On 24 June 2023, the Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) released the long-awaited draft of its updated Arbitration Rules (“2023 Draft Rules”). The 2023 Draft Rules are available here.
The suggested changes notably take into account recent changes introduced by other leading arbitral institutions, such as SIAC, SCCA, ICC, LCIA, and HKIAC. This demonstrates CRCICA’s continuous efforts to account for the evolving dispute resolution and trade landscape, and align with contemporaneous practices in the arbitration community.
In line with its commitment to transparency and inclusivity, CRCICA invited feedback from the legal community on the 2023 Draft Rules, which remained open for comments until 26 July 2023.
The 2023 Draft Rules introduce substantial revisions of the previous CRCICA rules which were last amended in 2011 (“2011 Rules”). The 2023 Draft Rules introduce several key features including the following:
- New Provisions: These include important changes related to Joinder and Consolidation, Confidentiality and Settlement Assistance, Emergency Procedures (including an Expedited Procedure), and Third-party Funding.
- Enhanced Procedural Clarity: The notice of arbitration and response provisions, as well as the process for removing and challenging arbitrators, have been amended to provide better clarity.
- Tech-Driven Arbitration: The rules have been updated to accommodate electronic evidence and promote online dispute resolution to leverage technology effectively.
- Annexes Updates: The 2023 Draft Rules entail updates affecting costs and arbitration fees. A notable inclusion is the introduction of two new model arbitration clauses.
1. New provisions
Joinder and Consolidation
The 2023 Draft Rules bring forth new provisions addressing various aspects of arbitration conduct:
- Including the joinder of additional parties and consolidation of arbitration;
- The arbitral tribunal's authority to order conservatory and interim measures; and
- The handling of evidence.
The 2023 Draft Rules still allow for the inclusion of one or more third persons in an ongoing arbitration, subject to specific conditions. For instance, the joinder must not prejudice the right of any other third party to be heard (thereby ensuring due process), and it should not adversely affect the constitution of the arbitral tribunal (thereby ensuring a smooth arbitration process).
Moreover, the parties are now explicitly required to efficiently conduct the arbitration and joinder proceedings, aiming to “avoid unnecessary delays and expenses” that might escalate the costs of arbitration in an “unjustified manner” (Draft Article 17).
The 2023 Draft Rules feature a new provision on consolidation, enabling parties to merge two or more arbitrations that are ongoing under the rules into a single arbitration. The provision entails comprehensive procedural requirements, encompassing (i) the process of requesting consolidation, (ii) the communication of comments by non-requesting parties, (iii) the decision of the Advisory Committee, and (iv) the determination of associated costs, including fees and expenses (Draft Article 50).
Confidentiality and Settlement Assistance
In the 2023 Draft Rules, confidentiality is highlighted as a crucial aspect of the arbitration process. The 2023 Draft Rules also contain more detailed provisions regarding the termination of arbitration. They specifically outline the role of the arbitral tribunal in assisting the parties in reaching a settlement, thereby promoting amicable resolutions.
Importantly, the 2023 Draft Rules state that the order for termination of the arbitral proceedings may now be signed solely by the presiding arbitrator (as opposed to any arbitrator as previously allowed). Furthermore, it is now clarified that the order must be communicated to each of the parties through the Centre, ensuring a clear and standardized communication process (Draft Article 37).
a. Emergency Arbitrator Rules
A significant addition is Annex 2, which outlines comprehensive "Emergency Arbitrator Rules" and allows parties to seek emergency interim relief even before the arbitral tribunal is constituted. (Draft Article 26 and Annex 2).
Annex 2 covers crucial aspects such as:
- Procedures for promptly communicating the urgent application to the opposing party;
- Guidelines on conducting emergency arbitrator proceedings and location;
- The process of referring the matter to the emergency arbitrator and handling written communications; and
- The effect and costs related to the emergency decision.
