queen's Bench Division has issued a statement making a few temporary changes from 19th March, closing various counters to the public. However, for the most part business will continue as usual.
- The Bar Council has called for the suspension of all in-person hearings except where a video link or phone hearing cannot accommodate the interests of justice. It also expressed concern with the cleanliness of the courts and with the capacity of video links to meet increased demand.
- For other guidance from the Law Society on Coronavirus, including links to helpful sites, please see this web page.
- President Trump has issued guidance asking Americans to avoid social gatherings of more than ten people and to limit discretionary travel. If US citizens travel outside the country, they have been warned that they may have to stay abroad for an indefinite period.
- Different states have adopted specific additional measures. The states of New York, New Jersey, Connecticut, Illinois and California are all ordering people to stay indoors.
- In the US Supreme Court, oral arguments were postponed for the 23rd-25th March and 30th March-1st April sessions. On 12th March, the court closed to tourists until further notice, but the building will remain open for official business.
- Other appeal courts have introduced different measures. For example, in the Federal Circuit Court of Appeals all cases scheduled for the April 2020 sitting will be conducted remotely.
- The Administrative Office of the U.S. Courts, which has put together a task force to share information and guidance, has told all federal courts to make preparations for the pandemic by replacing meetings with teleconferences and requiring staff to stay home at the first sign of symptoms.
- The judicial authorities in individual states are taking different approaches. Some have made no significant changes to their operations, while others have made substantial changes.
- Courts in several states, including New York, Washington State, Texas, Connecticut, Missouri, Florida, Arizona, Ohio and Virginia, have suspended jury trials. The Pennsylvania Supreme Court has announced that it will close all state courts from 19th March until at least 3rd April 2020.
- In the US, it is fairly common for lawyers to appear at court hearings by telephone. However, most lawyers would normally limit telephone appearances to non-substantive court hearings (like a scheduling conference). Now they may start to use the telephone for substantive motions too.
The European Commission has banned foreigners from entering the Schengen zone, which compromises most EU member states as well as Iceland, Norway, Liechtenstein and Swizerland. Travel between the UK and EU will be unaffected.
- Both the ECJ and the General Court have partially closed. Both courts will hear only urgent matters until further notice. All other cases already scheduled until 27th March at the ECJ and 3rd April at the General Court will be heard at a later date. The filing deadlines for all cases will not change.
- The building housing the courts will also be closed and staff will work from home.
- On 17th March, France imposed a lockdown. People in France are only allowed to leave their homes for necessary activities such as shopping for food or going to work.
- On 15th March, the Justice Minister said that only "essential" litigation will proceed. That includes hearings for people in custody, urgent cases handled by judges for children and procedures related to the eviction of a violent partner.
- The Government has advised people to stay at home and cancel any holidays. It has banned public gatherings and ordered non-essential businesses and shops to shut.
- Germany's Federal Administrative Court has cancelled hearings from 18th March to 19th April except for urgent matters that cannot be postponed. The building has been closed to the public, but the court will continue to accept filings as usual.
- The Federal Court of Justice has not posted any formal announcements, but it has cancelled a hearing that was due on Thursday.
- The entire country is in lockdown. No one is allowed to leave their home except for work, medical reasons, or in case of emergency. It has also been recently announced all non-essential businesses will close.
- The justice minister suspended all court hearings until 22nd March with very limited exceptions. He recommended videoconferences or other remote hearings for urgent criminal matters.
- Spain is in lockdown after declaring a state of emergency on 14th March. People may not leave their houses except to buy essential items or to go to work or to hospital.
- On 16th March, the judiciary announced that no courts would be closed unless required by health authorities. However proceedings and procedural deadlines would be suspended to focus on providing essential services.
- In Dubai, the local on-shore courts are being closed and the offshore courts will likely follow. Something similar may also happen in relation to the local arbitration institutions.
- Israeli Prime Minister Benjamin Netanyahu’s corruption trial has been postponed until 24th May due to concerns about coronavirus. The court's work has been limited to only urgent matters.
- Australia is banning all foreigners from entering the country.
- On 18th March, the prime minister announced an indefinite new ban on indoor groups of 100 people or more, with exemptions for schools, public transport, universities, prisons, courts, supermarkets and worksites.
- The Department of Foreign Affairs has also advised Australians not to travel overseas and called for Australians abroad to return home or risk being stranded.
- The Federal Court is putting in place the technology needed to hear all trials, to the extent necessary, via videoconferencing facilities.
