North America

Marek Krasula
Director, Arbitration and ADR, North America, International Court of Arbitration® (SICANA Inc.)

1. Introductory remarks

International commercial arbitration in North America operates under a well-developed legal framework and, unsurprisingly, the use of arbitration shows no signs of waning.

For example, in 2019, parties from the United States once again maintained their first rank as the most frequent users of ICC Arbitration (196 parties amounting to 7.85% of all parties worldwide). The United States also ranked fourth in 2019 behind the United Kingdhaom, France and Switzerland as the country with the most places of arbitration in ICC matters. In 2018, for the first time, New York (tied with Geneva) had ranked as the third most popular city as place of arbitration in ICC Arbitrations, trailing only Paris and London.

Furthermore, arbitration has also been at the heart of many recent legal developments and major court decisions in the region. For instance, amid criticism of investor-state dispute settlement, the United States-Mexico-Canada Agreement came into force on 1 July 2020 replacing NAFTA. In GE Energy Power Conversion FR SAS v Outokumpu Stainless USA, LLC, 140 S Ct 1637 (2020), the United States Supreme Court held that the New York Convention does not preclude non-signatories from enforcing international arbitration agreements pursuant to domestic equitable estoppel theories. In Uber Technologies Inc. v. Heller, 2020 SCC 16, the Supreme Court of Canada found that the arbitration clause in Uber’s driver contracts was unconscionable. In Monster Energy Co. v City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019), the United States Court of Appeals for the Ninth Circuit, which includes California, set aside an award based on an ‘impression of possible bias’ by an arbitrator who had failed to disclose an ownership interest in JAMS that administered 97 arbitrations over a five-year period for ‘Monster Energy Co.’. Earlier this year, in United States of America v Novelis Inc. et al., the Antitrust Division of the United States Department of Justice utilized and prevailed in its first-ever arbitration of a merger issue raising the prospect that antitrust arbitration may expand beyond disputes between private parties.1

These developments aside, nothing has so far reshaped, or has the potential of reshaping, the fundamental tenets of the administration of justice, arbitration and ADR in North America more than the COVID-19 pandemic.

2. Court backlogs

With currently over 238,000 deaths in the United States alone and restrictions on travel and in-person meetings expected to remain in place for many months to come, the imprint of the pandemic is likely to have long-lasting effects on how commercial parties approach their dispute resolution strategy and how international arbitrations are conducted.

All 50 US states closed their courthouses, federal district courts significantly curtailed their operations and limited their activities to a variety of emergency applications and criminal matters during the first months of the pandemic.2 While the Coronavirus Aid, Relief and Economic Security Act, signed into law on 27 March 2020 in the United States, provided fiscal stimulus and encouraged the use of videoconferencing in certain judicial matters, it appears that courts may not be a viable and efficient option for resolving disputes for the foreseeable future.

Prior to COVID-19, it had been reported that the federal judiciary in the United States had 44 declared ‘Judicial Emergencies’ arising from backlogs in certain district and circuit courts while, as of the last quarter of 2019, the median civil case in the Southern District of New York took over 30 months between filing and trial.3

In order to reduce delays caused by the suspension of court operations, some courts in Canada were encouraging parties to use alternative forms of dispute resolution.4

While many companies have deliberately avoided pursing arbitration as a means of resolving their commercial disputes for a variety of reasons, the current reality has pushed some to argue for the reassessment of contracts not providing for arbitration and moving parts of, or entire, ongoing disputes to arbitration in anticipation of greater court delays as the continent reopens for business.5

3. Virtual hearings

By drawing on the procedural flexibility offered by arbitration and its promise to be more efficient and expedient than litigation, the ICC International Court of Arbitration and other arbitral institutions in North America, such as the AAA-ICDR, have issued guidance notes and encouraged numerous well-established case management techniques, namely the use of videoconferencing for hearings in appropriate circumstances by arbitral tribunals, to mitigate the adverse effects of the pandemic on proceedings.

Although hearings were postponed or rescheduled in the early stages of the pandemic, holding virtual evidentiary hearings instead of physical evidentiary hearings became the norm for most ICC Arbitrations seated in North America as time progressed and restrictions remained in place. During this period, most evidentiary hearings, even in large complex matters, occurred virtually based on the parties’ joint request. Objections from one of the parties to such hearing taking place virtually were only raised in a handful of matters. In all such matters where an objection was raised by one of the parties, all arbitral tribunals decided nonetheless to proceed virtually after providing detailed reasons in a procedural order.

Additionally, most North American parties, counsel and arbitrators appear to have overcome the initial technological and practical hurdles that may have existed in migrating to remote work and conducting a hearing virtually.6 Consequently, there is somewhat increasing comfort in North America with conducting via videoconference not just procedural meetings, but also the entire evidentiary hearing. That being said, some North American users have expressed concern about the enforceability of awards resulting from virtual hearings conducted over the objection of a party. Others have argued that virtual hearings and the use of technology affect their ability to be heard and to properly present their case, particularly through their inability to effectively examine and cross-examine fact and expert witnesses.

Even though there does not appear to be any U.S. or Canadian decisions vacating an award because testimony was taken remotely over the objection of a party, it remains to be seen whether awards based on virtual hearings will withstand challenges7 and whether hybrid hearings, combining virtual and physical attendance, may instead gain greater acceptability over time once restrictions are lifted. In any event, the jury is still out on virtual evidentiary hearings, which will likely remain the norm in the United States as long as the pandemic continues unabated.

4. A second look at other ADR mechanisms

As noted above, North American arbitration practitioners and arbitral institutions have been resilient in weathering the technological and procedural challenges at the peak of the pandemic. With the North American economy slowly reopening and many businesses grappling with liquidity and solvency problems, steps to avoid disputes and to manage them efficiently are of utmost concern for companies aiming to minimize the impact of disputes on their bottom line.

For example, with the drop in oil demand and prices, numerous ICC Arbitrations, particularly in the energy sector, were suspended for the parties to pursue settlement negotiations. Users have also started to give serious thought to ADR options to facilitate faster and more cost-efficient resolutions before engaging in arbitration.

