Author: Alexander Hansebout (Altius)
Publication date: 23/12/2019
CEPANI, the Belgian Center for Arbitration and Mediation, has issued a revised version of its Arbitration Rules (“Rules”). The 2020 Arbitration Rules mark CEPANI’s 50th anniversary and enter into force on 1 January 2020.
The general purpose of the revision has been to modernise the Rules, to remedy previous interpretation issues, to make terminology consistent throughout the Rules and to further align different language versions. Many changes merely simplify, clarify or update the language used. For example, the most eye-catching terminological update is the replacement of “the arbitrator deciding on the interim and conservatory measures” by “the emergency arbitrator”.
An overview is set out below of what I think are the 10 most noteworthy changes and innovations.
1. Electronic communication
Any communication arising under the Rules may be made in electronic form. The parties are no longer required to file hard copies of the request for arbitration and the answer . The only exception is the notification of the award to the parties, which is still to be made by registered letter or by courier services against receipt.
2. Stricter timing for the terms of reference
From now on the terms of reference should be executed and sent to the Secretariat within one month of the transmission of the file to the Arbitral Tribunal. This used to be a two-month period. This time limit may be extended following a reasoned request by the Arbitral Tribunal or on the Secretariat’s own motion.
The rules still provide for confidentiality as a default rule. To avoid discussions in practice, the relevant provision has been elaborated. It is expressly stated that the confidentiality covers all awards, materials created for the purpose of the arbitration and all documents produced and not otherwise in the public domain. Exceptions are provided in the event of a party’s legal duty and in the context of the enforcement or challenge of an award.
4. Expedited procedure
Previously, CEPANI had a separate set of rules for expedited proceedings. The expedited procedure rules are now incorporated in the 2020 Arbitration Rules. Therefore, apart from some exceptions provided in the Rules (especially on timing), the general procedural framework of the 2020 Rules applies to expedited proceedings as well. The expedited procedure applies if the amount in dispute does not exceed EUR 100,000 (instead of the previous EUR 25,000) or if the parties agree. However, the parties may opt out and the Appointments Committee or the President may determine that it is inappropriate in the circumstances to apply the expedited procedure.
5. Costs allocation criteria
The revised Rules provide for a slight increase in the administrative expenses. However, more importantly, the Rules now expressly provide that, when deciding on costs, the arbitrator(s) may take into account the degree to which the claims have been awarded, the circumstances of the case, the financial importance and complexity of the dispute, the manner in which the parties have cooperated in handling the case, the relevance of the arguments presented and the reasonableness of such costs.
Even though CEPANI has made some scrutiny in the recent past, its previous Rules did not formally prescribe scrutiny. Under the revised Rules the Arbitral Tribunal should, prior to the signing of any award, submit the draft award and the Secretariat may suggest modifications as to the form of the award (only).
7. Omitted claims procedure
The 2020 Rules introduce a procedure in which a party may request that the tribunal make an award on any claim that was made in the proceedings but not decided in the award. The tribunal can even do so on its own initiative.
8. Gender neutrality
As a signatory to The Pledge, CEPANI has made its revised Rules gender ‘neutral’. For example, its President is no longer referred to as “he”. At the beginning of this new decade, CEPANI is thus textually compliant with its pledge and ready for a female president.
9. Increased transparency
The revised Rules seem to increase transparency. Earlier Rules expressly provided that the reasons for the appointment, confirmation or replacement decisions should not be communicated. This has been deleted from the 2020 Rules. However, the revised Rules do not expressly provide for communication of such reasoning. They do now expressly provide for the communication of the reasons for a decision on a challenge if so requested in the challenge or in the parties’ observations.
10. New set of internal rules
The new set of internal rules regard the composition and appointment of CEPANI’s organs. The most noticeable development here is an extension of the ‘conflict of interest’ provision. It is a tradition that the CEPANI President and Secretary-General do not participate in any CEPANI arbitration proceedings. It is now provided that if a partner or associate of the President or the Secretary-General participate in any CEPANI arbitration proceedings, then the latter will refrain from acting or deciding under the CEPANI rules in such proceedings. The Vice-President(s) should replace them in such an event and the parties should be informed of that change. Furthermore, the members of the Appointments Committee may not be appointed or confirmed as arbitrators.
It is useful to update rules and carry out “major maintenance” from time to time. The 2020 revision of the CEPANI Rules is useful and appropriate. A critic might regret that the opportunity was not taken to make a provision for data protection. Nevertheless, the revised Rules are generally in line with the trends and developments in the international arbitration community. CEPANI is ready for a new decade.