The Georgian International Arbitration Centre (“GIAC”) has recently finalised the GIAC Arbitration Rules (“GIAC Rules”), following the completion of the work of the Commission for Final Revision of the Arbitration Rules (the “Commission”). The GIAC Rules, which reflect best international practices and include many innovations from the recent ICC and LCIA arbitration rules, firmly establish GIAC as the leading dispute resolution institution in the Caucasus – Black Sea – Caspian Region.
Institutional arbitration and award scrutiny
One of the important features of arbitration under the GIAC Rules is the institutional arbitration framework within which they operate.
Similar to the leading international institutions, GIAC operates a tri-partite organisational structure, with a Board of Directors (whose core duty is the corporate management of GIAC), an Arbitration Council (which makes decisions on issues such as the appointment of members of an arbitral tribunal, issues related to the challenges of arbitrators, etc.) and the Secretariat (which administers and handles arbitration disputes submitted to GIAC, runs GIAC’s day-to-day activities and assists the Arbitration Council and Arbitral Tribunals). This institutional structure provides a robust support and oversight mechanism for the smooth-operation of arbitrations under the GIAC Rules.
One notable feature of this oversight role is GIAC’s adoption of an award scrutiny process (GIAC Rules, Article 39), which will be familiar to those who work with the Rules of Arbitration of the International Chamber of Commerce (2012) (the “ICC Rules”) (ICC Rules, Article 33). After the Arbitral Tribunal drafts its award, but before it is signed, the draft award is submitted to the Arbitration Council for review. The Council may make suggestions to the Arbitral Tribunal as to the form and/or substance of the draft award. Such scrutiny of the award shall not, however, affect the liberty of decision of the arbitral tribunal.
The involvement of both the Arbitration Council and the Secretariat in the administration of the arbitration and the award scrutiny process provides parties with an assurance as to the fairness, quality and reliability of the GIAC arbitration process and GIAC awards. This thoughtful and robust institutional framework is to be welcomed from a fledgling institution that is seeking to establish itself as a regional leader.
International best practice
In keeping with GIAC's adoption of an organisational and oversight framework familiar to the world’s leading arbitration institutions and international best practice, the articles of the GIAC Rules that deal with the procedures of GIAC arbitrations reflect some of the most recent developments in international arbitration practice and procedure.
Thus, in addition to the institutional framework and scrutiny process, the GIAC Rules provide for the efficient and proper commencement of arbitral proceedings by a detailed Request for Arbitration (Article 6), the provision of a detailed Answer (Article 7); the examination of the arbitration agreement in the event concerns as to jurisdiction are raised (Article 10, similar to the ICC Rules, Article 6); consolidation and joinder (Article 11); a detailed scheme for the proper appointment of and legitimate challenge to arbitrators (Section III); clear and detailed rules providing for the efficient conduct of arbitral proceedings, while preserving flexibility and party-autonomy (Section IV) and confidentiality (Article 43), among others. Several of these features of the GIAC Rules are discussed in detail below.
The international flavour of the GIAC Rules is no doubt a result of GIAC’s decision to appoint to the Commission leading local and international arbitration practitioners and arbitral institutions, including local governmental and private institutions, as well as leading practitioners from institutions in international arbitration such as the GCCI; the Ministry of Justice of Georgia; the Permanent Court of Arbitration; the University of Geneva; Dechert LLP and other international law firms.
One of the key points of focus for the drafters of the GIAC Rules and for the Commission was to offer efficient arbitration proceedings to the parties. The GIAC Rules approach this task from a number of different angles, by establishing specific timeframes, providing procedures for case management and granting relevant administrative functions to the GIAC Arbitration Council and to the Secretariat.
- Short, but reasonable timeframes. The GIAC Rules provide for short, yet reasonable timeframes for procedural steps in the arbitration. For example, the Answer to the Request for Arbitration must be submitted within thirty (30) days from the receipt of the Request for Arbitration from the Secretariat (Article 7.1). The Arbitration Council has various functions to ensure the time-effectiveness of the proceedings, such as, the power to appoint a sole arbitrator, if the parties fail to do so within the timeframe provided in the GIAC Rules (Article 13.2). These timeframes reflect common practice under the ICC Rules, the Arbitration Rules of the London Court of International Arbitration (2014) (the “LCIA Rules”) and other international arbitration rules.
