Reducing Time and Cost in Arbitration - the Finnish Arbitration Institute Adopts New Rules
The Arbitration Institute of the Finland Chamber of Commerce (the “Institute”) has adopted revised arbitration rules (the “New Rules”) that entered into force on 1 June 2013. The New Rules are designed to put the users’ needs at the forefront: they contain numerous improvements aimed at reducing time and cost, increasing procedural efficiency and promoting party autonomy in the conduct of the arbitral proceedings. Fully consistent with the best international standards, the New Rules provide a competitive alternative to any leading institutional arbitration rules for the effective resolution of commercial disputes.
The key improvements of the New Rules can be grouped into three: 1) increasing the efficiency of the proceedings, 2) affording parties more control over the process and 3) procedural improvements providing arbitral tribunals with tools to deal with increasingly more complex cases. The New Rules also contain novel provisions which seek to enhance the confidentiality of the arbitration proceedings. Additionally, the setting up of a new international board of the Institute (the “International Board”) facilitates the handling of cross-border cases, raises the international profile of the Institute and boosts its overall credibility among corporations and counsel alike. These changes are discussed in more detail below.
2 Overview of Key Changes
2.1 Improving Efficiency of Proceedings and Cost Control
The often-cited advantages of arbitration include speed and cost-efficiency. In the recent years, however, many users of arbitration have complained that arbitral proceedings are becoming increasingly complex, time-consuming and expensive. To counter that criticism, the New Rules introduce a number of provisions that aim at speeding up the proceedings. They impose obligations on the arbitrators as well as on the parties with a view of promoting swift resolution of disputes submitted to arbitration.
The arbitral tribunal is required, for example, to hold a preparatory conference with the parties at the outset of the proceedings in order to reach agreement on the schedule of the arbitration and on a “fair and cost-efficient process for the taking of evidence” (Article 29). During or following the preparatory conference, the arbitral tribunal is also required to produce a provisional procedural timetable, the purpose of which is to ensure that the arbitration will be conducted in an expeditious and cost-effective manner (Article 30).
Even the parties to the arbitration are subject to efficiency duties under the New Rules. Article 25.3 requires that “All participants in the arbitral proceedings shall act in good faith and make every effort to contribute to the efficient conduct of the proceedings in order to avoid unnecessary costs and delays.” The parties have an incentive to act accordingly because a failure by a party to contribute to the efficient running of the proceedings may result in the arbitral tribunal issuing a negative cost decision on a non-compliant party.
There are also other provisions that serve to promote a rapid and cost-efficient arbitral process. The arbitral tribunal may, for example, take advantage of technical advances in hearing witnesses through means that do not require their physical presence at the hearing, such as by videoconference (Article 34.3). The arbitral tribunal is also authorized to set a cut-off date prior to the commencement of a hearing and order that after the cut-off date, the parties will not be allowed to present any new claims, arguments or documentary evidence on the merits of the dispute, or to invoke any new witnesses not previously nominated, unless the tribunal in exceptional circumstances decides otherwise (Article 33.3).
To ensure that an arbitral award is issued in time, the arbitral tribunal must inform the Institute of the date by which it intends to render the final award once the proceedings have been closed (Article 39.1(b)). Further, the Rules impose a nine month time limit for the making of the final award, albeit with a possibility for extension (Article 42). This requirement not only shortens the time for the issuance of an award by three months when compared with the old rules, but it also obligates the tribunal to organize the proceedings in a way that allows the award to be produced in that time.
The New Rules make it harder on a recalcitrant respondent to avoid an arbitration or delay the beginning of the proceedings. As opposed to the old rules, the date on which the respondent is notified of the Request for Arbitration by the Institute is no longer decisive in the determination of the commencement date of the arbitration. Under the New Rules, the arbitration shall be deemed to have commenced already on the date on which the Request for Arbitration is received by the Institute (Article 6.2).
To increase procedural efficiency, the period of time within which a party must challenge an arbitrator is abridged from 30 to 15 days from the knowledge of the circumstances giving rise to the challenge. Other procedural time limits have been shortened as well. Establishing shorter time periods should in itself keep a check on the costs of the arbitration. Added to that, the New Rules grant the Board of the Institute the sole power to fix the arbitrators’ fees and costs (Article 47 and Appendix II). This is a significant change from the old rules under which the arbitral tribunal could determine its own fees and expenses, which a party could only dispute in court.
