Article 8 Multiple Contracts Claims arising out of or in connection with more than one contract may be made

Transcription

1 New trends in Arbitration Rules Proposed amendments to the DIAC Rules Article No. Title Brief details Article 8 Multiple Contracts Claims arising out of or in connection with more than one contract may be made in a single arbitration provided the arbitration is presided over by a sole arbitrator. Article 9 Multiple Parties Where there are multiple Claimants/Respondents and the dispute is referred to the three-member Tribunal, the multiple Claimants and the multiple Respondents will each jointly nominate an arbitrator. In case of absence of such a joint nomination and/or the parties are unable to agree on method for constituting of the Tribunal, the EC shall either appoint an arbitrator on behalf of the party which failed to make a nomination or appoint the entire Tribunal. Article 10 Consolidation Upon application by a party, the EC may consolidate two or more arbitrations into a single arbitration if all parties consent to the consolidation or all claims arise from the same arbitration agreement or the arbitration agreements are compatible, or the claims involve multiple contracts between the parties that arise from the same economic relationship. Article 11 Joinder Upon application by a party, the EC may allow one or more additional parties to 1

2 Article 14 Alternative Appointment Process be joined in the arbitration as Claimant or Respondent If the parties fail to jointly appoint a sole arbitrator, have not stipulated any method of appointment and agree to this alternative appointment process, the arbitrator shall be appointed by the EC a specific manner. Article 16 Emergency Arbitrator A party may request with reasons for an emergency interim relief, prior to the constitution of the Tribunal. The fate of such application shall be decided by the EC. The appointment an emergency arbitrator within 3 business days of receipt by the Secretariat of such application and payment of registration fee. Article 18 Expedited Proceedings Prior to the full constitution of the Tribunal, a party can file an application for expedited proceedings Article 25 Seat of arbitration In the absence of a choice by the parties, the seat of arbitration shall be the Dubai International Financial Centre (DIFC). Article 42 Award Within 14 days of the last evidentiary hearing/ the last submissions filed by the parties in the absence of a hearing, the Tribunal will provide the Secretariat of the date by which it expects to submit its final draft award for potential comments. Prior to signing any award, the Tribunal shall submit the final draft of the award to 2

3 Article 52 Shariah-Compliant Arbitration (the relevant art.) the Secretariat, which may provide comments as to form. Without affecting the Tribunal s liberty of decision, the EC may, in exceptional circumstances, draw the Tribunal s attention to points of substance for consideration. The Centre will maintain a list of arbitrators qualified in Islamic Law. The Centre shall make appointments from such list where the arbitration agreement so mandates or where the parties so agree. Any award made by such Tribunal shall be in accordance with mandatory provisions of Shariah law as mandated by the parties, the arbitration agreement and/or the applicable law. The Rules shall apply to the proceedings, in addition to the present provision. Article 53 Third-party funding The Tribunal may - order the disclosure of the existence and details of a party s third-party funding arrangement; take into account any third-party funding arrangements in apportioning the costs of the arbitration; make adverse costs orders against third-party funders when deemed appropriate. 3

4 Latest amendments to SIAC Arbitration Rules (2016) iii : Rule 5 Expedited Procedure The amount in dispute (i.e. the aggregate of the claim, counterclaim and any defence of set-off) for the expedited procedure to be invoked has been increased from S$5,000,000 to S$6,000,000. The Tribunal now has the discretion to determine whether an Expedited Procedure case can be decided on the basis of documentary evidence only as long as this is done in consultation with the parties. Previously, the parties agreement was required for an Expedited Procedure case to be decided based only on documentary evidence (i.e. without a hearing). The increase of the monetary threshold will enable more cases to benefit from the expedited procedure. The Tribunal s expanded discretion on dispensation of a hearing may increase the efficiency and speed at which a decision is made. Rule 6 Multiple Contracts by filing a single Notice of Arbitration, the claimant is deemed to have: commenced multiple arbitrations (one for each arbitration agreement invoked); and applied to consolidate all such arbitrations under Rule

5 Rule 7 Joinder of Additional Parties Parties and non-parties may apply to be joined in a pending arbitration; Joinder application may be made before or after the Tribunal is constituted Rule 8 Consolidation Prior to the constitution of the Tribunal, a party may apply for two or more pending arbitrations to be consolidated into a single arbitration, subject to: The parties consent; The claims are made under the same arbitration agreement; or The compatibility of the arbitration agreements Rules 14 to 16 Challenge of Arbitrators A fixed challenge fee of S$8,000 (or S$8,560 for Singapore parties) is set; and a reasoned decision of the SIAC Court will be issued. Rule 21 Rule 30 (Schedule 1; and Schedule of Fees) Seat of the Arbitration delocalis ed Emergency Arbitration Proceedings If the parties have not / are unable to agree on the seat of the arbitration, the Tribunal shall determine the seat having regard to all the circumstances of the case New timeline for appointment of Emergency Arbitrator: Within 1 day (instead of 1 business day) of receipt of application for emergency interim relief and payment of administration fee and deposits. New time limit for issuance of interim award / award: Within 14 days from the date of Emergency Arbitrator s appointment [unless, in exceptional 5

6 circumstances, the Registrar extends time]. Fixed fees: S$ 25,000 (unless the Registrar determines otherwise). Rules 32.3 The Tribunal shall submit the draft Award to the Registrar not later than 45 days from the date on which the Tribunal declares the proceedings closed Rule a redacted award may now only be published with the consent of the parties and the tribunal Latest amendments to LCIA Arbitration Rules (2016) iii : Article 9B Emergency arbitrator a party can apply for the appointment of a temporary sole arbitrator in advance of the formation of the tribunal. Specific grounds for requiring the emergency appointment must be set out, and, if the party s application is successful, the LCIA Court will appoint the emergency arbitrator within three days from receipt of the application. Counsel and Party Conduct If a legal representative is found to have breached the guidelines, the tribunal can issue a written reprimand; a written caution as to future conduct in the arbitration; 6

7 or take any other measure necessary to maintain the general duties of the tribunal. Article 256 of the Federal Penal Code: Word in the market is that, because of the recent amendment some arbitrator would no longer accept appointments in the UAE and the others stating that they would consider resigning from their existing Tribunals. However, if the arbitrator resigns without valid reasons, he/she might be held liable for compensation under Article 207(2) of the Federal Code of Civil Procedure. iv Dubai Court of Cassation Case No. 212/ Meydan Group LLC v. Alexis Mourre Dubai Court of Cassation Case No. 284/ Meydan Group LLC v. Doug Jones, Humphrey Lloyd QC and Stephen Furst QC Both of the above-mentioned cases were arbitrations administered under the DIAC Rules. The arbitrators were challenged 7

8 at court for alleged procedural misconduct committed. However, in both cases the Dubai Court of Cassation has taken a firm stance in favour of arbitration and dismissed the challenges. i rules the key changes/ ii cheat sheet to 2016 international arbitration rule changes iii changes in the lcias new arbitration rules/ iv Article by Mr Michael Black QC on LinkedIn dated 29 November