- Case Management Conference. Following the transfer of the case file, the Arbitral Tribunal is required to hold a Case Management Conference to consult the parties on procedural issues and establish a procedural timetable (Article 27). The Arbitral Tribunal is authorised to schedule such conferences during the proceedings as well to ensure proper and effective case handling. A similar procedural process was adopted by the ICC Rules (Article 24.3) and the 2014 edition of the LCIA Rules (Article 14.1).
- Prompt rendering of the arbitral award. Under the GIAC Rules, the final award must be rendered within six (6) months of the date of execution of the Terms of Reference. This time limit may be extended by the Arbitration Council either on the basis of a reasoned request from the Arbitral Tribunal or on its own initiative (Articles 34.1 and 34.2). A similar control is found in the ICC Rules (Article 30).
Formation, impartiality and independence of the Arbitral Tribunal
Of critical importance to the fairness and integrity of international arbitration proceedings is the impartiality and independence of the Arbitral Tribunal. The GIAC Rules adopt the international gold standard provisions in this regard.
- Qualification, impartiality and independence of the Arbitral Tribunal. The GIAC Rules aim to ensure the independence and impartiality of the arbitrators, as well as the suitability of their qualification to the case in question. Before appointment or confirmation, a prospective arbitrator signs a statement of impartiality and independence. The GIAC Rules obligate the prospective arbitrator to disclose any facts or circumstances that may give rise to his/her impartiality or independence (Article 15.2).
- Nature of the dispute. The GIAC Rules further provide that the Arbitration Council will take into consideration the nature of the dispute, applicable law, the seat and the language of the arbitration when it is mandated to appoint or confirm arbitrators. The Arbitration Council will also consider the availability of the prospective arbitrator to conduct proceedings according to the GIAC Rules. (Article 16.2) This ensures that the arbitrators have the ability to dedicate necessary time to the arbitration proceedings. A comparable provision is found in the LCIA Rules, where candidates for the role of arbitrator are required to sign a written declaration as to their ability to devote sufficient time to ensure the expeditious and efficient conduct of the arbitration (the LCIA Rules, Article 5.4).
GIAC has also developed a list of arbitrators that shall assist parties to identify appropriate arbitrators for their disputes.
Complex arbitrations: consolidation and joinder
While seeking to ensure efficiency, the GIAC Rules are also adept at dealing with complex multi-party and multi-contract scenarios which may require the joinder of additional parties, or the consolidation of disputes arising under related contracts.
- Consolidation of arbitral disputes. Pursuant to Article 11 of the GIAC Rules the Arbitration Council, at its sole discretion, may opt to consolidate a new case with pending arbitral proceedings, upon the request of a party if the parties have agreed on the consolidation; or all claims presented are made under the same arbitration agreement. Decisions on consolidation shall be based on all relevant circumstances, such as whether the arbitrators have already been appointed and the stage of the pending arbitral proceedings. Similar provisions are found in the LCIA Rules (Article 22.1(ix)) and the ICC Rules (Article 10).
- Joinder of third parties. The GIAC Rules also permit the joinder of third parties to the arbitration proceedings. The request for joinder shall be submitted to the Arbitration Council at the request of a party before the constitution of the Arbitral Tribunal, or subsequently to the Arbitral Tribunal itself (Article 11.3).
Contrary to some common misconception, international arbitration proceedings, while private, do not necessarily enjoy confidentiality and many international arbitration rules are silent on the topic. In a welcome development, the GIAC Rules seek to afford parties the greatest confidentiality permissible by incorporating an express confidentiality provision at Article 43.
The new GIAC Rules are a positive addition to the international arbitration landscape and will no doubt contribute to the increased use of international commercial arbitration in the Caucasus – Black Sea – Caspian Region. The thoughtful incorporation of international best practices, and GIAC’s commitment to institutional oversight and scrutiny of the GIAC arbitration process, should give users confidence in adopting the GIAC Rules in their commercial contracts and establish GIAC as one of the region’s leading international institutions for the resolution of business disputes. As with the incorporation of any international arbitration clause into a commercial contract, legal advice should be sought as to the most appropriate form of arbitration agreement.