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COVID-19: Consequences for pending court and arbitration cases

17. March 2020

The outbreak of COVID-19 has so far had serious consequences all over the world. This is also the case in Denmark, where, among others, all public employees who do not have critical functions have been sent home so far until 27 March 2020, and where the Government now recommend that all gatherings and physical contact are avoided to reduce dissemination. On 17 March, the Government prohibited gatherings of more than 10 people by executive order. Accordingly, the outbreak of COVID-19 also has consequences for the courts and for pending court and arbitration cases in Denmark, and we see new developments on a daily basis.

To what extent are pending civil cases maintained in the courts?

As a result of the Danish prime minister’s announcement at the press conference held on 11 March 2020, the Danish courts have now initiated an emergency response plan. For pending cases this generally means that from 13 March 2020 and so far until 27 March 2020, the courts will only hear cases within ‘critical areas of practice’, as the employees of the courts have been sent home to the greatest extent possible.

In this newsletter, we will try to clarify what consequences the period of the emergency response plan may have in the courts for pending cases and the consequences of the outbreak of COVID-19 for pending arbitration cases.

Hearing of all non-critical cases are discontinued until 27 March 2020

The emergency response plan in courts means that the hearing of all cases in non-critical areas of practice are discontinued. Consequently, scheduled cases will be adjourned until 27 March 2020.

It is not possible to give an exhaustive list of what is meant by critical areas of practice. However, common to the areas of practice is that they mainly relate to matters which do not appear in civil commercial cases in the courts. Most civil cases will probably be considered as non-critical and thus  be adjourned so far until 27 March 2020, whereas areas of practice such as custodies and  urgent bankruptcy proceedings will rather be considered as critical. These types of cases will still be managed by the courts during the period of the emergency response plan, and hearings in such cases will not be cancelled or adjourned.

Each court will be organising its own work during the period of emergency response plan. Accordingly, it is up to each court to decide what cases are critical and what cases are non-critical. The organisation of the work in the courts of Denmark may therefore vary during the period of the emergency response plan.

Most hearings, including pending  hearings, and most civil cases are cancelled, but specified deadlines are maintained

Regardless of whether the courts’ hearing of cases may differ from now on, the period of the emergency response plan will generally imply that all hearings in civil cases in Danish courts, which are of a non-critical nature, will be discontinued and adjourned.

For instance, the Danish Supreme Court (Højesteret) has cancelled all hearings and meetings until 27 March 2020.[1] Not all of the Danish courts have yet communicated the same clear guidelines as to the case handling from now on. However, the Danish Eastern High court (Østre Landsret) has announced that already specified deadlines are  maintained for the cases, which are in the preparation phase.[2] The Copenhagen Maritime and Commercial High Court (Sø- og Handelsretten) has also announced that all hearings and physical meetings are cancelled during the period of the emergency response plan, but that conference calls and deadlines  in cases in preparation still apply, unless other instructions are given.[3]

As for the District Court of the Faroe Islands, the court has announced that only a very few critical and urgent cases will be handled until 30 March 2020, and that all other ongoing cases up to 30 March 2020 will be adjourned. [4] Consequently, the court has instructed that no one appears in person for meetings etc. in ongoing cases up to 30 March 2020, as all of cases will be rescheduled and new convening notices will be sent out.

The District Court of Greenland has not announced any information about its handling of the period of the emergency response plan. However, we expect that the District Court of Greenland and the remaining courts in Denmark will generally organise their work in accordance with the practice set out by e.g. the Danish Supreme Court and the Eastern High Court. To parties in pending cases this means that the preparation of the case continues and that already specified deadlines must be kept, but that hearings are cancelled. We generally experience that cancelled hearings are not rescheduled due to the uncertain future situation.

