On 1 March 2018, the new Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit – DIS) come into force. They replace the Arbitration Rules issued in 1998 and apply to all requests for arbitration filed with the DIS from 1 March 2018. They are relevant for all German and international parties that have agreed on dispute resolution by arbitration in accordance with the DIS Arbitration Rules instead of the jurisdiction of national courts.
The new DIS Arbitration Rules are the result of months of discussions involving numerous German and foreign arbitration experts. Arbitration has changed considerably since the DIS Arbitration Rules came into force in 1998. The new DIS Arbitration Rules are intended to take these changes into account and bring the DIS Arbitration Rules in line with the international standards of other common arbitration rules.
The new DIS Arbitration Rules (hereinafter “DIS Rules”) contain numerous changes. The new DIS Rules attach particular importance to efficiently conducted proceedings and strengthen the role of the DIS as arbitration institution in ensuring the quality of proceedings.
New rules to increase procedural efficiency
DIS arbitration proceedings are in future to be organised so that they are considerably more cost-efficient and time-efficient and therefore even more attractive for national and international parties. The following changes are in particular to be taken into account:
- According to the new DIS Rules, answers to the request for arbitration already have to be filed with the DIS within 45 days following receipt of the request (regardless of whether the arbitral tribunal has been constituted) and not - as before - once the tribunal has set a time limit (Article 7.2 DIS Rules).
- The time limits for the nomination of arbitrators have been shortened (Articles 7.1 and 12.2 DIS Rules).
- In a separate annex, the new DIS AR provide a catalogue of measures designed to increase procedural efficiency, which are to be discussed with the parties by the arbitral tribunal. The parties also have the possibility of conducting “expedited proceedings” (Annexes 3 and 4 to the DIS Rules).
- No later than 21 days after its constitution, the arbitral tribunal has to hold a “case management conference”, in which a procedural timetable as well as possible measures for increasing procedural efficiency and the possibility of expedited proceedings are to be discussed (Article 27 DIS Rules).
- Within its decision on costs, the arbitral tribunal can take into account - besides the outcome of the proceedings - also the extent to which the parties have conducted the arbitration efficiently (Article 33 DIS Rules). This means that any delaying tactics of the parties can be sanctioned directly.
- The new rules also provide for a time limit for the final award. In future, the arbitral tribunal should as a rule send the final award to the DIS for review no later than three months after the last hearing or the last authorised submission (Article 37 DIS Rules).
- If the time limit for the final award is exceeded or the proceedings are not conducted diligently and efficiently by the arbitrators, this can in future lead to a reduction of the arbitrators’ fees. The Arbitration Council newly created by the reform has appropriate discretion when fixing the arbitrators’ fees (Articles 34.4 and 37 DIS Rules).
Increased quality assurance by DIS
The new DIS Rules have, following the example of other arbitration rules, significantly extended the responsibilities of the DIS for the management of proceedings and therefore clearly strengthen the role of the DIS as arbitral institution. The newly created Arbitral Council will for example decide on
- the number of arbitrators if the parties have not agreed this (Art. 10.2 DIS Rules),
- requests for a challenge of an arbitrator filed by the parties (Article 15.4 DIS Rules),
- an adjustment of the arbitrators’ fees if the proceedings are terminated prior to a final award is made or an award by consent is made (Art. 34.4 DIS Rules).
In order to ensure the quality of the arbitration proceedings and the arbitration award, the Arbitration Council is also authorised
- even without any request by the parties to remove an arbitrator from office if it considers that such arbitrator is not in a position to fulfil the arbitrator’s duties (Article 16.2 DIS Rules),
- at the request of a party to reconsider the amount in dispute which has been determined by the arbitral tribunal (Article 36.3 DIS Rules),
- to review the arbitral award, advise of possible errors in form and suggest other non-binding alterations (Article 39.3 DIS Rules).
Changes regarding multi-party arbitration and interim relief
Following the example of other international arbitration institutions, the DIS AR now also contain rules on multi-party arbitration and multi-contract arbitration, as well as the joinder of proceedings (Articles 17-20 DIS Rules).
The rules regarding interim relief have also been expanded. An arbitral tribunal may now accordingly order interim measures even without hearing the opponent of the party making the request (Article 25.2 DIS Rules). This makes interim relief via an arbitral tribunal, which can in principle also be obtained before national courts, more attractive for the parties.
The new rules successfully modernise the DIS Arbitration Rules. They facilitate more streamlined and efficient proceedings and ensure increased quality assurance on the part of the DIS. The new rules are now in line with the standard of other common international arbitration rules, but still in a tried and tested manner grant the parties and the arbitral tribunals relatively broad discretion with respect to how they organise the arbitration proceedings.
It is therefore to be expected that DIS arbitration proceedings and Germany as an arbitration venue will become even more attractive for national and international parties. The involvement of numerous renowned arbitration experts and practitioners in the revision of the DIS Arbitration Rules is also likely to lead to their increased acceptance in practice.