International arbitration often equals international travel for both counsel, witnesses, and arbitrators. But with the new reality of travel restrictions, “shelter in place” orders, remote work, and restrictions on gathering, in person hearings, especially among persons from different nations, may not be feasible, at least in the short term, and maybe longer.
Both the U.S. and the EU have implemented severe travel restrictions. The U.S. currently restricts foreign nationals from 26 European countries from entering the U.S. as well as those who have travelled to China or Iran in the past 14 days. On Monday, March 23, 2020, the U.S. travel ban will extend to the UK and Ireland. The U.S. has also closed its border with Canada for all non-essential travel and will be closing its border for non-essential travel with Mexico. Additionally, the U.S. Department of State advises all U.S. citizens to avoid international travel.
The EU announced on March 17, 2020 that it would close its external borders to all non-essential travel for 30 days. People within the EU member countries can still travel between those countries. EU member countries must put their own restrictions in place in order to implement the EU initiative. The U.S. Department of State provides a list of current travel restrictions by country, including not only U.S. travel restrictions but each country’s entry and exit requirements.
In addition to government travel restrictions, parties must also consider firm and company travel restrictions. While government travel restrictions may not prevent a witness from appearing in person, the witness’s company may have barred all international travel.
Guidance from Major Arbitral Institutions
The major Arbitral Institutions have all released general guidance regrading COVID-19:
When considering whether to proceed with a scheduled in-person hearing, parties should establish an open line of communication and raise concerns sooner rather than later. In some cases, perhaps many, it may be impossible for parties to proceed with an in person hearing at this time due to travel restrictions. If some, but not all, required persons can be present, the parties should consider whether it is both safe and fair to each side to conduct part of the hearing in person and have some persons, such as witnesses, participate virtually.
Navigating the alternatives to in person hearings requires creativity and cooperation, and it remains to be seen whether or how arbitral institutions or arbitration tribunals may pressure or force parties to participate in non-traditional hearing procedures. The Arbitration Rules of some major arbitral institutions allow parties flexibility in hearing format. For example, Article 19.2 of the London Court of International Arbitration (“LCIA”) Rules allows a hearing to take place “by video or telephone conference or in person (or a combination of all three).” Article 23(5) of the ICDR Arbitration Rules allows witnesses to be examined “through means that do not require physical presence.” The UNCITRAL Arbitration Rules contain an almost identical provision.
The ACICA encourages all arbitrators and parties to use its video-conferencing and virtual facilities “whenever possible.” The ICDR , HKIAC , and Maxwell Chambers also provide information regarding their virtual hearing or e-hearing technology. While other arbitral institutions may not have such information posted on their websites, this does not mean that the technology is not available, and parties should definitely inquire. And as governments and businesses adopt new policies and protocols on a daily basis, arrangements that seemed solid when made may become impossible before they can be implemented.
Whether to continue with a scheduled in-person hearing, to delay, or use video conference technology for all or part of a hearing involves a cost-benefit analysis of a variety of factors, including whether hearing participants are able to travel to the hearing location, whether hearing participants will be admitted into the hearing location, and whether any hearing participants have an increased risk of developing a severe form of COVID-19. Delos Dispute Resolution has provided a comprehensive checklist for parties considering the impact of COVID-19 on upcoming arbitrations and mediations that will continue to be updated.