Vancouver International Arbitration Centre introduces New Rules for International Disputes
This past year saw several arbitral institutes across the globe introduce new rules of arbitration including the International Center for Settlement of Investment Disputes (“ICSID”), the International Chamber of Commerce Court of Arbitration (“ICC”), and the Dubai International Arbitration Centre (“DIAC”).
In keeping up with the evolving landscape of international arbitration, on 1 July 2022, the Vancouver International Arbitration Centre (“VanIAC”) effected their 2022 Rules of Procedure (the “New Rules”).
Notably, the New Rules are the first change to VanIAC’s rules in over 22 years and come exactly four years after the province of British Columbia updated its arbitration act to attract more international commercial disputes.
Expedited Procedures
Appendix A of the New Rules introduces expedited procedures which may be adopted by the agreement of the parties. The expedited procedures are automatically triggered when no claim or counterclaim exceeds CAD 500,000.[1] Under these procedures, the final award is rendered without the need for an oral hearing, but rather, is based on the written submissions of the parties.[2] However, the expedited procedures are inapplicable to disputes that are heard by more than one arbitrator[3]; by default, the New Rules provide for the use of a sole arbitrator unless agreed otherwise by the parties.
Moreover, parties can opt-out of the expedited procedures and may also seek leave to apply for early disposition of one or more of the issues of fact or law at any stage in the proceedings.[4] The New Rules emphasize that “all parties shall have the opportunity to present their positions regarding the suitability of a proposed application for early disposition and potential summary procedures for the application”.[5]
Interim Measures
The New Rules also allow for several interim measures, which can be applied depending on the agreement of the parties.
Article 26 of the New Rules extensively covers the interim measures available for parties, including:
“(i) security for all or part of the amount in dispute, by way of deposit, bank guarantee, or in any other manner and upon such terms as the arbitral tribunal considers appropriate;
(ii) the preservation, storage, sale or other disposal of property under the control of any party and relating to the subject matter of the arbitration; and
(iii) any relief that an arbitral tribunal would have power to grant in an award, including an interim order for the payment of money or the disposition of property as between any parties.”[6]
Article 27 of the New Rules provides for ex parte preliminary orders which “shall only be granted in exceptional circumstances where the arbitral tribunal considers that prior disclosure of a request for an interim measure to the party against whom it is directed risks frustrating the purpose of the interim measure”.[7]
In the event a party opts to apply for an interim measure or preliminary order, Article 29 provides for an emergency arbitrator to be appointed by VanIAC within two days of VanIAC’s receipt of the application.[8]
Third-Party Funding Agreements
Considering the previous rules were issued 22 years ago, the New Rules introduce a section regarding third-party funding agreements, an aspect of arbitration that has grown in prevalence over the past decade and quickly become a staple in the mechanism.
On that note, Article 6 of the New Rules provides:
“If a funding agreement exists in relation to a claim, regardless of whether it was made before or after the commencement of the arbitration, the funded party shall advise the other parties, the arbitral tribunal, VanIAC, and any emergency arbitrator of the fact that a funding agreement exists and the identity of the third-party funder.”[9]
This is in line with recent amendments to other arbitration rules, such as the ICSID 2022 Rules of Arbitration which provide a similar section under Rule 14 [10] and the ICC 2021 Rules of Arbitration, under Article 11(7).[11]
Virtual Hearings
The latest addition of virtual hearings comes during the wanning days of the COVID-19 pandemic which saw the everyone in the world sheltered in their homes. Arbitral institutes were quick to implement the ability to conduct virtual hearings via teleconferencing software (such as Zoom).
After witnessing its success, arbitral institutes across the globe added virtual hearings as an alternative available for parties, to further bolster the expeditious nature of arbitration.
VanIAC has introduced the procedures for virtual hearings under Article 25 of the New Rules, which are quite extensive in comparison to the virtual hearing procedures provided by other arbitral institutes.
Article 25(a) of the New Rules states that “the arbitral tribunal may issue directions on a video conferencing platform to be used for the arbitration that provides for clear video and audio transmission, allows for virtual breakout rooms for each party (if necessary), and allows witnesses, the arbitral tribunal and the parties to simultaneously view documents (if necessary).”[12]
Additionally, the New Rules provide a clear-cut outline of whom may attend the virtual hearings. Unless otherwise agreed by the parties, the only persons entitled to access or attend a virtual hearing are:
- The parties;
- The parties’ legal representatives;
- Witness during their examination;
- The arbitral tribunal;
- Any arbitral tribunal secretary; and
- Third party service providers, including but not limited to interpreters and transcription service providers.[13]
Article 25(c) permits parties to request the videoconferencing software be tested prior to the virtual hearing, however coordination of such, will befall on the parties.[14]
Conclusion
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[1] Article A-1(b), Appendix A, Vancouver International Arbitration Centre, Rules of Arbitration 2022
[2] Ibid Article A-7(a)
[3] Ibid Article A-1(c)
[4] Article 21, Vancouver International Arbitration Centre, Rules of Arbitration 2022
[5] Ibid Article 21(a)
[6] Ibid Article 26(a)
[7] Ibid Article 27(a)
[8] Ibid Article 29(a)
[9] Ibid Article 6
[10] ICSID (International Centre for Settlement of Investment Disputes) Arbitration Rules (2022), adopted on 1 July 2022, Rule 14.
[11] ICC (International Chamber of Commerce) Arbitration Rules (2021), adopted on 2021, ARTICLE 11. 7.
[12] Article 25(a), Vancouver International Arbitration Centre, Rules of Arbitration 2022
[13] Ibid Article 25(b)
[14] Ibid Article 25(c)