International Arbitration – The New Dynamics During The Time of COVID-19

“Resolving disputes by taking into consideration the health norms”

Ms Shivangi Sinha Assistant Professor New Law College, BVDU, Pune

Abstract- Arbitration as a process which we all are well aware about, but just to give a small snapshot, it is a concept used to resolve conflict without intervening into a system of litigation. i.e. in simple words to put forth, it is a type of out of court settlement process, mainly used in commercial disputes. This is used in both the domestic and in international forums, the difference is the way to govern it, however, the concept remains the same. If we will recall some past, Arbitration is one such process which in itself is technical friendly from its very inception. 

INTRODUCTION:-

In today’s pandemic situation we can observe a drastic change and effect in all the sectors, the legal sectors is no such exception. Starting from the virtual courts to taking up hearing online we can see that everyone is coming out of their comfort zone and getting them inculcated in the present scenario. In order to maintain the norms of social distancing, less contact, people are getting adhered to the technology at a large scale. Speaking about Arbitration, this is one arena which from the very stage of its commencement is contact-free. The majority of correspondence is done via electronic medium. Initiating from the notice given, to the appointment of Arbitrators everything is contact-free. All the managements done with the clients can be exclusively done via phone, mails or even via conferencing, which includes sending the statements of claims, counterclaims, any further applications in lieu of the proceedings. Even the digital signatures were adapted to send the documents for commencing the further process.

However, there are some practical problems, which do arise, for which we are still trying to find a solution. Like for instance, when we need to transmit or exchange some voluminous documents, it becomes difficult to exchange such documents on mails, for that we need to upload them on clouds with certain security. However, there are certain cases where there are technical glitches; then, they are sent by using physical means.

As already mentioned aforesaid, the confirmed cases of COVID- 19 are spreading drastically and have changed the picture of the nations. All the countries are worst affected, which has eventually created an ostentatious situation especially in countries like Western Europe or US, where actually most of the seat of arbitrations are situated.  These areas are the high- flying place where plentiful headquarters of many corporate sectors and law firms are located as well. The government of these areas has taken numerous measures to protect their contours which include the travel ban, social distancing, deferment of mass gatherings etc., which has severally affected a lot of foreign investors and Arbitration Institutions within their proceedings. However, they are working on the remedies to provide any situation of deadlock before it occurs, the first step is to forgo the time duration of the proceedings which are mentioned in the statutes and rules so that there are no situations of conflict arising within the legal sanctity. Even in the litigations matters court have come up with the orders to liberate the time limits given in the “Limitations Act” for any case to continue.

THE NEW DYNAMICS:-

Even before the WHO declared the COVID- 19 as a pandemic, International Arbitration had already started feeling its impact in many parts of China and even in Asia. Initially, it began remotely, but gradually various adjustments took forth. We are still fortunate enough to live in a world where there are technological advancements, and it becomes easy to cope up with such situations. Although there are chances of the influx of cases arising recently if such situations continue, many arbitral bodies have tried to keep themselves at par, for instance, the establishment of emergency arbitrators, these provisions can be utilized, where there is a requirement of some urgent relief. Even before the situation of COVID- 19 pandemic, there was access to these emergency situations, in order to have speedy resolutions to the disputes. The biggest impact actually can be seen during hearings, no matter we have the solutions of virtual hearings but there are many practical problems which occurs, like time zones, technologically issues, loose concentrations while protracted hearings. Theses methodology also restrains the parties from using the concepts of examinations, cross-examinations etc. No matter, the solutions are there, but the flexibility is lost. At times there are cases which require careful examination of evidence, written statements or any other required art of advocacy, all these perspectives are lost because of the undesirable circumstances.

SUMMATION:-

The above overview, therefore, can state a fact that there are pandemic situation going on, but we need to take out the measures accordingly. Many states have come up with various dealings which are followed by various institutions, for instance in UK the working of courts and various tribunals are confined into fewer buildings, many cases are now been conducted by video links. They have also come up with a new Coronavirus Act, which provides the procedures of hearings which will be further updated on the website. In US many hearings are postponed and have also cancelled many jury trials. Even the European countries have banned the entry of foreigners in their Schengen zone, which included some nearby stats as well. The ECJ has even postponed a number of cases, and many of the staffs are now working from home. Even in France, only some essential litigation are allowed, and the lockdown is continued. If we just focus on the Arbitration institutions, so even they are been governed under specify new made rules and policies, HKIAC is holding various webinars, ICC has published regulations related to virtual hearings, ICSID has adopted electronic filing as one of its default measure etc.

Henceforth it is pragmatic, that all the sectors even the Arbitration arena which no doubt projected the use of technology even in its preparatory state of proceedings are moving towards more flexible approach, and in my view, this is how a society should develop as well, few things cannot be changed but the development according to some stagnate structure can surely be done by coming out of our comfort zones.

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