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Authored by: Joseph Chung
The Saudi Center for Commercial Arbitration has recently revised its SCCA Arbitration Rules, which apply to all arbitrations filed on or after 1 May 2023. The aim of the revised Rules is to enhance efficiency, reduce costs and optimize the arbitration process. The SCCA say that the new Rules are in conformity with the latest international standards in the arbitration industry and take into account best practices followed by other eminent arbitral institutions. The following are some of the more notable revisions:
- Introduction of the SCCA Court, which is independent of the SCCA and empowered to make key administrative decisions in SCCA administered arbitrations, such as appointing and removing arbitrators, reviewing of awards, fixing fees and determination of jurisdiction objections. The Court consists of 15 arbitration experts from 12 different countries, including international arbitrators, academics, former leaders of arbitral institutions, retired appeal court judges and high profile practitioners.
- Expansion of the arbitral tribunal’s discretionary powers to: (i) determine the most effective format for hearings e.g. in person or remote; (ii) refuse a party’s request to change or add a representative, if it considers such refusal necessary to safeguard the composition of the arbitral tribunal or finality of the award; (iii) encourage parties to mediate (where appropriate); (iv) limit the length or content of, or dispense with, written submissions, limit oral or written witness testimony and limit any requests for document production.
- Promotion of the use of technology in the filing and managing of cases: (i) Any written notification, communication, proposal, request, answer, pleading, or submission may be made by email or other electronic means. (ii) The arbitral tribunal may conduct hearings remotely by video conferencing or other appropriate means of communication, or in a hybrid format. (iii) Unless the parties otherwise agree, administrative conferences (which may be conducted by the SCCA Court before the arbitral tribunal is constituted, to facilitate party agreement on matters such as arbitrator selection) are to be held remotely by video conferencing, telephone or other appropriate means of remote communication. (iv) Arbitral awards may be signed electronically. (v) The Online Dispute Resolution Procedure Rules will automatically apply to small claims not exceeding a certain threshold amount.
- Cybersecurity and data protection: Parties, arbitrators, and the SCCA must adopt information security measures that are reasonable in the circumstances of the case, taking into account (i) the risk profile of the arbitration; (ii) the existing information security practices, infrastructure, and capabilities of the parties, arbitrators, and SCCA; (iii) the burden, costs, and relative resources of the parties, arbitrators, and SCCA; (iv) the proportionality, relative to the size, value, and risk profile of the dispute; and (v) the efficiency of the arbitration.
- Coordination or consolidation of proceedings: After consulting with the parties, the arbitral tribunal may coordinate the proceedings in two or more arbitrations by aligning specific procedural aspects of the arbitrations, issuing a single award in relation to all arbitrations, or suspending any of the arbitrations until after determination in another. The SCCA Court can also, in certain circumstances, consolidate two or more arbitrations.
- Applicable law: The arbitral tribunal can now apply the rules of law designated by the parties, failing which it shall apply the law which it determines to be appropriate. The “without prejudice to Sharia rules” provision has been removed.
- Multi-contract disputes: Claims arising out of or in connection with more than one contract or arbitration agreement may in certain circumstances be made in a single Request for Arbitration.
- Objections to tribunal’s jurisdiction: A party must object to the arbitral tribunal’s jurisdiction or to the admissibility or arbitrability of a claim no later than at the time of the transmission of the Answer to the Request for Arbitration or the answer to any other claims, although the arbitral tribunal may extend this time limit at its discretion.
- Emergency Arbitrators:The SCCA Court must appoint a single Emergency Arbitrator within one business day of the application for such and the Emergency Arbitrator must issue the interim award/order no later than 15 days from the date on which the file was transmitted to him/her.
- Early disposition of Claims or Defences: A party can request the arbitral tribunal to dispose of issues of jurisdiction, admissibility or legal merit raised in a claim or defence. Such application must be made within 30 days from the filing of the claim or defence in question.
- Addition of two additional grounds for challenging an arbitrator: (i) failure to perform; and (ii) manifest lack of qualifications agreed by the parties.
- Unless the parties agree otherwise, the arbitral tribunal must issue its final award no later than 75 days from the close of proceedings.
- Greater emphasis on transparency: Each party must promptly disclose to the SCCA, all other parties and the arbitrators the identity of any non-party who has an economic interest in the arbitration’s outcome, including any third-party funder.
- Publication of awards: The SCCA can publish any award, order, decision, or other ruling (anonymized and/or redacted where necessary), unless a party objects before the arbitration concludes.
The new Rules represent another important step forward for the SCCA to achieve its stated aim of being the preferred ADR choice in the region by 2030. In February of this year, the SCCA opened its office in the Dubai International Financial Center (DIFC) offering ADR services in the UAE and around the region.
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