The revised UNCITRAL Arbitration Rules produced by Working Group II (of which Herbert Smith's David Brynmor Thomas is a member) have now been finalised and adopted, and will come into force on 15 August 2010. These Rules are widely adopted across the world where parties select ad hoc arbitration.
Key amendments include the following:
- New provisions to accommodate the potential for multi-party arbitrations, including to facilitate appointment of arbitrators in such arbitrations and the late joinder of additional parties. Notably, however, there is no provision to facilitate consolidation of arbitrations in multi-contract scenarios, so drafting of arbitration agreements should still take account of this.
- A requirement that the respondent(s) to an arbitration serve a response to the notice of arbitration within 30 days of receipt. This addition is likely to be welcomed by corporate counsel who, during the consultation process, had indicated dissatisfaction with this element of the previous Rules, under which a respondent might take no step in the proceedings until service of its defence, potentially some months into the arbitration, leaving claimants uncertain as to the respondent's position.
- The rules in relation to the granting by an arbitral tribunal of interim measures have been expanded and, in particular, include specification of the test that the tribunal will apply to an application for such measures. An applicant will be required to show that:
- without the measure, harm not adequately reparable by an award of damages is likely;
- such harm substantially outweighs the harm likely as a result of the measure being ordered; and
- there is a reasonable possibility that it will succeed on the merits.
- A number of new features contained in the Rules aim to enhance procedural efficiency, including revised procedures for the replacement of an arbitrator, the requirement for reasonableness of costs and a review mechanism regarding the costs of arbitration.
The new Rules will be presumed to apply to arbitrations where the relevant agreement was concluded after 15 August. However, without a subsequent ad hoc agreement, they will not apply to arbitrations arising from treaties or agreements concluded before that date. This means that, in practice, the old Rules will remain relevant for some time to come.