There is almost no sphere that hasn’t already felt the consequences of the virus COVID-19. Judicial proceedings in the Republic of Serbia have deemed the change with the adoption of the Decree on deadlines in court proceedings during the state of the emergency declared on March 15, 2020 (”Official Gazette of the RS”, No 38 of March 20, 2020.) which introduced the interpretation of the statute of limitations for filing legal remedies, lawsuits, etc. Also, during the state of emergency, the hearings in all proceedings were postponed according to the Conclusion of the High Judicial Council from March 18, 2020.
How did the appearance of the COVID-19 virus affect the arbitration proceedings?
The changes were indeed most felt by international arbitrations, which are not related to the territory of one country and whose participants are from different countries. With that in mind, it is clear that due to restrictions, and even a ban on movement between states, it was not possible to hold all scheduled hearings.
The situation is similar to domestic arbitration, where the main problem is the ban on gathering a certain number of people indoors. Since there are usually three arbitrators, parties, and, if necessary, witnesses, experts and translators at the hearings, it is clear that the domestic arbitrations were not in a more favourable position than the international ones.
However, arbitration institutions are successfully solving the problem through the so-called virtual hearings. Already at the end of January in Italy, when the coronavirus was not mentioned much in Europe, there was a virtual hearing of the witnesses in the so-called hybrid arbitration.
Virtual hearings aren’t a particularly new form of hearings, since this way of holding hearings existed throughout the 1990s, bearing in mind that the proceedings before the Hague Tribunal were conducted in that way. However, such an option of interrogation hasn’t been used often. The coronavirus has now revived that possibility, which can be argued differently.
One of the disadvantages of the virtual hearings is that during the examination of the witnesses, the arbitrators cannot look them in the eye, so it is more difficult to judge by the facial expressions and gestures of the witness whether they are telling the truth or not. On the other hand, it may be much more comfortable for the witnesses to testify from their home, and the arbitrators are left with recordings of virtual hearings, so they can listen to them more than once, if necessary.
The main advantage of the virtual hearings is that they give the arbitration a chance to take place and thus to achieve its primacy over court proceedings, and that is the speed of the decision-making. Efficiency even in the state of emergency, as the main trump card of the arbitration procedure, in practice revives the essential legal sentence- Justice delayed is justice denied.
In line with the above, it seems that some of the significant changes that have occurred since the appearance of coronavirus are in practice not necessarily negative, since they bring new opportunities. The parties are more than ever aware of the possibilities of modern technology, given the current limitations in the regular hearings. This is also an excellent chance for domestic arbitration experts to present themselves more easily on the world arbitration scene. We conclude that the virtual hearings are a consequence that necessarily occurred after the appearance of the coronavirus, but for sure they will stay in the future as well.
Attorney at Law Mojsić B. Stefan