- Courts across the state of Victoria will immediately suspend all future jury trials. The measure will apply to the county and supreme courts.
- The Sydney registry of the Family Court and Federal Circuit Court was closed on 16th March 2020 after a legal practitioner tested positive for Coronavirus. The courts are "reviewing their caseload" in case the situation escalates.
- Brazil has declared a state of emergency, but most general measures are being taken at state rather than federal level. However, land borders have closed now, and restrictions will be imposed on non-Brazilians entering the country through airports.
- On 19th March the Brazilian National Council of Justice issued a resolution suspending certain activities of the Brazilian courts and all court deadline until 30th April. In addition, only urgent and exceptional matters will be handled by the courts. However, the resolution does not apply to the Supreme Federal Court or the Electoral Courts.
- Canada has closed its borders to all foreign nationals except for US citizens. Citizens are advised against all non-essential travel.
- Individual provinces have taken additional steps. For example, Quebec has asked for bars, cinemas, arenas, spas and gyms to close indefinitely.
- The Ontario Superior Court of Justice announced that it will shut down most operations from 17th March until 3rd April. The court will continue to hear the most urgent matters.
- Alberta’s Court of Queen’s Bench is suspending all sittings except for urgent matters from 17th March until further notice. Civil matters other than pre-trial conferences and case management that are set to proceed before 22nd May, 2020 will be adjourned indefinitely.
- China is relaxing travel restrictions in the province of Hubei, sending thousands of workers back to jobs at factories desperate to get production going again.
- People entering the country from high risk countries are obliged to quarantine themselves for 14 days if they intend to visit certain parts of the country.
- During the height of the outbreak in February, the Supreme People’s Court of China ordered "courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.”
- An online video communication system app called Yunshenpan was used in Beijing No 1 Intermediate People’s Court to complete a hearing about a private loan dispute.
- The Supreme People’s Court of China has also promoted the use of ‘mobile micro court’ on the social media platform WeChat in 12 provinces and cities to help courts conduct trials on the Internet.
- There are three "internet courts" in China, which handle litigation procedures online from filing a case to issuing judgment documents.
- Hong Kong wants people arriving in the city to wear electronic tags so that their movements can be traced.
- Courts have generally been shut from Chinese New Year (25-28 January). However, urgent and essential court hearings and business have continued.
- A phased re-opening of the Courts over three weeks was announced in late February starting on 2nd March. The Courts will open fully from the 23rd March.
- It is anticipated that imported infections from travellers arriving into Hong Kong (many being students returning this week from the UK) may lead to a resurgence of the virus, and further court closures and other measures could therefore be implemented at any time.
- All Hong Kong Judiciary press releases arising from coronavirus can be accessed here.
- The government has ordered lockdowns in a number of districts across the country to help contain the virus.
- States across much of India have shut down schools, colleges, shopping malls, theatres and cancelled sporting events. Delhi is one or a number of cities that have banned all gatherings and closed all businesses that are deemed non-essential.
- Indian citizens have been advised to avoid all travel abroad that is not strictly necessary. Meanwhile, visas for foreigners have been suspended until mid-April.
- India’s Supreme Court has allowed the commencement of proceedings through video conferencing to allow the legal system to continue through the Coronavirus pandemic.
- The ICC International Court of Arbitration, which has set up a COVID-19 response group, has published a statement in which it encouraged parties and tribunals to keep appraised of developments and “consider discussing their potential impact on pending proceedings, if and when necessary”.
- It said, “With particular regard to attendance of scheduled hearings, other in-person meetings and any related travel by parties, arbitral tribunals, neutrals and others involved in pending proceedings, we urge you to consult any official recommendations or directives applicable (i) at the place of their departure and any transit points; and (ii) at the place where they will be held.”
- All hearings scheduled until the end of June in Paris or an affected area are being postponed or changed to virtual meetings.
- On 17th March, the ICC issued an urgent communication stating that all offices of the Secretariat of the ICC Court and the ICC ADR Centre are operational and that staff members are healthy and working remotely via mobile posts.
- The LCIA has announced that they are still operating normally, subject to a few precautionary measures concerning, for example, the filing of Requests.
HKIAC and SIAC
- The HKIAC has introduced a number of general precautions for its Hong Kong facilities, as has the SIAC.
Delos Dispute Resolution
- Delos Dispute Resolution has produced a useful checklist on holding arbitration and mediation hearings during the outbreak.