OUT-LAW GUIDE 8 min. read
17 Apr 2020, 10:11 am
Government-imposed 'lockdown' restrictions on movement of people and business activity have had a serious impact on the day to day operations of Europe's commercial courts. While provisions are in place to deal with urgent matters, businesses seeking to enforce contractual rights through litigation and alternative dispute resolution (ADR) processes such as arbitration, adjudication and mediation may experience delays and face additional logistical hurdles.
The courts of England and Wales have acknowledged that it will not be possible to achieve 'business as usual' during the coronavirus pandemic. However, the courts have been moving towards electronic working - for example, for filing documents - for many years now, and additional measures have now been put in place to assist the courts in trying to achieve continuity of service.
The Lord Chief Justice has recently issued guidance on court arrangements in response to Covid-19 which states, among other things, that the default position is now that hearings should be conducted with one, more than one or all participants attending remotely where possible. For example, the Court of Appeal recently held a hearing using Skype. In addition, many more procedural matters will be resolved on paper, and final hearings and hearings with contested evidence will be included within those which will be conducted using technology.
Julian Diaz-Rainey
Partner
The courts in England and Wales have been moving towards electronic working - for example, for filing documents - for many years now, and additional measures have now been put in place to assist the courts in trying to achieve continuity of service during the pandemic.
As quasi-judicial processes, it may well be possible to continue arbitrations and adjudications using video and telephone hearings, much in the same way as the courts are trying to continue. Mediations might be less successful if conducted remotely as they are a type of facilitated settlement, although it will be for the parties to agree whether or not to proceed with the mediation.
Yes. Certain court matters, such as those involving injunctions, are to be prioritised.
Yes, it is possible to issue claims.
Contact Julian Diaz-Rainey, Katherine Davies and Michael Fenn for queries relating to commercial litigation in England and Wales.
The French government plans to introduce ordinances to adapt the judicial system during the lockdown period as part of the enabling provisions in the State of Health Emergency Bill.
The new regime will allow for the extended use of closed sessions and videoconferencing when judicial hearings are normally meant to be public, and most civil and commercial proceedings will be suspended until the end of the confinement measures. In addition, all procedural time limits in civil and commercial procedures will be adapted, suspended or interrupted retrospectively as from 12 March 2020 until three months after the end of the governmental measures to slow the spread of the virus.
France is also home to one of the world's leading arbitrational institutions, the International Chamber of Commerce (ICC), which remains fully operational during the coronavirus outbreak. The ICC has requested that all communications be conducted primarily by email during this time. All hearings scheduled to take place at the ICC Hearing Centre in Paris before 13 April have been postponed or cancelled. Meetings scheduled at other ICC locations will be conducted virtually.
The French courts' continuity plans strictly limit their activity to a number of 'essential disputes', such as summary civil and commercial proceedings if they are urgent.
Parties must be able to demonstrate urgency, and constraints stemming from confinement largely limit such possibilities. In addition, initiating proceedings requires the delivery of a summons by a bailiff to the defendant - something which is largely affected by confinement measures and will therefore limit the launch of new proceedings.
Contact Melina Wolman for queries relating to commercial litigation in France.
In Germany, the federal states (Bundesland) are responsible for their own courts, and there is no common regulation of how the courts are dealing with disputes in response to Covid-19. In practice, handling currently varies from court to court, and even from judge to judge in some courts. Some judges have postponed hearings ex officio, usually only when one or both parties request it. Very few judges have not postponed hearings so far, but this will not be sustainable in the long term.
Sibylle Schumacher
Partner, Co-lead of Litigation, Regulatory & Tax
Every court [in Germany] is maintaining the operation of justice at least in an emergency mode, and urgent matters are still being dealt with.
Even the highest German courts have postponed oral hearings and renderings of judgments. Some federal states have issued guidelines urging judges to set deadlines very generously. Quite a few procedures are now being transferred to written proceedings, with no oral hearing necessary.
Every court is maintaining the operation of justice at least in an emergency mode, and urgent matters are still being dealt with.
Arbitrators, adjudicators and mediators can decide how best to handle their caseloads themselves - again, there is no specific regulation. However, gatherings are currently not allowed in most German federal states and curfews are being imposed in some cases. It can therefore be assumed that all meetings and hearings in arbitration, adjudications and mediations have been postponed or transferred to video or telephone calls.
Yes, it is still possible to make urgent applications.
Yes.
Contact Sibylle Schumacher for queries relating to commercial litigation in Germany.
In Northern Ireland, the default position is that all non-urgent matters will be adjourned by a judge without a hearing. In most cases, the adjournment period is for eight weeks.
The exception is where parties have agreed a way forward in their case, in which case they can file the relevant form with the court two days ahead of the hearing date.