In light of a future where pandemics and other disruptions, such as climate change, will threaten global business operations and supply chains, non-binding dispute resolution tools have garnered renewed attention. Mediation (including online mediation), recourse to expert determinations and dispute boards are once again the talk of the town as parties seek to mitigate risk, preserve ongoing relationships and salvage investments in an uncertain economic climate.

5. An inflection point for a more diverse, inclusive and equitable future

Finally, for many, this moment in time to shape the ‘next normal’ needs to be harnessed so that the pandemic, like the financial crisis of 2008, does not undermine the advances made on the diversity and inclusion fronts and that various initiatives are not put on hold. Amid the pandemic that has disproportionately affected racial and ethnic minority groups, protests against racial injustice in the United States have spurred the legal community and companies in North America to announce commitments and investments to shape a more diverse, inclusive and equitable future. Hopefully, the momentum gained thus far for greater diversity, equity and inclusion is not lost in this pandemic.

Latin America

Katherine González Arrocha
Director, ICC Arbitration and ADR, Latin America, ICC International Court of Arbitration

1. Overview of the ‘Pre-Covid’ era

Arbitration in Latin America (LATAM) has been flourishing during the past decades. While it is difficult to generalize in a region composed of many different countries, we can affirm that the large majority of LATAM countries took important legislative steps to consolidate a pro-arbitration culture since the 90s.

The number of LATAM parties in ICC Arbitrations has notably increased this decade. The ICC Dispute Resolution 2019 Statistics show that in 2019 the LATAM and Caribbean region saw a 14% increase in the number of parties which rose from 339 to 386 (approximately 15% of all parties).8 Brazil was the third most frequent nationality in ICC Arbitrations. Mexico and Peru also appear in the list of the most frequent nationalities in 2019.

Parties from Latin America & the Caribbean in ICC Arbitrations (2009-2019)

As to mediation, although it is not common in LATAM, LATAM parties represented 15% of the total number of cases in 2019; and 12% under the ICC Expertise Rules.

The ICC Statistics also show an increase in the number of LATAM States and State entities in ICC Arbitrations. In 2019, 73 parties originating from LATAM were States or state entities (18.9% of the total number of parties) compared to just 8.6% in 2018.

Cases involving State and State Entities in LATAM (2015-2019)

LATAM countries are party to more than 600 BITs, many of which provide for arbitration. They have been respondents in approximately 30% of all ICSID cases.9 Although Bolivia, Ecuador and Venezuela denounced the ICSID Convention and have terminated a large number of BITs, we also saw a change of trend in recent years. Since the election of a new President in 2017, Ecuador has proposed to renegotiate previously terminated BITs with 30 countries on the basis of a new model BIT that provides for resolution of disputes by arbitration. On the other hand, Colombia has signed 15 BITs since the year 2000.10 Mexico signed the ICSID Convention in 2018. Argentina not only enacted a new international commercial arbitration law in 2018, but also enacted in 2016 a Public Private Partnership Law expressly providing for arbitration clauses in such contracts and the possibility of submitting disputes to international arbitration outside of Argentina.

By contrast, Brazil is unique as it is not a party to the ICSID Convention. However, since 2013 it has entered into a number of Cooperation and Facilitation Investment Agreements (CFIAs) and some BITs. Brazil ranks as one of the top economies in the world for foreign direct investment (FDI). Furthermore, in the past years, Brazil has seen an important increase in its arbitration activity, due not only to a favorable legal framework but most of all to a continuously growing well-experienced arbitration community.

An overview of the ‘pre-COVID-19’ panorama in LATAM would be incomplete without mentioning that corruption was one of the most discussed topics in the region in 2019. In view of different corruption scandals around the globe, many countries have increased their fight against corruption, which has led to the filing of many lawsuits. Brazil´s Operation Car Wash in 2014 revealed the payment of bribes in important contracts in LATAM, which has led to many lawsuits. In light of this, many arbitrators have been asked to deal with issues related to corruption. 2019 also saw a crisis in the arbitration community in Peru where some respectable arbitrators were prosecuted on the basis of an incorrect interpretation of the Peruvian arbitration systema and arrested pending the investigation into allegations of corruption. The arbitrators appealed their sentences and the Criminal Court of Appeals Specialized in Corruption Offences partially revoked the pre-trial detention. This has led to many discussions as to how the law should tackle arbitrator’s immunity.

2. The impact of COVID-19 on dispute resolution in LATAM

According to recent reports by the World Bank and the United Nations, LATAM and the Caribbean have become hotspots of the COVID-19 pandemic due mainly to the exacerbated weak social protection, fragmented health systems and profound inequalities.11 The economic projections of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) are dire as LATAM and the Caribbean are facing the pandemic from a weaker position than the rest of the world.12 According to this report, the region will have suffered the worst crisis in its history in 2020, with a 5.3% drop in GDP. A contraction of comparable magnitude has not occurred since the Great Depression of 1930 (- 5%) or even since 1914 (- 4.9%).13

The immediate reaction of almost all countries in LATAM in March 2020 was to contain the virus and protect the healthcare system with extreme measures such as: closing borders, ordering total or partial quarantine, providing subsidies (cash transfers or food) to the people with lowest incomes, and closing schools and universities. Peru enacted a new law suspending the collection of toll fees on the country´s road network, which raised concern among investors and Peruvian officials who warned that it could result in multiple ICSID claims. The bill was approved and afterwards declared unconstitutional.

While in Europe and other parts of the world these measures were eased a few months later, most LATAM countries are still under strict lockdown at the time of writing this article (end of August), which accounts for serious weakening of the economy of these countries. In addition, some governments were tainted by corruption, which further undermined their credibility before the population.

Regarding dispute resolution, the governments were very proactive in enacting emergency legislations that suspended and reactivated judicial terms depending on the situation of each country. Some countries allowed the continuation of judicial proceedings virtually. Furthermore, some LATAM countries such as Colombia14 and Chile15 issued laws, applicable to cases in court as well as arbitration and other ADR procedures, which expressly allow proceedings to continue virtually. The arbitral institutions in LATAM were also very proactive issuing guidance notes and offering virtual services to their users. Most of them have reported that their activity has continued as usual. In most cases, the hearings have not been suspended but have instead been held remotely. Users and arbitrators in LATAM have also reported that their activity has continued while new requests of arbitration have been filed electronically.

