2022 DIAC Arbitration Rules

May 2022 Mehveş Erdem Kamiloğlu
% 0

Introduction

Dubai International Arbitration Center (“DIAC”) amended its Arbitration Rules on 25 February 2022 (“2022 Arbitration Rules”). The 2022 Arbitration Rules were published on 2 March 2022 and came into effect on 21 March 2022. The Rules will be applied to arbitrations that are filed after 21 March 2022; unless parties agree otherwise date of the arbitration agreement will not be considered. With these amendments, DIAC has taken an approach which is similar to other arbitral institutions and has followed the trend of introducing rules that are more in line with the present needs of users.

Main Changes

The 2022 Arbitration Rules made significant changes to the 2007 Arbitration Rules. These changes are mainly related to electronic filing, virtual proceedings, the seat of arbitration, jurisdiction of the tribunal, appointment of arbitrators, joinder, consolidation, replacing legal representatives, expedited proceedings, emergency interim relief, third party funding and costs.

Virtual Proceedings and Electronic Filing

DIAC has introduced two new important features: (i) virtual proceedings and (ii) electronic filing. With the 2022 Arbitration Rules, parties can now choose to conduct proceedings either virtually or physically.[1] Given the current atmosphere of the arbitral institutions it was inevitable that these options would be granted to users. The second opportunity provided to users is the option to file documents electronically. Article 3.1 of the 2022 Arbitration Rules states that all notifications and communications will be made in writing through email or in accordance with the electronic case management system which DIAC will implement.[2] This system is not yet in use. However, with the 2022 Arbitration Rules, DIAC has signaled that a case management system is on the way.

Seat of Arbitration

As was the case with the 2007 Arbitration Rules, under the new rules parties are free to decide the seat. However, an important change is made for cases in which parties do not make such a designation. The 2022 Arbitration Rules provide that the default seat is the Dubai International Finance Center (“DIFC”)[3], previously it was stated to be Dubai[4]. Considering that DIFC is a common law jurisdiction there is no doubt that international users will feel more familiar and willing to use DIAC.

Arbitral Tribunal

There are two main changes that are related to arbitral tribunals: (i) the power of arbitral tribunals to decide their jurisdiction and (ii) the appointment of arbitrators.

Article 6 of the 2022 Arbitration Rules provides that the arbitral tribunal has the power to decide on its own jurisdiction with respect to objections regarding the existence, validity, scope or applicability of the arbitration agreement.[5] If the arbitral tribunal decides that the arbitration proceedings should proceed, the final decision related to the jurisdiction will be rendered by the arbitral tribunal. Additionally, the 2022 Arbitration Rules confirm that the arbitration agreement is separate from the main contract.[6]

The second rule that is related to arbitrators is the alternative process of appointing a sole arbitrator and the chairman (in cases in which parties failed to appoint within the time limit). In the alternative process, DIAC shares a list of three potential sole arbitrators.[7] The parties each can add three more to the list. Within seven days, parties must rank the candidates.[8] If a party fails to communicate its rankings all candidates will be deemed equally preferred.[9] DIAC will then invite candidates in the order of the preferences that the parties have expressed. In case parties cannot mutually agree, or if any candidates are unable to accept, the Arbitration Court decides whether to directly appoint an arbitrator or to repeat the process.[10]

Joinder

The 2022 Arbitration Rules allow for joinder of new parties.[11] This is a new provision, as the 2007 Arbitration Rules did not regulate joinder. For joinder to be realized, either all parties should consent, or DIAC or the arbitral tribunal should establish that the joining party is a party to the arbitration agreement. DIAC can decide on joinder requests before the arbitral tribunal is constituted; once constituted, the arbitral tribunal has the power to decide on joiners.

Consolidation

As with joinder, consolidation is a newly added rule.[12] The 2007 Arbitration Rules were silent on this issue. With the new rule, two or more arbitrations can be consolidated if the parties agree or (i) the arbitration agreement is the same for all of the claims, or (ii) the proceedings to be consolidated involve the same parties and (iii) the arbitration agreements are compatible. In parallel to the situation with joinder before the arbitral tribunal is established, DIAC has the power to consolidate before the establishment of a tribunal, but power shifts to the tribunal once it has been established.

