GAR Award-winning arbitral body Delos Dispute Resolution has updated its checklist on holding in-person arbitrations and mediation hearings during the covid-19 coronavirus pandemic, in particular to address a situation where one side wants to proceed with a case and the other to delay it.
Delos, which is run by former Dechert lawyer Hafez Virjee from London, was quick off the mark after the extent of the worldwide health crisis became evident, producing both a resource page on contractual and legal issues arising from covid-19 in early February and a lengthy checklist on holding arbitration and mediation hearings during the outbreak in early March.
The resource page, which is being continually updated, collates the client guidance that has been produced by law firms around the world on the coronavirus’s disruption of international supply chains and the impact of force majeure, business continuity and disaster recovery provisions in contracts under different governing laws. The page is organised by jurisdiction, topic and industry with an additional section for guidance published in languages other than English.
The checklist (the revised version is here) gives guidance on matters to consider in deciding whether to proceed with an in-person arbitration hearing; and precautions that should be taken before, during and after the hearing if it does go ahead. This obviously applies only to hearings scheduled to take place in countries or regions which are not in lockdown because of the coronavirus, meaning in-person gatherings are still an option.
The checklist acknowledges that, even where there is no lockdown, counsel and arbitrators may choose to hold a hearing in whole or in part using video conference technology or chat rooms in light of the pandemic. Where that happens, it offers brief recommendations, including that participants arrange prior testing of the equipment; allow reserve time in the hearing schedule for technical problems; and agree on whether the hearing should be recorded.
The checklist also recommends that parties agree on rules to follow in case the connection fails for one party (to avoid allegations of ex parte communications); on procedure for witness examination (particularly on who should be present in the room with the witness being examined); and on the documents available to witnesses or experts during their examination.
At the start of each online session, it says the tribunal may wish to confirm visually who is present online before proceeding with that session (for example, by having the video camera rotate). This can also be done to ensure compliance with procedural rules during the hearing.
Where a virtual hearing is not possible or desired, the checklist recommends both limiting the number of participants in in-person hearings to reduce contagion risk and shortening the length of proceedings and replacing oral closing submissions with written closing submissions if possible.
Before the hearing proceeds, all participants should have to confirm they have not recently been to any of the areas of the world worst affected by the virus or been in contact with anyone who has. They should also confirm they are not suffering symptoms associated with covid-19.
The list also includes advice on hearing venues – reminding parties to check their cleaning and disinfecting policy and ensure there are plentiful supplies of hand sanitiser, wipes and dustbins for discarded tissues. It says it is preferable for lunches and snacks to be served in individual packaging, rather than, say, a plate of biscuits.
With regard to greeting etiquette, it says it is acceptable for participants in a hearing not to shake hands and that they should refrain from handing out business cards and maintain physical distance.
Delos recommends an early conference call for all involved in a case to discuss these considerations and the designation of a “daily checker” to monitor and report on the spread of covid-19 and the measures being taken in response to it both in advance of and during the hearing. It advises participants in a case to stay abreast of changing travel restrictions and quarantine requirements in different countries and warns them to check their travel insurance policies to see what protections they offer.
It also considers the appropriate course of action if a participant in a hearing develops symptoms of covid-19 before a hearing, while it is underway or afterwards.
The checklist has been endorsed by institutions including the Vienna International Arbitration Centre and Stockholm Chamber of Commerce Arbitration Institute, which both posted it to their websites last month. Some hearing centres have produced covid 19 policies which draw on the checklist.
Virjee says version 2 of the checklist, available on the Delos website since late last month, contains an expanded appendix 1, which sets out a non-exhaustive list of considerations for deciding whether to maintain or postpone a hearing during the coronavirus pandemic. This addresses the common situation where the arbitrators and one party may be keen to proceed with the case, while the other party wishes to delay proceedings and may see the pandemic as the perfect pretext.
Considerations originally set out included the difficulty of securing the attendance of witnesses or experts; the availability of interpreters; arbitrators' and counsel's personal or legal preferences about conducting examinations by way of videoconference; the uncertainty about how soon another hearing might be scheduled; the delay this could add to proceedings; and due process issues.
The expanded appendix clarifies that the decision of whether to hold or postpone a hearing will need to be made on a case-by-case basis by the tribunal considering all of the relevant circumstances.
It says that rather than opting for an automatic suspension of the proceedings or of time limits due to covid-19, tribunals should decide on the basis of circumstances individual to each case, taking into account the provisions of the dispute resolution agreement, which may have time limits for pre-arbitral steps and fast-track arbitration; whether there is any request for interim measures; and requirements at the seat of arbitration.
In case of administered arbitration, the arbitrators and parties are required to liaise with the institution to discuss options and any covid-19 policies they have in place. The checklist emphasises that the parties should be given opportunity to comment on the tribunal’s decision as to whether to maintain or delay the hearing.
Virjee tells GAR that this appendix was expanded following feedback from VIAC, which has received multiple requests to suspend proceedings and time limits. Those making such requests often point to the example of national courts, which have suspended proceedings in many parts of the world, or of other arbitral institutions, such as the Milan Chamber of Arbitration, which have suspended time limits.
VIAC did not want it to be assumed by parties and representatives that this would always happen.
Other changes in the second version of the checklist reflect the evolution of the covid-19 outbreak worldwide and the way it is being managed, through confinement policies or testing. As tests for the coronavirus seem to be in increasingly limited supply in some parts of the world, Virjee has changed the guidance on what to do if a participant in a case develops symptoms before, during or after the in-person hearing.
If they can't get tested to confirm whether or not they have the virus, he advises that they do not participate in the case, letting others know the reason.
The new guidelines also reflect the fact that some institutions, such as the Hong Kong International Arbitration Centre and ICC International Court of Arbitration, have adopted policies whereby people with symptoms of covid-19 will be denied entry or isolated within the premises if the symptoms develop while they are there. The daily checker has to monitor institutional policy as well as the policies of national governments to prevent the spread of the virus.
A final appendix of the checklist, which remains unchanged, sets out personal grounds a person may give for not being able to participate in person at a hearing – including that they fall into a category of people declared by the World Health Organization to be more at risk of developing a severe form of covid-19; that they are pregnant; or that they need to be at home to care for children owing to the closure of nurseries, pre-schools and schools in their country or area of residence.
They are required by the checklist to provide a statement of truth that the appendix applies to them, without having to disclose the specific ground on which they cannot attend.
The checklist was drawn up by Virjee with feedback from Michael McIlwrath of GE, Maria Hauser-Morel of Hanefeld, Alice Fremuth-Wolf of VIAC and Mickael Viglino of JG Assis de Almeida & Associados. Virjee says that since the publication of the second version, there have been no further comments but Delos is open to more feedback and will make further changes if needed.
Delos also encourages practitioners to keep submitting materials to the resource page and readers can request materials on topics not yet covered.
"The volume of ongoing website traffic to the checklist and resource page has been considerable," he says. "In the past 3 days alone, these pages have been viewed over 200 times, on average for 6 to 7 minutes each time."
Delos was created in 2014 to offer a more time and cost-effective form of arbitration for small and medium-sized disputes and has won praise and a GAR award for its innovation.
It is soon set to open a new hearing centre in London, which will be known as London Delos ADR Place or LONDAP and will cater for the post-coronavirus demand for rooms in which to conduct hearings that have been adjourned during the crisis. Indeed, Virjee says that he has been receiving advance bookings for January 2021 even from counsel in confinement.
In time, he says Delos will draw up full guidance for how to conduct hearings of all type at LONDAP, "all in-person, all virtual and everything inbetween."