August 16, 2023
By: Robert Li
Egypt’s high-profile arbitration institution is in the final stages of an update to its 12-year-old rules, which are set to introduce modern arbitral practices including emergency proceedings, case-consolidation and electronic-first administration. The Cairo Regional Centre for International Commercial Arbitration (CRCICA) is set to update its rules governing international arbitration. It published its draft 2023 arbitration rules on 24 June while also inviting public comment on the proposed provisions, with the consultation period having ended on 26 July. Based on the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules of 2021, CRCICA’s draft 2023 rules make notable amendments and procedural improvements compared with the present version which dates back to 2011. Speaking to CDR, managing partner of Shahid Law Firm in Cairo Girgis Abd El-Shahid describes the changes as timely since “they are needed to update the rules and match the pace of change in arbitration processes”. London-based Pinsent Masons partner Jean-François Le Gal, who focuses on international arbitration in the Middle East and North Africa (MENA) region, contrasts the year of CRCICA’s previous rules update with that of other institutions, such as the ICC International Court of Arbitration (ICC), whose 2012 rules were updated in 2017 and 2021, and the London Court of International Arbitration (LCIA), which revised its 2014 rules in 2020. “CRCICA’s 2023 Rules will ensure the Centre continues to embrace modern practices” he says, further adding: “It is also a great way to promote the institution and engage with the arbitration community, since CRCICA has cleverly invited arbitration practitioners to provide comments and feedback on the draft Rules, using forms accessible on CRCICA’s web site, as part of the process”.
The draft rules provide for a variety of efficiency improvements including a number of technology measures associated with the Covid-19 pandemic, including paperless online filing and management, and online or hybrid hearings as specified in article 28. Annex 2 expressly provides for the urgent appointment of an emergency arbitrator when required. “The existing rules already provide that the arbitral tribunal can provide interim relief to preserve the status quo or prevent imminent harm, but the new rules will allow CRCICA to appoint a single arbitrator in an emergency who can consider applications on an interim basis and put measures in place quickly, which can be extremely important,” says Kwadwo Sarkodie, a London partner in Mayer Brown’s construction and engineering practice who has also advised on Africa-related matters. Annex 3 defines an expedited and streamlined procedure for claims of less than USD 2 million, which specifies a single arbitrator by default and the holding of a hearing only if necessary and at the tribunal’s sole discretion, enabling smaller claims to be dealt with more quickly. Abd El-Shahid also points to the draft rules’ greater clarity on joinder under article 17, and consolidation of proceedings under article 50: “Under current rules if you have similar parties arbitrating under multiple contracts, then each contract would have to be filed separately; but the new rules grant the right to consolidate and include multiple disputes which are similar in nature, such as those under the same governing law, the same arbitration law or involving the same parties,” provided all parties must agree in writing to such a consolidation. Other key provisions in the draft rules which are not directly related to efficiency include an express requirement for the parties to reveal the role and identity of any third-party funder at any point during the proceedings, via article 53, as well as article 14, 15 and 16’s clarification of the ambit of arbitrator challenges. The costs schedule has also been updated with the USD 500 filing fee applying only where less than USD 1 million is in dispute; anything above this level or where a value is not specified will attract a higher fee of USD 1,500. Also subject to change are arbitrator fees since the draft has not only raised them, but also stipulated they will have a minimum and maximum range such as USD 55,510 to USD 249,795 for a sum in dispute of over USD 100 million. “This is an improvement, because the higher fees are likely to attract more international arbitrators to sit on tribunals” opines Abd El-Shahid, although Sarkodie is more circumspect: “Certainly towards the higher values in dispute, the range between the minimum and maximum fee is quite large, with the advantage that it grants discretion to CRCICA to reflect the complexity of the dispute in the fees charged; but the disadvantage is it creates uncertainty for parties regarding the ultimate level of fees payable to the tribunal.”
GOOD, BAD OR INDIFFERENT?
There is an overwhelmingly positive reaction to the new rules which have been drafted thoughtfully and include the best elements of modern arbitral practice, positioning CRCICA as a strong choice of seat for disputes which involve the MENA region or which lack the extremely high values in headline ICC proceedings. Le Gal says the institution is “certainly heading in the right direction – it is a welcome refresh, and ensures CRCICA remains in line with contemporaneous practice in other leading institutions such as the ICC and LCIA.” Mayer Brown’s Sarkodie praises the collaborative approach adopted: “I really welcome the fact this is being done on a consultation basis, it is great that it invited comments and views from the arbitration community,” and further says the new rules “certainly cover the main areas in line with recent changes by other institutions which are reflective of best practice, and the latest developments in international arbitration.” CRCICA has confirmed the final version of the draft rules is scheduled to take full effect later in the year “at a date to be determined soon with text subject to editorial corrections until that time”, but there are not expected to be major changes to the draft when it finally takes effect. Abd El-Shahid concludes that the rules are almost certain to make CRCICA more popular and widen its international appeal: “It has a chance to be more international and more Africa-focused, and should have more markets to rely upon.” Earlier this year Greece reformed its arbitration law, bringing it into line with the 2006 UNCITRAL Model Law on International Commercial Arbitration.