All of the above changes serve to contribute to more efficient arbitration proceedings going forward. The end-users are likely to welcome them as useful improvements that resonate well with their needs and expectations. In comparison with other leading institutional arbitration rules, the New Rules are second to none in providing both the arbitral tribunal and the Institute with effective tools to intervene should any of the participants to an arbitration unnecessarily delay the proceedings.
2.2 Party Autonomy
Although the New Rules contain many checks to ensure the efficiency of the proceedings, this has not been done at the expense of the end-user. Quite to the contrary, the New Rules provide parties the means to tailor the arbitration to suit their needs in the best possible way.
For instance, parties are specifically encouraged to agree upon the number of arbitrators as well as the candidate to be confirmed by the Institute as sole arbitrator or presiding arbitrator of a three-member arbitral tribunal. In addition, parties have their say with regard to the evidentiary and other processes that affect the length, and ultimately the cost, of proceedings.
To the extent that the parties have not agreed otherwise on the number of arbitrators or the procedure for appointment of the arbitral tribunal, the default provisions contained in Articles 16 to 19 apply. They set out comprehensive appointment procedures that vary depending on whether there are two or more parties in the proceedings, and whether the parties have agreed to refer the dispute to a sole arbitrator or to a three-member panel, or whether they have left the number of arbitrators to be determined by the Institute.
In the absence of a party agreement to the contrary, the default rule is that the arbitral tribunal shall be composed of a sole arbitrator (Article 16). The Board may, however, opt for a three-member tribunal if the Board considers it appropriate having regard to the amount in dispute, the complexity of the case, any proposals made by the parties, or other relevant circumstances.
The New Rules also recognize the importance of the arbitral tribunal’s real and perceived neutrality in cross-border disputes by expressly providing that where the parties are of different nationalities, the Institute shall normally not appoint a sole or presiding arbitrator of the same nationality as any of the parties or party-nominated arbitrators (Article 21.6). Parties are, however, again free to make use of their autonomy and agree otherwise. In addition, a derogation from the main rule is permitted where the Board in special circumstances determines that it is appropriate to appoint a sole or presiding arbitrator with the same nationality as any of the parties or party-nominated arbitrators.
In contrast to the old rules, the New Rules prescribe that any arbitrator nominated by a party, or by party-nominated arbitrators, shall be confirmed by the Institute (Article 21). The appointment of an arbitrator becomes effective only upon such confirmation. The purpose of the new confirmation regime is not to inappropriately limit the parties’ right to choose arbitrators of their liking, as long as they meet the basic standards of impartiality and independence; after all, the system of party appointments is the cornerstone of arbitration that serves to increase its legitimacy as a dispute resolution method among the business community. The Institute’s role in confirming the nominations is nonetheless justified as it allows the Institute to step in at an early stage of the arbitration where one of the parties acts in bad faith and seeks to obstruct the smooth running of the proceedings by nominating a candidate that is clearly unsuitable to serve as an arbitrator.
Similarly to the old rules, under the New Rules the parties can still agree on the conduct of the proceedings, the seat of arbitration, the language of the arbitration and the law (or rules of law) applicable to the dispute (Articles 25, 26, 27 and 28 consecutively). Default provisions only become applicable in the absence of choice by the parties.
As we will discuss in the next section, the New Rules introduce some quite far-reaching procedural innovations and changes when compared to the old rules. To ensure that the parties have had the full opportunity to understand what they have agreed to, the New Rules provide that in cases where the arbitration agreement was concluded before the rules entered into force (i.e. 1 June 2013), the novel provisions contained in Article 10, 11, 13.4 and 36.5 as well as Appendix III will not apply unless otherwise agreed by the parties (Article 52.2). This means that the parties will not be bound by the provisions concerning joinder, claims between multiple parties and the Emergency Arbitrator proceedings if the arbitration agreement has been concluded before the New Rules were in force.
