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The new rules governing London Court of International Arbitration (LCIA) arbitrations (the "2014 Rules") have now been formally adopted by the LCIA Court, and will come into force on 1 October 2014. A copy can be found on the LCIA website. The 2014 Rules will apply to any arbitration proceedings which are commenced (deemed to be when a Request is received by the LCIA Registrar – Article 1.4) on or after 1 October 2014.
A final draft of the new rules was circulated to users at the beginning of this year, and then considered at the LCIA's Symposium at Tylney Hall, England on 9-11 May 2014. Following some minor revisions and editing, the LCIA has now confirmed the wording for the 2014 Rules. The LCIA's new Director General, Dr Jacomijn van Haersolte-van Hof, considers that the "meticulous and thoughtful drafting process" has led to a "balanced set of Rules".
In addition to the points we raised on the most significant proposed amendments – see our May Alert – we now provide some further comments below on two key parts of the 2014 Rules.
- Emergency Arbitrator provisions
Article 9B of the 2014 Rules provides for the appointment of an Emergency Arbitrator. This adds to and complements the pre-existing provisions for the expedited formation of the arbitral tribunal (now Article 9A) and for the expedited appointment of a replacement arbitrator (now Article 9C).
A significant point to emphasise is that Article 9B shall not apply if either (i) the parties concluded their arbitration agreement before 1 October 2014 and the parties have not agreed to "opt in" to Article 9B; or (ii) the parties have agreed in writing any time to "opt out" of Article 9B (Article 9.14). The parties should therefore consider carefully this Article when drafting and/or negotiating an arbitration clause.
Under the provisions of Article 9B, the LCIA Court will strive to appoint an Emergency Arbitrator within 3 days of a fully constituted application (Article 9.6), and the Emergency Arbitrator has a default time limit of 14 days to decide the claim for emergency relief (Article 9.8). The applicant party must pay a fee up front on account of the Emergency Arbitrator's costs, without which an application will be dismissed (Article 9.5). The relief sought and/or obtained by a party from the Emergency Arbitrator is without prejudice to a party's right to apply to a state court or other legal authority for any interim measure (Article 9.12).
The addition of Article 9B brings the 2014 Rules in line with other arbitration institutions such as the International Chamber of Commerce (ICC) and Singapore International Arbitration Centre (SIAC), which include forms of emergency arbitrator provision in their rules. It also means that the 2014 Rules provide a party with the widest range of options for expedited formation of a tribunal and emergency relief.
- Conduct of Party Representatives
The 2014 Rules include as an Annex a set of guidelines regarding the expected conduct of parties' legal representatives. The draft of this Annex generated mixed views among users as to the need for such guidelines, but the LCIA Court has determined to adopt the Annex in full.
Under Article 18.6, the Tribunal has express power to determine whether any of the guidelines have been violated by a party representative. The Tribunal may order any or all of (i) a written reprimand, (ii) a written caution as to future conduct in the arbitration, or (iii) any other measure necessary for the Tribunal to fulfil its general duties under Article 14.4.
As highlighted in our May alerter, the inclusion of the guidelines fits with the aim of setting out a basic code of conduct to which all party representatives can adhere. To seek to strengthen this aim, the 2014 Rules include an explicit provision that, by permitting any legal representative to appear on their behalf, a party thereby represents that the legal representative has agreed to comply with the guidelines (Article 18.5).
About the LCIA: During 2013 there were 290 arbitrations referred to the LCIA, the most in its history. This continues a steady upward trend in the number of matters referred to the LCIA for arbitration. The LCIA is based at 70 Fleet Street, London, has international offices in New Delhi (LCIA India), Dubai (DIFC LCIA) and Mauritius (LCIA MIAC), and formal arrangements for hearings in Singapore and Toronto.