The changes to the LCIA Rules, and the pending changes to the ICC Rules, reflect the desire of arbitral institutions to keep their processes current and relevant to commercial parties, even as the demands on the arbitral process change
For users of international arbitration, two important recent developments have been the revised sets of institutional arbitration rules for both (1) the London Court of International Arbitration (LCIA) which came into force for all LCIA arbitrations commenced on or after 1 October 2020, and (2) the International Chamber of Commerce (ICC) whose new 2021 Rules have received a ‘soft launch’ prior to them being finalized and brought into force on 1 January 2021.
This article considers the main changes in both sets of rules relevant to commercial users of arbitration and their counsel.
THE 2020 LCIA RULES
The 2020 LCIA Rules aim to enhance the efficiency and flexibility of the LCIA process while staying true to the LCIA’s traditional light-touch approach.
The new Rules allow for multiple arbitrations to be commenced in one “Composite Request” and expand the circumstances in which consolidation may be available. They confirm the tribunal’s wide discretion in relation to all aspects of arbitral procedure, including an express power to order early determination of claims or counterclaims which are manifestly without legal merit. There is also a move to electronic submissions and communications as the default, and an express power for tribunals to order virtual hearings. As a further efficiency-focused measure, the LCIA’s existing approach to tribunal secretaries (previously contained within a Guidance Note to arbitrators) has been codified into the Rules.
Tribunal’s procedural discretion: There have been some fairly substantial changes to Articles 14 (Conduct of Proceedings) and 22 (Additional Powers) of the Rules. In emphasizing the wide discretion available to an LCIA tribunal in fulfilling its general duty to provide “a fair, efficient and expeditious means for the final resolution of the parties’ dispute”, Articles 14.5 and 14.6 spell out that this includes shortening timescales, limiting evidence, restricting pleadings, and adopting technology. Article 22 goes even further in providing for the first time an express power of early determination. A tribunal may determine that any claim, defense, counterclaim, crossclaim, defense to counterclaim or defense to cross-claim is manifestly outside the jurisdiction of the tribunal, or is inadmissible, or manifestly without merit.
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