This provision is a welcome addition to ensure parties have the option of obtaining timely relief in situations where any delay could lead to significant prejudice or irreparable harm.
b. New Expedited Procedure
A significant and noteworthy addition to the 2023 Draft Rules is the implementation of an expedited procedure tailored for claims under USD 2,000,000. This procedural option aims to streamline and make dispute resolution more cost-effective for smaller claims. Parties who choose the expedited procedure will follow a distinct set of rules outlined in Annex 3.
Third-party Funding (TPF)
Acknowledging that TPF presents businesses with an opportunity to pursue arbitration claims while safeguarding liquidity and reducing risk, the 2023 Draft Rules require funded parties to “disclose the existence of funding and the identity of the funder at the commencement of and throughout, the arbitral proceedings” (Draft Article 53).
2. Enhanced Procedural Clarity
Notice of Arbitration and Response
The 2023 Draft Rules add precisions as to the content of the Notice of Arbitration and the Response, establishing clear guidelines and aiming to encourage parties to provide thorough and detailed information from the start of the arbitration procedure (Draft Articles 3 and 4).
Removal and Challenge of Arbitrators
The 2023 Draft Rules have been amended and include guidelines relating to challenging arbitrators, with defined timelines and prescribed procedures. This aims to minimize the potential for procedural conflicts and foster a more streamlined process, through the following provisions:
- The rules governing the appointment of arbitrators (Draft Article 10);
- The procedures and deadlines for specific challenges (Draft Article 14), process to be followed for removal of an arbitrator (Draft Article 13); and
- Other relevant aspects related to the constitution of the tribunal in multi-party arbitration and completion of appointment of arbitrators (Draft Articles 11 and 12).
3. Tech-Driven Arbitration
The 2023 Draft Rules emphasize the importance of technology in the context of arbitrations and now permit parties to send “any notice, including a notification, communication, submission or proposal sent or filed by a party, as well as all documents annexed” to the proceedings via “electronic means”. The rules also now provide clear guidance on how transmissions should be filed and are deemed effective (Draft Article 2).
Online Dispute Resolution
Additionally, with regard to hearings the 2023 Draft Rules provide for the use of “videoconferencing or other appropriate means, or in a hybrid form” to further enhance efficiency. This is a progressive approach fostering environmentally friendly arbitration practices (Draft Article 28).
4. Other Relevant Annexes Updates
Costs and Arbitrators’ Fees
The 2023 Draft Rules include a revised schedule of fees and costs for arbitration proceedings, taking into account adjustments that reflect the changes in expenses that have occurred over time.
They also provide a specific provision update stating that where “counterclaims or set-offs are submitted”, the Centre may consider the “relevant circumstances of the case” to adjust the Administrative Fees and the fees of the Arbitral Tribunal. This is a positive correction to the rules, as it permits flexibility in determining fees and costs, taking into account the particular requirements and complexities of each case (Draft Article 46).
Model Arbitration Clauses
In the 2011 Rules, the Model Arbitration Clause for contracts was exclusively provided at the end of the rules breakdown. However, in the current version, this clause has been incorporated as Annex 5 of the 2023 Draft Rules. To enhance clarity, the Model Arbitration Clause for Contracts has undergone slight amendments, now specifying that parties may consider including "the governing law of the arbitration and the governing law of the contract […] [as] substantive law."
Additionally, Annex 5 introduces two new model arbitration clauses designed to offer comprehensive guidance and increased convenience for parties when formulating arbitration clauses for both “future” and “existing disputes”.
The 2023 Draft Rules integrate contemporary practices and technological advancements to improve the arbitration process' efficiency, transparency, and flexibility. The inclusion of expedited and emergency procedures, stronger emphasis on technology, clearer procedural guidelines, and new provisions addressing different arbitration aspects, all illustrate CRCICA's dedication to creating an effective and versatile framework for resolving disputes.
COMPLETION OF THE NEW CRCICA ARBITRATION RULES FOR 2023
The 2023 Draft Rules will be available in the English, Arabic, and French languages, facilitating broader accessibility and understanding.
Upon review and finalization by CRCICA's Board of Trustees, the 2023 Draft Rules will become effective in 2023, with an exact date yet to be determined. During this period, the text will remain subject to editorial corrections.