It is worth noting that the ICC Brazilian Court offices, based in São Paulo, have reported an increase of cases in these past months compared to 2019.16

Case registrations with the Sao Paulo office of the ICC international Court of Arbitration

Finally, users have shown an increased interest in mediation and dispute boards. The Ecuadorian, Colombian and Peruvian States have been actively promoting the use of dispute boards in construction contracts over the past years.

3. What the future might bring: liquidity problems, third-party funding, ADR, virtual arbitrations and gatherings

As noted above, one of the main factors that contributed to the development of arbitration in LATAM has been the strength of their arbitration community, which has continuously searched to improve their experience and knowledge. This has been demonstrated each year in the increasing number of participants at the annual ICC Miami Conference.

The pandemic has not been an impediment. The LATAM arbitration community has remained very active not only working remotely but also organizing a large number of webinars on different topics. One of the most common topics has been virtual hearings. LATAM users have realized that arbitration proceedings do not necessarily need to take place in person, and are experiencing the benefits of the flexibility allowed by arbitration. The COVID-19 pandemic has definitely accelerated some trends that were already in progress.

All experts in the region expect an increase in arbitration and litigation cases in Latin America. The liquidity problems that will arise in the coming years will certainly increase the need for more third-party funders. Apart from dealing with the challenges that virtual arbitrations will bring, one of the main challenges for arbitration in the region will be to address the users’ concerns with respect to corruption issues in order to reinforce their faith in this mechanism.

The increased use of mediation, dispute boards and other ADR forms are also expected in order to preserve cash and minimize expenses. Only time will allow us to draw conclusions. Meanwhile, accepting change with flexibility and empathy is crucial to guarantee the development of arbitration and ADR in the region.


Laetitia de Montalivet
Director, Arbitration and ADR, Europe, ICC International Court of Arbitration

Europe, as with the rest of the world, has been struggling with an unexpected major crisis, that pushed the whole continent into the deepest recession in its history. The European Commission’s Spring 2020 Economic Forecast,17 which illustrates COVID-19’s impact on the economies of its member states, notes that the 27-country bloc collective GDP was forecast to grow 1.2% in 2020 but the economic disorder wrought by the pandemic is now expected to lead to a contraction of 7.4%. The scale of that figure is put into perspective with the 2009 financial crisis when the decline suffered by the EU-28 was 4.5%. E.U. unemployment rates are expected to increase from 6.7% in 2019 to possibly 9% in 2020.

Despite the present circumstances, users of ICC Arbitration in Europe remain active with 317 new cases registered from January to August 2020 (the ICC Court has registered a total of 592 cases worldwide during this period). Generally speaking, one can note however a ‘wait and see’ attitude in the face of the pandemic in Europe, and even more as the virus is spreading rapidly again in many countries. Such an all-level crisis can only lead to disputes of all sorts as shown below.

1. Evaluation of damages depends on the national approach facing the virus and its effects on the course of business

Europe was strongly affected by the COVID-19 pandemic as early as January 2020, starting with Italy, followed by France before reaching the whole continent. In an attempt to slow down the virus, lockdowns and emergency legislation have been imposed in almost all countries, with various degrees: border control or shutdowns, total or partial quarantine, school closures, banning of gatherings and shutting down ‘non-essential’ commercial, industrial and retail activities, etc. Some States also implemented supportive measures in an attempt to save jobs and avoid an economic collapse such as state aid, loans and financial support to businesses, and temporary tax exemptions.

As to disputes, more than the effects of COVID-19 itself, what matters is indeed the governmental attitudes and legislative measures taken in each state and their practical effects on the course of case-related businesses. The attitude toward recovery plans and economic stimulus packages to help repair the economic damage caused by the health crisis will also have to be carefully scrutinized.18

Indeed, the approach to COVID-19 differed from one country to another, with different impacts on business conditions: France, Italy, Spain, Romania and Greece have notably opted for what can be called a strict countrywide lockdown while the confinement was less restrictive in other countries such as the UK, Poland, Portugal and the Czech Republic. Some others, such as Sweden, did not enact any coercive lockdown measures, relying on the population’s sense of social responsibility.

Supportive measures offered to businesses also differed from one country to another, as well as the flexibility of unemployment conditions, notably the use of partial unemployment or furlough schemes. The impact on contractual relations, the scope of business disruption – and relating disputes – should therefore differ from one country to another.

2. A successful effort from dispute resolution actors to adapt to new working conditions

Generally speaking, arbitrators, law firms and international arbitral institutions seemed to have adapted very quickly to the new situation. New ways of functioning have been rapidly adopted, such as virtual hearings and paperless proceedings, and in case the entity was not yet well prepared, digital transformation has been considerably speeded up.

No doubt that this will have a profound impact on the future conduct of dispute resolution. Users reported having spontaneously renounced ‘classical’ hearings to be held in person, even to the point of saying that COVID-19 was a good opportunity to make the final leap to virtual hearings. In less troubled times, no one would have challenged the utility of physical hearings but it became obvious that this was the right way to proceed in this pandemic. Although the ICC Note to Parties and Arbitral Tribunals19 already offered this possibility, it was rarely implemented in the pre-COVID era. The pandemic opened the door to a more open-minded approach. One can anticipate that this extra step will be much more easily taken even when the situation returns to normal - if there is a return to what was considered as ‘normal’ one year ago. Some practitioners however expressed a deep ‘digital fatigue’ and missing the ‘human part of the job’, denouncing that virtual hearings were adopted in some cases more for the arbitrators’ comfort rather than for real sanitary considerations.

To overcome the absence of physical hearings, some arbitrators have chosen – in agreement with the parties – to send them a list of written questions for simultaneous answers. In such a situation, some even witnessed a more active arbitral tribunal who had to think in advance on questions to be asked and agree on their drafting, and thus was forced to prepare at an earlier stage.