2.3 Technical Changes and Procedural Improvements to the New Rules
2.3.1 Multi-Party Arbitration
In the same vein as certain other well-known institutional arbitration rules, the New Rules contain express provisions on multi-party arbitration. They will facilitate the handling of increasingly more complex cases. Article 10 governs joinder of additional parties as parties to a pending arbitration, Article 11 claims between multiple parties, Article 12 claims under multiple contracts (including different arbitration agreements) and Article 13 consolidation of two or more arbitrations under the Rules into a single arbitration proceeding.
Although largely inspired by Articles 7 to 10 of the ICC Arbitration Rules, the New Rules go a step further by permitting, for instance, joinder and consolidation on more liberal conditions than the ICC Rules. To illustrate, the Board of the Institute may accept a Request for Joinder even after the confirmation or appointment of one or more arbitrators, up until the case file has been transmitted to the arbitral tribunal. Further, where claims are made under different arbitration agreements, the Board may consolidate two or more arbitrations upon request of a party irrespective of whether the arbitrations are between the same or different parties, provided that the disputes in the arbitrations arise in connection with the same legal relationship and the arbitration agreements do not contain contradictory provisions that would render the consolidation impossible. Where the Board agrees to a joinder or consolidation, all the parties shall be deemed to have waived their right to nominate an arbitrator, and the Board may revoke the confirmation and appointment of arbitrators and apply the provisions of Article 19 in the appointment of the arbitral tribunal.
Article 14 sets out the framework for the determination of jurisdiction by the Board. The applicable test is, in essence, similar to that provided for in Article 6(4) of the ICC Rules. Accordingly, the Board shall allow a case to proceed to the extent that it is prima facie satisfied that an arbitration agreement under the Rules that binds the parties may exist. In addition, where claims are made under more than one arbitration agreement, the Rules require that the Board must be prima facie satisfied (i) that the arbitration agreements under which those claims are made do not contain contradictory provisions, and (ii) that all parties to the arbitration may have agreed that those claims can be determined together in a single arbitration. In all cases, the Board’s decision to allow the arbitration to proceed is not binding on the arbitral tribunal, which shall decide on its own jurisdiction.
Despite the fact that the new joinder and consolidation regime is flexible and allows, in principle, far-reaching applications, in practice the Board is likely to apply the said provisions somewhat cautiously. For instance, it goes without saying that the threshold for accepting a Request for Joinder is very high if it would lead to a situation where one of the parties would be deprived of the arbitrator it has already nominated. Unsurprisingly, a joinder request is more likely to succeed where no arbitrator has been confirmed or appointed yet.
Similarly, as to practical application of Article 13, the Board may be expected to take a positive view on a consolidation request especially in cases where the arbitrations are between the same parties and they are based on the same arbitration agreement. Conversely, unless all parties expressly agree to consolidation, it may be anticipated that arbitrations will rarely be consolidated if the parties are different and the proceedings are based on different arbitration agreements. Consolidation is also unlikely if different arbitrators have already been confirmed or appointed in the different arbitrations, absent special reasons to the contrary.
2.3.2 Arbitrator-Ordered and Pre-Arbitral Interim Relief
Consistent with the recent changes to the UNCITRAL Rules and many leading institutional arbitration rules, the New Rules introduce specific regulations on arbitrator-ordered and pre-arbitral interim relief.
The arbitral tribunal may, at the request of a party, grant any interim measures of protection it deems appropriate (Article 36). However, ex parte interim measures are not permissible under the Rules. This can be read from Article 36.2, which states that before deciding whether to grant any interim measure of protection, the arbitral tribunal shall give the party against which the request is directed an opportunity to submit comments. Other safeguards for the responding party include the tribunal’s right to make the granting of interim relief subject to appropriate security being furnished by the requesting party for any costs or damage that such measure may cause to the party against which it is directed.
The New Rules also provide for a special mechanism whereby a party in need of urgent interim relief that cannot await the constitution of an arbitral tribunal may apply for the appointment of a so-called Emergency Arbitrator. The novel Emergency Arbitrator rules set out in Appendix III are influenced by the emergency relief provisions that may be found in some other institutional arbitration rules (for instance, in the ICC, Swiss, SCC, ICDR and HKIAC Rules). The main features of the Emergency Arbitrator proceedings are set forth below:
(i) The Emergency Arbitrator has the same power to grant any interim measures of protection as the arbitral tribunal under Article 36.1 of the Rules, provided that the Emergency Arbitrator is satisfied that the applicant’s need for interim relief is so urgent that it is necessary to grant interim measures of protection prior to the constitution of the arbitral tribunal. Where the urgency requirement is not fulfilled, the Emergency Arbitrator shall dismiss the applicant’s request for interim measures.
