Herbert Smith Freehills’ Global Head of International Arbitration Paula Hodges QC Reappointed for Second Term as LCIA President

It has just been announced that the LCIA Board has, on the recommendation of the LCIA Court, reappointed Paula Hodges QC to lead the LCIA Court as President for a second term.

First appointed in 2019, Paula served her three-year term alongside LCIA Director General Dr Jacomijn van Haersolte-van Hof. Before this, Paula served as Vice President of the Court for several years and was also an LCIA Board member for a decade.

During Paula’s Presidency of the LCIA Court the LCIA has introduced and implemented the LCIA Rules 2020 and grappled with issues such as Brexit and the Covid 19 pandemic. Alongside her role at the LCIA, Paula continues to work full-time as Head of Herbert Smith Freehills’ Global Arbitration Practice.

Commenting on her appointment, Paula said:

“I am thrilled to have been given the opportunity to do a second term as LCIA President. With the 2020 Rules now being in full swing and the increasing reach of the LCIA globally, there are many exciting initiatives afoot and I am delighted to be able to work with the LCIA Secretariat, Court and Board to bring all our plans to fruition over the next three years.”

Paula’s over-arching aims are for the LCIA to continue to expand internationally attracting parties and arbitrators from all over the world, and to ensure that the LCIA keeps ahead of evolving arbitration trends.

The LCIA Court is the guardian of how the rules are applied to ensure that the high standing of the LCIA as an arbitral institution is preserved.

For a full list of new LCIA positions, please click here.

For more information, please contact Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

Livian on a prayer: Claimant’s last hope s68 challenge is firmly rejected by the Commercial Court

The Commercial Court has rejected an attempt to challenge an LCIA award on grounds of serious irregularity under section 68(2)(a) of the Arbitration Act 1996: Livian GmbH v Elektra Ltd and another [2022] EWHC 757 (Comm). The Court held that the contention that the Tribunal had overlooked undisputed witness testimony could not form the basis of an allegation of serious irregularity and, in any event, the Claimant had failed to demonstrate that evidence was overlooked or that any alleged omission would have had a significant impact on the outcome.

This judgment is another example of the robustness of the English Courts when faced with challenges to arbitral awards and their continued deference to tribunal decision-making. Continue reading


Head of HSF’s Global Arbitration Practice and President of the London Court of International Arbitration (LCIA) Court, Paula Hodges QC, will be taking part in the joint Vietnam Academy for Arbitration-CIArb Vietnam Chapter roundtable discussion on “Institutional Reforms – Transforming International Arbitration“, taking place on Wednesday 8 September 2021.

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The London Court of International Arbitration (the LCIA) has released its Casework Report for 2020. The statistics in the Report show an “exceptional year” and a continuing picture of growth for the institution. The statistics also show a gradual “internationalisation” of the LCIA’s caseload while also demonstrating the institution’s long-standing commitment towards improving the diversity of arbitral tribunals.

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Most arbitration institutions that have released their statistics for 2020 have reported increased caseloads and/or claim amounts, despite the COVID-19 coronavirus pandemic impacting in person hearings.  The strong demand for arbitration services and the fact that most arbitration institutions were able to move quickly to virtual hearings and avoid costly delays to proceedings establish arbitration as a resilient and reliable choice for commercial dispute resolution.  In this blog post we review both interim and full caseload statistics so far released for 2020.


The Hong Kong International Arbitration Centre broke a number of its own records this year.  With 318 cases, HKIAC received its highest number of new arbitration filings in over a decade.  The total amount in arbitration disputes handled by HKIAC was HK$68.8 billion (approximately US$8.8 billion).  Again, this is a record high since 2011.

203 of the arbitrations filed were administered by HKIAC (under rules such as the HKIAC Administered Arbitration Rules, the UNCITRAL Arbitration Rules and the HKIAC Electronic Transaction Arbitration Rules), representing a 20% year-on-year increase.  The amount in dispute for administered cases was HK$51.3 billion (approximately US$6.6 billion).

There was a small reduction in the proportion of new arbitration filings that were “international” (defined as at least one party not being from Hong Kong).  The proportion of all arbitration cases that were international also recorded a small drop.  The vast majority of cases (99.4%) chose Hong Kong as the seat of arbitration.  Hong Kong law was also the most commonly selected governing law for disputed contracts handled by HKIAC.