The same can apply to submissions. COVID-19 has de facto imposed a paperless functioning, forcing the most recalcitrant practitioners to jump into this new way of doing things. Counsel however reported a gap between e-friendly practitioner and those who still have trouble with an all-digital procedure; interestingly, this is not a question of age but rather of personal ability to work without paper. The capability to handle paperless cases was reported to become a future criterion when approaching potential arbitrators.

As downsides to virtual hearings, counsel have reported a certain distrust from their clients, refusing virtual hearings with experts or witnesses, due to uncertainty as to who is in the room.

Where virtual hearings have been imposed by arbitral tribunals against the wishes of a party, concerns were raised about the risk of setting aside the award for lack of due process. Interestingly, ICCA has just launched a research project on whether a right to a physical hearing exists in international arbitration.20

Arbitrators reported that some State entities, notably in Eastern and Central Europe, might have taken the pandemic as an excuse not to be present, whereas private entities often requested further extensions of time to complete their procedural steps, which have been usually accepted by tribunals.

Unlike state courts, international arbitral institutions have globally been able to adapt very rapidly. ICC, for instance, took immediate measures to limit the effects of the pandemic on ICC staff, users and cases as soon as France had adopted a strict lockdown, in publishing a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 pandemic.21 All offices of the Secretariat of the ICC Court and the ICC ADR Centre stayed operational, working remotely via mobile posts. Special arrangements were put in place, such as an entirely paperless proceeding and all Court Sessions, including Plenary Court Sessions, were successfully convened digitally.

3. ‘COVID-related’ cases?

One can observe that force majeure and hardship is often invoked by the parties as a legal argument to excuse delays or the non-performance of a contractual obligation in the context of COVID-19, or to be granted extension or suspension of the case. This is shown in particular in the aviation and hotel sectors. A higher demand for Emergency Arbitrator procedures and for fast track proceedings have also been registered.

Numerous in-house counsel described over-busy legal directions, tenting to manage a new flow of issues raised by COVID-19 and law firm’s restructuring practice departments have been over-solicited.

More specifically as to disputes and filing of cases, several General Counsel reported a ‘wait-and-see’ attitude as the pandemic is currently far from reaching an end. They reported numerous worrisome issues due to coronavirus such as delays, lower productivity, activity decline, billing decrease, public tenders drop, etc., but facing non-stabilized situation and on-going effects, they have not come across their dispute yet. A general counsel in the construction sector notably explained that in order to protect future rights, teams were asked to ensure that delay issues are immediately raised, and contractual formalism be strictly applied

While the admissibility of COVID related requests should cause no real difficulty, users are expecting to see long debates on (i) the legal basis for seeking financial compensation and (ii) the quantum of such compensation. The incremental costs for businesses might be colossal: disorganization, delayed projects, low productivity with production sites functioning with only half of the normal work force, employee repatriation and new sanitary procedures such as regular hand washing, circulation lines, multiplication of site huts to offer the necessary social distancing, masks supply, etc. If the link to COVID-19 can be demonstrated, practitioners dread that the quantum of the damages might be difficult to determine.

Force majeure and hardship are obviously on everyone’s mind and parties might try to benefit from their special regime and exoneration of responsibility. But others might also look at other legal bases, such as change in law if included in contracts, to also get financial compensation and cost recovery that force majeure or hardship would not grant.

4. Highway for mediation?

Mediation is frequently presented as the perfect tool when crises arise, including during the COVID-19 pandemic, and there is a general agreement that mediating is a good solution, being fast, cost effective, confidential with no disruption of commercial relationships. But will there be a real change of practices from users? Both European in-house and counsel reported little change as to mediation since lockdown. It thus remains to be seen whether COVID-19 and its effects will push more toward mediation instead of litigation.

The ICC ADR Centre observed that the number of new ICC Mediation cases has remained stable since the start of the crisis with most ICC ADR procedures to continue virtually; very few proceedings were in fact suspended. It also witnessed that parties seemed to be participating more actively in current ICC Mediation proceedings, but it is not clear if this is COVID-19 related or a more general emerging trend. One can also note a slight increase in requests for expert nomination to determine the impact of a change in law, but here again, this remains to be seen in a longer period of time.

Some practitioners also reported a much higher number of arbitral cases settled, even at a very early stage of the proceeding, notably in the European Anglo-Saxon countries, whereas interestingly, no major change has been reported in civil law countries.

5. New types of disputes in the future?

Counsel reported that they expect an increase of ‘chain disputes’ with different jurisdictions and clauses, referring to multi-party, multi-contract and multi-language cases, and some even reopened the debate as to more flexibility in consolidation for COVID-related cases or even called for a special forum for such cases.

It was also reported that new players from ‘non-arbitration sectors’, e.g. commercial lease agreements which are usually submitted to courts,22 might come to arbitration to deal with the closure or significant slowdown in state courts during the lockdown. This remains, however, to be confirmed.

6. Conclusion

As the pandemic and the consequential economic crisis are far from over, it is difficult to forecast what the future might bring and how the dispute resolution landscape will look in the mid/long term. This report only aims to give feedback received from European players and describes the emergence of certain trends over the last few months in the context of tremendous uncertainty.

The ultimate outcome remains to be seen but one thing is certain: COVID-19 has and will have a profound impact upon all industrial sectors, and numerous disputes are expected on all sides. Post COVID-19, we may see a deep change in mentalities and the way of doing business, including the way of resolving disputes. Arbitration and ADR will no doubt have a great future.

Middle East and Africa

Sami Houerbi
Director - Arbitration and ADR, Middle East, Eastern Mediterranean and Africa, ICC International Court of Arbitration

Dania Fahs
Deputy Director - Arbitration and ADR, MENA, ICC International Court of Arbitration

1. Introductory remarks

The MENA region has been generating over the past several years the highest growth in terms of ICC Arbitration cases. Foreign direct investment in the region - mainly in the Gulf Cooperation Council countries - and growing commercial transactions have been the drivers of such growth. According to the latest ICC statistics of 2019, Dubai and Doha were ranked respectively 9th and 10th in terms of cities chosen as seats for arbitration. Over the past few years, the United Arab Emirates and Qatar have figured amongst the 15 most frequently listed nationalities of parties to ICC Arbitration. The number of parties from the MENA region involved in ICC Arbitration continues to be on the rise. In 2019, UAE, Saudi Arabia, Qatar, Israel and Lebanon are respectively ranked as the first five nationalities within the Central and West Asian region. Furthermore, 7.5% of the total ICC 2019 filings involved a party from the African Continent (2.3% from North Africa and 5.2% from Sub Saharan Africa).