Legal Representatives

The newly added rule on legal representatives is a distinct rule. This rule requires the approval of arbitral tribunals when a party wants to change its legal representative. In such a case, the tribunal considers conflict of interest issues and the impact on time and cost-effectiveness of the proceedings in deciding whether to approve the replacement.[13] While this provision aims to prevent conflict of interest issues, it may put a party in a difficult position if the tribunal does not approve the replacement, as the party will be forced to continue with an underperforming legal representative. Indeed, this provision may obstruct a lawyer’s right to withdraw from representation even if there are legitimate reasons. The consequences of this new provision and how it will be applied in practice will be seen in time since it does not have an equivalent in other institutions.[14]

Expedited Proceedings

The 2022 Arbitration Rules on expedited proceedings are relatively different compared to other arbitral institutions. The monetary threshold is AED 1,000,000 which is approximately USD 272,000. Expedited proceedings can apply to arbitration agreements that are entered into after 21 March 2022. In order to apply expedited proceedings, there are three conditions: (i) a monetary threshold of AED 1,000,000, (ii) agreement of the parties, or (iii) if DIAC decides the case is exceptionally urgent.[15] The arbitral tribunal has the power to determine the specifics of the proceedings. The 2022 Arbitration Rules do not provide rules of procedure other than specifying the three-month time limit.

Emergency Arbitrator

Under Article 2 of Appendix II (Exceptional Procedures), a party can file an application for emergency interim relief either with its request for arbitration or at a later date. The application can be decided ex parte if notifying the other party would jeopardize the application or if the procedural rules of the seat of arbitration allow for an application without notice.[16] In their applications, parties should explain why they require an emergency arbitrator, the relief that they seek, and why they are entitled to such relief. DIAC appoints an emergency arbitrator in one day if the Arbitration Court decides that these proceedings can apply on a prima facie basis.[17] Following the appointment of the emergency arbitrator, the arbitrator should provide a timetable within two business days from the time they receive the file from the Center. Afterwards, the emergency arbitrator will issue its order “as soon as reasonably practicable”.[18]

Third-Party Funding

The 2022 Arbitration Rules require parties to disclose to other parties and to DIAC if they are engaged with a third-party funder.[19] The disclosing party should also provide information about whether the third party will be liable for adverse costs. This is also a newly added provision since 2007 Arbitration Rules were silent on the third-party funding.

Costs

Under the 2007 Arbitration Rules, legal costs were not recoverable if parties had not previously reached an agreement.[20] The 2022 Arbitration Rules clarify the scope of the costs of arbitration.[21] Registration fees, DIAC’s administrative fees, fees and expenses of the arbitral tribunal, tribunal or party appointed experts, and legal representatives, as well as any other party’s costs are included. In addition, the arbitral tribunal may make decisions on the costs of the arbitration.[22] The Arbitral tribunal also has the power to award the legal fees.

Conclusion

The 2022 Arbitration Rules aims to strengthen DIAC’s global position.[23] To accomplish that end, “the new rules reflect the latest developments in the field of international arbitration, as well as the evolving needs of the business community, and are aimed at improving the efficiency of the arbitration procedures and ensuring that the users would benefit from a wide range of additions.”[24] The 2022 Arbitration Rules, with their new provisions related to the disclosure of third party funding, costs and charging structures, virtual proceedings and electronic submissions, have come closer to the approach of the other most frequently used institutions in this field, such as the International Chamber of Commerce. There is no doubt that establishing DIFC as the default seat is a step towards attracting more international cases.

References
  • DIAC 2022 Arbitration Rules Article 20.2, 23.2, 26 and 27.6.
  • DIAC 2022 Arbitration Rules Article 3.1.
  • DIAC 2022 Arbitration Rules Article 20.1.
  • DIAC 2007 Arbitration Rules Article 20.1.
  • DIAC 2022 Arbitration Rules Article 6.1.
  • DIAC 2022 Arbitration Rules Article 6.1.
  • DIAC 2022 Arbitration Rules Article 13.2.
  • DIAC 2022 Arbitration Rules Article 13.3.
  • DIAC 2022 Arbitration Rules Article 13.4.
  • DIAC 2022 Arbitration Rules Article 13.5.
  • DIAC 2022 Arbitration Rules Article 9.
  • DIAC 2022 Arbitration Rules Article 8.
  • DIAC 2022 Arbitration Rules Article 7.5.
  • Bradfield, Michelle / Chaudhri, Javade / Harb, Jean-Pierre / Heitzmann, Pierre / Martin, Heathet / Shadmand, Sheila: DIAC 2022 Arbitration Rules: Will They Propel DIAC Into a Top-Five Institution? 21.04.2022, JDSUPRA, https://www.jdsupra.com/legalnews/diac-2022-arbitration-rules-will-they-1674037/ (Access date: 15.06.2022).
  • DIAC 2022 Arbitration Rules Article 32.1(a).
  • DIAC 2022 Arbitration Rules Article 2.2.
  • DIAC 2022 Arbitration Rules Article 2.5.
  • DIAC 2022 Arbitration Rules Article 16.4.
  • DIAC 2022 Arbitration Rules Article 22.1.
  • Dubai Court of Cassation, Case No. 282/2012, 03.02.2013.
  • DIAC 2022 Arbitration Rules Article 36.
  • DIAC 2022 Arbitration Rules Article 36.2.
  • As highlighted by Dr. Tariq Humaid Al Tayer, the chair of the DIAC Board of Directors: “Our priority in the coming years is to strengthen DIAC’s position as a leading centre for settling disputes locally, regionally, and globally, by enhancing arbitration practices and standards, which will in turn improve the ease of doing business in Dubai. The changes to the rules are a major step forward in terms of reinforcing Dubai’s position as a global centre for arbitration.”, http://www.diac.ae/idias/resource/Rules2022PR.pdf (Access date: 25.06.2022).
  • DIAC’s announcement, 02.03.2022, http://www.diac.ae/idias/resource/Rules2022PR.pdf (Access date: 15.06.2022).

