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As new disputes arise, and existing disputes are delayed amidst the COVID-19 pandemic, parties and their legal representatives may consider alternative options for the efficient, timely and cost-effective resolution of those matters. Arbitration offers a high degree of flexibility, accommodates for social distancing measures and travel restrictions, and can provide commercial entities with faster resolution times and greater certainty with regard to outcome and cash flow. 

Arbitration is a powerful dispute resolution mechanism, particularly at this time. The range of subject-matters that are capable of resolution by arbitration is very broad and includes the kind of disputes likely to emerge from the current crisis attributable to force majeure, frustration of contracts, material adverse change clauses in M&A and loan agreements and cross default provisions. Arbitration can be utilised to finally resolve the entirety of a dispute or to deal with a particular aspect of a dispute (e.g. threshold legal issues or significant disputes as to discovery and legal professional privilege). Arbitration also provides the following advantages:


In the current environment, arbitration provides significant flexibility, allowing parties to tailor and adapt processes to meet the specific requirements of the dispute, having regard to value and complexity. This is particularly useful for parties and counsel seeking to navigate the obstacles created by COVID-19 as it allows for creative and innovative case management solutions like virtual hearings and flexible time-frames. 


Arbitration empowers parties to implement effective time management strategies to ensure the timely, cost-effective and fair resolution of disputes, particularly through the early fixing of case timelines, regular case management conferences and stop-clock hearings. The duration of arbitral hearings is also typically shorter than a court proceeding, and there is very limited scope for challenging an arbitral award, adding to the speed of arbitration. 

Certainty and finality

In an uncertain landscape, arbitration offers parties greater control in the resolution of disputes. Parties can agree to a process and manage its conduct, giving rise to greater certainty with regard to outcomes and managing risk profiles. Arbitration provides a final and binding award that is enforceable in Australia and globally. The limited recourse available to challenge an award provides confidence in outcome and finality to a dispute. 

The social and economic repercussions of the virus will likely not only give rise to new disputes but delay the progress of existing disputes before the courts. However, many of these disputes may be arbitrable. It is possible for parties to agree to arbitrate these disputes, in whole or in part, and to have their arbitration agreement supersede and replace any prior dispute resolution agreement between the parties. 

Resources for parties in dispute

The Australian Centre for International Commercial Arbitration (ACICA) is a not-for-profit arbitral institution that assists parties with the conduct of arbitration proceedings to enable them to draw on the many benefits of arbitration and manage current uncertainties. ACICA maintains a publically available resource centre on its website containing free-to-use model clauses, sample pleadings and submission agreements, practical guidelines and other external links. ACICA has also released a detailed information sheet to assist disputants with Managing the Impact of COVID-19


by Deborah Tomkinson, ACICA Secretary General & Julie Litver, ACICA Associate