Dispute Resolution in the Time of COVID-19
Dispute Resolution in the Time of COVID-19. A Hong Kong Lawyer's Perspective
We live in interesting times. While the legal community in Hong Kong have had a head start from lawyers in other parts of the world and have strived to minimise disruption in the times of COVID-19, these last two months have hardly been business-as-usual.
For litigators in Hong Kong, an immediate impact has been the prolonged closure of court registries. All ordinary hearings have been adjourned with little certainty on when they will resume. Our courts have only been dealing with urgent business and with our paper-based filing system, we have not been able to file court documents and commence new proceedings for the first months and a half of the outbreak. Our court registries eventually re-opened three weeks ago but closed again after two weeks due to a second wave of COVID-19 cases in Hong Kong.
As a result, we must constantly keep track of updates and navigate unprecedented and lengthy guidelines. When the registries temporarily re-opened, our team members rushed to be among the first in the queue to collect tickets to make court filings. This was of course contrary to the advice of social distancing, but we needed to get the job done. In one case, we successfully commenced proceedings on behalf of our client but with the second wave of cases, we haven't been able to take the next formal step.
Not unusual to see parties apply for time extensions or adjournment of hearings because of COVID-19
Arbitration, another popular form of dispute resolution, has not been immune. While leading institutions in Asia such as the Hong Kong International Centre (HKIAC) and the Singapore International Arbitration Centre (SIAC) have remained open and accessible for in-person hearings or meetings, with precautionary measures in place, throughout, on 17 March, the International Chamber of Commerce (ICC) announced that all hearings and other meetings scheduled to take place at the ICC Hearing Centre in Paris until 13 April 2020 have been postponed or cancelled. Institutions have also been inviting parties to consider using their virtual services.
When dealing with urgent hearings in court or arbitration hearings, we are faced with obstacles in relation to arbitrators, witnesses or counsel being unable to appear as a result of travel restrictions or mandatory quarantine arrangements. Changes can happen with little or no warning. We have also experienced difficulties in instructing barristers who have come into contact with the virus. It is now not unusual to see parties apply for time extensions or adjournment of hearings because of COVID-19.
As the world adapts to a new "normal", we will likely see an increased use of online dispute resolution. China has already been building various platforms. But many places will still need to invest more time to develop trusted platforms incorporating the latest technologies to ensure that confidentiality and privacy are protected and that systems are not vulnerable to hackers. New rules and procedures will need to be developed and tested. Even prior to the outbreak, Hong Kong has been working on eBRAM, an online dispute resolution platform to support business-to-business transactions with resolution of differences through negotiation, mediation and arbitration. We expect the eBRAM platform to be launched this year.
Fortunately I work at a firm that was able to swiftly mobilise staff to work from home by providing adequate technology. But this is not a given at every firm. Depending on where people live, they may not have WIFI access at home. Even with access to technology, it is impossible to guarantee that the connection will always be stable and reliable. Finally even if the technology works on our end, it needs to also work on the other end.
As the world adapts to a new "normal", we will likely see an increased use of online dispute resolution
This outbreak has called for the use of imagination to identify ways to safeguard our clients' interests. The situation is constantly changing and the impact of COVID-19 has been quickly spreading around the world. We need to find ways to maintain a routine, stay mentally and physically healthy, motivate our teams and separate work from our personal lives – which is not always easy when many people have children at home due to school closures and space is a luxury in a city like Hong Kong.
What this outbreak has taught us is that agility and adaptability are key to sustainability.