Following on from 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 back 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.
Whilst almost every provision of the old rules has now been revised, in reality there are only a handful of 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”. Whilst 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 injunction orders or orders for specific performance.
If the LCIA Court grants the application, an emergency arbitrator is to be appointed within three days of the approval of the application by the LCIA Court. 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, other than if he has referred part of the claim for relief to the Tribunal, can be confirmed, varied, discharged or revoked by the Tribunal once formed. Notably, this right does not prevent a party from applying to the local courts for interim or conservatory measures before the Tribunal has been constituted.
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 has 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discontinue the arbitration if it appears that the arbitration has been abandoned or all claims/counterclaims have been withdrawn.
Provision for multi-party disputes: The new rules now recognise 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 the old rules, but not stated in specific terms.
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: Whilst it is still up to the parties as to whether or not they are represented in arbitration proceedings, if a party does choose to be represented then it must be by somebody who is lawfully authorised to act in that capacity. This 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 legal representation
The revised rules also give the Tribunal more power with regard to the appointment, replacement and conduct of the parties’ legal representation. In particular, the revised rules require parties to seek the Tribunal’s approval of any changes to their legal representation. 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 for legal representatives: Annexed to the revised rules is the identical “General Guidelines for the Parties’ Legal Representations” annexed to the 2014 revision of 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. Like the IBA Guidelines, the new DIFC-LCIA guidelines will form part of the parties’ arbitration agreement. As such, ultimate responsibility for compliance with the guidelines lies with the parties, rather than their legal representatives.
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 arbitrators’ 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 the standard online electronic filing form for the Request for Arbitration and the Response.
Although this revision to the DIFC-LCIA rules has obviously been done in order to align the DIFC-LCIA rules with the current version of the LCIA rules, it is also presented as part of the Centre’s wider plan to enhance its appeal as a forum for arbitration. A further part of this plan is the appointment of a new DIFC-LCIA Director and Register, Mr. Mohamed ElGhatit (formerly of Hogan Lovells). It is expected that Mr. ElGhatit’s appointment will facilitate the transfer of the administration, to the DIFC-LCIA, of all DIFC-LCIA casework that currently is being administered by the LCIA in London. This is in the expectation that a larger active caseload likely will improve the DIFC-LCIA’s exposure in the market and so 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 start to see the DIFC-LCIA overtake the more established Dubai International Arbitration Centre (“DIAC”) as the preferred institution for arbitration in Dubai.
DIAC is not standing still however. Notably, DIAC recently has closed a public consultation on a revised draft set of arbitration rules, which it is anticipated will be put into effect in final form in the near future. These draft rules contain a number of striking similarities to the new DIFC-LCIA rules, including allowing for the possibility of an emergency arbitrator (albeit that this is is optional, rather than applying by default). The new draft rules also fix some of the well-known problems with the current rules, most obviously by including specific reference to a Tribunal’s authority to award the costs of legal representation. DIAC has recently 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 governing of the DIFC Courts, as well as other DIFC judicial and academic institutes. 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.
Quite what the overall impact of these moves by both the DIFC-LCIA and DIAC will be remains to be seen. It is apparent, however, is that competition between these two institutions has lead and likely will lead to significant improvements for users of arbitration in Dubai. This can only be a good thing for the continued development of Dubai as a major arbitral centre.