In 2020, HKIAC processed 22 applications under the Hong Kong-Mainland China Interim Relief Arrangement (Arrangement), which came into force in October 2019.  The total value of the evidence, assets or conduct sought to be preserved amounted to ¥6.4 billion (approximately US$988 million), of which ¥4.4 billion (approximately US$683.3 million) were successfully preserved.  This is an encouraging number, as it shows in the early days of the Arrangement that there is a realistic chance that assets and evidence sought to be preserved would likely be ordered to be preserved.

Fourteen emergency arbitrator applications were submitted to HKIAC in 2020. This is a large number, particularly given that only twenty-seven emergency arbitrator applications in total had been filed with HKIAC before 2020.  While it appears that 11 of the 14 applications were made in related arbitrations (which likely refer to a series of arbitrations arising from a related set of contracts or arise from the same or similar set of facts), there were still more applications than in past years.  Only three emergency arbitrator applications were filed in 2018, while none were filed in 2019.

The HKIAC granted 24 applications for expedited procedure in 2020, from a total of 28 applications.

There was a clear pivot to virtual hearings in 2020: 80 out of 117 hearings hosted by HKIAC in 2020 were fully or partially virtual, doubtless as a result of the pandemic.  Only 37 hearings were in-person, hosted at the HKIAC’s Hong Kong premises.

Fifty-two HKIAC arbitrations were concluded by Final Award in 2020, while four reached party settlement.

Finally, HKIAC released statistics on diversity of arbitrator appointments.  Of the 149 arbitrator appointments by HKIAC in 2020, 34 were of female arbitrators.  This continues an upward trend from 17.6% in 2018, to 20.5% in 2019 and 22.8% in 2020.


The Singapore International Arbitration Centre is expected to report its full case load information later this year, but it has already announced that it had crossed the 1000-case threshold with 1005 new cases in 2020 as of 30 October 2020.  This is another record year for SIAC, breaking the previous record caseload it had reported in 2019.


The China International Economic and Trade Arbitration Commission also saw growth in its caseload in 2020.  A total of 3615 ongoing cases were registered by CIETAC, representing an 8.5% year-on-year growth.

CIETAC reported that it handled disputes amounting in total to ¥112.130 billion (approximately US$17.3 billion).

There was growth not only in the number of cases handled by CIETAC, but also in terms of its international caseload.  In 2020, 739 cases were categorised as “foreign-related cases”, compared to 617 in 2019.  67 of these were cases where both parties were considered “foreign”, which was a record high for CIETAC.  CIETAC made 5213 arbitrator appointments in 2020.

As part of its response to the pandemic, CIETAC also established new virtual hearing centres, handling 819 virtual hearings.  This was an increase of 628 cases that were heard virtually.


Like HKIAC, the International Chamber of Commerce Court of Arbitration also announced record demand for its arbitration services last year.

ICC reported 946 new arbitration cases in 2020, the highest since 2016.  The majority of the new cases (929 cases) adopted the ICC Rules of Arbitration, while the remaining 17 (which were ad hoc cases) were filed under the ICC Appointing Authority Rules.


The London Court of International Arbitration also reported a record breaking 444 cases referred to the institution in 2020, which broke the record caseload LCIA had reported in 2019 by an increase of about 10%.  These results were published on an interim basis and further statistics are expected to be released later this year.


The Vienna International Arbitral Centre received 40 new cases in 2020, with the majority of cases involving an Austrian party.  The total amount of disputes handled by VIAC by the end of 2020 was €428 million (approximately US$518 million).

Compared to 2019, where VIAC saw 45 new cases, there was a small drop in the number of new cases received.  However, looking at the statistics for VIAC over the past few years, the number of new cases each year has generally ranged from 40 to 60 cases, so the small drop is likely part of a normal fluctuation over a longer period.

While the number of new cases did not grow, on the diversity front, more than 30% of arbitrators nominated or appointed in VIAC cases were female arbitrators.  This is the highest that VIAC has seen in recent years, and is a highlight for the institution.


