Following the Arbitration Law reform in Russia, most of the existing arbitral institutions would need to re-register and obtain a permit from the Russian Government to administer disputes in Russia before 1 November 2017. In addition to that, they would need to bring their arbitration rules in line with the standards and the requirements of the new legislation. The International Commercial Arbitration Court (the ICAC) and the Maritime Arbitration Commission (the MAC) at the Russian Chamber of Commerce and Industry are the only Russian institutions which are exempt from the requirement to obtain a permit. However, they also needed to update their rules.
The ICAC used this opportunity to significantly enhance their previous arbitration rules, which were in force since 2005. The new rules entered into force as of 27 January 2017 (even though they were published a few days later); and apply to the disputes commenced after that date. For a while, the rules were only available in Russian, but at the moment the rules for international commercial arbitration can be accessed in English as well.
Multi-party and multi-contract disputes
The previous version of the rules did contain only limited and rather outdated provisions on multi-contract arbitration. In particular, the rules only allowed the claims under several contracts to be considered in one set of proceedings, if all of the disputes were covered by one arbitration agreement. Thus, if there was an umbrella arbitration clause relating to all of the contracts in question, the claims arising under such contracts could have been brought together. However, if the contracts only contained identical arbitration clauses, the claims under each contract were to be brought separately.
The new rules on international arbitration allow the claims under several contracts to be brought together even if they are covered by different arbitration clauses, which provide for arbitration under the ICAC rules and are compatible by their content. However, in this case there is a requirement that the claims should be substantively interrelated.
The new rules also contain the provisions on consolidation of arbitral proceedings, which was not available before. The consolidation is only available if all of the parties have agreed to that, but the agreement to the ICAC arbitration is deemed to be an agreement to consolidation of the proceedings as well.
The consolidation is available where the claims are covered by one arbitration agreement, or by different compatible arbitration agreements, which provide for the ICAC arbitration, if the claims are substantively interrelated.
Each party can apply for consolidation and the Presidium of the ICAC is to take the decision on such an application. When deciding on the application, the Presidium takes into account, among other things, the stage of each set of proceedings, risk of conflicting decisions as well the interests of procedural efficiency. There is also a presumption that the consolidation is not possible if in the subsequent proceedings the formation of the arbitral tribunals is completed.
Unless the parties agreed otherwise, the matters should be consolidated into the proceedings which were commenced first.
Joinder of additional parties
The new rules also introduce the provisions on joinder of additional parties, which in many respects are analogous to the provisions of the ICC rules.
The joinder is also available, if the claims of additional parties are covered by the same arbitral agreement as the principal claim, or by another compatible arbitration agreement providing for the ICAC arbitration, if the claim of an additional party is substantively related to the principal claim.
The additional party can join the proceedings by filing a claim against the claimant and/or respondent in the main proceedings, or can be joined if a party to the existing proceedings brings a claim against such an additional party.
The joinder should be generally available before the formation of the tribunal is completed. In this case the additional party would usually be considered a co-claimant or co-respondent for the purposes of the tribunal's formation. However, if that is not possible under the circumstances, the nominations committee of the ICAC would appoint the entire tribunal for the parties. Joinder of additional party after the formation of the tribunal is only possible if the additional party agrees to accept the proceedings in the state, in which they are at the time of joinder.
As previously, the rules also allow the intervention of the third parties, which do not make any claims in their own name. The third party can intervene into the existing proceedings if the request for such an intervention is filed by a party to the existing proceedings or a third party itself, usually within the deadline allowed for filing of the statement of defence (30 days upon the receipt of the statement of claim by respondent). The intervention would be allowed, if there is an arbitration agreement covering all parties to the proceedings and a third party. Alternatively, all parties and the third party could consent to the third party's participation in arbitration within 15 days of the receipt of the relevant request.
Case management tools
One of the main issues with the previous version of the ICAC rules was that they did not contain a framework to allow active case management by an arbitral tribunal. The new Rules on International Arbitration make a small step towards better case management.
Article 27 of the Rules on International Arbitration provides that the president of the tribunal is responsible for ensure proper preparation of the case. To have the case prepared for the hearing, the president may, with consent of the other tribunal members, establish a timetable, which may determine the procedure and deadlines for further submissions by the parties, production of evidence, further directions for the parties, date, place and procedure for the oral hearing, including the range of issues to be addressed at the hearing.
The rules also allow the tribunal, if necessary, to conduct the case management conference with the parties and their representatives (including by telephone and videoconferencing), however, there is no requirement to do so. The Rules also state that the parties' views as to the above measures may be requested, but there is no obligation on the tribunal to seek such views.
These provisions are rather novel for the ICAC arbitration, so it remains to be seen to what extent they would be used by the tribunals to enhance the efficiency of handling complex cases and flexibility of the ICAC arbitration in general.
The Rules on International Arbitration (in article 33) also introduced the new expedited procedure for smaller claims. It is available where the total amount in dispute does not exceed USD 50,000. While the default rule is that the sole arbitrator should be appointed, it does not supersede the express agreement of the parties as to the number of arbitrators.
As a general rules only one round of submissions would be allowed, unless the tribunal decides otherwise. Importantly, under the ICAC rules the claimant is supposed to file fully developed and substantiated statements of claim to initiate the proceedings, whereas the respondent files statement of defence in reply. Accordingly, no further submissions would be generally allowed in the expedited proceedings. The procedure itself should be documents only, unless any of the parties requests the hearing and the tribunal decides that the hearing is necessary.
The award should be rendered within 120 days from the date of the formation of the tribunal, whereas the deadline under the usual procedure is 180 days.
Some other procedural aspects to beware
The new rules embrace modern technology. Thus, for example, most of the documents can be exchanged in electronic form, except for the statement of claim, statement of defence, notifications of the hearings as well as arbitral awards and orders. The rules also allow for the hearing to be conducted by videoconferencing, if technically possible.
Interestingly, in the context of international arbitration, the updated rules contain provisions similar to those in Articles 18.3 – 18.5 of the LCIA Rules. Thus, by authorizing a legal representative to act on its behalf, the party is deemed to have confirmed the consent of its legal representative to comply with the present Rules and other ICAC regulations and rules. In case the legal representative fails to behave properly, the arbitral tribunal may take this into account when determining the costs allocation, but can also send a warning to the relevant party or even suggest to the party to replace its legal representative. It remains to be seen to what extent these powers would be used in practice.
The rules further provide that, following the tribunal's formation, a party wishing to change its legal representative shall notify the secretariat and the arbitral tribunal in advance and may only change the legal representative provided that provided that such a change would not create grounds for challenging any arbitrator or setting aside or denial of recognition and enforcement of an arbitral award.
It is important to remember that under the Rules on International Arbitration the place of arbitration is always Moscow and the parties cannot change this. However, the parties can agree to hold hearings in a different place.
It is also important to note that in the context of international arbitrations the language of arbitration is presumed to be Russian, unless the parties have agreed otherwise.
Overall, the ICAC Rules on International Arbitration are much closer to the prevailing international arbitration practice than they used to be. It remains to be seen, however, to what extent the new features and tools within the rules would be used in practice. At the same time the ICAC Rules on Domestic Arbitration did not seem to have improved that much.