THE NEW CRCICA ARBITRATION RULES 2024: IN LINE WITH THE TIMES
THE NEW CRCICA ARBITRATION RULES 2024: IN LINE WITH THE TIMES
The Cairo Regional Centre for International Commercial Arbitration recently announced the upcoming implementation of its revised CRCICA Arbitration Rules, set to take effect on 15 January 2024 (the “CRCICA Rules“).
Receiving its first comprehensive update since 2011, these amended rules have been tailored to align with the evolving needs of the users of arbitration and the dynamic landscape of dispute resolution. The CRCICA’s Board of Trustees officially adopted the updated CRCICA Rules on 20 December 2023.
While maintaining the foundational principles of the UNCITRAL Arbitration Rules, the CRCICA Rules introduce innovative provisions addressing a range of contemporary issues. These include online arbitration filing, remote hearing protocols, guidelines on the law governing the arbitration agreement, streamlined procedures for consolidating arbitrations, provisions for the early dismissal of claims, strategies for handling multiple contracts, regulations on third-party funding, and the incorporation of Emergency Arbitrator Rules and Expedited Arbitration Procedures, among others.
In recognition of a decade’s worth of economic shifts, the Tables of Administrative Fees and Fees of the Arbitral Tribunal, detailed in Annex 1 of the Rules, have been adjusted.
The CRCICA Rules are structured into several sections, each dealing with different aspects of the arbitration process:
- Introduction: This section provides background information about CRCICA, its organisation, and the evolution of the CRCICA Rules.
- Section I — Introductory Rules: This section covers the basic principles and initial steps in an arbitration process, including the scope of application, notice and calculation of periods, and initial communication requirements.
- Section II — Constitution of the Arbitral Tribunal: This section details the process for appointing arbitrators, including the number of arbitrators, their appointment, disclosure, and challenges.
- Section III — Arbitral Proceedings: This section outlines the conduct of the arbitration, including the place of arbitration, language, statements of claim and defence, amendments, jurisdiction, and evidence.
- Section IV — The Award: This section focuses on the arbitration decision-making process, including the form and effect of the award, applicable law, and potential corrections or interpretations of the award.
- Section V — Costs of Arbitration: This section addresses the financial aspects of the arbitration process, including the updated fees, expenses, and allocation of costs.
- Section VI — Other Provisions: This section contains new and miscellaneous provisions like consolidation, multiple contracts, early dismissal of claims, third-party funding, and confidentiality.
The document also includes annexes with tables of fees, rules for emergency arbitrators, expedited arbitration rules, and by-laws of the Advisory Committee, as well as model arbitration clauses.
The CRCICA Rules are available in the English and the Arabic languages from the official website: https://crcica.org/arbitration/rules2024/
Galadari’s AI Commentary on CRCICA Rules is also available to download from the following link: https://aicommentary-galadarilaw.com/
This article provides comments on selected new and/or updated articles and provisions of the 2024 version of the CRCICA Rules, which are aimed at modernising CRCICA Rules into a more contemporary state and should be of interest to arbitral practitioners.
Online Filing of Notice of Arbitration and Response to the Notice of Arbitration
Articles 3(6) and 4(4) of the CRCICA Rules authorise online filing of the notice of arbitration and the response to the notice of arbitration using CRCICA official website. The online forms appear to be quite straightforward requiring only to provide the parties’ details and upload: (i) notice of arbitration, (ii) arbitration agreement, (iii) other related documents, or a copy of the response to the notice of arbitration (16MB limit per file).
Article 3(3) and 4(4) of the CRCICA Rules, read in conjunction with Article 2(6)(last sentence) of the CRCICA Rules, appear to allow filing of the notice of arbitration and the response to the notice of arbitration now by electronic means only, i.e., avoiding the need for duplicate submission of hard copies of the same documents to CRCICA after the filing online (as is presently the case): https://crcica.org/arbitration/fnao/
Commencement of Arbitral Proceedings
Pursuant to Article 3(2) of the CRCICA Rules, subject to the parties’ alternative agreement, “the arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the Centre”. In the 2011 version, commencement of arbitral proceedings is triggered upon receipt of the notice of arbitration by the respondent. The change is a welcome improvement to the CRCICA Rules, especially in circumstances where respondents deliberately attempt to delay commencement of arbitral proceedings by avoiding service of the notice of arbitration.
Another welcome improvement to the CRCICA Rules is introduction of Article 5(3), which is designed to protect the integrity of the arbitral proceedings by addressing conflicts of interest that may arise (intentionally or not) due to changes in party representation and helping prevent situations where an arbitrator’s independence or impartiality could be compromised. The article grants authority to arbitral tribunals, whilst affording the parties an opportunity to comment on the development, to “take any measure necessary to avoid a conflict of interest […] including the exclusion of new party representatives from participating in whole or in part in the arbitral proceedings”.
