Following its recent re-launch, the DIFC-LCIA Arbitration Centre ("the Centre") has issued the first revision to its arbitration rules since the Centre was first launched in 2008. As expected, the revised rules are almost identical to the current version of the LCIA Arbitration Rules, which have been in effect since 2014. The new rules will apply to all DIFC-LCIA arbitrations commenced on or after 1 October 2016.
While almost every provision of the old rules has now been revised, there are a handful of material substantive changes. In summary, these are:
ACCESS TO AN EMERGENCY ARBITRATOR
Either the claimant or the respondent will have the option of applying to the LCIA Court for the appointment of a temporary sole arbitrator to conduct what are termed "emergency proceedings". Although not specifically defined in the new rules, the purpose of the emergency arbitrator is to deal with claims for "emergency relief ". This is likely to include, for example, injunctive orders and orders for specific performance.
If the LCIA Court grants the application, an emergency arbitrator is to be appointed within three days. He or she is then to consider and rule on the claim for emergency relief within 14 days of being appointed. Any order or award of the emergency arbitrator can be confirmed, varied, discharged or revoked by the tribunal once formed.
PROVISION FOR THE CONSOLIDATION OF ARBITRATIONS
The tribunal can now consolidate separate arbitration proceedings. However, there are several important restrictions on this power:
- the arbitrations must have been commenced under the same arbitration agreement (or any compatible arbitration agreement(s) between the parties);
- no tribunal may have been formed in the other arbitration(s) to be consolidated, or the tribunal is the same for both/all arbitrations; and
- the tribunal requires the agreement of the parties or the permission of the LCIA Court.
DISCONTINUATION OF THE ARBITRATION
The tribunal now has the power to discontinue the arbitration if it appears that the arbitration has been abandoned or all claims and counterclaims have been withdrawn.
PROVISION FOR MULTI-PARTY DISPUTES
The new rules now recognize in express terms the possibility of there being one or more claimant and one or more respondent, each of whom can be jointly or separately represented. This was implicit in the old rules, but not expressly stated.
AMENDMENTS TO TIME LIMITS
Many of the default time limits have been shortened. For example, the default time limit for filing written submissions has been reduced from 30 days to 28 days.
LEGAL REPRESENTATION
Each party's representative must be lawfully authorized to act in that capacity. The representative does not have to be a qualified lawyer, but it must be somebody who has been lawfully appointed by the relevant party to provide representation. The tribunal has the right to request evidence, such as a power of attorney, to prove the lawful appointment of the legal representative.
The revised rules also give the tribunal more power with regard to the appointment, replacement and conduct of the parties' legal representatives. In particular, the revised rules require parties to seek the tribunal's approval of any changes to their legal representatives. Importantly, the tribunal can withhold any such approval where the change could "compromise the composition of the Arbitral Tribunal or the finality of any award."
CONDUCT OF LEGAL REPRESENTATIVES
Annexed to the revised rules is the identical "General Guidelines for the Parties' Legal Representations" annexed to the 2014 revision to the LCIA Arbitration Rules. The guidelines are intended to promote "good and equal" conduct of the parties' legal representatives. The revised rules give the tribunal power to take quasi-disciplinary action against legal representatives who breach these guidelines.
The guidelines cover similar ground as the International Bar Association's ("IBA") Guidelines on Party Representation in International Arbitration, published in 2013. The new DIFC-LCIA guidelines, however, will form part of the parties' arbitration agreement.
MEASURES TO INCREASE EFFICIENCY AND AVOID DELAYS IN PROCEEDINGS
There are various measures that are intended to speed up arbitration proceedings and to make them more efficient. For example, the parties and the tribunal are now encouraged to make contact with each other as soon as practicable, but in any event within 21 days of receipt of written notification of formation of the tribunal.
REVOCATION OF ARBITRATOR'S APPOINTMENT
The LCIA Court now has the power to revoke any arbitrator's appointment upon its own initiative. Previously this was only available by way of an application from the other arbitrators or either party.
ONLINE FILING AND COMMENCEMENT OF PROCEEDINGS
The claimant and respondent may use a standard online electronic filing form for the Request for Arbitration and the Response.
Although this revision aligns the DIFC-LCIA rules with the current version of the LCIA rules, it has also been presented as part of the Centre's wider plan to enhance its appeal as a forum for arbitration. A new DIFC-LCIA Director and Registrar, Mr. Robert Stephen, has been appointed. The transfer to the DIFC-LCIA of all DIFC-LCIA casework previously administered by the LCIA in London is also understood to be ongoing. This is in the expectation that a larger active caseload likely will improve the DIFC-LCIA's exposure in the market and increase its popularity. When coupled with the appeal of the DIFC as a common-law seat for arbitration proceedings, the Centre's most recent efforts may well enable the DIFC-LCIA to catch up with the more established Dubai International Arbitration Centre ("DIAC") as a preferred institution for arbitration in Dubai.
The DIAC is not standing still, however. Notably, the DIAC has held its own public consultation on a revised draft set of arbitration rules. These draft rules contain a number of similarities to the new DIFC-LCIA rules, including allowing for the possibility of an emergency arbitrator (albeit that this is optional, rather than applying by default). The new draft rules would also fix some of the well-known issues with the current rules, most notably by including specific reference to the tribunal's authority to award the costs of legal representation. The DIAC has also signed a memorandum of understanding ("MOU") with the DIFC Dispute Resolution Authority ("DIFC DRA"). The DIFC DRA replaced the DIFC Judicial Authority and has taken over governance of the DIFC Courts, as well as other DIFC judicial and academic institutions. The MOU seeks to expedite the recognition and enforcement of DIAC arbitration awards in the DIFC courts. In addition, DIAC has opened an office in the DIFC, again with the aim of expediting and assisting with the enforcement of DIAC arbitration awards in the DIFC Courts.
It appears that competition between the DIFC-LCIA and DIAC is leading to significant improvements for users of arbitration in Dubai. This bodes well for the continued development of Dubai as a major arbitral centre.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
