Our shipping and transport clients will be aware that The London Maritime Arbitrators Association (LMAA) have recently published revised procedural rules. These now apply to arbitrations from 1 May 2021.
The 2021 rules follow other major arbitral institutions in revising arbitral rules to make them fit for purpose in a post pandemic world.
The new rules reflect, in particular, the continued move to virtual hearings and increased reliance on electronic means of communication. Similarly to the revisions to the ICC and LCIA rules, which have been explored in our previous articles, the objective is to continue to streamline the arbitral process ensuring the needs of global trade continue to be met by London arbitration.
Virtual and hybrid (semi-virtual) hearings
The new Rules now provide expressly for virtual hearings. The revisions to the rules are supported by comprehensive and practical guidelines set out in the Sixth Schedule on the conduct of such hearings and technology supporting them. This includes guidance on such matters as preparation and use of electronic bundles.
A number or changes are made in the latest revision to the appointment process. In particular the new rules now permit a party to appoint its own nominated arbitrator as sole arbitrator unless the other party appoints its own arbitrator and provides notice of that appointment within 14 days of receipt of the notice of arbitration.
Changes have also been made to the procedure for appointing a substitute arbitrator, an issue which has received particular attention during the pandemic.
Rather than requiring the parties to go through the time consuming and costly process of applying to the Court for a substitute arbitrator to be appointed should the arbitrator be incapable of conducting the proceedings or participating in a hearing, the parties may refer the issue to the President of the LMAA who now retains powers to appoint a substitute. This discretion will be exercised sparingly.
A further additional and welcome revision is set out at paragraph 8 (v) of the Rules which permits decisions, orders and awards by two arbitrators in a three person tribunal if one of the arbitrators can no longer act. It is important to note that this is only applicable if the two remaining arbitrators are in agreement. Again this will serve to reduce unnecessary cost and delay.
With the objective of facilitating the cost effective and prompt publication of awards the revised Rules now further expressly provide (at Paragraph 24) for awards to be signed off electronically, in counterpart with electronic notification to the parties. Electronic signatures will not always be appropriate, particularly where enforcement issues may arise as a result. Accordingly, it is for the parties to now notify the Tribunal prior to the issue of the award if they wish the award to be signed in hard copy.
The revised Rules, at paragraph 2 of the Checklist within the Fourth Schedule now mirror to a limited degree the extensive changes which the English Court has recently adopted in respect to the preparation and use of witness statements.
Provisions include, for instance, the statement being made in the words of the witness (ie not those of the lawyer) and providing only evidence as to factual matters which are within the personal knowledge of the witness. They should not be used for arguing out the respective parties’ cases. The objective is to ensure that parties focus squarely on the issues in dispute.
The Tribunal will retain costs sanctions should parties deviate from these revisions.
The changes made, whilst significant, still stop short of the extensive changes implemented by the English Court (for example it is not necessary to provide a statement confirming compliance). The aim remains to reduce cost and expedite prompt dispute resolution.
ICP / SCP 2021
The main changes outlined above have been reflected in the LMAA expedited procedures available to the parties for claims below $100,000 (LMAA Small Claims Procedure 2021) (SCP) or $400,000 (the LMAA Intermediate Claims Procedure 2021) (ICP) in addition to further amendments and revisions specific to those particular rules.
The latest revisions to the LMAA rules reflect the changes implemented by other arbitral bodies and trade associations and the wider arbitration community in moving promptly and effectively to ensure that practice and procedure in the resolution of cross border disputes remains efficient and relevant in the modern, post pandemic, commercial world.