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HomeCOVID-19: The effects on ongoing litigation and arbitral proceedings

COVID-19: The effects on ongoing litigation and arbitral proceedings

18 March 2020

So far, the outbreak of COVID-19 has had large effects all over the world. This is also the case in Denmark where all public servants not serving in critical functions have been sent home, initially until 27 March 2020, and where the Government now recommends avoiding all assemblies and physical contact in order to reduce the risk of the spreading of the disease. Thus, the outbreak of COVID-19 has also had large effects on the courts and on ongoing litigation and arbitral proceedings in Denmark.

To which extent are ongoing civil lawsuits continuing before the courts?

Because of the Prime Minister’s announcement at the press conference on 11 March 2020, the Danish courts have now initiated emergency procedures. For ongoing litigation, this generally means that the courts as of 13 March 2020 and initially until 27 March 2020 will only process “critical cases”, since the courts’ staff have largely been sent home.
In this newsletter, we will review the effects of the emergency procedures initiated by the courts and the effects this will have on ongoing litigation as well as the effects of the outbreak of COVID-19 on ongoing arbitral proceedings.

Suspension of the processing of all non-critical cases until 27 March 2020

The courts’ emergency procedures imply that the processing of all non-critical cases is suspended. Consequently, the cases fixed for hearing up until and including 27 March 2020 will be adjourned.
It is not possible to provide an exhaustive list of which cases are deemed as critical. However, generally it means that the cases mainly concern issues that are not dealt with in civil commercial litigation before the courts. Therefore, most civil cases will most likely be considered as non-critical and will be adjourned initially until 27 March 2020, whereas cases concerning pre-trial detention and very urgent bankruptcy proceedings are more likely to be considered as critical. These types of cases will still be processed by the courts under their emergency procedures, and court hearings in such cases will initially not be cancelled or adjourned.
It will be for the individual court to plan its own work. It is therefore for the individual court to decide which cases will be considered as critical and which cases will not. The planning of the work before the courts of Denmark may therefore vary under the emergency procedure.

Most court hearings, including ongoing main hearings and most civil cases are cancelled, but the fixed time limits are maintained

Even though differences in the courts’ processing of cases may be experienced for some time to come, the emergency procedures generally imply that all court hearings and main hearings in civil lawsuits before the courts of Denmark, which are non-critical, will be stayed and adjourned.
For instance, the Supreme Court has cancelled all main hearings and court hearings up until 27 March 2020.[1]

Not all courts in Denmark have yet communicated the same clear guidelines for case processing in the time to come. However, the Eastern Division of the High Court has announced that time limits that have already been fixed, will initially be maintained for cases that are in preparation.[2] The Maritime and Commercial High Court has also announced that all main hearings and physical meetings are cancelled during the emergency period, but that all telephone meetings and time limits in cases in preparation will continue to apply, unless otherwise announced.[3]
We expect that the remaining courts in Denmark will generally plan their work in accordance with this practice.
For parties to ongoing litigation this means that the preparation of the case continues and that time limits fixed must therefore be met, but that any court hearings and main hearings are cancelled. We generally experience that cancelled court hearings and main hearings cannot be rescheduled due to the uncertainty as to the future situation.

The courts’ notification of changes/adjournments of ongoing litigation

Communication from the courts in respect of adjournments and other changes in respect of ongoing litigation may also vary from one court to another. For instance, the Eastern Division of the High Court and the Copenhagen City Court have announced that the courts will notify parties, attorneys, etc. directly as to whether court hearings will be carried through or be adjourned in the cases that have been fixed for hearing up until 27 March 2020. Conversely, the Western Division of the High Court has announced that individual cancellations will not be forwarded in the individual cases.[4]

We therefore recommend that you keep updated on the website and on the courts’ website, if you are scheduled to appear in court.

The effects of the outbreak of COVID-19 on ongoing arbitral proceedings in Denmark

Arbitral proceedings are not processed by public institutions and are as such not affected by the courts’ emergency procedures. Nevertheless, several arbitration institutes have elected to plan their work considering the authorities’ instructions.

Electronic case processing ensures continued processing of ongoing arbitral proceedings, but main hearings are sought rescheduled

The Danish Building and Construction Arbitration Board has announced that the Board in the time to come will contact the arbitration courts and the parties to the proceedings in order to reschedule oral hearings or agree on any alternative measures.[5] The general case processing will continue, as a large part of the Arbitration Board’s work can be handled digitally and from workplaces at home.

In addition, the Danish Institute of Arbitration will continue to process cases during the period from 13 March to 27 March even though the staff has been sent home. In addition, the Institute of Arbitration has announced that during the same period they will take telephone calls and answer emails as usual, but that they are generally closed for physical appearance.[6]

ICC Denmark have also elected to follow the authorities’ instructions and have announced that all meeting activity is cancelled. ICC does not specifically state how to handle oral hearings of ongoing arbitral proceedings under the ICC. However, we expect that the ICC will also attempt to encourage the arbitral courts and the parties to the proceedings to agree on rescheduling. However, the ICC will just as the other institutes of arbitration continue processing ongoing arbitral proceedings.[7]

We are generally experiencing that arbitral courts follow the authorities’ instructions to avoid assemblies and limit physical contact, and that they are cancelling ongoing main hearings and main hearings scheduled in the months to come. In particular for international arbitral proceedings, main hearings are in most cases impossible to carry through at the moment due to the travel restrictions, and we generally experience that it is very difficult to agree on carrying through main hearings virtually.

We at Gorrissen Federspiel will be pleased to assist your company in respect of any considerations.

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