*/
One area where the COVID-19 global pandemic’s impact has been deeply felt is in national courts. As of early 2020, the potential for contagion spread made in-person court appearances impossible in many jurisdictions. For some judicial systems, interim solutions to keep dockets moving were deployed, such as virtual hearings. But many judicial systems were forced to suspend operations altogether while solutions were developed. Even in jurisdictions that could immediately implement virtual settings, this did not always allow disputes to proceed uninterrupted. In some cases, moving to a virtual forum was not a comprehensive solution. The outcome is another looming crisis for many judiciaries around the world: a compounding bottleneck of cases that now threatens to overwhelm dockets in many regions for months or years to come.
As global justice systems seek long-term solutions to alleviate the burden that they now find themselves under, many are seeing the capacity for arbitration to provide a substantial contribution. Arbitration is a mechanism that has historically supplemented and supported domestic judiciaries and has the potential to do so now in a significant way. Moving disputes, especially commercial disputes, into arbitration provides a beneficial solution to both parties and judiciaries. This is because of the autonomy arbitration gives parties in choosing not only the process by which their dispute will be resolved, but also their decision maker.
Parties in arbitration have the freedom to select arbitrators based on any factors they deem relevant and desirable, such as experience as a judge or technical expertise in a certain industry. Parties in arbitration also have the ability to agree the briefing and hearing schedule of a dispute directly with their chosen arbitrators. They need not wait in a queue to appear on a docket. In turn, when parties resolve their dispute in arbitration instead of resorting to the courts, the courts’ dockets are freed up to address matters which cannot be heard in any other forum. This in turn alleviates the burden on national courts and ensures swifter due process for all.
Parties in arbitration can proceed with their disputes independent of the courts but with the assurance that the process is legally binding and enforceable. In most jurisdictions, the validity of arbitration is not tied to specific physical venues. Parties may choose any physical location for hearings that is convenient for them, even one outside the relevant jurisdiction. They may also choose to hold hearings virtually with all parties remaining in their home locales. The location of the proceedings in arbitration will often have no bearing on the law that is applied to the substantive dispute, nor on the enforceability of a resulting award.
For commercial disputes arising during the pandemic, arbitration has become an increasingly attractive option. But for commercial disputes that had already entered litigation and were stalled by the pandemic, arbitration may offer solutions to these parties as well. Parties may agree to move their existing disputes from litigation into arbitration on the condition that the arbitrator adopt any decisions already made by the courts. Parties may also choose to selectively define the substantive issues the arbitrator may consider. Parties may even choose a retired commercial judge or counsel with extensive commercial litigation experience as their arbitrator to ensure a cohesive transition from litigation to arbitration.
The due process concern that ‘justice delayed is justice denied’ has rarely been more pressing than it is today. Arbitration as a mechanism for commercial dispute resolution has the potential to provide solutions for parties in receiving timely outcomes while also alleviating the significant burden of delayed cases which many courts now face. As has been the case throughout history, arbitration can be a vital means to support judiciaries and parties in achieving justice, even in the face of a global pandemic.
One area where the COVID-19 global pandemic’s impact has been deeply felt is in national courts. As of early 2020, the potential for contagion spread made in-person court appearances impossible in many jurisdictions. For some judicial systems, interim solutions to keep dockets moving were deployed, such as virtual hearings. But many judicial systems were forced to suspend operations altogether while solutions were developed. Even in jurisdictions that could immediately implement virtual settings, this did not always allow disputes to proceed uninterrupted. In some cases, moving to a virtual forum was not a comprehensive solution. The outcome is another looming crisis for many judiciaries around the world: a compounding bottleneck of cases that now threatens to overwhelm dockets in many regions for months or years to come.
As global justice systems seek long-term solutions to alleviate the burden that they now find themselves under, many are seeing the capacity for arbitration to provide a substantial contribution. Arbitration is a mechanism that has historically supplemented and supported domestic judiciaries and has the potential to do so now in a significant way. Moving disputes, especially commercial disputes, into arbitration provides a beneficial solution to both parties and judiciaries. This is because of the autonomy arbitration gives parties in choosing not only the process by which their dispute will be resolved, but also their decision maker.
Parties in arbitration have the freedom to select arbitrators based on any factors they deem relevant and desirable, such as experience as a judge or technical expertise in a certain industry. Parties in arbitration also have the ability to agree the briefing and hearing schedule of a dispute directly with their chosen arbitrators. They need not wait in a queue to appear on a docket. In turn, when parties resolve their dispute in arbitration instead of resorting to the courts, the courts’ dockets are freed up to address matters which cannot be heard in any other forum. This in turn alleviates the burden on national courts and ensures swifter due process for all.
Parties in arbitration can proceed with their disputes independent of the courts but with the assurance that the process is legally binding and enforceable. In most jurisdictions, the validity of arbitration is not tied to specific physical venues. Parties may choose any physical location for hearings that is convenient for them, even one outside the relevant jurisdiction. They may also choose to hold hearings virtually with all parties remaining in their home locales. The location of the proceedings in arbitration will often have no bearing on the law that is applied to the substantive dispute, nor on the enforceability of a resulting award.
For commercial disputes arising during the pandemic, arbitration has become an increasingly attractive option. But for commercial disputes that had already entered litigation and were stalled by the pandemic, arbitration may offer solutions to these parties as well. Parties may agree to move their existing disputes from litigation into arbitration on the condition that the arbitrator adopt any decisions already made by the courts. Parties may also choose to selectively define the substantive issues the arbitrator may consider. Parties may even choose a retired commercial judge or counsel with extensive commercial litigation experience as their arbitrator to ensure a cohesive transition from litigation to arbitration.
The due process concern that ‘justice delayed is justice denied’ has rarely been more pressing than it is today. Arbitration as a mechanism for commercial dispute resolution has the potential to provide solutions for parties in receiving timely outcomes while also alleviating the significant burden of delayed cases which many courts now face. As has been the case throughout history, arbitration can be a vital means to support judiciaries and parties in achieving justice, even in the face of a global pandemic.
Chair of the Bar Sam Townend KC highlights some of the key achievements at the Bar Council this year
Louise Crush of Westgate Wealth Management highlights some of the ways you can cut your IHT bill
Rachel Davenport breaks down everything you need to know about AlphaBiolabs’ industry-leading laboratory testing services for legal matters
By Louise Crush of Westgate Wealth Management sets out the key steps to your dream property
A centre of excellence for youth justice, the Youth Justice Legal Centre provides specialist training, an advice line and a membership programme
By Kem Kemal of Henry Dannell
Mark Neale, Director General of the Bar Standards Board, offers an update on the Equality Rules consultation
Joanna Hardy-Susskind speaks to those walking away from the criminal Bar
Imposing a professional obligation to act in a way that advances equality, diversity and inclusion is the wrong way to achieve this ambition, says Nick Vineall KC
Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
By Ashley Friday of AlphaBiolabs