With the emergence of the Covid 19 crisis, throughout and post lockdown in the UAE, it is worth noting that the MENA office in the Abu Dhabi International Financial Centre (ADGM) has not seen a drop in the number of filed cases in comparison with last year.23 When the lockdown started around the second week of March, unsurprisingly, new case filings halted for a couple of weeks before resuming again at a regular pace.

Users, in their majority, have reacted positively to electronic filings. A marginal minority of users were a bit reluctant and wanted to wait until the hard copies of requests were accepted, but the office was keen on persuading them that the electronic process is as safe and smooth as the physical process of filing hard copies.

In terms of industries featured in the filed cases from the MENA region, we still note the usual predominance of the construction field and disputes arising from the traditional types of agreements: building and design services, support, security and construction services, purchase of pipeline equipment, etc. However, the pandemic seems to have impacted the types of disputes encountered. As a result of the cash flow shortage and the disruption in the performance of contractual obligations caused by the pandemic, claims related mainly to outstanding fees, contractual payment defaults, repudiatory termination of contracts, call on guarantees and delays in work completion.

In ICC cases involving parties from Sub Saharan Africa, we note, in addition to the traditional sectors featuring construction, infrastructure and energy disputes, the emergence of new types of disputes such as distribution and sales contracts of relatively modest amounts. It is worth noting that the pandemic hit Africa at a later stage compared to the rest of the world and as such, one cannot yet draw conclusions as to the impact of the pandemic on ICC caseload. Nevertheless, a trend was recently observed regarding the increasing number of domestic cases, i.e. involving parties from the same country (for example, Nigeria).

2. A slowdown in corporate and transactional work while the dispute resolution sector remained active

According to the feedback received from law firms, the volume of legal work was reduced and restricted during lockdown. This is particularly true for corporate and transactional work. Conversely, the litigation departments did not seem to have suffered such a sharp downturn and were keeping busy. Mainly, clients have instructed law firms in the following areas: litigation and arbitration, restructuring and insolvency.

Expectedly, the liquidity and cash shortage will be an issue in the short and medium term for businesses who will consider anything for cutting the cost of doing business and keeping the supply chain oiled. The sectors that are likely to suffer primarily from this crisis are the financial sector, supply and logistics. The retail sector will also struggle, and real estate is expected to suffer more strain as months go buy. Geographically, in terms of jurisdictions on which the focus will continue to be directed and which are expected to give rise to legal work, we note the UAE (the logistical and business regional hub) and Saudi Arabia, whose market is considered to be the ‘China’ of the Gulf region.

In terms of expectations, while acknowledging that the future looks unpredictable, it seems that as far as litigation work is concerned, disputes (such as payment default, debt collection disputes, etc.) are and will continue to be on the rise. Nevertheless, much of all this will be dependent on how the public sector and governmental entities in the different countries across the Middle East and Africa region will be reacting to the pandemic in the medium and the long term.

3. An increasingly integrated global economy

More than ever we live in an increasingly integrated global economy. Beyond the public health concerns generated by the pandemic across Gulf countries (Iran has emerged as the most affected country after China), the GCC economies were adversely impacted by the Chinese slowdown due largely to their overreliance on energy exports. Over recent years, China has been the bigger economic partner for the GCC. Those adverse effects were compounded with the drop in oil prices on international markets that had started well before the crisis. It is worth mentioning that this fall in the price of hydrocarbons beyond the Gulf countries, has also impacted African countries which are exporters of oil, such as Algeria, Libya and Nigeria.

Over the past years, bilateral relations between China and the Middle East countries have set the ground for solid economic relations, as Chinese consumer and industrial products were hitting massively MENA markets. Nevertheless, the GCC – China trade is differently balanced: as a result of energy exports from the Gulf, the trade balance is tilted in the GCC’s favor.24

Furthermore, Gulf countries were severely impacted by the economic effects of the pandemic beyond trade. Saudi Arabia has suspended Hajj, the Islamic pilgrimage and the second most important source of revenue for the country after oil. Dubai, the only regional economy not based on energy has seen its Expo 2020 put on hold and experienced a significant slowdown in its hospitality industry (there were 1 million Chinese tourists visiting the UAE accounted in 2019).25

4. Increased digitalization in the legal sector and the dispute resolution landscape

Increased and pervasive digitalization is the undisputed consequence of Covid 19 that was observed across all life and economic sectors. The legal sector was no exception and has itself experienced its own digital - if not transformation, then - evolution. IT tools were widely used by law firms well before the crisis, but during the crisis, such use has proved to be incredibly robust. Distance co-working and virtual meetings have worked out well and achieved intended objectives. One has to acknowledge today the enduring nature of remote working and that it is here to stay as firms demonstrate more agility in their ways of doing business. On the other hand, clients have perceived the advantages and the opportunity of a greater and a more cost-efficient access to professional services. It is worth noting that the UAE Courts during the lockdown period have been enabling streamlined electronic filings and deadlines were being met by law firms throughout this period.

As far as the MENA region is concerned, one nevertheless should consider that limited access to sophisticated technology for some small and mid-sized firms and not very tech savvy arbitrators has hindered some virtual arrangements such as holding virtual hearings. Hence, we note the decision by some arbitral tribunals to postpone holding virtual hearings especially when witness and/or expert examination was involved. However, a learning curve has been generated for many users and time will be needed to allow, when required, the shifting of all the procedural milestones of the arbitral process to a virtual medium.

Worth noting also, the MENA region is not a monolithic block in terms of technological infrastructure as disparities and a technological divide exist between tech advanced countries such as the UAE, for example, and other countries in the Middle East (Lebanon and Syria) or northern Africa (Tunisia, Algeria, Morocco, Libya) where access to high speed broadband is more limited. The same observation is also valid for the African continent.

