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.

Travel Restrictions

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.[1] 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.[2]

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:

Arbitral Institution	Guidance
Australian Centre for International Commercial Arbitration[3]	The Australian Disputes Centre in Sydney remains open and is offering virtual room hire.  For more information contact info@disputescentre.com/au. Email the ACICA Secretariat at secretariat@acica.org.au before filing any new request for arbitration or mediation.  All filings should also be made at this address. The ACICA advises that cheque payments cannot be processed while the ACICA office is closed and employees are working remotely.
Hong Kong International Arbitration Centre[4]	HKIAC implemented a temperature screening policy for entry into its Hong Kong office. Pursuant to the Hong Kong government’s policy, any person arriving from any place outside of China and Mainland China is not permitted to entered HKIAC’s Hong Kong office for at least 14 days after arrival into Hong Kong.  Such persons must also be asymptomatic and must complete a Health Declaration Form found on HKIAC’s website.
International Centre for Dispute Resolution[5]	No hearings will take place in AAA-ICDR facilities after March 20 until at least April 17, 2020. Case management staff will contact parties and arbitrators to discuss alternative arrangements for hearings, including video and teleconferencing or postponements. The website provides guidance for in person hearings taking place outside of AAA-ICDR facilities.  Case management staff can coordinate calls to address concerns re offsite hearings.
International Centre for Settlement of Investment Disputes[6]	ICSID encourages parties and Tribunals to implement electronic-only filing of written pleadings. For questions re specific cases, parties should contact the Tribunal or Committee Secretary. For general questions, contact icsidsecretariat@worldbank.org.
International Chamber of Commerce[7]	The ICC strongly advises that all communication with the Secretariat of the ICC Court/ICC ADR Centre be conducted via email. Requests for arbitration, applications for emergency arbitrators, and requests in other ADR proceedings should be filed at the email addresses available on the ICC website. For questions re pending proceedings, parties should contact their case management team. Hearings and other meetings scheduled at the ICC Centre in Paris from March 17 until April 13, 2020 have been cancelled or postponed.
London Court of International Arbitration[8]	Parties should file requests through the LCIA’s online filing system. Parties should notify the LCIA at casework@lcia.org if they intend to make an application under LCIA Article 9. Parties and arbitrators should send all other questions, documents, and correspondence to casework@lcia.org or accounts@lcia.org. Only in exceptional cases will the LCIA receive telephone calls.
Singapore International Arbitration Centre[9]	SIAC directs parties to the guidance from Maxwell Chambers if an in person hearing is scheduled.[10]  Hearings have not been cancelled at this facility. For questions re current proceedings, parties should contact the Secretariat at +65 6713 9777 or email the SIAC Counsel in charge. SICA also directs parties to contact corpcomms@siac.org.sg for more information re the COVID-19 update.

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.

E-Hearings

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).”[11]  Article 23(5) of the ICDR Arbitration Rules allows witnesses to be examined “through means that do not require physical presence.”[12]  The UNCITRAL Arbitration Rules contain an almost identical provision.[13]

The ACICA encourages all arbitrators and parties to use its video-conferencing and virtual facilities “whenever possible.”  The ICDR[14] , HKIAC[15] , and Maxwell Chambers[16] 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.[17]

 

FOOTNOTES

[1] Those 26 countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

[2] COVID-19 Country Specific Information, U.S. Dep’t of State (March 11, 2020), https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html.

[3] Important Information for ACICA Users-COVID-19 Update, Australian Centre for International Commercial Arbitration, https://acica.org.au/important-information-for-acica-users/.

[4] Precautionary Measures at HKIAC in Response to COVID-19, Hong Kong International Arbitration Centre (March 19, 2020), https://www.hkiac.org/our-services/Facilities.

[5] COVID-19 Update, International Centre for Dispute Resolution (March 17, 2020), https://go.adr.org/covid19.html.

[6] Message Regarding COVID-19 (Update), International Centre for Investment Disputes (March 18, 2020), https://icsid.worldbank.org/en/Pages/News.aspx?CID=361.

[7] Covid-19: Urgent Communication to DRS Community, International Chamber of Commerce (March 17, 2020), https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other-neutrals/.

[8]LCIA Services Update: COVID-19, London Court of International Arbitration (March 18, 2020),  https://www.lcia.org/lcia-services-update-covid-19.aspx.

[9] COVID-19 Information for SIAC Users, Singapore International Arbitration Centre, https://www.siac.org.sg/images/stories/press_release/2020/[ANNOUNCEMENT]%20COVID-19%20Information%20for%20SIAC%20Users.pdf.

[10] Precautionary Measures in Response to Novel Coronavirus (COVID-19) Outbreak, Maxwell Chambers (Feb. 13, 2020), https://www.maxwellchambers.com/2020/02/13/precautionary-measures-in-response-to-novel-coronavirus-outbreak/.

[11] LCIA Arbitration Rules (2014), London Court of International Arbitration (October 1, 2014), https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Article%2014.

[12] International Dispute Resolution Procedures, International Centre for Dispute Resolution (June 1, 2014), https://www.icdr.org/sites/default/files/document_repository/ICDR_Rules.pdf.

[13] Art. 28(4), UNICITRAL Arbitration Rules, United Nations Commission on International Trade Law (2013), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/uncitral-arbitration-rules-2013-e.pdf.

[14] AAA-ICDR® Video Conferencing for Hearings, International Centre for Dispute Resolution, https://go.adr.org/aaa-icdr-video-conferencing.html.

[15] e-Hearings at HKIAC, Hong Kong International Arbitration Centre (2020), https://www.hkiac.org/content/e-hearings-hkiac.

[16] Maxwell Chambers Offers Virtual ADR Hearing Solutions, Maxwell Chambers, https://www.maxwellchambers.com/2020/02/18/maxwell-chambers-offers-virtual-adr-hearing-solutions/.

[17] Hearings in Times of Covid-19, Delos Dispute Resolution (March 12, 2020), https://delosdr.org/index.php/2020/03/12/checklist-on-holding-hearings-in-times-of-covid-19/#_edn7.

 

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship. Please contact your Sheppard Mullin attorney contact for additional information.*