The Australian Centre for International Commercial Arbitration ("ACICA") has recently announced revisions to its arbitration rules. The revisions, which came into effect on 1 January 2016, take into consideration the changes in international arbitration since the last revisions in 2011 and are intended to make arbitration conducted under the rules more cost-effective and efficient for users.
Arbitration and the ACICA
ACICA is an Australian international dispute resolution body active in international and domestic arbitration. It has developed a set of arbitration rules comprising the Arbitration Rules incorporating the Emergency Arbitrator Provisions ("Rules") and the Expedited Arbitration Rules ("Expedited Rules"). The Rules (or Expedited Rules) apply to arbitrations where the parties agree in writing that disputes shall be referred to arbitration under the Rules (or Expedited Rules, as the case may be).
Summary of significant revisions
Significant revisions have been made in the areas of expedited procedure, conduct of legal representation, consolidation and joinder, law of arbitration agreement and overriding objective.
Under the revised Rules, a party may, prior to the constitution of the Arbitral Tribunal, apply to ACICA in writing for the arbitral proceedings to be conducted in accordance with the Expedited Rules if the parties agree or the amount in dispute is less than $5,000,000. The proceedings may also be conducted in accordance with the Expedited Rules in a case of exceptional urgency. These preconditions appear to be based on those for applications for Expedited Procedure under the Singapore International Arbitration Centre Rules 2013. This revision to the Rules will allow parties to have disputes of low-value dealt with in a quick and cost-effective manner.
Conduct of legal representation
The revised Rules require each party to use its best endeavours to ensure that its legal representatives comply with the International Bar Association Guidelines on Party Representation in International Arbitration. The Guidelines were adopted by the International Bar Association in 2013 in response to increasing requests of legal practitioners for guidance on ethical standards applicable in international arbitration, in the context of practitioners frequently being subject to diverse and potentially conflicting bodies of domestic rules. The Guidelines are based on the principle that legal representatives of parties in arbitration should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense. This revision will provide a reference point for legal representatives acting for parties arbitrations conducted pursuant to the Rules.
Consolidation and joinder
The Rules now provide a mechanism whereby ACICA may, upon request by a party, consolidate two or more arbitrations pending under the Rules into a single arbitration. This will be available where all parties to the arbitration have agreed to the consolidation, or where all the claims in the arbitrations are made under the same arbitration agreement. It will also be available where a factual commonality exists between the arbitrations.
The Rules also enable ACICA to allow an additional party to be joined to the arbitration upon request by either a party to the arbitration agreement or a third party. The additional party must be bound by the same arbitration agreement between the existing parties to the arbitration.
Arbitral institutions in other jurisdictions, such as Hong Kong and London, currently have the power to consolidate and join proceedings. These revisions to the Rules bring ACICA in line with best international practice.
Law of arbitration agreement
The revised Rules provide that the law of the seat of arbitration shall be the governing law of the arbitration agreement, unless the parties have agreed otherwise.
The Rules will now contain a clause which sets out the overriding objective of the Rules: to provide arbitration that is quick, cost effective and fair, considering especially the amounts in dispute and complexity of issues or facts involved. ACICA will apply the overriding objective to arbitrations conducted in accordance with the Rules.