The statistics from the Danish Institute of Arbitration indicate that it is primarily focused on domestic arbitrations, but about one-fifth of its cases were international in nature.  At 28 cases in 2020, DIA’s international caseload was approximately the same as during  the past five years, which ranged from 27 to 33 cases.


The Swiss Chambers’ Arbitration Institution reported 83 new arbitration cases in 2020, with 61 being international.  While the number of new cases was not the highest that SCAI has received, it continues an average growth trend over the past decade.


The American Arbitration Association-International Centre for Dispute Resolution reported that it handled 9538 cases in 2020, worth approximately US$18 billion.  This is a slight drop from 9737 cases in 2019, but – notably – an increase in claim amount when compared to the US$15 billion in claims in 2019.  AAA-ICDR also saw an increase from 94 filings for emergency arbitration in 2019 to 111 filings in 2020.

The largest claims, in aggregate, were from the technology sector (US$1.4 billion) followed by financial services, telecommunications and energy (in that order).  This is in contrast to the largest claims in 2019 coming from life sciences (USD 1 billion) followed by construction, real estate and technology.

In terms of changes in caseload by sector, cases related to the cannabis industry saw a 100% increase, the largest rise of any sector (the same industry saw a 225% increase in 2019, which was also the largest sector rise in 2019).

On the diversity front, AAA-ICDR reported 33% of appointments as “diverse appointments” (which refers to gender and ethnic diversity).


A majority of arbitration institutions globally reported growth in case load and/or claim amounts in 2020, many of them even breaking their previous records.  This goes to show that arbitration remains a robust dispute resolution mechanism, which has proven its ability to adapt to the highly challenging circumstances of the past year.

It was also a clear side effect of the pandemic that there was a significant shift to virtual hearings.  While users have been slowly moving towards virtual hearings for a number of years, it appears that 2020 will be recognised as the year in which virtual hearings went mainstream, allowing arbitral institutions all over the world to continue to serve the needs of their users.

Simon Chapman
Simon Chapman
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Rebecca Warder
Rebecca Warder
Professional Support Lawyer
+44 20 7466 3418
Jacob Sin
Jacob Sin
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This blog post was originally published on 16 July 2020. This version of the post has been amended to include an updated table of the individual steps taken by different arbitral institutions and organisations as at 02 October 2020 in response to the evolving situation. 

As the Covid-19 pandemic continues, infection rates in many countries are starting to fall, and businesses and governments alike are seeking to establish a “new normal” recognising that the virus will be present in society for some time yet. Other countries still face climbing numbers and a peak yet to come. For all, the prospect of multiple waves of high infection rates throughout the year and beyond remains. As such, we will continue to see an ever shifting patchwork of lockdowns and other government responses internationally.

In our earlier series of blog posts, we highlighted the individual steps taken by different arbitral institutions, organisations and the wider community as an initial crisis response to the pandemic. We produced a table setting out those steps and will continue to monitor and update this information going forward. An updated table, accurate to 02 October 2020, can be found here.

In this blog post, we turn to the future and look at how the arbitration community continues to respond to the challenges of operating internationally, as different countries prepare in different ways to live with the Covid-19 virus in the medium term at least.

A steep learning curve: the initial response

The initial wave of the pandemic created an unprecedented need for arbitral institutions and organisations to adapt at very short notice to new and different ways of working, and offer solutions to parties and practitioners that would enable disputes to continue to be resolved at a time of quarantine, enforced social distancing and fast-changing government guidance from across the globe. What became clear was that there was no “one size fits all” approach to be taken by those institutions or organisations. Some institutions (such as the SCC) already functioned largely online with online filing systems. For other organisations (such as the LMAA) the majority of their cases were resolved “on the papers” rather than in face-to-face hearings. Other institutions (such as the ICC or LCIA) needed to introduce changes in their processes, enabling cases to be filed virtually while their secretariats worked remotely and for parties and tribunals to communicate online.

As the truly global nature of the pandemic unfolded, one of the first questions faced by parties, arbitrators and practitioners was whether merits hearings ought to be held virtually or postponed. While electronic communication and the use of other online tools in an arbitration is nothing new, most arbitrations, until now, involved a face-to-face substantive hearing on the merits. For many, a shift to a fully virtual merits hearing was, at least initially, viewed as a step too far. We saw many arbitration hearings in March and early April being postponed to later in the year. However, with the realisation that this “new normal” might be with us on a global scale for some time came a change in attitude towards virtual hearings.

