At the occasion of its 50th anniversary, CEPANI (Centre d'Etude pour la pratique de l'Arbitrage National et International ), the main Belgian arbitration association, adopted the 2020 version of its Arbitration Rules. The new CEPANI rules have now been published.
The new CEPANI Rules, applicable as from 1 January 2020, will replace the 2013 version of the same. Pursuant to the first Article of both versions, the version in effect on the date of commencement of the arbitral proceedings is applicable to such proceedings, unless the parties have expressly agreed to submit their dispute to the CEPANI Rules in effect on the date of their arbitration agreement.
In addition to cosmetic changes (such as a more consistent wording, a better alignment of the English, French and Dutch versions and the clarification of certain provisions), the 2020 CEPANI Rules provide for a limited number of novelties and evolutions, summarised below.
- Clarification of the confidentiality of the proceedings (Article 26): the 2013 version of the CEPANI rules contained a broad confidentiality obligation, pursuant to which “unless it has been agreed otherwise by the parties or there is a legal obligation to disclose, the arbitration proceedings shall be confidential”. As the exact scope of this obligation, and the documents falling into the same, were subject to discussions in practice, the 2020 version now specifies that it covers “all Awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain”.
- Rebranding of the emergency arbitration procedure (Article 27): the 2013 version of the CEPANI Rules already allowed the parties to seek, prior to the constitution of the Arbitral Tribunal, interim and conservatory measures from a single arbitrator. In line with the wording of similar proceedings adopted by other arbitral institutions, Article 27 of the CEPANI rules now provides for “emergency arbitration”, and the appointment of an “emergency arbitrator”.
- Introduction of an expedited procedure, in replacement of the Arbitration Rules applicable to disputes below €25,000 (Article 29): the 2013 version of the CEPANI Rules was twofold, providing for a general set of rules for disputes above €25,000 and another, simplified, one for the disputes below €25,000. The latter set of rules has been abandoned, and replaced by an expedited procedure within the framework of the general rules. The expedited procedure is applicable either if the amount in dispute is below €100,000 or if the parties so agree. The parties may agree to opt out from this procedure, and CEPANI may determine; on its own motion or at the request of one of the parties, that it is inappropriate in the specific circumstances of the case. In principle, the Arbitral Tribunal must render the final Award within four months from the date of the establishment of the procedural timetable.
- Introduction of a formal scrutiny process (Article 33): in practice, under the 2013 version of the CEPANI Rules, CEPANI already reviewed the draft awards against a “check list” of key elements to be included (e.g. complete identity of the parties, seat of the arbitration, signature of the arbitrator, etc.). However, the Rules did not provide for a formal scrutiny process. This is now the case.
- Introduction of the possibility for the Arbitral Tribunal to render an Additional Award (Article 36): after consulting the parties, and within one month from the date of notification of the Award to them, the Arbitral Tribunal may, on its own motion or at the request of one of the parties, render an Additional Award on any claim or counterclaim presented in the arbitral proceedings on which it had not rendered a decision.
- Increase of CEPANI’s fees from 10% to 15% of the fees and expenses of the arbitrators, as determined by a scale depending on the amounts in dispute (Schedule I).
- Electronic communication will become the default rule for communications between the CEPANI Secretariat, the arbitral tribunal and the parties. CEPANI announced that it will continue to use BOX, a secure online platform where the entire file is accessible for the parties and the arbitral tribunal.
- Introduction of internal rules of procedure for CEPANI’s President, Appointments Committee and Challenge Committee (Schedule III): these rules are limited to the setting out of the composition and appointment of these bodies, as well as their members’ duties of secrecy and independence and impartiality.