This article first appeared on HSF Arbitration Notes, here.
The updated DIFC-LCIA Arbitration Rules 2021 (“2021 Rules”) entered into force from 1 January 2021.
The amendments introduce changes intended to promote the fair, efficient, and expeditious conduct of arbitrations. In this update, we summarise the key features.
Expedited proceedings and emphasis on case management
In the 2021 Rules, the emphasis has been placed on an Arbitral Tribunal’s power to ensure the efficient and expeditious resolution of arbitral proceedings. The amendments give Arbitral Tribunals express authority to make more robust procedural orders for the faster resolution of arbitrations. The 2021 Rules, under Article 22, give power to the Arbitral Tribunal to, for example:
Although Arbitral Tribunals were in some circumstances already empowered to make similar procedural orders, the amendments will no doubt embolden Arbitral Tribunals to take a more active role in ensuring the efficient resolution of disputes and with less risk of court challenge where such powers are exercised.
Electronic communications and virtual hearings
The 2021 Rules confirm the primacy of electronic communications for the purposes of DIFC-LCIA arbitrations.
For example, the 2021 Rules:
In addition, pursuant to Article 4.1 of the 2021 Rules, parties must submit a Request for Arbitration and Response in electronic form, whether by email or through a designated electronic filing system. Prior written approval must now be obtained from the Registrar to submit a Request or Response by any alternative method.
The same approach has been taken to all written communications between the parties, which must be submitted by email or through a designated electronic filing system (Article 4.2). Until the 2021 Rules came into effect, correspondence by registered post was the preferred means of communication, and, previously, electronic communications required either designation or an order of the Tribunal.
Broadening of the powers of the LCIA Court and Tribunal to order consolidation and the concurrent conduct of arbitrations
The 2016 rules were not silent on the consolidation of proceedings, previously providing the Arbitral Tribunal with many of the same powers to consolidate as now exist in the 2021 Rules. However, the 2021 Rules now, under Article 22A:
These changes are among some of the more significant appearing in the 2021 Rules, and may even allow the Arbitral Tribunal or the LCIA Court to consolidate arbitrations between different disputing parties. By way of contrast, Article 10(c) of the new ICC Rules (which also came into effect on 1 January 2021) allows for consolidation when “the claims in the arbitrations are not made under the same arbitration agreement or agreements, but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.” The new provisions in the DIFC-LCIA Rules appear to afford a broader scope for consolidation.
Other noteworthy amendments
A number of other interesting, albeit minor, updates have been included within the 2021 Rules:
The 2021 Rules introduce amendments demonstrating the DIFC-LCIA’s promotion of the fair, efficient, and expeditious conduct of arbitrations, highlighted most obviously in the amendments dealing with consolidation, and the Arbitral Tribunal’s clarified power to make early determinations.
The 2021 Rules appear to accept that the use of technology and electronic communication in arbitrations, once an optional extra, are here to stay. These updates are perhaps unsurprising following a year in which many arbitrations were conducted virtually by video conference, and they pave the way for the ongoing option of remote hearings in the post-pandemic era.
The updated Rules can be downloaded from DIFC-LCIA website (www.difc-lcia.org).
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