The institutional joint statement in April 2020 mirrored the approach of many national courts in encouraging parties to continue with the resolution of disputes, and many arbitral institutions began encouraging arbitrators to adopt virtual hearings wherever possible. As a consequence, many parties with upcoming merits hearings found their arbitrators inclined towards that option.

Where a decision has been taken to hold a hearing virtually, the arbitrators, practitioners and clients involved have been on a steep learning curve. Just as we have all become used to operating through Skype, Teams and Zoom in the workplace, we have adapted to using that same virtual technology (and others) to hold hearings.

There has been a very positive response from a number of practitioners who have participated in virtual hearings, with many surprised at how well they have worked. We have seen the development of guidelines, protocols and procedural orders to govern the efficient and effective running of virtual hearings and to ensure that the hearing remains fair to all.

We have also seen other new ideas and initiatives come from within the community during this challenging time. New websites and initiatives have been launched to help keep practitioners up to date with Covid-19 developments or to facilitate the use of online platforms to enable cases to truly operate virtually.

Responding to an ever-shifting international picture: the need for flexibility

So what does the “new normal” mean going forward?

Commercial arbitration has grown in popularity over the past decades as parties recognise the benefits it brings in cross-border transactions by offering a neutral forum and an adaptable, international, procedure. But the international nature of the parties, practitioners, institutions and arbitrators also means that arbitration must be able to adapt and flex to fit the unique requirements of those international participants, both in terms of their transactions and disputes, but also to the specific implications of the pandemic for each country in which those participants reside.

Clearly, if circumstances require it, all those involved in the process should be able to revert back to “lockdown” ways of working. And if circumstances require it, all the learning of the past months will be able to be put into use in continuing to hold wholly virtual substantive hearings. But what seems more likely is that we will see more flexible and adaptable approaches to respond quickly to the immediate, and often changing, circumstances.

“Hybrid” or “semi-virtual” hearings are likely to be the answer to that need for flexibility. A mixture of virtual and physical attendance will help to mitigate the effects of travel restrictions and local or national lockdowns. They will also enable those involved in hearings (such as the parties and their counsel, the Tribunal and any witnesses or translators that might be involved) to participate to the fullest extent possible. Some participants may meet in a single or in multiple locations, with appropriate social distancing, while others attend virtually. These hybrid hearings can be set up to change format at short notice, enabling those involved to plan for a myriad of different scenarios but ensure that the final hearing remains fair, offering each party the opportunity to put their case.

Impact on the future: a catalyst for change in the post-Covid world?

Many sectors of the economy have proven themselves to be extremely adaptable in the face of the pandemic, and arbitration is no different in that regard. At this stage, however, it is difficult to gauge the longer term impact of Covid-19 on the process and procedure of arbitration globally, particularly if a future vaccine were to reduce or remove the need for social distancing.

However, the longer arbitral participants are required to work in a different way, the more those new ways of working will be seen as the norm. The more positive experiences participants have of virtual or hybrid hearings, the more likely it is that these will remain at least options for future merits hearings. When faced with participants from across the globe, parties may become less comfortable with the expense of holding a face-to-face hearing if they are reassured in the effectiveness of a virtual or hybrid option. Indeed, the dramatic reduction in the carbon footprint of these virtual and hybrid hearings may lead to an environmental “silver-lining” to the pandemic in terms of changes in business practice for many, including in international arbitration.

Most importantly, we have seen innovation and blue sky thinking at its best in the last few months. And that shift in mind-set towards different ways of delivering the product of arbitration effectively and efficiently has been exciting to see and experience. That ability to adapt and change to challenging circumstances is likely to continue, and we will see the longer term impact of that innovation for many years to come.

For more information, please contact Craig Tevendale, Partner, Vanessa Naish, Professional Support Consultant, Charlie Morgan, Senior Associate, or your usual Herbert Smith Freehills Contact.

Craig Tevendale
Craig Tevendale
+44 20 7466 2445

Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

Charlie Morgan
Charlie Morgan
Senior Associate
+44 20 7466 3868


The London Court of International Arbitration (LCIA) has announced changes to its rules which will come into force on 1 October 2020.