No specific provision has been made for arbitration, adjudications or mediations. However, as mediation is not governed by the court, it would be open to the parties to arrange a mediation, subject to it being safe to do so and where a mediation could be conducted remotely.
Yes, such as injunctions and judicial reviews. Where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place. The judge may limit the number of people present in court at any time, and members of the public should not attend. Urgent matters will generally be undertaken remotely either by live link, email or telephone.
The position is still to be established and clarification on this point is awaited from both the High Court's Central Office and the Law Society of Northern Ireland.
Contact Deirdre Cormican and David Kirkpatrick for queries relating to commercial litigation in Northern Ireland.
The High Court and the Commercial Court in Ireland remain open. Cases can be commenced through the Central Office of the High Court in the normal way, and the Central Office has a 'drop box' procedure in place to address concerns presented by Covid-19. This means that the Statute of Limitations continues to run.
The president of the High Court has directed that no trials will begin in the High Court before the end of the current court term, 3 April. Cases, including related non-urgent motions, stand adjourned with liberty to re-enter. In Commercial Court cases where the court has made directions as to the exchange of pleadings, affidavits for motions or witness statements, these directions remain open and must be complied with by the parties.
The Covid-19 pandemic is causing practitioners and clients to consider replacing in-person ADR with virtual ADR.
The Covid-19 pandemic is causing practitioners and clients to consider replacing in-person ADR with virtual ADR. A number of Irish mediators offer online mediation services or mediation by conference call, and this continues to be available.
Arbitration can take place via video conferencing and by evidential documents being emailed to the arbitrator, who can then ask questions by teleconferencing, video conferences and email correspondence. It continues to be available.
Yes. Judges are available to hear urgent commercial litigation cases – for example, injunctions and their enforcement and urgent applications for judicial review. Events can more quickly and profoundly for a party in the current unfolding crisis, and it is worth noting that all the usual suite of injunctions can be applied in Ireland.
Otherwise, a case may be treated as urgent if a good case as to why can be made. A party can email the relevant court registrar setting out the reasons why the case should be considered urgent. Notice should be given to the other side, which must be given the chance to set out its position.
Yes. The Central Office of the High Court is where all commercial cases are commenced by plenary, special or summary summons, or in specific instances by originating notice of motion. The Statute of Limitations therefore continues to run.
Contact Ann Henry for queries relating to commercial litigation in Ireland.
The position for commercial disputes in Scotland continues to evolve. The courts are currently dealing with urgent business only, although some courts are allowing hearings to proceed on written submissions or via telephone or video conferencing where possible. However, the position is changing daily.
Arbitration, adjudications and mediations are essentially private contracts between parties so matters will be decided on an individual basis, most probably in line with public advice on safety. Where hearings are required and can take place remotely, we expect them to proceed.
Urgent applications, including for interim interdict (the Scottish term for injunction), continue to be dealt with at this time.
Yes.
Contact Jacqueline Harris and Jim Cormack QC for queries relating to commercial litigation in Scotland.
The Spanish government declared a 'state of alarm' on 14 March 2020. The government declared the suspension of all procedural deadlines and hearings, as well as a prohibition on submitting written documents and communications before the courts and tribunals, limiting access only to those documents that relate to proceedings that have been declared urgent and that cannot be postponed by court order.
Legal proceedings that may be considered urgent, necessary and unpostponable include: those relating to measures for the protection of minors; protection orders and any precautionary measures in relation to violence against women and minors; any legal action in cases involving prisoners or detainees; or urgent actions relating to prison surveillance.
On 13 April, the state secretary for justice issued a resolution aimed at re-starting Spanish judicial activity. Among other measures, the prohibition on submitting written documents and communications before the courts was lifted as of 15 April, although the suspension of all procedural deadlines and hearings remains in force.
The measures taken by arbitral institutions vary depending on the arbitration court. For example, the Madrid Court of Arbitration (Corte de Arbitraje de Madrid) continues to operate, but offers virtual hearings or meetings if necessary. The Spanish Court of Arbitration (Corte Española de Arbitraje) has suspended the time limits in all arbitration proceedings that were in progress on that date while the state of alarm remains in force. Various mediation institutions have also suspended deadlines.
Urgent cases can still be dealt with, including applications for preliminary measures or injunctions that cannot be postponed.
Yes, proceedings can now be commenced. As of 15 April it is possible to file claims, communications and other documents before the courts.
There is currently a reduced level of staffing in the courts but it is expected that this will be increased in the coming weeks so as to continue with the progressive rehabilitation of the service of justice.
Contact Fernando Gutiérrez for queries relating to commercial litigation in Spain.
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