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On 24 June 2023, the Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) released a draft of its updated Arbitration Rules (“2023 Draft Rules”) and invited the legal community to provide comments. The 2023 Draft Rules, available here, introduce significant changes and improvements compared to the current 2011 Rules.
This post highlights the key additions and differences between the two sets of rules, demonstrating how the 2023 Draft Rules embrace modern practices and technology to facilitate a more efficient and flexible arbitration process. It is notable that several of the additions are in line with contemporaneous practice in other institutions such SIAC, ICC, LCIA and HKIAC.
Proposed amendments
Expedited and Emergency Procedures
One of the most notable additions to the 2023 Draft Rules is the introduction of an expedited procedure for claims under USD 2,000,000, to allow more efficient and cost-effective dispute resolution for smaller claims. Parties opting for an expedited procedure will follow a separate set of rules provided in Annex 3. These rules address the appointment of arbitrators, case management, submission of written statements and evidence, and the conduct of hearings.
Additionally, the 2023 Draft Rules introduce the concept of an emergency arbitrator, thereby providing parties the option to apply for emergency interim relief before the constitution of the arbitral tribunal, whilst ensuring that parties can receive timely relief in cases where a delay might cause significant harm. (Draft Article 26, Annex 2)
Use of Technology
The 2023 Draft Rules emphasize the importance of technology in the context of arbitral proceedings. They now permit parties to send notices and other communications via electronic means (e.g., email) and provide guidance on how transmissions are deemed effective. The rules also encourage the use of videoconferencing and other tools to further enhance efficiency. (Draft Articles 2, 28)
Enhanced Procedural Clarity
Several Draft Articles provide detailed guidance, to improve clarity and transparency. For example, the rules now set out specific requirements for the content of the Notice of Arbitration and the Response, so that parties provide comprehensive information at the outset of the arbitration. (Draft Articles 3,4)
The 2023 Draft Rules also provide clearer guidance on challenging arbitrators, outlining specific deadlines and steps to be followed. Such procedural clarity enables parties to better understand the process and reduces the scope for procedural disputes. (Draft Articles 13, 14)
New Provisions on Joinder and Consolidation, Interim Measures, and Evidence
The 2023 Draft Rules also introduce new provisions addressing various aspects of arbitration, such as the joinder of additional parties and consolidation of arbitration, the arbitral tribunal's power to order conservatory and interim measures, and the handling of evidence.
The joinder provision allows for the inclusion of additional parties in an ongoing arbitration, subject to certain conditions, adding flexibility to the arbitration process. (Draft Article 16) While consolidation allows parties to request two or more arbitrations into one, with detailed procedural requirements. (Draft Article 50)
Furthermore, the updated rules on interim measures clarify the criteria and forms of such measures, as well as the tribunal's authority to order the requesting party to provide appropriate security for the costs arising from the measures. This offers better guidance on obtaining and enforcing interim relief. (Draft Article 26)
Regarding evidence, the 2023 Draft Rules provide more detailed provisions addressing issues such as the burden of proof, admissibility and weight of evidence, and the tribunal's power to determine the relevance, materiality, and admissibility of evidence. The rules also allow the tribunal to appoint an independent expert to provide a report on specific issues within the expert's area of expertise, ensuring a thorough and fair evaluation of evidence in the dispute. (Draft Articles 27, 29)
Third party funding
Acknowledging the proliferation of third-party funding in recent years, 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)
Updates to Costs and Arbitrators’ Fees
The 2023 Draft Rules include an updated schedule of fees and costs for the arbitration proceedings, reflecting the changes in expenses over time. They also provide a specific provision stating that the Appointing Authority may consider the circumstances of the case to adjust the arbitrators' fees. This adjustment allows for flexibility in determining fees and costs based on the specific needs and complexities of each case. (Draft Article 46, Annex 1)
Confidentiality and Settlement Assistance
Confidentiality is emphasized in the Preamble of the 2023 Draft Rules, underlining its importance in the arbitration process. Moreover, the 2023 Draft Rules provide more specific provisions regarding the termination of the arbitration, including the role of the arbitral tribunal in assisting the parties in reaching a settlement, thereby encouraging amicable resolutions. (Draft Article 37)
Conclusion
The CRCICA Draft Arbitration Rules 2023 present a significant update to the 2011 Rules, incorporating modern practices and technological advancements to enhance the efficiency, transparency, and flexibility of the arbitration process. The introduction of expedited and emergency procedures, an increased focus on technology, enhanced procedural clarity, and new provisions addressing various aspects of arbitration demonstrate the CRCICA's commitment to providing an effective and adaptable framework for dispute resolution.
CRCICA has invited comments on the 2023 Draft Rules, to be provided by 26 July 2023. Their final form will emerge once that process is done.
With thanks to Tigmika Srivastava for her assistance in the preparation of this article
4 July 2023
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