(ii) The application for the appointment of an Emergency Arbitrator may be made either before, concurrently with, or after the commencement of the arbitration. However, the application shall be submitted to the Institute prior to the transmission of the case file to the arbitral tribunal.
(iii) There are many instances where an application for emergency relief will be well-founded. However, the drafters of the New Rules were equally mindful of the need to build sufficient procedural safeguards for respondents against the risk of abuse of the Emergency Arbitrator proceedings by obstructive applicants. One of the most powerful tools in this respect is the applicant’s duty to initiate proper arbitration proceedings within a short, 10-day period from the date on which the application for the appointment of an Emergency Arbitrator was filed with the Institute. If the applicant fails to comply with this time limit, the Institute shall terminate the Emergency Arbitrator proceedings (unless the Institute in exceptional circumstances agrees to extend the time period upon a reasoned request of a party or the Emergency Arbitrator). The requirement for officially launching the arbitration within a short time of the application for emergency measures is intended to protect respondents from frivolous applications by parties who are uncertain about commencing an arbitration, or who are desirous of gaining leverage over their opponents in order to force a settlement in their favour.
(iv) If it is manifest that no agreement to arbitrate under the Rules exists, the Institute shall dismiss the application. Otherwise the Institute will transmit the application to the respondent once the applicant has supplied sufficient copies and paid the application deposit. The latter is a fixed amount of EUR 25,000, consisting of EUR 5,000 for the administrative fee and expenses of the Institute and EUR 20,000 for the fee and expenses of an Emergency Arbitrator. In exceptional circumstances, the Institute may increase the application deposit in the course of the Emergency Arbitrator proceedings.
(v) The urgency at the heart of emergency relief is mirrored in the provisions governing the appointment and challenge of an Emergency Arbitrator as well as the conduct of the proceedings. As a rule, the Institute shall seek to appoint an Emergency Arbitrator within two days after receipt of both the application and the application deposit. The Emergency Arbitrator, in turn, must establish a procedural timetable for the conduct of the emergency proceedings as soon as possible, and normally not later than within two days after having received the file from the Institute. Further, if a party wishes to challenge an Emergency Arbitrator, it must submit a reasoned notice of challenge to the Institute within two days from the date when the circumstances giving rise to the challenge became known to that party, on pain of forfeiting the right to make the challenge.
(vi) The Emergency Arbitrator shall conduct the emergency proceedings in such manner as he or she considers appropriate, taking into account the nature of the case and urgency inherent in the proceedings. At all times, the Emergency Arbitrator shall ensure that the parties are treated with equality and that each party is given a reasonable opportunity to plead its case.
(vii) The Emergency Arbitrator must issue his or her decision within a 15-day period, which should allow enough time to notify to the respondent and to ensure that the parties are given a fair and reasonable opportunity to present their cases. For the sake of comparison, 15 days is the time limit adopted also under the ICC, Swiss and HKIAC Rules (with a possibility for extension on certain conditions).
(viii) The Emergency Arbitrator’s decision (the “Emergency Arbitrator Decision”) is binding on the parties when rendered. An arbitral tribunal, on the other hand, is not bound by it.
(ix) The Emergency Arbitrator Decision shall cease to be binding on the parties: (a) if the Institute terminates the Emergency Arbitrator proceedings for failure to commence the arbitration within the 10-day time limit; (b) if the Institute sustains a challenge of the Emergency Arbitrator; (c) if the case file is not transmitted to the arbitral tribunal within 90 days from the date of the Emergency Arbitrator Decision; (d) if the Emergency Arbitrator or an arbitral tribunal so decides; (e) upon the arbitral tribunal rendering a final award, unless the tribunal expressly decides otherwise; or (f) upon the termination of the arbitration before the rendering of a final award.
(x) The Emergency Arbitrator has the power to rule on the parties’ cost claims presented in the course of the emergency proceedings. At the request of a party, the arbitral tribunal shall finally decide any party’s claims related to the Emergency Arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or non-compliance with the Emergency Arbitrator Decision.