The revisions to the LCIA Rules have been couched in terms of an ” update ” rather than a wholescale rewrite. Nonetheless, some changes of note have been made. The new Rules allow for the commencement of multiple arbitrations in a “composite Request” and expand the circumstances in which consolidation may be available. They also confirm the wide discretion of the Tribunal in all aspects of arbitral procedure, including the ability to order Early Determination of claims or counterclaims for being manifestly without legal merit. In addition, the revision seeks to codify within the Rules themselves the LCIA’s approach to Tribunal secretaries (previously contained within a Guidance Note to arbitrators) and to address some slight quirks introduced by the 2014 rule revision. More generally, it feels as though a red pen has been taken to extraneous clause fragments and phraseology and a more “Plain English” drafting style to the whole set of Rules has been introduced. This modernisation also extends to the way the LCIA operates, with a move to the use of electronic submission and communication as the default. We also see a recognition of the reality of current practice, with express drafting included to allow the Tribunal discretion to order a virtual hearing, or a combination of remote and in person attendance.

  1. Breadth of Tribunal Discretion

There have been some fairly substantial changes to Articles 14 (Conduct of Proceedings) and 22 (Additional Powers) of the Rules. On one view, these are not changes per se, but rather a confirmation of powers that arbitrators have always had under the LCIA’s Rules, but which, through lack of express inclusion within the Rules themselves, arbitrators have been reluctant to exercise.

In terms of Article 14, this is certainly a sustainable position. The new Rules have moved around the existing provisions in Article 14, moving up the general duties of the Tribunal from old 14.6 to the beginning of the Article at new 14.1, but leaving them unchanged. New Article 14.2 mirrors old 14.7 in making it clear that the Arbitral Tribunal shall have the widest discretion to discharge these general duties and is, again, unchanged. What follows at new 14.5 and 14.6 seeks to clarify (but not necessarily limit) what this “widest discretion” entails in terms of procedure, including shortening timescales, limiting evidence, restricting pleadings, and adopting technology. Few would disagree that these fall within the existing parameters of arbitrator discretion, exercisable in pursuit of efficient and expeditious conduct. These wide powers would enable a bespoke expedited procedure if required. This all sits well with the changes in Article 15 of the Rules which confirm the Tribunal’s overall control of the written procedure, its extent and timescales.

Whether the changes to Article 22 also fall within that same confirmatory category will very much depend on your view of how far Tribunal discretion extends in terms of summary dismissal. The provisions at 22 (viii) allow for a tribunal to determine that any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim is manifestly outside the jurisdiction of the Arbitral Tribunal, or is inadmissible or manifestly without merit; and where appropriate to issue an order or award to that effect (an “Early Determination”).

Other institutions (e.g. SIAC, HKIAC) have already provided for summary dismissal or early determination in their rules or confirmed (ICC) that such a power exists in a practice note. It was therefore a very obvious addition for the LCIA in any rule change, particularly given the rising use of LCIA Rules by financial institutions who have historically chosen English court jurisdiction over arbitration for the ability to apply for summary judgment.

  1. Composite Requests and Responses

The English court’s decision in A v B [2017] EWHC 3417 (Comm) (21 December 2017) confirmed that the LCIA Rules 2014 did not permit a party to commence a single arbitration in respect of disputes under multiple contracts. Rather, parties instead needed to issue multiple separate Requests for Arbitration and then seek to have the separate arbitrations consolidated.

Other arbitral institutions have allowed for the issue of single requests for multiple disputes in certain circumstances for a number of years, and this court decision made the LCIA seem at odds with what clients and the arbitral community expected. The changes to Article 1.2 allow for composite Requests for Arbitration to be issued in order to commence multiple arbitrations (under certain circumstances) at once. This is then followed at 2.2 by the ability for a Respondent to file a composite Response. While the issuance of a composite Request may be accompanied by a request for consolidation of those disputes, consolidation is not automatic. Whether or not those multiple arbitrations are then consolidated and resolved together will be determined by the tribunal and/or the LCIA.

  1. Widening the circumstances for the consolidation of disputes

The LCIA Rules have historically been viewed as being quite restrictive in terms of the circumstances in which consolidation could be sought under the Rules themselves. Unless multiple arbitrations were taking place under the same arbitration agreement or under compatible agreements with the same parties, consolidation had to be provided for in free-hand drafting in the arbitration clause itself.