In line with the latest trend toward time efficiency and cost savings, Article 28(1) of the CRCICA Rules now grants arbitral tribunals with complete discretion on conduct hearings or not: “The arbitral tribunal shall decide whether to hold hearings for presenting evidence and/or for oral arguments, or whether the arbitration shall be conducted solely on the basis of documents and other materials. […]” In the previous 2011 version, if requested by a party, arbitral tribunals would be required to hold such hearing(s), which could be utilised as a guerrilla tactic to unnecessarily increase the costs and/or delay/disrupt arbitral proceedings.
Furthermore, if a hearing is to be held, the new version of the CRCICA Rules, pursuant to Article 28(2), now allows such hearing to be held “remotely by videoconference or other appropriate means, or in a hybrid form, as decided by the arbitral tribunal after consulting with the parties”.
The Law Of the Arbitration Agreement
Article 36(4) of the CRCICA Rules, a new provision, prescribes that the law applicable to the arbitration agreement shall be the law of the place of arbitration, “unless the parties agree in writing on the application of other laws or rules of law”. Most arbitration agreements do not include an agreement on the specific law governing the arbitration agreement itself; courts in several important jurisdiction decided this matter differently (some favouring the governing law, some preferring the law of the seat/place of arbitration). Thus, the provision is a useful addition, which is likely to avert protracted debates between the parties (deliberate or not) that, at best, may be academic and of no consequence to the dispute at hand, or, at worst, may be crucial if, e.g., challenges are raised with respect to the arbitration agreement’s formal and substantive validity, formation, termination, or assignment.
Consolidation and Multiple Contracts
Articles 50 and 51 of the CRCICA Rules focus on the possibility of consolidation of arbitral proceedings and conducting a single arbitration with respect to multiple contracts, respectively. These two new articles are a much welcome addition to the CRCICA Rules providing certainty with respect to the mechanisms of dealing with related disputes or contracts in the most efficient and effective manner.
Early Dismissal of Claims
A very important addition to the CRCICA Rules, which cannot be overemphasised, is Article 52 that granted arbitral tribunals the power of ultimate choice to throw out claims at an early stage of the proceedings by deciding that they are “manifestly without legal merit”. Should this power be exercised appropriately, there would be a potential of considerable readjustment of resources from unwarranted grievances or strategically engineered claims to actual resolution of sophisticated disputes.
Third Party Funding
Article 53 of the CRCICA Rules, a provision aimed at transparency, requires a party funded by outside interests to “disclose the existence of the funding and the identity of the founder”. This requirement applies from the filing of the notice of arbitration and the response to the notice of arbitration (see Articles 3(3)(i) and 4(1)(d) of the CRCICA Rules) and throughout the arbitral proceedings. It is important to note that the requirement appears to concern only (i) the existence of the funding and (ii) the identity of the founder(s), i.e. there is no requirement for a party to reveal any other details of the arrangement.
The requirement for disclosure of third-party funding reflects a growing trend in international arbitration rules and practices. Many arbitration institutions and jurisdictions are adopting similar rules to address the increasing prevalence of third-party funding and promote transparency.
The disclosure requirement enhances transparency in the arbitration process. Knowledge of third-party funding can be crucial for the arbitral tribunal to evaluate potential conflicts, biases, or any influence that may affect the proceedings.
Emergency Arbitrator Rules
Annex 2 of the CRCICA Rules comprises Emergency Arbitrator Rules, which are designed for crucial time-sensitive circumstances and allow parties to apply for urgent interim measures to the CRCICA “[p]rior to, concurrent with or following the filing of a notice of arbitration, but before the constitution of the arbitral tribunal”.
According to Article 2(2), such urgent applications may be submitted on CRCICA’s website.
Subsequently, CRCICA will appoint an emergency arbitrator to deal with the application exercising her/his appropriate discretion under the circumstances that may lead to a binding Emergency Decision. Emergency Decisions may stay in place, unless they are removed, even until the issuance of the Final Award by the arbitral tribunal.
Annex 1 of the CRCICA’s Rules contains tables on administrative and arbitral tribunal fees applicable to arbitral proceedings that were adjusted to account for economic developments since 2011.
Expedited Arbitration Rules
Annex 3 of the CRCICA Rules comprises Expedited Arbitration Rules, a set of provisions aimed at resolving simple and/or urgent disputes on a fast-track basis with a default requirement for the Final Award to be issued within six months since the constitution of the arbitral tribunal (a sole arbitrator, unless parties agree otherwise). It is important to note that the application of the Expedited Arbitration Rules is not automatic, e.g., for amounts in dispute under a certain threshold (a recent trend) but is subject to the parties’ express agreement.
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