The Emergency Arbitrator rules mark a major amendment to the old rules. Similarly to the new multi-party provisions, in order to avoid difficult questions on the limits of party consent, the Emergency Arbitrator rules will only apply to proceedings initiated under arbitration agreements concluded after the entry into force of the New Rules. On the other hand, in respect of arbitration agreements concluded on or after 1 June 2013, the Emergency Arbitrator rules will apply to their full extent unless the parties have exercised their right to opt out of the application of the Emergency Arbitrator provisions altogether. This can be done in the arbitration agreement by using, for instance, the following language which is recommended by the Institute:
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall by finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The Emergency Arbitrator provisions shall not apply.”
Importantly, the new provisions on arbitrator-ordered and pre-arbitral interim relief do not prevent a party from applying to a competent judicial authority for interim measures of protection in appropriate circumstances. It is explicitly stated in the New Rules that the application of a party to a judicial authority for such measures shall not be considered an infringement or a waiver of the arbitration agreement.
2.3.3 Awards and Decisions
Certain amendments are made also to provisions governing the making and effect of awards and decisions.
Contrary to the old rules, Article 43 of the New Rules states that the arbitral tribunal may, after consulting with the parties, make separate awards on different issues at different times of the proceedings, unless all parties object to the issuance of a separate award. For example and without limitation, the arbitral tribunal may decide by a separate award: (a) an independent claim where several claims have been made in the arbitration; (b) a specific part of the claim that has been admitted by the respondent; or (c) a separate issue in dispute where the determination of that issue is decisive for the resolution of the other matters in dispute. Thus, the arbitral tribunal may render a separate interim award (in Finnish: “välituomio”), if considered appropriate, even if one of the parties is against it.
The New Rules also inaugurate the power of an arbitral tribunal to interpret an award (Article 45). Within 30 days from the receipt of the award, a party may ask the arbitral tribunal to provide an interpretation of a specific point or part of the award. The arbitral tribunal shall give the other parties an opportunity to submit comments on the request for interpretation. If the tribunal considers the request justified, it shall provide the interpretation within 30 days (or within such other time limit as the Institute may have set upon request of the tribunal or on its own motion).
As to the making of awards and decisions, the New Rules permit the arbitral tribunal to authorize the presiding arbitrator to decide any questions of procedure alone, subject to revision by the tribunal. Further, if any arbitrator fails to cooperate in the making of the award or other decision, having been given a reasonable opportunity to do so, the remaining arbitrators are entitled to proceed in his or her absence.
One of the most hotly debated issues in the Rules revision process concerned confidentiality. Opinions were divided as to whether the revised Rules should impose confidentiality obligations not only on the arbitrators and the Institute, but on the parties as well. Having carefully weighed all the feedback received, the drafters of the New Rules ultimately decided that parties to an arbitration under the New Rules should be subjected to a confidentiality obligation.
The New Rules stipulate that each party undertakes to keep confidential all awards, orders and other decisions of the arbitral tribunal, correspondence from the arbitral tribunal to the parties, as well as documents and other materials submitted by another party in connection with the arbitration, except where and to the extent that any of the exceptions set forth in Article 49.2(a)-(c) applies. The New Rules thereby provide parties with the means to preserve the confidentiality of any material disclosed to the opposing party in the course of the arbitration. Parties are, however, free to deviate from the confidentiality provisions if they so wish. Notwithstanding that, the deliberations of the arbitral tribunal shall remain confidential in all cases.
2.5 New International Board of the Institute
As part of the revision process, the rules governing the duties and composition of the Board of the Institute were amended as well. Following the entry into force of the New Rules, the Institute has elected an International Board composed of a number of non-Finnish nationals, who are distinguished international arbitration practitioners with different legal backgrounds. The members of the International Board are:
- Ms. Niuscha Bassiri, Partner and attorney at Hanotiau & van den Berg, Brussels, Belgium;
- Ms. Sophie Lamb, Partner and attorney at Debevoise & Plimpton, London, UK;
- Ms. Gabrielle Nater-Bass, Partner and attorney at Homburger, Zürich, Switzerland;
- Mr. Bo G. H. Nilsson, Partner and attorney at Lindahl, Stockholm, Sweden;
- Mr. Christopher R. Seppälä, Partner and attorney at White & Case, Paris, France;
- Mr. Toomas Vaher, Partner and attorney at Raidla Lejins & Nourcous, Tallinn, Estonia; and
- Ms. Nina Vilkova, Professor at the Russian Academy of Foreign Trade, Moscow, Russia.