On the flip side, this increased digitalization has enormously benefited some African countries (the likes of Rwanda, Nigeria, Kenya, Tanzania and Mauritius) in terms of promotion and knowledge sharing in the field of dispute resolution, enabling them to overcome traditional impediments (related to long and expensive trips between African capitals, local and regional arbitration centers not being sufficiently equipped to organize and accommodate large conferences, etc.). As such, we have seen a proliferation on the continent of events, trainings and seminars on arbitration and dispute resolution the focal role of local and regional institutions. The increased reliance on technology has therefore had the effect of boosting arbitration in Africa by bringing all the African players together in a cost-efficient manner.

5. Conclusion

Today, following the mobilization and the lockdown phases, we stand at the emergence26 phase of this crisis. The dispute resolution landscape does not seem to have undergone major or revolutionary changes beyond the procedural adaptations (shifting to virtual platforms), and we have not observed yet any significant shift in the users’ approach to dispute resolution, mainly arbitration, services. It is still too early to draw conclusions as most of the cases filed under the crisis are still in their early or pre-constitution stage and more time would be needed to assess whether we will be seeing more amicable settlements, for example, emerging in pending cases. Also, a possible increasing recourse to non-adjudicative dispute resolution services, such as mediation, should not be underestimated. In light of the economic recession prospects, it is fair to assume that many companies tightening their legal budgets would be prompted to explore such alternative dispute resolution processes since as we all know, this crisis has unprecedentedly hit at once all the stakeholders across the value chain.

North Asia

Mingchao Fan
Director, ICC Arbitration and ADR, North Asia, International Court of Arbitration

Like many other places in the world, this region has experienced serious disruptions of business, as well as dispute resolution services, since the emergence of the COVID-19 pandemic.

The Asian market witnessed a substantial increase in arbitration at ICC in 2019.27 With 484 parties coming from South and East Asia and the Pacific (a significant 57% increase compared to 309 in 2018) and approximately 20% of the overall number of parties worldwide. The most notable increase came from India and China, with the number of parties respectively rising from 47 to 147 and from 59 to 105.

Most jurisdictions in North Asia introduced restrictive measures on travel. For example, as of November 2020, Hong Kong has imposed entry bans on airline passengers who are non-Hong Kong residents.28 Nonetheless, a non-Hong Kong resident who has obtained a work visa (for a hearing in Hong Kong or otherwise) would be allowed to enter Hong Kong provided that the person tests negative for COVID-19 upon arrival at the Hong Kong International Airport and completes a 14-day compulsory quarantine period at a residence or hotel in Hong Kong. Mainland China has made it compulsory for international travelers to undergo a 14-day quarantine, while Japan has imposed entry bans on foreign nationals who have spent time in coronavirus hit countries (i.e., most of Europe, US, Canada, Asia, Middle East South America and Africa).

Inevitably, the COVID-19 pandemic has significantly affected international arbitration practitioners. In most jurisdictions such as Japan, Korea, Pakistan and mainland China, there are no special exceptions to the regular travel restrictions for arbitration practitioners, which has resulted in the postponement of most in-person hearings. Parties have generally accepted virtual hearings in lieu of the postponement of in-person hearings or quickly entered into settlements to avoid uncertainty and delay.

Nonetheless, in contrast to most jurisdictions in the region, the Hong Kong government has issued an exemption for quarantine arrangements for legal and dispute resolution services providers. On 29 April 2020, in accordance with the Compulsory Quarantine of Certain Persons Arriving at Hong Kong (Amendment) (No.2) Regulation 2020,29 the Hong Kong Government exempted various persons involved in providing dispute resolutions services (subject to application) from the compulsory quarantine arrangements for inbound travelers. These categories include, inter alia, arbitrators, mediators and qualified legal practitioners acting as counsel for a party in arbitration or mediation proceedings administered by a recognized body or in court litigation who (a) return from Mainland China, Macao or Taiwan after provision of services there; or (b) travel from Mainland China, Macao or Taiwan to Hong Kong to provide services in Hong Kong.

Furthermore, on 8 April 2020, in anticipation of an upsurge of disputes arising from or relating to COVID-19, the Hong Kong government announced the establishment of the COVID-19 Online Dispute Resolution Scheme (the ‘Scheme’) to provide speedy and cost-effective online dispute resolution services to the general public and businesses, and in particular micro, and SMEs.30 Under the Scheme, parties resolve their disputes through a multi-tiered dispute resolution mechanism comprising negotiation, mediation and arbitration. The Scheme will cover:

  • disputes arising out of or in relation to COVID-19 directly or indirectly;
  • cases where the claim amount is not more than HK$ 500,000; and
  • cases where one of the parties to the dispute is a Hong Kong resident or company.

Restrictive measures are likely to remain for a while, longer or shorter, depending on respective jurisdictions, but arbitration goes on. Force majeure and hardship continue being one of the most important topics for businesses and consequently dispute resolution. Disputes arising from M&A, transfer of technologies, international investments, and financial disputes are likely to arise as difficulties in performing contracts will in turn cause failures in payment and capital chain rupture. In the post COVID-19 era, parties may face cash flow problems and will no longer be able to afford long and expensive dispute resolution services. And although virtual and hybrid hearings have proven to be a more economic and convenient approach to conduct dispute resolutions, improvements will be necessary in certain aspects, such as the integrity of witness; infrastructures providing equal access to virtual hearings are also essential.

Arguably, changes will have to be considered to respond to the needs for effective and efficient dispute resolution services. However, the extent to which changes to the format of dispute resolution services can be achieved and accepted will depend on the flexibility of local legal frameworks and practices, and the mindsets of institutions, practitioners and users involved in arbitration.

