Dubai International Arbitration Centre (DIAC) revises its arbitration rules
09 March 2022
The Dubai International Arbitration Centre (DIAC) has revised its arbitration rules for the first time since 2007. The new Rules, which enter into force on 21 March 2022, are intended to modernise and increase the efficiency of arbitration proceedings.
This revision follows Decree No 34 of 2001 (the Decree), which came into effect September 2021 and consolidated certain Dubai-based arbitration institutions, with the aim of making DIAC the pre-eminent arbitral institution in the region.
We highlight briefly below the key changes to the Rules.
DIFC as the new default seat
As required in the Decree, the Rules provide for the DIFC as the initial, default seat of arbitration, which would apply in the absence of agreement by the parties, with the ultimate determination on the seat being reserved for the Tribunal. This is a significant change from the 2007 rules, which had previously provided for onshore Dubai as the default seat.
As required by the Decree, an Arbitration Court has now been formed within DIAC to undertake a general supervisory role. The Arbitration Court, which has nine members, will serve not only as the appointing authority, but also as the decision-maker for certain preliminary applications prior to the constitution of a tribunal, a role that had previously been fulfilled by the now defunct Executive Committee.
For example, the Rules allow for the Arbitration Court, upon request, to issue a decision on preliminary objections that are raised at an early stage regarding the validity of the arbitration agreement. The threshold for the arbitration to proceed is whether the Arbitration Court is “prima facie satisfied that an agreement to arbitrate may exist under the Rules”. This reflects a departure from other leading institutional rules where preliminary challenges to jurisdiction are generally reserved for the tribunal. The new consolidation and joinder provisions also allow for the Arbitration Court to determine applications for consolidation and/or joinder prior to the appointment of any arbitrators.
The Rules also provide that the Arbitration Court has the ability to not follow the parties’ agreed upon mechanism for nominating the tribunal, where such nomination mechanism is not capable of operating with the Rules or is not compatible with them.
In addition, the Rules require that all awards be provided in draft form to the Arbitration Court to review the form and ensure compliance with necessary formalities, as well as to fix the fees of the Tribunal. The Rules do not appear to envisage that the Arbitration Court will conduct a substantive review of the draft awards.
Modernising the Rules
A number of the changes bring the Rules into line with recent amendments to other leading institutional rules and reflect the growing reliance on virtual hearings in arbitration proceedings.
For example, it is now possible for a party to submit an application for emergency interim relief through the appointment of an “Emergency Arbitrator”. In addition, expedited proceedings are now the default for claims valued under AED 1 million, or if agreed by the parties, or in cases of exceptional urgency where determined by the Arbitration Court. In such proceedings, there is a condensed procedural timetable, and the Tribunal must issue its final award within three months.
In addition, the Rules have introduced a new “alternative appointment process” for the appointment of a sole arbitrator or a chairperson, which the parties can agree to follow in certain circumstances. If adopted, the process would involve the Center circulating a list of candidates, with the parties adding to that list and ranking their respective preferences.
Similar to the recent amendments of other institutional rules, the Rules also now include a detailed consolidation and joinder mechanism, which did not appear in the 2007 version. The Rules also allow for hearings to be held virtually and encourage communication via email.
The Rules also require the prompt disclosure of the existence of any third-party funding arrangement entered into prior to the constitution of the tribunal, along with the identity of the funder and whether or not the funder has accepted any potential adverse costs liability. This is a new provision, which did not appear in the 2007 rules, and which reflects the growing trend amongst leading arbitral institutions to require disclosure of the existence of such arrangements.
The Rules make clear that the tribunal has the power to award legal fees. This is a welcome change from the 2007 rules, which had been silent on the issue of legal fees, often precluding their recovery in the absence of agreement by the parties.
“Core Objective” and reporting conduct
The Rules have introduced a “core objective” that all arbitrations be conducted “justly, fairly, impartially, efficiently and proportionately (having due regard to the sum(s) claimed and/or counterclaimed and the complexity of the dispute).” Under the Rules, the parties, their representatives and the tribunal all agree to conduct the arbitration accordingly.
Attempts to unfairly obstruct the arbitration or engage in misconduct may, upon request by the Tribunal, be reported by the Arbitration Court to the relevant supervising authority, professional body, or party. This goes further than other leading institutional rules which, as a general rule, do not expressly contemplate that representatives may be reported for misconduct.
A modern set of arbitral rules that reflects best practice is essential for any arbitral institution to become a leader in dispute resolution. A number of the changes above are a welcome step in that direction. DIAC’s ability to achieve its ambition of becoming a leading international arbitration institution will be determined not only by the significant improvements that have been made to its Rules, but also by how it applies those Rules in practice in the efficient and effective administration of disputes.