The COVID-19 pandemic with contact restrictions and travel bans also poses challenges for civil proceedings. In the future, the functionality in pandemic times could be the material factor for the choice between state courts and arbitral courts because flexibility and options for responding to the COVID-19 pandemic are varying.
State court proceedings
Despite the COVID-19 restrictions, court deadlines must still be met. In the event of missed deadlines, claims may even become time-barred since the suspensive effect can only occur if the proceedings are actually being progressed and are not factually stalled. This can be ensured, for example, by applying for an extension of the deadline, for which “substantial grounds” must be demonstrated. The current limitations of are such substantial grounds. Certain deadlines (Notfristen), however, may not be extended even now.
In addition, court hearings must be attended. The publicity of court hearings as laid down in the German Basic Law (Grundgesetz), must now be reconciled with the general contact restrictions. As an alternative to the currently widely practiced adjournment of court hearings, the court may, with the consent of both parties, switch to the submission of written pleadings only in accordance with Section 128(2) Code of Civil Procedure in appropriate proceedings. In addition, according to Section 128a Code of Civil Procedure, if the necessary technical equipment is available, oral hearings including the taking of evidence may even be permitted without the parties’ consent by video conference (e.g., via Skype for Business) allowing the parties and their legal counsel to participate in the hearing “remotely.” The court will convene as usual in a public court room. However, the parties do not have a right to be granted such permission, as the courts do not have the necessary equipment everywhere; nor may the court make the use of video technology compulsory. Rather, the parties retain the right to participate on site. It is disputed whether the option of holding proceedings by video conference also applies to mandatory conciliation hearings or whether only subsequent oral hearings may be held in this way.
German law does not necessarily provide for oral hearings in arbitral proceedings. Rather, the Code of Civil Procedure leaves it to the parties to agree whether or not an oral hearing is to be held or excluded. In addition, neither the law nor the procedural rules of the arbitral institutions stipulate how oral hearings are to take place, thus, also allowing for video conferences. It is still a matter of controversy whether this requires the consent of all parties or whether or not virtual oral hearings may also be ordered unilaterally by an arbitral tribunal (possibly against the will of one of the parties). Oral hearings or witness hearings via video conference have been successfully used primarily for efficiently holding international arbitral proceedings even prior to COVID-19 -imposed travel restrictions. To this end, safe, reliable, and universally available technical solutions must be found and specific procedural rules agreed, for which first general guidelines have already been drawn up. Also, technical solutions are available that not only enable conferencing with all participants and common access to documents, but also offer closed discussion rooms for the arbitral tribunal and for the parties with their legal counsel. Transcript or recordings of the oral proceedings (in real time) and the involvement of interpreters are also technically feasible in such formats.
In civil proceedings, deadlines must also be observed during the COVID-19 pandemic and hearings must be attended. It is possible to replace face-to-face hearings with video conferencing, thus minimizing the risk of infection for all parties.
The technical requirements are more likely to be given in arbitral proceedings than in court proceedings. Additionally, no public needs to be involved in arbitral proceedings. It remains doubtful, however, whether oral hearings by video conference will replace physical meetings in the future as well.
Additional information can be found here in our German speaking Update Dispute Resolution.