Information from the courts on amendments/adjournments of pending cases

Communications from the courts in relation to adjournments and other amendments of pending cases may also vary from court to court. For instance, the Danish Eastern High Court (Østre Landsret) and the City Court of Copenhagen (Københavns Byret) have announced that the courts will notify parties, lawyers, etc. directly as to whether hearings are maintained or adjourned in cases with scheduled hearings until 27 March 2020. On the other hand, the Danish Western High Court (Vestre Landsret) has announced that no individual cancellations will be made in specific cases.[5]

We therefore recommend that you stay informed at minretssag.dk and the website of the courts, domstol.dk, if you are summoned to appear in court.

Consequences of the COVID-19 outbreak for pending arbitration cases

Arbitration cases are not settled in public institutions and are as such not affected by the emergency response plan of the courts. Nevertheless, many arbitration institutes have decided to organise their work taking the authorities’ instructions into consideration. The newly enacted prohibition on gatherings of more than 10 people in itself renders oral hearings impossible in most cases, both in Denmark and abroad where similar regulation has been put in place.

Electronic case handling ensures continuous case handling of pending arbitration cases, but hearings are generally rescheduled

The Danish Building and Construction Arbitration Board (Voldgiftsnævnet for Byggeri og Anlæg) has declared that from now on, the Board will contact the arbitral tribunals and the parties of the cases with a view to agreeing on rescheduling the oral hearing or to agreeing on other alternative arrangements, if any.[6] The general case handling will continue, as a large part of the work in the Board can be handled digitally and from home workplaces.

Likewise, the Danish Institute of Arbitration will maintain the case handling in the period from 13 March to 27 March despite the employees being sent home. In addition, the arbitration institute has announced that in the same period they can be contacted by telephone and email as usual, but that they are closed for personal appearance.[7]

ICC Danmark has also decided to follow the authorities’ instructions and has announced that all meetings are discontinued. Furthermore, the Secretariat of the ICC International Court of Arbitration, has sent out a communication informing the users, arbitrators and other people involved in pending and future ICC arbitration and ADR proceedings regarding how it handles the COVID-19 outbreak.

As a general matter, the Secretariat strongly advise that all communications with the Secretariat be conducted by email, including new requests for arbitration.[8]

As for correspondence in pending proceedings, the Secretariat advises that anyone sending correspondence (including awards and ADR decisions) by courier or post to the Secretariat promptly inform the case management team of the case ahead of the dispatch.

Finally, the Secretariat informs that hearings and other meetings scheduled to take place at the ICC Hearing Centre in Paris until 13 April 2020 have been postponed or cancelled, whereas meetings scheduled to take place at its offices worldwide are being conducted virtually.

In dealing with the COVID-19 outbreak, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) refers to a checklist published by Hafed Virjee of Delos Dispute Resolution and Maria Houser-Morel of Hanefeld which provides guidance for parties, counsel and arbitrators when conducting hearings in times of the COVID-19 outbreak.[9] The checklist targets arbitration hearings conducted under any arbitration rules or administered by any institution.

Essentially, the checklist targets matters to consider in deciding whether to maintain the date of the hearing, and preparing, conducting and following up on the hearing in light of COVID-19. The checklist stresses that dialogue among the tribunal, the counsel and the parties is essential, and it is recommended to hold a conference call to discuss the questions raised in the checklist. Thus, whilst the checklist does not provide any specific guidelines as such, it does, however, suggest that the tribunal, counsel and the parties should consider to how they can ensure the safest handling of the case.

We generally experience that the tribunals and institutions around the world follow the authorities’ instructions of avoiding gatherings and limiting physical contact and that the courts cancel both pending hearings and hearings scheduled for the coming months. Particularly in international arbitration cases, it is de facto impossible to carry through  hearings at the moment due to travel restrictions and restrictions on gatherings, and we generally experience that it is very difficult to arrive at an agreement to carry through trial hearings virtually.

Naturally, Gorrissen Federspiel will be pleased to assist your company in respect of any considerations you may have.

 

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