All rights of this article are reserved. This article may not be used, reproduced, copied, published, distributed, or otherwise disseminated without quotation or Erdem & Erdem Law Firm's written consent. Any content created without citing the resource or Erdem & Erdem Law Firm’s written consent is regularly tracked, and legal action will be taken in case of violation.

Other Contents

The ICC Guide on Effective Conflict Management
Newsletter Articles
The ICC Guide on Effective Conflict Management

The ICC Commission on Arbitration and ADR (“Commission”) published a new guide and report with the aim to increase awareness on alternative dispute resolution (“ADR”) mechanisms to prevent disputes and strengthen the relationship between all stakeholders.The Guide on Effective Conflict Management...

Arbitration 30.06.2023
M&A Arbitration
Newsletter Articles
M&A Arbitration

Mergers and Acquisitions (“M&A”) are restructuring of companies or assets through various types of financial transactions, such as mergers, acquisitions, purchase of assets, or management acquisitions. This Newsletter article covers M&A disputes being solved before arbitral tribunals.

Arbitration 28.02.2023
The Principle of Revision au Fond in Arbitration
Newsletter Articles
The Principle of Revision au Fond in Arbitration

In the context of arbitration practice, the principle of revision au fond means that the courts can not examine the merits of a dispute when reviewing an arbitral award. This principle is most commonly encountered in set aside and enforcement proceedings. An arbitral award is evidence of the parties’ willingness...

Arbitration 30.11.2022
Decision of the Court of Cassation General Assembly Allowing Bankruptcy Proceedings Before Turkish Courts Despite the Existence of an Arbitration Agreement
Newsletter Articles
Decision of the Court of Cassation General Assembly Allowing Bankruptcy Proceedings Before Turkish Courts Despite the Existence of an Arbitration Agreement

Under Turkish law, parties may agree on the settlement of disputes that have arisen or may arise, regarding the rights that they can freely dispose of, by arbitration. However, disputes which are not subject to the will of parties, such as the disputes relating to in rem rights of immovables, bankruptcy law...

Arbitration 30.06.2022
ICCA General Report on the Right to a Physical Hearing in International Arbitration
Newsletter Articles
ICCA General Report on the Right to a Physical Hearing in International Arbitration

On 4 September 2020, a research project “Does a Right to a Physical Hearing Exist in International Arbitration?” was launched by an International Council for Commercial Arbitration (“ICCA”) taskforce. Due to the Covid-19 pandemic, many arbitration hearings were held online. Many institutional rules...

Arbitration May 2022
European Courts’ Diverging Approach over Intra-EU Investment Arbitrations
Newsletter Articles
European Courts’ Diverging Approach over Intra-EU Investment Arbitrations

In the aftermath of the Achmea decision, controversies on intra-EU arbitrations continue. Most recently, the Paris Court of Appeal has annulled two arbitral awards rendered against Poland. Meanwhile, the Higher Regional Court of Berlin has refused to declare that an Irish investor’s ICSID claim...

Arbitration May 2022
Decision of the Regional Court of Appeal Stating that Misinterpretation of Law Provisions in Arbitration Proceedings Does Not Contrary to Public Order
Newsletter Articles
Decision of the Regional Court of Appeal Stating that Misinterpretation of Law Provisions in Arbitration Proceedings Does Not Contrary to Public Order

Under Turkish law, the legal remedy that can be applied against arbitral awards is an annulment action. Law on International Arbitration No. 4686 (“IAL”) finds its application area in arbitration proceedings where Turkey is the place of arbitration...

Arbitration February 2022
The Landesbank Decision
Newsletter Articles
The Landesbank Decision

It is well known that following a decision of the Court of Justice of the European Union, problems arose related to arbitration of intra-EU disputes, and particularly arbitration under the Energy Charter Treaty...

Arbitration January 2022
Arbitration of Corporate Law Disputes: The Swiss Example, Lessons to be Learnt and Suggestions
Newsletter Articles
Arbitration of Corporate Law Disputes: The Swiss Example, Lessons to be Learnt and Suggestions

Arbitration in corporate law contains controversial elements in many respects, especially the issue of arbitrability. Even in legal systems where these disputes are considered to be arbitrable, uncertainties remain on whether an arbitration clause can be included in the articles of...

