Work in progress: UNCITRAL draft of Expedited Arbitration Procedures
The UNCTRAL Working Group II continues to work on a draft of Expedited Arbitration Procedures to complement the UNCITRAL Arbitration Rules. The SCC takes part in this group with an expert observer who shares a report on key issues discussed and plans for future work.
The SCC continues to provide expert input to the on-going work of the UNCITRAL Working Group II, which is currently drafting proposed “Expedited Arbitration Procedures” (EAPs) to complement the UNCITRAL Arbitration Rules (UARs). During the week of September 21 – 25, the Working Group met in Vienna for its 72nd session, with nearly all delegates and observers participating remotely. The SCC participated in the meeting as an expert observer and was represented by Patricia Shaughnessy, a former SCC Board member.
The SCC is well-positioned to provide expert input to the on-going work as it is one of the first arbitral institutes to have developed expedited arbitration procedures, the SCC Rules for Expedited Arbitration. These Expedited Rules were revised in 2017 to facilitate even greater efficiency for less-complex arbitrations suitable for stream-lined, fast-track proceedings. The SCC has gained substantial experience in successfully administering expedited arbitrations in both domestic and international cases.
Key issues discussed
One of the key issues discussed in the UNCITRAL Working Group has been the form for the EAPs, meaning whether the EAPs should be in the form of independent “stand alone” rules (self-contained) or integrated into the UARs as an appendix, with cross references to the UARs, which would generally apply except as specifically modified or supplemented by the EAPs. While this issue remains open, the current working draft presents the EAPs as an appendix to the UARs, but without prejudice to the final form. The SCC Rules take the form of a separate set of independent “stand alone” rules and this has worked exceptionally well in practice.
Perhaps the biggest challenge in drafting the EAPs has been the procedures relating to the application of the EAPs. There is broad consensus that the EAPs will only apply when the parties have expressly agreed. Because the UNCITRAL Rules are designed for ad hoc arbitration (no institutional administration), issues relating to the agreement to use the rules, (whether in advance of the dispute, or after the commencement of proceedings) and their application, will need to be decided by the arbitral tribunal. An appointing authority may need to appoint the arbitral tribunal.
There was general consensus in the Working Group that there should be a narrow and limited possibility for a party to request to convert from the EAPs to the UARs in exceptional circumstances. However, there was much discussion on whether the EAPs should contain non-exclusive criteria (and the wording of any such criteria) to guide the arbitral tribunal when faced with such a request against the wishes of the other party. This issue will be further addressed in the next session.
Plans for future work
During the working session, all of the draft provisions were reviewed and many generated extensive discussions. For example, issues may arise when converting from the UARs to the EAPs at the start of an arbitration relating to the time periods and content of submissions. There are also issues relating to the number and appointment of arbitrators and time limits, as well as the discretion of the arbitral tribunal. The Working Group also plans for future work to complement the EAPs with explanatory notes or other guidance, as well as a model clause. All of these issues will be discussed at the next Working Group session, scheduled for February 8 – 12, 2020 in New York (although the pandemic may necessitate a hybrid remote working session).
Parties who chose to use the EAPs may want to consider using the administrative services of an arbitration institute to facilitate the smooth and efficient administration of the case. The SCC, as well as other reputable arbitral institutes, offer administrative services adapted to the UARs. This can be provided for in the arbitration agreement or arranged at the time of the dispute.
The SCC has been involved in arbitrations under the UNCITRAL Arbitration Rules for many years, usually acting as the Appointing Authority. With the SCC Procedures for the Administration of Cases under the UNCITRAL Arbitration Rules the role of the SCC is to also act as the administering body.
Read more about the SCC administration of arbitrations under the UNCITRAL Arbitration Rules>>