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Tomás Navarro Blakemore
Jean Marguerat
The LCIA introduced an update to its arbitration rules, effective 1 October 2020. This update tweaks the 2014 rules to make them clearer and more streamlined. Nevertheless, some sections were expanded, and others express certain powers and duties of the arbitral tribunal more explicitly. For example, previously implied duties like compliance and data protection are now directly addressed. Here is a summary of the most significant changes.
Electronic Communications as the New Normal
Befitting this time of working on a computer from home for almost any office worker worldwide, one of the main changes in the LCIA 2020 rules is the shift to electronic communications as the norm, rather than just an option. Art. 4 on written communications now makes email and other forms of electronic communications the default of how parties and the arbitral tribunal communicate. According to Art. 26, even the signing of the award can be done electronically. But, it is not just written communication that is affected. Also hearings, governed by Art. 19, can now explicitly be held remotely by videoconference or conference call. According to an LCIA podcast, the idea is to encourage arbitral tribunals to use technology to its fullest, to adapt even the procedures themselves. That is, it is not just possible to replace fax, postal mail or in-person hearings with their electronic counterparts. The arbitral tribunal can also adapt the procedure itself to make it more efficient using electronic communications. For example, the arbitral tribunal may replace a long hearing with multiple mini-hearings, or multiple witness hearings etc. Remote hearings are not new per se, but what is new is that they are becoming mainstream and are not used only for the odd witness hearing, but for proceedings more generally. Of course, we will see whether electronic hearings remain widely accepted in post-COVID-19 times. It is fair to say that parties and counsel are acutely aware that something nevertheless is lost in remote hearings, beyond the informal. I think that most will want in-person main hearings back as soon as possible, but there is also little doubt that remote conferences, mini-hearings, witness hearings etc. are here to stay past the COVID-19 crisis.
Expanded Conduct Rules and Early Determination
The changes to Art. 14 are expressing powers that the arbitral tribunal already had. For example, shortening timescales, limiting evidence, restricting pleadings, and adopting technology in order to make the proceedings more efficient. One notable change to Art. 14 is the reference to Art. 22 and the arbitral tribunal’s right to early determination or dismissal of a case. Art. 22.1 (viii) now expressly states that the arbitral tribunal may decide that a claim is “manifestly without merit” and issue a corresponding order or award. Clearly, this wording is modelled after other institutions’ rules that already know such provisions expressly, e.g. ICSID R. 41(5), or acknowledge early determination powers, like the ICC in its Note to Parties and Arbitral Tribunal on the Conduct of the Arbitration (para. 74 ff.).
Defining the Secretary’s Powers More Explicitly
In Art. 14A, the LCIA has also elected to clarify the powers of the tribunal’s secretary more clearly. The article now expressly requires the same transparency regarding conflicts, independence and impartiality that is required of the arbitral tribunal. It acknowledges the importance of the secretary’s role and pragmatically recognizes that secretaries can undertake a broad range of activities. Naturally, while always respecting the fact that decisions cannot be delegated to the secretary. At least in part, the changes are also due to the case P v Q and others [2017] EWHC 194 (Comm). There, one party to an LCIA arbitration applied to the High Court to dismiss the entire arbitral tribunal on the basis of an inadmissible delegation of duties to the secretary. In a misdirected email, the tribunal’s chairman had asked the secretary’s opinion on an email by that party on a procedural issue. The High Court held that this was not sufficient to amount to a delegation of decision-making and did not remove the arbitrators. The LCIA 2020 rules formalized LCIA practice and underline the important work secretaries do for the arbitral tribunal.
Composite Requests and Consolidations
The 2020 LCIA rules update has also introduced composite arbitration requests in Art. 1.2. While the High Court in A v B [2017] EWHC 3417 (Comm) held that under the previous rules, a separate request needed to be made for every arbitration request, the new rules now allow multiple arbitrations to be requested in a single document, all with separate proceedings and fees. On the respondent’s side, a composite response is now also possible under Art. 2.2.
While a composite request is not a consolidation, consolidation has also been broadened in new Art. 22A over the 2014 rules. Parties can now apply for consolidation even if the parties are not the same, provided the arbitrations to consolidate arise from the same transaction or series of related transactions. This considerably broadens the scope over the 2014 rules, which required the same parties for a consolidation.
Compliance and Data Protection
Finally, the LCIA 2020 rules are the first institutional rules to expressly address some compliance and data protection issues in Art. 24A and Art. 30A.
Obviously, the arbitrations were already subject to e.g. the GDPR and the 2020 update to the rules is more of a reminder of things that apply anyway, and maybe prompt the parties and the arbitral tribunal to think about these issues earlier.