The members of the International Board bring with them a wealth of experience to the Institute. They will participate in the appointment of arbitrators, decision making regarding prima facie jurisdiction and challenges to arbitrators as well as the determination of arbitrators’ fees in cross-border disputes alongside the Finnish board members. Needless to say, the new International Board will greatly contribute to the Institute’s ability to find optimal arbitrators in cross-border disputes, thereby promoting the Institute’s reputation as an internationally renowned arbitration centre worthy of confidence.
2.6 Revision of the Expedited Arbitration Rules
In connection with the revision process, also the Rules for Expedited Arbitration of the Finland Chamber of Commerce were updated. The provisions of the New Rules and the revised Expedited Rules (the “Expedited Rules”) are, for the most part, identical. The main differences, which result from the requirement of rapidity inherent in expedited proceedings, can be summarized as follows:
(i) Any dispute submitted to arbitration under the Expedited Rules shall be decided by a sole arbitrator. Put differently, the parties are not entitled to have their dispute referred to a panel of three arbitrators under the Expedited Rules.
(ii) Unless the sole arbitrator in special circumstances decides otherwise, each party may file only one written submission in addition to the Statement of Claim and the Statement of Defence. The submissions must be brief and the time limits within which they shall be filed may not exceed 14 days.
(iii) The default rule is that there will be no hearing. A hearing shall be held only if requested by a party and if deemed necessary by the sole arbitrator.
(iv) The arbitral award shall not contain reasons, unless a party has requested a reasoned award within the time limit set by the sole arbitrator.
(v) The time limit for the rendering of a final award is only three months from the date on which the sole arbitrator received the case file.
(vi) Both the arbitrator’s fee and the administrative fee of the Institute are lower in expedited proceedings than in arbitrations conducted under the regular Rules.
The Expedited Rules may provide a viable alternative to the regular Rules especially in low-value cases where the legal and factual circumstances appear rather straightforward. Of course, at the time of concluding a contract, it may not be easy to anticipate the value, or the complexity, of all the disputes that may ultimately arise out of the contract. Therefore parties who consider opting for the Expedited Rules may wish to use a so-called “combination clause”, which provides that the Expedited Rules shall normally apply, unless the Board of the Institute in its discretion determines that it is more appropriate to refer the dispute to be resolved under the regular Rules, having regard to the perceived complexity of the case, the amount in dispute, and other relevant factors.
The New Rules mark a welcome change to all the users of arbitration in Finland. They are intended to meet the highest international standards while promoting the classic virtues of arbitration as an expeditious, cost-efficient and confidential method of resolving commercial disputes. Equally important, they give the parties a lot of freedom in deciding how to conduct their arbitration. That autonomy exists so that parties can tailor the proceedings to best suit their individual needs. Parties are encouraged to make use of the possibilities offered under the New Rules.
The New Rules also allow arbitral tribunals to deal more efficiently with complex cases involving multiple parties and multiple contracts. At the same time the provisions on multiparty arbitration and pre-arbitral interim relief are novelties that did not exist in any form under the old rules. End-users are therefore well-advised to consider whether their arbitration clauses merit review following the entry into force of the New Rules.
In general, however, corporations and counsel should feel very comfortable inserting arbitration clauses in their contracts subjecting any dispute to be settled in accordance with the New Rules. With a clear focus on party autonomy, efficiency and timeliness, the Arbitration Institute of the Finland Chamber of Commerce will be well-equipped to serve both domestic and international users and to provide them with a reliable arbitration venue. In a wider perspective, the adoption of the New Rules and the setting up of the International Board should be seen as part of the broader country brand effort to promote Finland’s economy and international status.
Partner, Head of Dispute Resolution (Helsinki)
Chair, Board of the Arbitration Institute of the Finland Chamber of Commerce
Chair, Rules Revision Task Force of the Arbitration Institute of the Finland Chamber of Commerce
Senior Associate (Helsinki)