NEW LCIA RULES IN FORCE ON 1 OCTOBER 2020: REFRESHING THE LCIA’S APPROACH?

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.

Comment

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
Partner
+44 20 7466 2852

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

COEXISTING WITH COVID-19: A CATALYST FOR PROGRESS IN INTERNATIONAL ARBITRATION?

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 16 July 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.

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“NECESSITY IS THE MOTHER OF INVENTION”: COVID-19 DRAMATICALLY ACCELERATES DIGITALISATION OF ARBITRATION PROCESSES

Please Note: This post has now been updated. The latest version of this post can be found here

 

The arbitration community has steadily adopted new technologies over time to assist in the resolution of disputes. For example, it has become fairly commonplace for case management conferences to be run using virtual meetings or video conferencing, and it is not uncommon – where the circumstances justify it – for cross-examination of some witnesses and experts to take place remotely. The international nature of disputes has also made electronic document storage, trial presentation and electronic bundling a practical option for many arbitrations. All that being said, until very recently, remote hearings at the substantive stages of the case remained the exception rather than the norm and printed hearing bundles remained commonplace.

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CASELOAD STATISTICS SHOW INCREASING DEMAND FOR ARBITRATION BY MALAYSIAN PARTIES

On 22 October 2019, the Asian International Arbitration Centre (“AIAC“) published its 2018 statistics, showing a steady maintenance of its arbitration caseload. Throughout the years, there has been sustained efforts by the Malaysian government and legal community to promote arbitration as a dispute resolution process of choice for Malaysian parties, with the AIAC largely at the forefront of this endeavour.

In this post, we navigate the trend of Malaysian participation and usage of institutional arbitration based on published statistics of leading arbitral institutions across the world.

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Paula Hodges QC, Head of Herbert Smith Freehills’ Global Arbitration Practice, has been appointed President of the LCIA Court

Head of Herbert Smith Freehills’ Global Arbitration Practice, Paula Hodges QC has been appointed President of the London Court of International Arbitration (LCIA) Court, effective May 2019.

Paula has headed Herbert Smith Freehills’ global arbitration practice since 2008 and has over 25 years’ experience of advising on international disputes across many jurisdictions, including London, Paris, Geneva, Zurich, Stockholm, the US, Canada, Dubai, Africa, Asia, Russia and the CIS, with particular focus on the energy, telecommunications and technology sectors.  She has also appeared in arbitration-related litigation in the High Court, Court of Appeal and Supreme Court in London and sits regularly as an arbitrator. Her advocacy skills were recognised in 2014, when she was awarded the title of QC.

Headquartered in London, the LCIA is one of the world’s leading international institutions for commercial dispute resolution and, in particular, provides the administration of international arbitration around the globe.  Its Court is made up of leading practitioners in arbitration from the world’s major trading areas and is the final authority for the application of the LCIA rules.

Paula has been Vice President of the Court for several years and also a LCIA Board member for a decade.  Paula will continue to practise full-time at the firm whilst undertaking her new LCIA responsibilities.

Justin D’Agostino, Global Head of Dispute Resolution at Herbert Smith Freehills and Managing Partner for Asia, says: “Paula is an exceptionally talented lawyer and arbitrator and we are very proud of her achievement. This appointment is a testament not only to Paula’s legal excellence but demonstrates the high esteem in which she is regarded by the LCIA and wider arbitration community.”

LCIA-MIAC Joint Venture Agreement Terminated

The London Court of International Arbitration (the LCIA) and the Government of Mauritius have announced the termination of their joint venture which established the LCIA-MIAC Arbitration Centre. LCIA-MIAC was created in 2011 as a focal point for international arbitration in Africa. In terminating the joint venture both the LCIA and the Government of Mauritius have nonetheless restated their commitment to international arbitration both in and in relation to Africa.

The termination will take effect from 27 July 2018. Parties to contracts should not include provisions for LCIA-MIAC arbitration in their arbitration agreements after this date.

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English Court dismisses attempt to set aside LCIA award on grounds of serious irregularity

In the recent case of X v Y [2018] EWHC 741 (Comm), the English High Court dismissed an application to set aside an arbitral award under s68 of the English Arbitration Act 1996 (the Act) on the basis that the claimant should have first exhausted all remedies available to it by applying to the tribunal for correction or clarification of the award under s57(3) of the Act.  The Court found that a tribunal had power under Article 27.1 of the LCIA Rules 1998 to clarify ambiguity in the award, and that Article 27.1 did not, in any case,  oust the tribunal’s equivalent power under s57(3) of the Act. The wording of Article 27.1 in the LCIA Rules 2014 now expressly refers to correcting any ambiguity.

The case is a useful reminder to unsuccessful parties to analyse quickly and thoroughly an award and to ensure that any available process under s57 is exhausted before an application is made under s68. In particular, those who consider that the tribunal’s award is deficient for failing to deal with all issues put to it should assess whether such a complaint may be dealt with under s57(3) as a failure to give (adequate) reasons.

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English High Court grants an anti-suit injunction and confirms that the choice of arbitral seat is “analogous to an exclusive jurisdiction clause”

In Atlas Power v National Transmission and Despatch Company Ltd [2018] EWHC 1052 the English High Court granted a final anti-suit injunction to permanently restrain a national grid company owned by the Government of Pakistan (“NTDC“) from challenging an LCIA Partial Final Award in Pakistan (or anywhere other than England and Wales).

The injunction was granted on the “entirely straightforward” basis that the seat of the arbitration was London.  Phillips J rejected NTDC’s arguments that the courts of Pakistan had concurrent jurisdiction or that the seat of the arbitration was Lahore, Pakistan, and confirmed that an agreement on the seat of the arbitration is also an agreement on the forum for any challenges to an award.  Continue reading

LCIA 2017 Casework Report

The LCIA has recently released its Casework Report for 2017. This report provides an overview of and insights into the LCIA’s caseload. It includes detailed statistics concerning aspects of the caseload with a breakdown by sector, contract type, and time elapsed since the underlying agreement was reached. The Report also looks at arbitrator appointments and the frequency of use of different procedures under the LCIA’s Arbitration Rules (the “Rules”).The statistics show that the institution has had another strong year. Despite a small decrease in referrals from 2016, the overall picture is one of long term growth and a strong international profile. It is also important to note that the LCIA continues to make steady progress its efforts to improve the diversity of arbitrators. The number of female and non-British arbitrators has increased from 2016, albeit at a gradual rate.

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English court sets aside tribunal’s award on jurisdiction, finding that the LCIA Rules do not permit a party to bring claims under multiple contracts in a single arbitration

In its recent decision in the case of A v B [2017] EWHC 3417 (Comm) (available here), the English Commercial Court (the “Court“) set aside the tribunal’s award upholding its own jurisdiction, on the grounds that the LCIA Rules 2014 do not permit a party to commence a single arbitration in respect of disputes under multiple contracts.  As a result, the Claimant’s Request for Arbitration was invalid. The Court also held (contrary to the tribunal’s award) that the Respondent had not lost its right to object to the tribunal’s jurisdiction by failing to raise its jurisdictional challenge until shortly before filing its Statement of Defence.

This is a rare instance of the English court setting aside a tribunal’s award and a significant reminder to parties to transactions involving multiple related contracts to consider efficient resolution of disputes at the contract drafting stage. Continue reading