Head of International Arbitration Philippa Charles joined two members of Twenty Essex, Gordon Nardell QC and Angharad Parry, and Peter Ashford of Fox Williams, in a webinar on 22 July 2020 to discuss the practicalities of moving cases from a litigation setting to an arbitration one as an alternative to a delay of unknown duration.
The agility and responsiveness of the Commercial Court in London and the other leading commercial courts worldwide to the challenges to the continuation of access to justice posed by Covid-19 have been widely and rightly praised. Longer term, there are questions about the suitability of remote proceedings for many types of litigation matters. There is already a significant backlog in courts outside London, and other jurisdictions, of matters which are either unsuitable for remote hearing or case management or have been delayed by parties or by enforced court closures.
The consent of the parties is a fundamental pre-condition to such a transition, and it is clear that such consent is unlikely to be available in all cases. However, there are cases where the parties’ interests in speedy resolution may overcome a reluctance to move forum. This may include both cases which are more or less ready for hearing (to avoid the delay and additional cost of a postponement) and for early-stage cases, which may otherwise be affected by a long delay caused by the anticipated surge of future disputes arising out of the pandemic.
The lively webinar discussion included consideration of the factors that might support or militate against a litigation-to-arbitration transition. It also considered the practicalities involved in the conduct of such transferred proceedings in terms of the treatment of prior decision making, the involvement of, for example, third party participants, the costs implications of a transition (including the avoidance of some of the front-loading of the costs of English court litigation) and the treatment of the costs incurred up to the point of transition.
There is no easy answer to the challenges posed by the pandemic. However, the discussion in this webinar demonstrates that there are options available to parties to explore alternative ways to resolve their disputes. The continuity of business in the English Commercial Court makes a London-seated arbitration potentially more attractive to users because of the availability of the supervisory jurisdiction to support the arbitration process.
The full webinar can be found here.
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