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The dispute resolution landscape of 2020 is very different to that of any previous year in living memory. The COVID-19 pandemic, which has caused such widespread disruption, has remoulded dispute resolution processes seemingly overnight. But despite the challenges presented by COVID-19, the dispute resolution space has proved remarkably resilient. This is due, in part, to the industry’s willingness to adopt new working practices and technologies. The pandemic has forced sudden changes to the way proceedings and hearings are conducted. Thankfully the community has adapted quickly, embracing new tools and guidelines. Courts and arbitral institutions have taken additional steps to reinforce this new paradigm, conducting digital hearings and assessing other, ‘future proof' measures.

UNITED STATES

New York International Arbitration Center (NYIAC)

“Since mid-March, the world has been adapting to the new normal of this global health crisis, with the US generally and New York specifically capturing top headlines. Accordingly, there is a pandemic ‘gloss’ on issues within international disputes, with an influx of force majeure claims and supply chain disruption. Stalled business practices lead to financial uncertainty and requests in parallel for third-party funding. Overall, we are likely to see a surge of disputes filed in key industries, including insurance and bankruptcy, in addition to employment claims. The US is also in the throes of the presidential election.”

ARGENTINA

Marval O’Farrell Mairal

“Currently in Argentina, arbitration is the main dispute resolution mechanism utilised for complex and cross-border contracts. In fact, it is becoming increasingly common for clients to request arbitration clauses be inserted into their agreements in these types of transactions. The infrastructure and energy industries are at the top of the list of sectors employing arbitration. The main challenge will be to consolidate this trend and reaffirm Argentina as an arbitration-friendly country, which will increase the confidence of foreign investors operating in the country.”

UNITED KINGDOM

Walker Morris LLP

“COVID-19 is creating its own challenges within the UK and globally, but we are increasingly finding companies are demonstrating an incredible resilience, finding new and innovative ways to weather what feels like an eternal storm. Prior to the pandemic, we were seeing an increasing appetite for advice on termination or variation of unfavourable contracts with suppliers and customers, and a new-found enthusiasm for ‘future proofing’, which is perhaps partially due to the Brexit uncertainties of the last few years. In addition, data protection and cyber security have come into sharp focus.”

FRANCE

FLV & Associés

“2020 has obviously been impacted by the COVID-19 pandemic and the lockdown ordered by the French government has disrupted court litigation cases. The crisis has also inevitably led to late performances, or a failure to perform contractual obligations, and the government has issued, among other measures, Order 2020-306, which was later modified by Order 2020-427, postponing the effective date of penalty, termination and forfeiture clauses for deadline dates expiring between 12 March 2020 and 23 June 2020. How courts will interpret and apply such measures, and perhaps qualify them as international public policy provisions, is a pending question.”

BELGIUM

Clifford Chance LLP

“The main challenge for litigation in Belgium is the general backlog and the ensuing delays in the treatment of cases. While simple matters, such as the recovery of unpaid invoices, may be treated expeditiously and interim measures and injunctive relief are available, the resolution of a general commercial dispute may take up to three years in the first instance and up to 10 years on appeal, depending on the complexity of the case. It remains to be seen how the stringent measures which were taken by the courts to combat COVID-19, most notably the suspension of hearings, will further impact the timetable for the treatment of ‘regular’ matters.”

SWITZERLAND

Wenger & Vieli Ltd

“Arbitration has grown in popularity in non-traditional regions, such as the Far East and Africa, which has increased the competition for arbitral institutions and historical seats of arbitration, including Switzerland. In addition, international commercial courts have emerged, which may provide a true alternative to both local state courts and arbitration, increasing the competition further. The biggest current challenge is the COVID-19 pandemic, which has required immediate changes be made to the way in which proceedings and hearings are conducted.”

GERMANY

Quinn Emanuel Urquhart & Sullivan, LLP

“Two current challenges of the German court system are reacting to the ramifications of Brexit and dealing with the consequences of the COVID-19 pandemic. In the wake of Brexit, many continental-European states are preparing for the time when many complex international and multijurisdictional disputes will no longer be brought to the English courts, but instead to the courts of a member state of the European Union (EU). Germany has had specialised judges qualified to deal with the subject matter of such disputes for quite some time. However, the challenge really is to offer more effective ways to fully conduct proceedings in English.”

AUSTRIA

Freshfields Bruckhaus Deringer

“The COVID-19 pandemic has created new challenges for arbitral institutions. Several major institutions, including the Vienna International Arbitral Centre (VIAC), issued a joint statement ensuring that pending cases may continue and that parties may have their cases heard without undue delay. Due to the introduction of an electronic case management system, the VIAC has always remained fully operational. The VIAC also issued ‘The Vienna Protocol – A Practical Checklist for Remote Hearings’, providing guidance for arbitrators and parties in determining whether the conduct of a virtual hearing is reasonable and appropriate for their case.”

SINGAPORE

Ashurst LLP Singapore

“Clearly, the COVID-19 pandemic has been at the forefront of these challenges in recent times. The cross-border nature of the pandemic poses particular difficulties for businesses operating internationally, and a patchwork of different legislation and guidance, and in some jurisdictions doctrines such as hardship and frustration, may well complicate, rather than assist, the ability of those businesses to respond to the pandemic.”

HONG KONG

Quinn Emanuel Urquhart & Sullivan, LLP

“The outbreak of COVID-19 has brought unprecedented challenges to companies on every level. The outbreak has led to, or will lead to, significant layoffs and other material cost-cutting measures which will impact already ongoing disputes and possible future disputes. Further, the outbreak has made physical meetings more difficult, as well as more important. To counter the increasing number of cases arising out of COVID-19, the Hong Kong government put forward a COVID-19 Online Dispute Resolution Scheme in late June to specifically cover cases that have a claim amount of a maximum of $500,000.”

UNITED ARAB EMIRATES

Norton Rose Fulbright (Middle East) LLP

“The COVID-19 pandemic has added to a host of market challenges which continue to impact business in the Middle East region and globally. The reduction in the oil price earlier this year and the impact of COVID-19 on the leisure and infrastructure industries continue to have a disruptive impact in the commercial arena in which disputes are on the rise as hard-hit businesses look to preserve cash flow.”

CONTRIBUTORS

Ashurst LLP Singapore

Clifford Chance LLP

FLV & Associés

Freshfields Bruckhaus Deringer

Marval O’Farrell Mairal

New York International Arbitration Center (NYIAC)

Norton Rose Fulbright (Middle East) LLP

Quinn Emanuel Urquhart & Sullivan, LLP

Walker Morris LLP

Wenger & Vieli Ltd