The 2020 rule change introduces a new Article 22A called “Power to Order Consolidation/Concurrent Conduct of Arbitrations”. Much of the language here is unchanged, providing for both the Arbitral Tribunal and the LCIA to order consolidation in certain circumstances. However, the tweaks and additions that have been made have changed the LCIA’s approach quite considerably. 22.7(ii) now allows for the Tribunal to consolidate arbitrations under compatible arbitration agreements between “the same disputing parties or arising out of the same transaction or series of related transactions“. Being able to argue that arbitration agreements are compatible and arising out of the same transaction or related transactions opens up opportunities for consolidation in a far wider set of circumstances. This expansion has also been applied to the powers of the LCIA Court under Article 22.8(ii) to consolidate prior to the appointment of a tribunal in similar circumstances. Also new is Article 22.7(iii) which provides for a Tribunal to conduct arbitrations concurrently in similar circumstances and where the same arbitral tribunal is constituted in respect of each arbitration. In practice, this is likely to occur where parties have already agreed to concurrent arbitrations in their contract or where it is standard market practice in the relevant industry.

These apparently small alterations provide for a far more modern and flexible provision that will be very useful, particularly alongside the new provision for composite Requests.

  1. Tribunal Secretaries

Arbitration moves very quickly as a practice area. Since the last LCIA rule change in 2014 it has become standard practice for the role of tribunal secretary to be formalised and placed on a similar footing to arbitrators in terms of conflicts and independence and impartiality. The LCIA responded to that shift in practice by providing some quite detailed guidance in 2017 in its Guidance Note to Arbitrators. However, the rule refresh was an obvious chance to put that guidance on a more formal footing.

The LCIA’s approach to tribunal secretaries came under some scrutiny in the case of P v Q and others [2017] EWHC 194 (Comm). P v Q involved an application to remove an entire Tribunal under s24 of the English Arbitration Act on the basis of alleged “over-delegation” of their duties to their secretary. The Court’s decision was based on a review of the Act and, importantly, the LCIA Rules 1998. The decision gave judicial backing to the LCIA’s approach in that case, and provides judicial support to the LCIA Court’s decision-making process on arbitrator challenges.

Given this support, particularly following the LCIA updated approach in its 2017 Guidance, it is not surprising to see that new 14A is not “new” per se, but rather formalises LCIA current practice within the Rules. The provision makes it clear that parties have to agree to the use of tribunal secretaries and that Tribunal members must not delegate decision-making powers. There is also clarity about the need for Tribunal secretaries to disclose any conflicts of interest and also that the obligation of confidentiality under Article 30 applies to any tribunal secretary.

  1. “Authorised Representatives” and the Annex on Conduct

The introduction of the LCIA’s Annex on Counsel Conduct in the 2014 Rules was an extremely innovative move and remains so. It is noteworthy that there have been no efforts to remove or limit the Annex in the 2020 Rules revision. This shows continued confidence from the LCIA in its approach to this issue.

What has been addressed in this latest revision is a change that was introduced in 2014 and caused considerable discussion. In Article 18 of the 1998 LCIA Rules it was clear that a party could be represented by legal practitioners or by any other representative, whether legally qualified or not. However, in 2014 that language shifted to “one or more authorised legal representatives”. It was not clear at the time whether the LCIA had intentionally restricted party representation in LCIA arbitration to lawyers only. The rule change in 2020 has reverted to clarifying that representation can be legal or non-legal, but that, legal or non-legal, the Annex on Conduct still applies.

  1. Refreshing and modernising

The 2014 amendments introduced some important new concepts into the LCIA Rules. But they also introduced a few quirks that needed to be rectified. Moreover, the bedrock of the 1998 Rules was largely unchanged, meaning that some of the turns of phrase have started to seem a little archaic.

