MARKET COMMENTARY 21
POWERS OF THE TRIBUNAL Whereas previously parties were permitted to agree on the conduct of their arbitral proceedings, wider powers have nowbeen granted to the tribunal, and the parties can now only agree on ‘joint proposals’ for consideration by the tribunal. In other areas, the tribunal’s power has been reinforced. The new rules provide that the parties can agree the seat of the arbitration inwriting at any point prior to the formation of the tribunal, however after this point, the prior written consent of the tribunal is needed. COSTS The tribunal has the power to decide that all or part of the legal or other expenses incurred by a party be paid by another party. The parties can no longer agree otherwise, unless they agree before the dispute arises that one or more parties shall pay the whole or any part of the costs, in which case the agreement must be confirmed inwriting by the parties after the commencement date (i.e. the date when the tribunal received the Request for Arbitration). The tribunal will base its costs decision on the parties’ relative success and failure in the arbitration – the parties can no longer agree otherwise – andmay also take into account the parties’ conduct. The latter provisionwas implicit in the old rules; however, bymaking the conduct consideration explicit, the LCIAmay improve the efficient conduct of its arbitrations as parties will seek to avoid being penalised on costs. PROCEDURAL RULES Several procedural changeshavebeenmade tomodernise the rules, for example, allowing the Request andResponse tobe submitted to theRegistrar inelectronic form, and toensure that arbitrations aredealtwith inamore timeand cost efficientmanner. The LCIACourt cannowproceed with thearbitrationnotwithstanding that theRequest is incompleteor theResponse ismissing, and theparties and the tribunal areencouraged tomake contact as soonas practicablebut no later than 21days fromreceipt of theRegistrar’swrittennotificationof the formationof the tribunal. Many timeperiodshavebeenshortened, for instance from30 to28days, however theparties retain the flexibilityof agreeing inwritingalternativedeadlines for thewrittenstageof thearbitrationand its procedural timetable. Further improvingefficiency, arbitrations canbe consolidated intoa singlearbitrationunder thenew rules, and inactivearbitrations canbediscontinued if theyhavebeenabandonedby theparties or whereall claimshavebeenwithdrawn, provided that nopartyobjectswithinagivenperiodof time. CONCLUSION The new rules seek to improve efficiency in the conduct of the arbitration, to be achieved both through newprovisions such as the appointment of an emergency arbitrator, and through other changes to the rules such as the tightening of time limits or allowing documents to be served electronically. While a number of arbitral institutions have revised their rules in recent years, the LCIA is the first to includemandatory provisions on party representation and conduct – perhaps setting a trendwhich others will follow in years to come.
A version of this article was first published in Kluwer Arbitration Blog, August 2014.
Made with FlippingBook - Online catalogs