A summary of revisions FAI rules. This is how it should work in theory. I filed in January a Request for Expidited Arbitration under new rules. I may write on how they work in practice and councels experience of these later in the Summer.
The Finland Arbitration Institute, FAI Arbitration Rules and the Rules for Expedited Arbitration were fully revised in 2013. This comprehensive revision implemented best international practices, shortened the duration of arbitral proceedings and improved cost-efficiency. The purpose of the 2020 Rules is to improve the efficiency and speed of FAI arbitrations even further. In addition, the 2020 Rules aim Vto offer more flexibility to enable the parties and tribunals to take into account the specificities of each individual dispute.
1) Advances on costs now routinely required in all arbitrations
In accordance with the 2020 Rules, the Institute shall fix an advance on costs in connection with all arbitrations, domestic and international alike. Under the 2013 Rules, an advance on costs was always fixed in international cases, whereas the Arbitration Institute could use its discretion to order one in domestic disputes.
2) The filing fee is always EUR 3,000 in standard proceedings and EUR 2,500 in expedited proceedings
The 2020 Rules provide for a fixed filing fee, whereas previously the amount of the filing fee depended on the amount in dispute. As of 1 January 2020, the filing fee will be EUR 3,000 in standard proceedings and EUR 2,500 in expedited proceedings. The 2020 Rules do not include any changes to the tables regarding the administrative fees of the Institute or fees of the arbitrators.
3) Case documents may be transmitted increasingly by electronic means
The 2013 Rules required that much of the documents be delivered to the Institute in multiple hard copies. Under the 2020 Rules, case documents may be transmitted by electronic means only or in a single hard copy. However, the Institute and the arbitral tribunal have the possibility to request transmission in hard copy when necessary, in single or multiple copies.
The 2020 Rules highlight that written statements, notices and other communications may be transmitted in any manner that provides a record of the transmission. The wording is neutral in this respect, in order to ensure that the Rules also allow the adoption of new means of communication and other technologies. Any time limits shall begin to run on the day following the day of transmission.
4) More flexibility in the choice between the FAI Arbitration Rules and Rules for Expedited Arbitration
When drafting an arbitration clause, parties are often unable to foresee the type of dispute that may potentially arise out of their agreement. For this reason, parties opt for proceedings under the FAI Arbitration Rules more often than expedited proceedings. This means that the FAI Expedited Arbitration Rules, which provide for a procedural framework that is particularly appropriate for small and simple disputes, have remained underutilized. The 2020 Rules aim to encourage the use of expedited proceedings by adding flexibility to the choice between the two sets of Rules.
In accordance with the 2020 Rules and subject to the consent of the parties, a case under the FAI Arbitration Rules can be referred to be conducted under the FAI Expedited Arbitration Rules, and vice versa, prior to the confirmation of any arbitrator. To this end, the parties shall include in the request for arbitration or answer any observations to the effect that the other set of Rules would be more appropriate for the conduct of the arbitration than the Rules agreed on in the arbitration agreement. The Institute may also on its own motion request that the parties comment on this matter.
The Institute also offers a new model arbitration clause to supplement the existing model clauses. This so-called combined clause leaves the ultimate choice of the applicable Rules to the discretion of the Institute. According to the model clause, the dispute shall be subject to the Rules for Expedited Arbitration unless the Institute, at the request of a party, decides that the FAI Arbitration Rules shall apply. The model clause serves to mitigate the risks and lower the threshold for agreeing on expedited arbitration proceedings.
5) Expediting the appointment of a three-member tribunal
In the 2020 Rules, the default time limit reserved for the parties to nominate the presiding arbitrator in a panel of three arbitrators has been shortened from 15 days to 10 days. Correspondingly, the time limits reserved to nominate all three arbitrators have been shortened from 15 days to 10 days in cases where the Institute has first decided on the number of arbitrators. In these situations, the parties have already had time to prepare to nominate an arbitrator candidate.
6) An indicative time limit for arranging a case management conference
The 2013 Rules did not set any time limit for the arbitral tribunal to arrange a case management conference. According to the 2020 Rules, the arbitral tribunal shall arrange a case management conference in principle within 21 days from the date on which the arbitral tribunal received the case file from the Institute (14 days in proceedings under the Rules for Expedited Arbitration). The purpose of the case management conference is to agree on the conduct and timetable of the proceedings.
7) Tribunals explicitly empowered to issue confidentiality orders
As of 2013, the Rules have required that the parties undertake to keep confidential the documentation related to the proceedings, subject to certain exceptions. However, the powers of the arbitral tribunal to issue confidentiality orders have not previously been explicitly regulated. Now, the 2020 Rules state that upon the request of a party, the arbitral tribunal may issue orders concerning the confidentiality of the arbitration proceedings or any other matters in connection with the arbitration.
For example, the presentation of evidence in an arbitration may sometimes require broader or more detailed regulation of confidentiality than is provided for directly in the Rules. In these situations, ensuring due process may require issuing a confidentiality order. The 2020 Rules clarify that the arbitral tribunal has the power to issue such orders. The clause leaves much discretion to the arbitral tribunal in deciding whether to issue a confidentiality order.
8) Failure to comply with orders of the arbitral tribunal and allocation of the costs of the proceedings
The 2020 Rules stress more clearly that the parties have a duty to promote the efficient management of the case. Now, the 2020 Rules explicitly state that where a party has failed to comply with the orders or other directions of the arbitral tribunal, the tribunal may take such failure into account in its allocation of the costs of the arbitration.
This text is based on the on the material distributed in the seminar by FAI on 12.2.2020 and an article published on 17.12.2019 by FAI, The Finland Arbitration Institute. More information of 2020 Rules can be found on the links below.
Partner, LL.M., MBA
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