The 2020 update is exactly that. A red pen has been taken to unnecessary additional words and to spare sub-clauses throughout. The fax machine has been removed from the equation and the Rules now require that the Request and Response be submitted electronically unless prior written approval is given by the LCIA Registrar. The default throughout is that correspondence will be through electronic means unless the LCIA Court or the Tribunal direct otherwise (under Article 4). This modernisation also extends to the process of signing and distributing awards, with Article 26.2 now permitting an award to be signed electronically and/or in counterpart and assembled into a single instrument unless the parties agree or the Tribunal or LCIA Court directs otherwise. We also see a recognition of the reality of current practice, particularly during the COVID-19 pandemic, with express drafting included in Article 19 to allow the Tribunal discretion to order a virtual hearing, or a combination of remote and in person attendance. In doing so, the LCIA has chosen to “future-proof” its Rules with the use of the term “other communications technology” to allow for remote hearings technology to continue to evolve over time.

There has been some tightening in the timescales, with 28 days rather than 35 days for the LCIA to appoint the Tribunal in Article 5.8 and an assumed three-month timescale for the release of the Award in 15.10. We also see the acceptance that the blanket use of the term “cross-claim” in the 2014 Rules to cover both counterclaims and cross-claims against co-respondents has caused confusion. Using both terms in the new Rules here has added length but added hugely to logic. We also see some more clarity in the division of roles between parties, authorised representatives, Registrar, Court, Tribunal and tribunal secretary and more guidance in areas such as correspondence between any and all of those participants.

  1. The challenge of addressing Gerald Metals

It had been widely anticipated that the revised Rules would address the 2016 case of Gerald Metals SA v The Trustees of the Timis Trust and others [2016] EWHC 2327 (Ch). Gerald Metals was about the availability of court-ordered interim relief in support of arbitration. The English court found that the test of “urgency” under s44(3) of the English Arbitration Act 1996 (the “Act”) would not be satisfied unless:

  • the matter was so urgent that there was insufficient time to form an expedited tribunal or appoint an emergency arbitrator; or
  • an expedited tribunal or emergency arbitrator could not exercise the necessary powers.

Leggatt J held that if an expedited tribunal could be constituted or an emergency arbitrator appointed within the relevant timeframe, and the expedited tribunal or emergency arbitrator could practically exercise the necessary powers, the test of “urgency” under s 44(5) of the Act will not be satisfied and the court will not have power to grant urgent relief.

Whether and how to deal with this case in the Rules has been much discussed at Tylney Hall and, no doubt, by the LCIA drafting committee. Article 9B of the Rules clearly states that the availability of an emergency arbitrator shall not prejudice any party’s right to apply to a state court or other legal authority for any interim or conservatory measures before the formation of the Arbitral Tribunal; and it shall not be treated as an alternative to or substitute for the exercise of such right.

Leggatt J dealt with this provision in his judgment. He found that, while the Rules make it clear that Article 9B is not intended to prevent a party from exercising a right to apply to the court (for example under section 44 of the Arbitration Act),  this does not prevent the powers of the court from being limited as a result of the existence of Article 9B.

The LCIA has taken a light touch in its changes to the Rules to address the case. In particular, it has made some small alterations to old Article 9.12 (now article 9.13) and to Article 25.3 (relating to interim relief before an arbitral tribunal rather than before an emergency arbitrator specifically) to simplify the language and to confirm the availability of court-ordered interim relief in certain circumstances. However, the relatively limited changes demonstrate the challenge this case poses for any arbitral institution. The institution can attempt more clearly to signpost how its rules should be interpreted, but it remains up to the court to decide how it applies or construes the Act alongside those rules. S44 provides for the court’s discretion in this area – not for the institution. While the changes are welcome, their impact remains uncertain and will depend entirely on how the court approaches the interaction between the new LCIA Rules and the Act on this point.


The LCIA 2020 rule change will be widely welcomed by the arbitral community. This is a modern set of rules which has sought to go back to arbitration at its roots and retain ultimate flexibility. We see confirmation that a full arsenal of procedural techniques fall within Tribunal discretion, from limiting pleadings and evidence, to Early Determination and the recognition that a Tribunal may order the use of remote hearing technology. The new provisions of consolidation introduce far wider scope, but without adding levels of complexity, while the introduction of a Composite Request is a practical response to user need and demand. The Rules have refreshed and modernised their approach but have retained their essential LCIA character. It just remains to be seen whether the LCIA’s approach to Gerald Metals will be successful.

Fore more information, please contact Andrew Cannon, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
+44 20 7466 2852

Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112