*/
One area where the COVID-19 global pandemic’s impact has been deeply felt is in national courts. As of early 2020, the potential for contagion spread made in-person court appearances impossible in many jurisdictions. For some judicial systems, interim solutions to keep dockets moving were deployed, such as virtual hearings. But many judicial systems were forced to suspend operations altogether while solutions were developed. Even in jurisdictions that could immediately implement virtual settings, this did not always allow disputes to proceed uninterrupted. In some cases, moving to a virtual forum was not a comprehensive solution. The outcome is another looming crisis for many judiciaries around the world: a compounding bottleneck of cases that now threatens to overwhelm dockets in many regions for months or years to come.
As global justice systems seek long-term solutions to alleviate the burden that they now find themselves under, many are seeing the capacity for arbitration to provide a substantial contribution. Arbitration is a mechanism that has historically supplemented and supported domestic judiciaries and has the potential to do so now in a significant way. Moving disputes, especially commercial disputes, into arbitration provides a beneficial solution to both parties and judiciaries. This is because of the autonomy arbitration gives parties in choosing not only the process by which their dispute will be resolved, but also their decision maker.
Parties in arbitration have the freedom to select arbitrators based on any factors they deem relevant and desirable, such as experience as a judge or technical expertise in a certain industry. Parties in arbitration also have the ability to agree the briefing and hearing schedule of a dispute directly with their chosen arbitrators. They need not wait in a queue to appear on a docket. In turn, when parties resolve their dispute in arbitration instead of resorting to the courts, the courts’ dockets are freed up to address matters which cannot be heard in any other forum. This in turn alleviates the burden on national courts and ensures swifter due process for all.
Parties in arbitration can proceed with their disputes independent of the courts but with the assurance that the process is legally binding and enforceable. In most jurisdictions, the validity of arbitration is not tied to specific physical venues. Parties may choose any physical location for hearings that is convenient for them, even one outside the relevant jurisdiction. They may also choose to hold hearings virtually with all parties remaining in their home locales. The location of the proceedings in arbitration will often have no bearing on the law that is applied to the substantive dispute, nor on the enforceability of a resulting award.
For commercial disputes arising during the pandemic, arbitration has become an increasingly attractive option. But for commercial disputes that had already entered litigation and were stalled by the pandemic, arbitration may offer solutions to these parties as well. Parties may agree to move their existing disputes from litigation into arbitration on the condition that the arbitrator adopt any decisions already made by the courts. Parties may also choose to selectively define the substantive issues the arbitrator may consider. Parties may even choose a retired commercial judge or counsel with extensive commercial litigation experience as their arbitrator to ensure a cohesive transition from litigation to arbitration.
The due process concern that ‘justice delayed is justice denied’ has rarely been more pressing than it is today. Arbitration as a mechanism for commercial dispute resolution has the potential to provide solutions for parties in receiving timely outcomes while also alleviating the significant burden of delayed cases which many courts now face. As has been the case throughout history, arbitration can be a vital means to support judiciaries and parties in achieving justice, even in the face of a global pandemic.
One area where the COVID-19 global pandemic’s impact has been deeply felt is in national courts. As of early 2020, the potential for contagion spread made in-person court appearances impossible in many jurisdictions. For some judicial systems, interim solutions to keep dockets moving were deployed, such as virtual hearings. But many judicial systems were forced to suspend operations altogether while solutions were developed. Even in jurisdictions that could immediately implement virtual settings, this did not always allow disputes to proceed uninterrupted. In some cases, moving to a virtual forum was not a comprehensive solution. The outcome is another looming crisis for many judiciaries around the world: a compounding bottleneck of cases that now threatens to overwhelm dockets in many regions for months or years to come.
As global justice systems seek long-term solutions to alleviate the burden that they now find themselves under, many are seeing the capacity for arbitration to provide a substantial contribution. Arbitration is a mechanism that has historically supplemented and supported domestic judiciaries and has the potential to do so now in a significant way. Moving disputes, especially commercial disputes, into arbitration provides a beneficial solution to both parties and judiciaries. This is because of the autonomy arbitration gives parties in choosing not only the process by which their dispute will be resolved, but also their decision maker.
Parties in arbitration have the freedom to select arbitrators based on any factors they deem relevant and desirable, such as experience as a judge or technical expertise in a certain industry. Parties in arbitration also have the ability to agree the briefing and hearing schedule of a dispute directly with their chosen arbitrators. They need not wait in a queue to appear on a docket. In turn, when parties resolve their dispute in arbitration instead of resorting to the courts, the courts’ dockets are freed up to address matters which cannot be heard in any other forum. This in turn alleviates the burden on national courts and ensures swifter due process for all.
Parties in arbitration can proceed with their disputes independent of the courts but with the assurance that the process is legally binding and enforceable. In most jurisdictions, the validity of arbitration is not tied to specific physical venues. Parties may choose any physical location for hearings that is convenient for them, even one outside the relevant jurisdiction. They may also choose to hold hearings virtually with all parties remaining in their home locales. The location of the proceedings in arbitration will often have no bearing on the law that is applied to the substantive dispute, nor on the enforceability of a resulting award.
For commercial disputes arising during the pandemic, arbitration has become an increasingly attractive option. But for commercial disputes that had already entered litigation and were stalled by the pandemic, arbitration may offer solutions to these parties as well. Parties may agree to move their existing disputes from litigation into arbitration on the condition that the arbitrator adopt any decisions already made by the courts. Parties may also choose to selectively define the substantive issues the arbitrator may consider. Parties may even choose a retired commercial judge or counsel with extensive commercial litigation experience as their arbitrator to ensure a cohesive transition from litigation to arbitration.
The due process concern that ‘justice delayed is justice denied’ has rarely been more pressing than it is today. Arbitration as a mechanism for commercial dispute resolution has the potential to provide solutions for parties in receiving timely outcomes while also alleviating the significant burden of delayed cases which many courts now face. As has been the case throughout history, arbitration can be a vital means to support judiciaries and parties in achieving justice, even in the face of a global pandemic.
The Bar Council is ready to support a turn to the efficiencies that will make a difference
By Louise Crush of Westgate Wealth Management
Marie Law, Director of Toxicology at AlphaBiolabs, examines the latest ONS data on drug misuse and its implications for toxicology testing in family law cases
An interview with Rob Wagg, CEO of New Park Court Chambers
What meaningful steps can you take in 2026 to advance your legal career? asks Thomas Cowan of St Pauls Chambers
Marie Law, Director of Toxicology at AlphaBiolabs, explains why drugs may appear in test results, despite the donor denying use of them
The appointments of 96 new King’s Counsel (also known as silk) are announced today
Ready for the new way to do tax returns? David Southern KC continues his series explaining the impact on barristers. In part 2, a worked example shows the specific practicalities of adapting to the new system
Resolution of the criminal justice crisis does not lie in reheating old ideas that have been roundly rejected before, say Ed Vickers KC, Faras Baloch and Katie Bacon
With pupillage application season under way, Laura Wright reflects on her route to ‘tech barrister’ and offers advice for those aiming at a career at the Bar
Jury-less trial proposals threaten fairness, legitimacy and democracy without ending the backlog, writes Professor Cheryl Thomas KC (Hon), the UK’s leading expert on juries, judges and courts