Arbitration – Is COVID-19 an invitation to innovate?

With coronavirus now having been declared a global pandemic, it is clear that COVID-19 is presenting a serious threat to global wellbeing. Threats such as this test our ability to function and to operate as a society, from the individual level through to large commerce.

A central feature of society – and one which enables it to function properly – is the law. The application of the law and its enforcement is arguably the strongest force that binds people together harmoniously. It is difficult to argue otherwise if it is accepted that societal norms are essential for humans to operate.

Bio-threats such as COVID-19 challenge that binding force. There are two reasons for this. First, it stretches resources and imposes unpopular restrictions on people. Second, it challenges our ability to police the law and to ensure it operates effectively. Coronavirus has resulted in courts and tribunals closing down and the administration of justice put under strain.

Arbitration: potential solutions

However, there are solutions. For example, those who resolve their disputes through arbitration have an opportunity to quickly explore alternative ways of ensuring that their dispute resolution process is not derailed.

Arbitration hearings have so far been delayed against the backdrop of the global spread of COVID-19, but with appropriate flexibility, there is no reason that they cannot continue. After all, in principle, there's no requirement for parties subject to an arbitral process to travel to hearings and tribunals to sit together in the same room.

Global technology standards today make it entirely possible to hold hearings remotely. Parties can easily sit in the same virtual room over video link and conduct proceedings as if they were in the same location. There is no need to travel.

This is something that many practitioners will already have experienced. Evidence by video link has been common place for several years. Procedural hearings by telephone have been a regular feature for even longer. The principle of working remotely is not new to the arbitration professional, and it is not a giant leap for entire tribunal hearings to be conducted remotely.

Admittedly, there are some potential difficulties associated with virtual remote hearings. Time zones are one; where parties are far apart, time differences can unbalance party dynamics. Other complications to consider include connectivity issues, microphone sensitivity concerns, and the ability to cross-refer to documents effectively. There is also the issue of cyber security.

These are challenges which require careful thought to address. However, with the right technology and approach, they can be overcome – provided there is sufficient desire and flexibility on the part of the practitioners involved.

Looking forward

The risks presented by COVID-19 mean that parties should start looking at more creative ways to conduct their hearings. There is no need for wholesale shutdown; cases can continue.

In many respects, the introduction of COVID-19 into the global discussion may now prompt parties to consider other ways of working together. When it comes to arbitration, technology may provide a solution. This is an opportunity for innovation – one which will hopefully be embraced.