Revised LCIA Arbitration Rules

• Published date: 13 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Data Protection, Arbitration & Dispute Resolution
• Law Firm: WilmerHale
• Author: Mr Steven Finizio and Dr. Maxi Scherer

The London Court of International Arbitration (LCIA) has released a revision of its arbitration rules. The last revision of the LCIA Rules was in 2014. The revised LCIA Rules are effective from 1 October 2020 and apply to arbitration proceedings commenced after that date (the "Revised Rules"). The Revised Rules can be found here.

These revisions cover a wide range of issues and include a number of new provisions that address issues that are not addressed in other leading arbitral rules. Among other things, the Revised Rules address the use of technology and remote hearings; confidentiality; compliance concerns relating to issues such as corruption, money laundering, and economic sanctions, data protection and security; conduct of party representatives; and the nationality of parties and arbitrators, as well as clarifying issues related to multi-party and multi-contract arbitration. These changes reflect the LCIA's efforts to promote innovation and greater efficiency in international arbitration proceedings.

The LCIA has also revised its Schedule of Arbitration Costs, as well as its Mediation Rules and Schedule of Mediation Costs, all effective as of 1 October 2020. In the revised Schedule of Arbitration Costs, the LCIA has increased the maximum hourly rate for arbitrators (from '450 to '500) and the LCIA Secretariat, which the LCIA has explained is intended to better reflect "the demands of users in certain cases involving complex and significant disputes."¹

Section I below discusses some of the more notable revisions to the LCIA Rules in detail, and Section II briefly summarizes a number of additional revisions.

I. NOTABLE REVISIONS TO THE LCIA RULES

The Use of Technology and Conducting Hearings "Virtually"

The Revised Rules expressly address some of the issues that have arisen as the result of the COVID-19 pandemic and reaffirm the tribunal's power to hold hearings remotely.

The Revised Rules now provide expressly that tribunals can use "technology to enhance the efficiency and expeditious conduct of the arbitration (including any hearing)" (Article 14.6(iii)). The rules also now provide that the parties and the tribunal shall make contact as soon as practicable "whether by a hearing in person or virtually" and that a hearing may be conducted "virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form)" (Articles 14.3 and 19.2). This bolsters the references to the use of video and telephone conferences for the conduct of hearings in Article 19.2 of the 2014 LCIA Rules. ²

In addition, the Revised Rules provide in Articles 1.3, 2.3, and 4.1 that the default approach for the transmission of submissions and accompanying documents is "email or other electronic means including via any electronic filing system operated by the LCIA" and previous references to personal delivery, registered postal or courier service and facsimile have been deleted. The Registrar also communicates with the parties and the tribunal by email or by other electronic means (Article 4.2).

Article 26.2 also has been revised to now provide that the tribunal should sign awards electronically unless otherwise agreed by the parties or directed by the tribunal or the LCIA Court. Article 26.7 further clarifies that the award will be transmitted to the parties electronically and that, if there is a disparity between the electronic and paper form of an award, the electronic form will prevail (under the 2014 LCIA Rules, the paper form prevailed). Despite the provisions for electronically signed awards in the Revised Rules, parties and tribunals should carefully assess the situation in any potential enforcement forum. In some jurisdictions, awards may need to be signed in "wet ink" in order to meet local "in writing" requirements.

Data Protection and Security

The Revised Rules introduce a new provision (Article 30A) entitled "Data Protection" to address data protection and privacy laws, including the European Union's General Data Protection Regulation (GDPR), which came into force in 2018. Despite the potential significance of data protection and security issues for arbitration, and the attention those issues have received,³ the LCIA is the first major arbitral institution to include provisions on these topics in its rules.

Article 30.4 provides that "[a]ny processing of personal data by the LCIA is subject to applicable data protection legislation." The provision also refers to the data protection notice on the LCIA website, which, among other things, indicates that that that the LCIA is a "data controller" for the purposes of processing of personal data and sets out the basis on which personal information is collected and processed by the LCIA.

Article 30.5 provides that the tribunal shall consult with the...