Arbitration December 2021
Komstroy Decision: End of an Era for Intra - EU ECT Arbitration or Not?
Newsletter Articles
UNCITRAL Expedited Arbitration Rules
Newsletter Articles
UNCITRAL Expedited Arbitration Rules
Arbitration August 2021
Dispute Resolution in the Digital Age
Newsletter Articles
Dispute Resolution in the Digital Age

Arbitration has benifited from a great increase in the use of technology which has directly effected the conduct of proceedings. More particularly, with digitalization, the way that we conduct arbitration proceedings has been changed to reflect the current needs of parties, with an aim of increasing time...

Arbitration July 2021
Public Policy as Grounds for Refusal of Recognition
Newsletter Articles
IBA Rules on Taking of Evidence in International Arbitration 2020
Newsletter Articles
French Courts Denied Exequatur to a Turkish Judgment
Newsletter Articles
Halliburton Decision on Apparent Bias: Violation without Consequences
Newsletter Articles
Enka v Chubb: Law Applicable to the Arbitration Agreement
Newsletter Articles
Voluntary Document Production in Arbitration: Civil-Law Approach
Newsletter Articles
2021 ICC Arbitration Rules
Newsletter Articles
2021 ICC Arbitration Rules
Arbitration November 2020
A Tale of Two Proceedings: Arbitration and Insolvency
Newsletter Articles
Revisions of the Swiss International Arbitration Law
Newsletter Articles
LCIA Rules 2020
Newsletter Articles
LCIA Rules 2020
Arbitration August 2020
ICSID Sets New Ethical Standards for Adjudicators
Newsletter Articles
Blockchain, Smart Contracts and Arbitration
Newsletter Articles
Impact of COVID -19 on Arbitration
Newsletter Articles
Impact of COVID -19 on Arbitration
Arbitration April 2020
Review of Arbitration Agreement in Mandatory Mediation Procedures
Newsletter Articles
ICC Report on Emergency Arbitrator Proceedings
Newsletter Articles
Action for Annulment of Objection before Arbitration
Newsletter Articles
Costs and Late Payment of Advance of Cost in CAS Arbitration
Newsletter Articles
Arbitration in Construction Industry
Newsletter Articles
Arbitration in Construction Industry
Arbitration October 2019
Basketball Arbitral Tribunal
Newsletter Articles
Basketball Arbitral Tribunal
Arbitration August 2019
Complex Arbitrations: An Overall View of the ICC Rules - III
Newsletter Articles
Complex Arbitrations: An Overall View of the ICC Rules - II
Newsletter Articles
Witness Conferencing in International Arbitration
Newsletter Articles
Arbitrability of Corporate Law Disputes
Newsletter Articles
Complex Arbitrations: An Overall View of the ICC Rules - I
Newsletter Articles
A Shift from Arbitration to Multilateral Investment Court System at EU
Newsletter Articles
Annulment of the Court of Arbitration for Sport Awards
Newsletter Articles
ICC Updates Guidance Note to Parties and Arbitral Tribunals
Newsletter Articles
Impact of the Achmea Judgment on Investment Arbitration
Newsletter Articles
The Prague Rules on the Taking of Evidence in Arbitration
Newsletter Articles
Diversity in International Arbitration
Newsletter Articles
60 Years of the New York Convention
Newsletter Articles
60 Years of the New York Convention
Arbitration June 2018
Amendment of ICSID Rules and Regulations
Newsletter Articles
Challenging Arbitrators and LCIA Challenge Decisions
Newsletter Articles
Cost Allocation in International Arbitration
Newsletter Articles
Current Issues in Expedited Procedures in Arbitration
Newsletter Articles
Umbrella Clauses in Investment Arbitration
Newsletter Articles
Costs and Reduction of Costs in Arbitration
Newsletter Articles
Moral Damages Claim in Investment Arbitration
Newsletter Articles
Expert Witnesses in International Commercial Arbitration
Newsletter Articles
Soft Law in International Arbitration
Newsletter Articles
Soft Law in International Arbitration
Arbitration December 2016
ICC Rules on Expedited Procedure
Newsletter Articles
ICC Rules on Expedited Procedure
Arbitration October 2016
The Recent Philip Morris V. Uruguay Decision
Newsletter Articles
Third Party Funders in Arbitration
Newsletter Articles
Third Party Funders in Arbitration
Arbitration September 2015
Confidentiality in Arbitration
Newsletter Articles
Confidentiality in Arbitration
Arbitration April 2015
Drafting Arbitration Agreements
Newsletter Articles
Drafting Arbitration Agreements
Arbitration July 2015
Istanbul Arbitration Center
Newsletter Articles
Istanbul Arbitration Center
Arbitration July 2014

For creative legal solutions, please contact us.