South Asia

Abhinav Bhushan
Director, ICC Arbitration & ADR, South Asia, ICC International Court of Arbitration

1. Introductory remarks

Asia, and in particular South Asia, has seen a vast increase in arbitration at the ICC. Approximately 30% of parties involved in ICC Arbitrations came from Asia and the Pacific. The number of Chinese parties rose from 59 to 105, moving up from eleventh to fifth position of the most frequent nationalities. The year 2019 also saw a significant 57% increase in the number of parties from South and East Asia and the Pacific: 484 parties (from 309 in 2018), representing approximately 20% of the overall number of parties worldwide.31

The number of Indian parties tripled and reached 147 in 2019. India was ranked fifteenth in 2018 with just 47 parties, and is now ranked second in the overall number of parties worldwide. With the significant increase in cross-border investments and in the number of disputes in South Asia in 2019, one may have predicted a similar curve in 2020.

However, COVID-19 has disrupted businesses around the world. Consequently, it has also impacted on how businesses and other stakeholders formulate their dispute resolution strategies.

In South Asia, the impact of the virus has created confusion and obfuscated the business environment. Additionally, businesses continue to grapple with the changing regulatory regimes prescribed by authorities to fight the virus. At the time of writing this article, the business environment continues to remain volatile as it is difficult to predict the spread of the virus, its resurgence, and supervision in the absence of any credible vaccine.

The impact of the virus mainly resulted in lockdowns in South Asia, due to which businesses (i) have not been able to perform their obligations under contracts; (ii) have suffered serious liquidity crunch as a result of the disruption in cash flow, in turn triggering other issues including, but not limited to employment, bankruptcy, restructuring and moratoriums.

In South Asia, lockdowns came across as a shock to most businesses. They took the first two to three months to acclimatize themselves with the consequences of the pandemic and how to function properly with the imposed government restrictions. To a large extent, acclimatization remains a continuous exercise even now as the severity of the pandemic has changed in different parts of the world. Some countries which had overcome the first spread of COVID-19 later experienced an unexpected second wave of the pandemic. As a result, businesses that restarted their operations (after the conclusion of the first lockdown) have had to cease their operations again.

The author, since March 2020, has spoken with various stakeholders including general counsel, arbitration lawyers, corporate lawyers and arbitrators with a view to obtaining a high-level understanding of the consequences of COVID-19 and its impact on disputes in South Asia.

2. Businesses

Various general counsels have suggested that currently, their priority would be maximizing their liquidity. Consequently, they would prefer not to enter new litigation or arbitration unless it was absolutely necessary or where there were no other alternatives. They also intimated that regulatory changes adopted by various state agencies are affecting all aspects of their businesses (mobility, production etc.), on a day-to-day basis and they have adopted a ‘wait and watch’ policy until market conditions become more stable. The pandemic has also had an impact on companies’ litigation/arbitration budgets.

In fact, their preference would be, to the extent possible, to stay on-going litigation/arbitration or look at alternative dispute resolution mechanisms, for instance, mediation, settlement or other amicable solutions.

While businesses have strived hard to find temporary solutions in the first phase of the pandemic, the second or the third phase would determine if these temporary solutions have worked.

A senior general counsel of a large construction company mentioned that there is a general apprehension in the market to conduct new business. Businesses with ongoing disputes feel that it is critical that the arbitrators be trained, be adept with technology and sharpen their ability to conduct hearings virtually with e-tools and techniques.

Another senior general counsel of an oil and gas company stressed the importance of the need to review manpower contracts across different countries. He also gave an example that in the absence of buyers, companies are undergoing distress sales of cargo for about US$ 6-7 million as compared to the previous price of US$ 17 million.

Finally, a senior staff person mentioned that settlements which were reached prior to February 2020 are no longer being honored by the parties because of the dramatic change in their businesses and liquidity due to the pandemic.

3. Law firms

Law firms in South Asia have had their own challenges during the pandemic. Generally speaking, law firms have had a varied impact on their businesses. Several senior partners in the region suggested that the pandemic has caused law firms to shift focus away from their traditional practices and also highlighted their clients’ considerations related to costs.

4. Disputes

Initially, firms were inundated with queries related to force majeure/act of god and the effect of the pandemic on their clients’ obligations under the existing contracts. Internal law firm teams have experienced a visible shift in the work stream. Partners from the M&A and Capital Markets teams reported that clients are contemplating a deferral in signing or entering into new business relationships. Some of the worst hit sectors that have come to a grinding halt are hospitality, retail, aviation and construction. Several law firms have also announced internal salary reductions to mitigate the effect of the pandemic on their cash flow. Other issues that have kept the lawyers busy relate to the non-payment of rent or payment defaults by customers etc.

On the contrary, the pandemic augured well for lawyers dealing with employment laws, banking, restructuring, pharmaceutical industry and information technology.

With respect to arbitrations, several law firms’ partners and general counsel preferred to postpone their ongoing arbitrations and their upcoming hearings. They also cited COVID-19 as a reason in their pleadings to seek extensions at different stages of the proceedings. Parties in various ongoing arbitrations have deliberated on the consequences of pursuing virtual hearings. While a large number of arbitration hearings were postponed to the last quarter of 2020/first quarter of 2021, there were several arbitrations which proceeded with virtual hearings. For instance, ‘Opus’, a company specializing in legal technology, transcription and document management services, reported that it had assisted in over 271 virtual hearings since March 2020, with the participation of approximately 2,300 people.

Therefore, the scheduling of hearings has largely hinged on arbitral tribunal’s adeptness with technology and the parties’ willingness to proceed with virtual hearings.

Lawyers also predicted that there would be a greater push for mediation and cited several examples of their clients requesting a memo on the process of mediation.

Most businesses have drawn comfort from the economic packages announced by their governments and their banks. The stakeholders relied on their decision to defer matters due to the moratoriums offered by banks in the region but also cautioned that the real impact of the pandemic would be experienced at the conclusion of different COVID-19 relief packages announced in different countries. They stressed that the consequences of the pandemic are not over, in fact, for several stakeholders, they have not even begun. This is also evidenced by the fact that as of August 2020, there has also been no material change in the total number of arbitration requests received by the ICC in 2020 when compared to the total number of cases it received in previous years.

In this regard, most stakeholders have predicted an increase in disputes once the impact of pandemic is more certain. However, in light of liquidity issues surrounding the businesses, it remains to be seen whether:

  • the increase in inter-party disputes (primarily, due to a default in their obligations) would culminate in actual arbitrations; or
  • if the pandemic would bolster the use of mediation in dispute resolution.

