5 October 2017
BCDR-AAA Launches New Arbitration Rules
The new arbitration rules of the Bahrain Chamber for Dispute Resolution (BCDR-AAA) came into effect on 1 October 2017. The rules are available in English, French and Arabic, all three versions being equally authoritative.
The impetus for revising the rules was Bahrain’s enactment of legislation adopting the UNCITRAL Model Law on International Commercial Arbitration for both domestic and international disputes in 2015.
In early 2016, the BCDR-AAA Board of Trustees established a three-member rules review committee, tasked with drafting revised arbitration rules for the Board’s consideration. The committee members were BCDR-AAA CEO Nassib G. Ziadé*, former LCIA Director General Adrian Winstanley** and former ICSID Deputy Secretary-General Antonio R. Parra***.
The committee drew up draft rules embodying what it considered to be the best standards in international arbitration. For this purpose, it examined leading international and regional arbitration rules adopted in recent years. The committee was careful to ensure that the draft rules met the specific needs of Bahrain and the Middle Eastern region.
The draft rules were made public on 20 September 2016 at a symposium on the sidelines of the International Bar Association Annual Conference in Washington, DC. At the same time, they were posted on the BCDR-AAA website and invitations were sent to current and potential users for review and feedback. Written comments on the draft rules were received by BCDR-AAA during the final months of 2016.
The committee carefully considered all observations made by commentators and incorporated amendments that it believed would enhance the rules. It also added two appendices to the rules: a new fee schedule and a model arbitration clause. The revised rules were subsequently adopted by the Board of Trustees.
The French version of the rules was prepared by Fady Béchara (attorney-at-law, Lebanon) and Nassib G. Ziadé, and the Arabic version by Ahmed Husain (BCDR-AAA’s Chief Operating Officer), Faris K. Nesheiwat (attorney-at-law, Jordan) and Nassib G. Ziadé.
Below are some of the most significant additions and amendments to the rules.
Initiation of proceedings
In a departure from the BCDR-AAA’s previous rules of 2010, the Request for Arbitration by which proceedings are initiated (Article 2) no longer has to include the Statement of Claim, which may be filed at a later stage after the appointment of the tribunal (Article 17). The new rules similarly permit respondents to submit only a brief Response to the Request for Arbitration and to file the Statement of Defense in a subsequent exchange of written submissions (Articles 4 and 17).
Most institutional arbitration rules give the institution the authority to refuse to register a request if, prima facie, there appears to be no agreement between the parties to submit to the rules in question. The 2010 rules lacked this safeguard against commencing proceedings futilely in cases that would undoubtedly be dismissed by the arbitral tribunal for lack of jurisdiction. It is now incorporated in Article 3 of the new rules.
Appointment of arbitrators
Under the 2010 BCDR-AAA rules, the parties were free to choose any procedure they wished for appointing arbitrators, even one that did not involve the institution. By contrast, the arbitration rules of the ICC, the LCIA, and SIAC, while allowing parties to nominate arbitrators, require the arbitrators to be appointed or confirmed by the institution. The new BCDR-AAA rules have taken a similar line in Article 9, thereby providing additional safeguards for arbitrator independence and impartiality.
Discussions between arbitrators and parties on the suitability of candidates for the presidency of the tribunal
Article 10.2 of the new rules, which allows ex parte discussions to take place between arbitrators and the parties that nominated them on the suitability of candidates for the presidency of the arbitral tribunal, departs from the parallel rule in the 2010 rules by including a provision, not found in any other institutional rules, that makes such discussions subject to the written agreement of all parties.
Notification of challenges
The new BCDR-AAA rules differ from the 2010 rules with respect to the notification of challenges. The 2010 rules did not require notification of a challenge to be sent to the arbitral tribunal. By contrast, Article 11 of the new rules provides that the challenge shall be communicated to the Chamber, all other parties and the arbitral tribunal, and that BCDR-AAA may request information on the challenge from the challenged arbitrator, the parties and any other members of the arbitral tribunal.
Secretary of the tribunal
The new rules address in a new Article 13 the appointment of a secretary to assist the arbitrators with such tasks as research. Under the new provisions, the appointment of a secretary requires the approval of the parties and the Chamber. A secretary must be impartial and independent and may not be asked to perform any of the administrative duties of the Chamber or exercise any of the decision-making powers of the tribunal.
A new Article 6 on expedited procedure provides that a sole arbitrator will be appointed in cases where the claim and counterclaim together do not exceed USD 1 million, regardless of whether the parties have agreed elsewhere to a three-member tribunal. Under the expedited procedure, the final award must be issued within 30 days of the close of proceedings, unless the parties or the Chamber decide otherwise.
Article 14 of the new rules reinforces the former provisions of the 2010 rules on emergency measures by requiring an emergency arbitrator fee to be paid at the time the application is submitted. More significantly, Article 14 further provides that a prospective emergency arbitrator unable to submit a statement of independence free of disclosures shall not be appointed to serve. If a challenge is nonetheless made, it will be decided in a fast-track challenge procedure.
