While the Vienna International Arbitral Centre (VIAC) has only made selective changes to its arbitration and mediation rules, the German Institute of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit – DIS) has, in fact, adopted a new set of rules with several key changes.
Vienna Rules 2018
A major revision to the Vienna Rules is the competence of VIAC to administer domestic cases even if all parties have their seat or domicile in Austria. The competence to administer international cases remains unchanged.
A new provision now allows the respondent to request the arbitral tribunal to order the claimant to provide security for costs if the respondent can demonstrate that the recoverability of a possible cost claim is at risk. In the event the claimant fails to comply with the tribunal's order for the security for costs, the tribunal may suspend or even terminate the arbitration. The provision might become relevant in particular where third party funders are involved.
As to costs of the proceedings, the administrative fees of the institution and the arbitrators' fees have been decreased for lower amounts in dispute and increased at the higher end of the spectrum. As to the allocation and/or determination of costs, both the tribunal and VIAC should pay particular attention to whether the proceedings were conducted in an efficient manner or not.
In conclusion: The Vienna Rules keep their essential character for which they are known and appreciated in the CEE/SEE Region: a clear and slim set of arbitration rules and a reasonable cost regime that meets the needs of arbitration users.
DIS Arbitration Rules 2018
The DIS Arbitration Rules 2018 strengthen the involvement and the powers of the institution and establish a new body, namely the Arbitration Council. The Arbitration Council decides inter alia on the number of arbitrators (if there is no agreement in this respect), any challenge of arbitrators and the fixing and possible reduction of the arbitrators' fees, if the arbitration has been terminated prior to the rendering of a final award or by an award by consent.
The revision introduces a general principle pursuant to which the arbitral tribunal and the parties shall conduct the proceedings in a time and cost-efficient manner, taking into account the complexity and economic importance of the dispute. Such efficient conduct should, inter alia, be enhanced by
- shortening the deadlines for respondent to nominate its co-arbitrator and the deadline for the co-arbitrators to agree on a president;
- commencing of the deadline to file an answer to the request for arbitration already with receipt of the request for arbitration;
- holding a case management conference as soon as possible (in principle within 21 days) after the constitution of the arbitral tribunal, in which measures concerning the acceleration of the proceedings must be discussed
- the possibility to reduce the fees of one or more arbitrators in case of late submission of the award (which should in principle be rendered within three months after the last hearing or the last authorized submission).
There are also new provisions regarding multi-contract and multi-party arbitrations as well as for joinders of additional parties and consolidation of arbitrations.
As to interim measures, the new provision allows the arbitral tribunal to refrain from hearing the other party if this would risk frustrating the purpose of the measure. In such a case, the arbitral tribunal shall notify the other party of the request no later than when ordering the measure and shall promptly grant the other party a right to be heard. Thereafter, the arbitral tribunal has to confirm, amend, suspend or revoke the measure.
In conclusion: The revision of the DIS Arbitration Rules 2018 reconciles the good tradition of German commercial arbitration with today's need for modern and efficient conduct of international arbitration proceedings.