5. Costs

A consensus among stakeholders has been in relation to the cost of litigation and arbitration. Earlier, clients were cost sensitive, however, the impact of pandemic may drive the parties to being cost intolerant. While there will be an undeniable increase in claims, the parties’ sentiments may very well tilt in favor of settlements vis-à-vis litigation or arbitration. A small section of the arbitral constituency, i.e. parties with deep financial backing, may remain unaffected and continue to pursue litigation/arbitration with erstwhile enthusiasm. Several stakeholders pressed for the need of a quicker, faster and more cost-efficient dispute resolution mechanism. Expedited procedures were referred to as one of the solutions that parties may wish to adopt.

6. Conclusion

As the pandemic unfolds, it is difficult to accurately predict the dispute resolution landscape in the near future. Suffice to say, the pandemic has catapulted the use of technology in dispute resolution and there will be an increased reliance on technology in dispute resolution going forward.

The impact of COVID-19 would also not be evenly spread across all industry sectors and the disputes within those sectors will be affected differently. The author believes that while lawyers may still prefer an in-person evidentiary/merits hearings, they may opt-in for virtual procedural hearings.

As the economies gradually assess and strive to return to normalcy, businesses are likely to strategize and renegotiate their existing obligations with an intent to circumvent disputes and litigation. The financial inter-dependence of economies, for instance, between developing and developed countries in South Asia, makes trade facilitation challenging, considering uneven recovery and the impact of the pandemic in the region.

As the world is going through unprecedented changes, collective responsibility rests on the shoulders of all stakeholders to study their risks and be more sagacious. Operational assiduity and a nimble strategy will be essential for organizations to adapt to the impact of COVID-19.

For a more detailed discussion on some of these developments and others, see M. Chedid, K. Duggal and A. Wit, ‘Recent Developments in International Arbitration in the USA’,

See Hon. S.A. Scheindlin, ‘Commercial Litigation and Post-COVID-19 Court Backlog?’, New York Dispute Resolution Lawyer Summer 2020, Vol. 13, No. 2.

See J. De Marco, ‘COVID-19 and the Permanent Judicial Emergency: Is Arbitration the Answer?’, New York Dispute Resolution Lawyer Summer 2020, Vol. 13, No. 2.

See MM. Seers, E. Sherkey, M. Burke and H. Allen, TORYS LLP, ‘Moving disputes forward during COVID-19: the arbitration option,’

See supra notes 3 and 4 and accompanying texts.

See also J.V.H. Pierce, ‘Predicting the Future: International Arbitration in the Wake of COVID-19’, New York Dispute Resolution Lawyer Summer 2020, Vol. 13, No. 2

See G. Hanessian and J. Brian Casey, ‘Virtual Arbitration Hearings When A Party Objects: Are There Enforcement Risks?’, New York Dispute Resolution Lawyer Summer 2020, Vol. 13, No. 2 in which the authors argue that they are not aware of any court decision in the United States or Canada vacating or declining to enforce an arbitral award because a tribunal took testimony remotely over an objection and that ‘[a]bsent a showing of particular unfairness to a party under the circumstances, it is very unlikely that a U.S. or Canadian court would set aside an arbitral award solely because the tribunal held evidentiary hearings by videoconference. But there is no question that fairness and equality of treatment trump the need for efficiency and economy. Best practice requires that a tribunal hear, in a formal way, any application that a hearing proceed by video conferencing where one party objects, with particular emphasis on how, precisely, the use of technology would prejudice the party, rather than vague statements regarding the need to assess the demeanor of witnesses generally’.

See the 2019 ICC Dispute Resolution Statistical report ( It is interesting to note that these statistics match with the 2018 Queen Mary Survey, where the answer to the question ‘In which region(s) do you principally practice or operate?’ was 14% in Latin America. See Queen Mary University of London, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’, at p. 41 (

See ICSID, The ICSID Caseload – Statistics (Issue 2019-1), p 11,

UNCTAD, Investment Policy Hub,




Decreto 491 de 28 de marzo de 2020. See article 10,

Ley 21226 del 2 de abril de 2020. See article 2,

Information kindly provided by ICC International Court of Arbitration office based in Sao Paolo.


For an overview of the measures taken country by country in the construction sector in Europe, see the report of the ‘Fédération Nationale des Travaux Publics’ (FNTP), .


20 .


On the initiative of the law firms Jeantet and 1804, and the Paris based CMAP took an interesting initiative in setting up a specific offer of arbitration of dispute for all actors of commercial leases, lessors, tenants, merchants, franchisees, etc. who usually submit their cases to state courts. Tensions between landlords and tenants concerning the payment of commercial rents have been increasing since the beginning of the Covid-19 health crisis, notably since the closing date for non-essential shops. This problem was compounded by the congestion of French state courts which highlighted more than ever, the need to make use of alternative dispute resolution methods for actors who usually go to state courts. See

In 2019, 33 filings were registered in the MENA office. In 2020, 22 new cases were registered from January to August.

UAE with its re-exports out of Jebel Ali is an exception.

UAE being a logistical hub for many international Fortune 500 companies is likely to suffer the shock waves of this crisis. This will undoubtedly have an impact on the UAE economy in general, and the legal market in particular. It is worth mentioning that 45% of the Global Fortune 500 companies have presence in UAE. 70% of these 500 Fortune companies come from US, China, Japan, France, and Germany. Hence what happens in these countries - how these companies will react, how government incentive packages will play out there - will undoubtedly bear an impact on the legal market in UAE.

In reference to the five stages a recovery from any crisis goes through (Mobilization, Lock-down, Emergence, Surge, Equilibrium), see R. Susskind and D. Susskind ‘Five Phases of Recovery from Covid-19’ (

See ICC 2019 Statistical Report, available at



30 In furtherance of the Scheme, the Hong Kong government announced, on 29 June 2020, that eBRAM International Online Dispute Resolution Centre would provide online dispute resolution and related services under the Scheme ( .

See ICC 2019 Statistical Report, available at