Summary dismissal of claims
In response to a growing demand for the summary dismissal of claims that clearly lack legal merit or are outside the tribunal’s jurisdiction, the new BCDR-AAA rules allow for the summary dismissal of any legal or factual issue to which the tribunal considers that the summary procedure can and should be applied. To leave room for flexibility, the applicant is simply required to “set out the issue or issues asserted to be suitable for summary procedure and the specific grounds advanced for such assertion” (Article 18.2).
Under Article 28 of the new rules, the Chamber may, prior to the appointment of the tribunal, join an additional party to the proceedings, provided that it is satisfied that a valid arbitration agreement may exist between all the parties, including the additional party. Once the tribunal has been appointed, any joinder is at the sole discretion of the tribunal and requires the agreement of all existing parties and the additional party.
Article 29 contains new provisions allowing the Chamber to order the consolidation of two or more arbitrations subject to the BCDR-AAA rules and based on the same arbitration agreement, provided that no arbitrators have yet been appointed in any of the arbitrations.
If the tribunal has already been appointed in one of the arbitrations but not in any of the others, the tribunal may consolidate the first arbitration with one or more of the other arbitrations if all parties to all arbitrations have so agreed, or if all claims and counterclaims are made pursuant to the same arbitration agreement, or if all claims are made pursuant to more than one arbitration agreement but involve the same parties and the disputes arise from the same legal relationship.
The new BCDR-AAA rules contain provisions regulating the conduct of party representatives, which draw on the IBA Guidelines on Party Representation in International Arbitration. Article 21 of the new rules requires party representatives to abstain from engaging in ex parte communications with any arbitrator, knowingly making false statements to the tribunal, submitting false evidence to it, or concealing relevant documents. More generally, party representatives are required to refrain from behaving in a manner calculated to obstruct or jeopardize the integrity of the arbitration. Sanctions for breaches of these regulations are also included in the rules.
An important feature of the previous BCDR-AAA rules that is retained in the new rules concerns publication of arbitral awards and decisions. While affirming the confidentiality of awards and decisions, Article 40 of the new rules provides that, unless otherwise agreed by the parties, the Chamber may publish selected awards and decisions that have been redacted to conceal the names of the parties and other identifying details.
Limitation of liability
Article 41 of the new rules specifies that the arbitrators, any secretary or expert to the tribunal, and the Chamber (including its officers and employees) will not be liable to any party for any act or omission in connection with the arbitration that does not result from conscious or deliberate wrongdoing. Article 41 also precludes any party from seeking to make any of the foregoing persons a witness in any judicial proceedings relating to the arbitration.
New fee structure
The new rules on the funding of the arbitration aim to moderate the price of access to justice and the cost of arbitration generally. There is now a fixed filing fee of USD 3,000, irrespective of the sums at issue, payable by the Claimant when filing the Request for Arbitration, followed by a case management fee calculated on the basis of the sums at issue, payable after the filing of the Response and in such proportions as the Chamber deems appropriate (Article 5). The arbitrators’ fees are now fixed by the Chamber, in consultation with the tribunal, and are subject to a cap of USD 500 per hour and USD 4,000 per day.
* Nassib G. Ziadé is the Chief Executive Officer of BCDR-AAA, a Vice-Chairman of the Advisory Committee of the Cairo Regional Centre for International Commercial Arbitration, a Vice-President of the International Federation of Commercial Arbitration Institutions (IFCAI), and a member of the International Advisory Committee of the International Centre for Dispute Resolution (ICDR/AAA), the Permanent Court of Arbitration and the Panels of Arbitrators and Conciliators of the International Centre for Settlement of Investment Disputes (ICSID). He was formerly Director of the Dubai International Arbitration Centre (DIAC), Deputy Secretary-General (and Acting Secretary-General) of ICSID, Executive Secretary of the World Bank Administrative Tribunal, and a member of the Court of the London Court of International Arbitration (LCIA).
** Adrian Winstanley, OBE, is an independent arbitrator, mediator and consultant; a member of the LCIA Court; of the Board of the International Dispute Resolution Centre; and of the Council of the Mumbai Centre for International Arbitration; and is the European Advisor to Dispute Resolution Data. He has previously held the positions of Director General and Executive Director of the LCIA, Secretary-Treasurer and Vice-President of IFCAI, and is a former member of Clifford Chance’s arbitration team.
*** Antonio R. Parra is a consultant with the World Bank, a member of the Executive Committee and the Board of Trustees of DIAC, and an Honorary Secretary-General of the International Council for Commercial Arbitration. He is a former Deputy Secretary-General of ICSID, and was previously Legal Adviser to ICSID, as well as Senior Counsel and Counsel at the World Bank.