We recently published a short article outlining the new 2021 Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce (ICC), which govern all arbitrations registered at the ICC on or after 1 January 2021.
Our previous article which provided details regarding the new ICC rules which have been introduced can be found here.
Other arbitral bodies have also revised their procedural rules making them fit for purpose in a post pandemic commercial environment.
The London Court of International Arbitration (LCIA), has also recently updated its respective set of rules in order to modernise and streamline its processes and procedures, stealing a march on the ICC with the new LCIA rules (the 2020 LCIA Rules) taking effect slightly earlier than the revised ICC rules.
The revised LCIA rules will apply to any arbitration requests submitted to the LCIA on or after 1 October 2020. The 2020 LCIA Rules replace the former LCIA Arbitration Rules 2014 which previously governed arbitrations at the LCIA up to and including 30 September 2020.
The 2020 LCIA Rules encourage greater emphasis on the use of electronic communication. Previously, under the 2014 LCIA Rules, the Request for arbitration and any Response, was required to be submitted in hard copy or by email, if preferable. However, under the 2020 LCIA Rules, the parties are now required to submit any request for arbitration and / or any response by email and may only dispense with this upon written approval from the arbitral tribunal and / or the tribunal stipulates otherwise. Further, any correspondence with the arbitral tribunal is now also required to be conducted via the use of email.
Some might say that such revision of the 2014 LCIA Rules is not drastic, and in fact only implements perhaps what the majority of parties to arbitral proceedings were already doing, however the decision of the LCIA to make the procedure fully digitised and electronic, and to make this mandatory, rather than optional, is an important and notable move by the LCIA.
The 2020 LCIA Rules also embrace the greater use of remote hearings and conferencing throughout the arbitral process. There is frequent reference throughout the 2020 LCIA Rules to use of “conference call, videoconference or using other communications technology” and, specifically, Article 19.2 states that a hearing may take place by any of these means.
Not all hearings will necessarily take place remotely in the future and the tribunal will consult with the parties at each stage before deciding whether an in person or remote (or possibly a hybrid) hearing would be appropriate in the circumstances.
The 2020 LCIA Rules have also introduced powers for the arbitral tribunal to expedite proceedings through the introduction of the “Early Determination” order. These powers, which were introduced pursuant to Article 22.1(viii) of the 2020 LCIA Rules, allow the arbitral tribunal to make an “Early Determination” order where any claim, defence, or counter-claim is manifestly outside of the jurisdiction of the tribunal, or is inadmissible or manifestly without merit.
This is a significant extension of the powers previously afforded to the arbitral tribunal and will now provide for the saving of both time and cost by making an Early Determination of any claims and / or defences which are manifestly unmeritorious at an early stage of the arbitration.
Additionally, the 2020 LCIA Rules have taken further steps in order to try and expedite the overall arbitration procedure by requiring that the tribunal shall endeavour to make its final award within three months of the parties’ final submissions. This makes clearer that the Tribunal is expected to proceed promptly and tightens up the previous reference in the
2014 LCIA Rules which provided that the award should be made “as soon as reasonably possible”, which does not provide the parties with any certainty as to when they can expect to receive the final award.
Consolidation of Arbitrations
Similarly to the new ICC Rules, the 2020 LCIA Rules now allow for the arbitral tribunal, subject to obtaining approval from the LCIA Court, to order the consolidation of separate arbitrations which have been commenced pursuant to the 2020 LCIA Rules, under the same arbitration agreement, and arising out of a dispute between the same parties and / or arising out of the same transaction. It is important to note that this power of the arbitral tribunal is subject to there having been no formation of an arbitral tribunal for the other arbitrations which are to be consolidated or, in the event that the tribunal has already been formed in these other arbitrations, that the actual tribunal itself is the same for all arbitrations to be consolidated.
Although this power of consolidation by the tribunal previously existed under the 2014 LCIA Rules, and allowed the consolidation of arbitrations between the same disputing parties, the introduction of consolidation powers of arbitrations which arise out of the same transaction or a series of related transactions, should assist with saving time and preventing unnecessary costs being incurred, where such arbitrations can readily be heard in one arbitration by one single arbitral tribunal.
In addition to the extended powers granted to the arbitral tribunal, the parties have also seen an administrative improvement introduced by the 2020 LCIA Rules in their Request for arbitration. Under the 2020 LCIA Rules parties can now serve a composite Request for arbitration in respect of a number of arbitrations, pursuant to rule 1.2 of the 2020 LCIA Rules.
It is then for the Respondent, in accordance with Rule 2.2 of the 2020 LCIA Rules, to serve a composite Response in respect of all of the relevant arbitrations under the Request. This differs to the position under the 2014 LCIA Rules whereby parties would be required to submit separate Requests for arbitrations and then seek an order from the LCIA Court to have the arbitrations consolidated.
As the two most prominent global arbitral bodies, both the ICC and the LCIA have taken steps to revise their respective Rules, in order to streamline arbitral proceedings in a growing digital world, which also reflects commercial necessity in response to the Covid-19 pandemic.
If you would like further information on either the ICC Rules or the LCIA Rules, or any other advice and information regarding arbitration, then please get in touch with a member of our team of arbitration experts.