I. The German touch – the 2018 DIS Arbitration
Rules are in force!
With effect as of March 1, 2018, the revised and updated 2018 DIS Arbitration Rules are in force. They are issued in German and English and continue a tradition of German Handelsschiedsgerichtsbarkeit (commercial arbitration) to support a mutual settlement. But they also introduce new tools and mechanisms to present a set of rules that shall contribute to an effective and efficient dispute resolution procedure. Here are the main topics:
II. New committee
Unlike the previous DIS Arbitration Rules, the 2018 DIS Arbitration Rules reallocate a number of administrative work and services from the arbitral tribunal to the DIS, either the DIS Arbitration Council or the Case Management Team, such as: Sole Arbitrator (Art. 10.2), challenge of an arbitrator and termination of an arbitrator’s mandate (Art. 15.4, 16.2), calculation of arbitrators’ fees in case of early termination or decision of increase of fees due to complexity (Art. 34.4 and fee scheme), reconsidering the arbitral tribunal’s fixing of the value in dispute (Art. 36.3) and fee reduction in case of delayed arbitral award.
III. Efficiency and acceleration of the arbitration
The 2018 DIS Arbitration Rules numerously underscore the aim to have an accelerated procedural instrument at hand that is utmost cost-efficient and delivers a quick solution to the parties dispute:
- Quicker constitution of the arbitral tribunal: The deadlines for the appointment of arbitrators are streamlined both for the Claimant and the Respondent.
- Strengthening of Sole Arbitrator appointment: The 2018 DIS Arbitration Rules strengthen the appointment of a Sole Arbitrator. Unlike the new ICC Expedited Procedure Rules of 2017 (cf. SchulteBlog of Feb. 14, 2017) this shall not be done against the parties’ wishes and is not mandatorily linked to a threshold value in dispute. But if there is no explicit clause on the number of arbitrators, the arbitral tribunal not necessarily comprises of three arbitrators.
- Early filing rules: Both Answer to Request and Counterclaim shall be filed within a deadline of 45 days – even before the arbitral tribunal is constituted.
- Continuing procedural management: Early case management conference, which is usual already under the previous rules, but with a binding schedule for the conference, e.g. choice of procedural instruments to accelerate the proceedings, options for settlements.
- Efficient procedural handling – expected from arbitral tribunal and parties and considered in the fee award as well.
IV. New instruments to cope with complexity
The central idea of the new Art. 8 and 17-20 is to mirror the parties wishes in the best way in complex matters, e.g. to combine arbitral proceedings, to involve third parties or in multi-party or multi-contract matters. In the latter ones in particular, Art. 20 introduces a more flexible handling compared to the previous rules. Unlike other arbitration rules, the 2018 DIS Arbitration Rules do not adopt a prima-facie revision of the case matter.
V. Amicable, mutual settlement
The DIS 2018 Arbitration Rules underline a German tradition to contribute and support a mutual settlement, as an arbitration blocks internal resources and often is only ultima ratio for business entities. This is set out in a number of rules:
- Art. 26 shall continue to apply, pursuant to which the tribunal shall always try and test options to settle the matter – but not against the parties’ wishes.
- Pursuant to Art. 27.4 the parties shall discuss alternative options to mediate or otherwise amicably settle the dispute in the case management conference.
- Early presentation of a preliminary evaluation of the case at hand by the arbitral tribunal, relating both to facts and to the law – if neither of the parties opposes to such.
- Art. 2.2 and 27.3 relate to the option to install a conflict manager to help identifying the best possible dispute resolution mechanism.
- Art. 41 stipulates that the arbitral award with an agreed wording (Award by Consent) shall apply as well for other proceedings handled under DIS ADR rules and the costs of the arbitral proceeding are considered for the other proceeding(s).
Christoph Just is a litigation partner in our firm and represents companies in numerous court and arbitration proceedings. He is also a specialist in administrative law and advises companies and public bodies on all matters of public commercial and public procurement law.