Although, there has been a recent softening of the lockdown requirements, we are now entering what is still, for most, the sixth week of being required to work from home as part of the ongoing Covid-19 restrictions within the Emirate of Dubai.
As part of that, we consider briefly the practical impact the restrictions have had (and continue to have) upon hearings within three forums in Dubai:
- The DIFC Courts;
- Arbitrations administered by the Dubai International Financial Centre- London Court of International Arbitration (DIFC-LCIA); and,
- Arbitrations administered by the Dubai International Arbitration Centre (DIAC).
For the safety of their staff, practitioners and the general public, all three forums are physically shut.
However, each is still operating on a 'business as usual' basis, by attempting to ensure that cases progress with as little interruption as possible.
Each forum has sought to do this by the use of remote hearings. From our experience (as both Counsel and Arbitrator) this has been effective and has allowed cases to be dealt with effectively and with minimal disruption to timetabling, given the circumstances.
Plainly, there will always be those who say that hearings are better conducted in person. It also goes without saying that for any remote hearing to be a success a large degree of co-operation between the parties, the lawyers and the relevant forum is required. However, each of the above forums should be commended for their facilitating remote hearings taking place and the speed and flexibility which have been demonstrated by them in the face of the present circumstances to ensure that disputes continue to be resolved.
We comment briefly below on each of the three forums and the relevant provisions allowing remote hearings to take
place.
DIFC Courts
The doors of the DIFC Courts physically shut from 17 March 2020. However, a number of hearings have been conducted via telephone conference and video link since that date. The author has participated in numerous remote hearings since that date and the hearings have all gone smoothly and the technology has worked well.
The DIFC Court Law (at Article 51) and the Rules of the DIFC Courts (at rules 23.82 to 23.84) provide that hearings can take place by, "video link, telephone, electronic device or other appropriate means". However, the Rules of the DIFC Courts emphasise that this is "exceptional" and the "general rule for all hearings before the DIFC Courts is that the advocate... should appear physically in the DIFC Courts".
Notwithstanding that, in our experience, the DIFC Court and its Registry are granting applications for hearings to take place remotely, as a matter of routine. In an effort to mitigate the impact of the physical closure of the Courts, parties have also been encouraged to utilise the Court's infrastructure that was already in place prior to the global pandemic to ease the transition to hearings taking place remotely by urging practitioners to take advantage of the e-bundling platform.
DIFC- LCIA and DIAC administered arbitrations
The offices of both the DIFC- LCIA and DIAC remain closed. However, both institutions are still very much operating as usual but remotely.
Plainly, for both DIFC- LCIA and DIAC administered arbitrations, party autonomy will facilitate hearings taking place remotely. To the extent that the parties and the Tribunal agree that hearings can take place remotely then there should be little impediment to that happening. In the author's experience, having at least an element of a hearing taking place remotely is becoming an increasingly common feature of arbitral proceedings and something Counsel and Arbitrators are becoming more and more familiar with, in any event.
In terms of the DIFC-LCIA Rules, Article 14 expressly encourages the parties to make contact by "… telephone conference call [or] video conference…" within 21 days of the formation of the Tribunal. Article 19 equally allows for a hearing to take place by "video or telephone conference…". In terms of the filing of documents and payment of fees during the proceedings, this can be done online.
In terms of a DIAC administered arbitration, Article 17 codifies the parties' ability to conduct the proceedings in accordance with any rules they agree and Article 20.2 provides in general terms that a Tribunal may conduct a hearing at any place it considers appropriate. Assuming it is an onshore Dubai seated arbitration, Article 33(3) of Federal Law No. 6 of 2018 on Arbitration (the UAE Arbitration Law) fortifies these provisions by enabling the Tribunal or Sole Arbitrator to conduct hearings by modern means of communication and electronic technology such as video link or telephone. Again, in terms of the filing of documents and payment of fees during the proceedings, this can be done online.
Summary
In our experience, the Covid-19 restrictions have had little practical impact upon the ability of parties to progress with proceedings in the forums discussed within this article, with a business as usual approach being adopted and welcomed.
With the introduction this week of up to 30% of the workforce of all organisations within the Emirate of Dubai now allowed to work from their physical office locations, there can be little doubt the DIFC Courts, the DIFC-LCIA and DIAC will gradually introduce and implement measures to enable physical hearings to once again take place over the coming months (presumably whilst still ensuring appropriate safeguards are in place).
In the meantime, all parties should make every effort to consult, co-operate, inform, learn and help each other (and the forum in which they are sitting) to achieve a smooth and as efficient dispute resolution process as can be expected during these unprecedented times.
