UNCITRAL Arbitration Rules 2010: key changes

Resource type: Legal update: archive Status: Published on 09-Aug-2010 Jurisdiction: International

Key amendments introduced by the UNCITRAL Arbitration Rules 2010. PLC Arbitration We recently reported that the new UNCITRAL Arbitration Rules 2010 (2010 Rules) have been published and will come into force on 15 August 2010 (see Legal update, UNCITRAL publishes new rules). The 2010 Rules apply to arbitration following agreements concluded after 15 August 2010, unless parties agree otherwise (Article 1(2)). Therefore, the previous version of the rules, the 1976 Rules, will continue to apply to arbitration following agreements pre-dating 15 August 2010, unless the parties agree that the 2010 Rules should apply. The key changes in the 2010 Rules are highlighted below: The model arbitration clause now includes additional optional wording for parties wishing to exclude recourse against an award, for example an appeal on a point of law. Article 1(1): parties can agree to refer disputes arising out "a defined legal relationship, whether contractual or not" to arbitration under the UNCITRAL Rules. Article 2: notices can be delivered electronically (by fax or email) if a party has specifically designated a fax number or email address for this purpose. The deemed date of delivery for notices sent electronically is the day the notice was sent (apart from the notice of arbitration, for which the date of delivery is the date of actual receipt). Article 4: the respondent must provide a response to the notice of arbitration within 30 days of receipt of the notice. This requires respondents who wish to make claims against a party to the arbitration agreement other than the claimant, to include a notice of arbitration against that party. Article 6: if the parties have not agreed on an appointing authority within 30 days (as opposed to 60 days under the 1976 Rules), any party may request the Secretary-General of

the Permanent Court of Arbitration (PCA) to designate an appointing authority. Therefore, the parties are encouraged to agree an appointing authority as soon as possible. Article 10: this article provides for appointment of three arbitrators in a multi-party situation and empowers the appointing authority to constitute the tribunal where multiple claimants or respondents cannot jointly appoint an arbitrator. This new provision reflects similar rules in, for example the International Chamber of Commerce (ICC) Rules (Article 10) and the London Court of International Arbitration (LCIA) Rules (Article 8) and is designed to provide for equal treatment of the parties in the appointment process. Disclosure by arbitrators: there are new model statements of independence for arbitrators to complete at the time of appointment. These include an optional paragraph requiring the arbitrator to confirm that he can devote the time necessary to conduct the arbitration "diligently, efficiently and in accordance with the time limits in the Rules". Article 16: the parties waive their rights to make claims against the arbitrators and the appointing authority (and any person appointed by the tribunal), except in the case of intentional wrongdoing. Article 17: this article introduces several changes designed to promote the efficient conduct of proceedings: Article 17(1) specifically requires the tribunal to conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' dispute; Article 17(2) requires the tribunal to make a provisional timetable as soon as practicable after its constitution; and Article 17(5) gives the tribunal the power, at the request of any party, to allow third parties to be joined in the arbitration, provided they are a party to the arbitration agreement.

Article 26: this article contains expanded provisions on the grant of interim measures by the tribunal. These include orders requiring a party to "preserve assets out of which a subsequent award may be satisfied", which appears to empower the tribunal to order security for costs. Article 26(3) sets out the test that the applicant must satisfy for the tribunal to grant interim measures. Article 26(8) envisages

that an applicant may be responsible for any costs or damages caused to a party by a measure if the tribunal later decides that the measure should not have been granted. Article 29(2): tribunal-appointed experts must provide the tribunal and the parties with a statement of independence and impartiality, and the parties have the right to object to the expert's qualifications or independence or impartiality. Article 34(5): this article clarifies that the award may be made public with the parties' consent or where disclosure is required of a party by a legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority. Article 41(4): the tribunal must explain how their fees and expenses have been calculated, and the parties may ask the appointing authority or the Secretary-General of the PCA to review the calculations. PLC Arbitration will update all of its practice notes and resources to reflect the changes made by the new rules. We will also be publishing a new step-by-step guide on the 2010 Rules and a comparative table of the 1976 and 2010 Rules with the key amendments highlighted throughout.