Play it by EAR: UNCITRAL Expedited Arbitration Rules enter into force

The United Nations Commission on International Trade Law (UNCITRAL) adopted the Expedited Arbitration Rules (EAR) on 21 July 2021, which recently entered into force on 19 September 2021. An expedited arbitration aims to be a streamlined and simplified process, allowing parties to resolve their disputes in a timely and cost-effective manner.

The EAR will form an appendix to the UNCITRAL Arbitration Rules (UAR) which apply to a ‘non-expedited arbitration’. For an expedited arbitration, both sets of rules should be considered as the EAR will modify or replace certain requirements under the UAR. Generally, the EAR provide shorter timeframes and more robust procedural tools such that an arbitral tribunal can conduct proceedings more efficiently.

We highlight 10 features from the EAR which are of practical significance to clients involved in expedited arbitration:

1. Parties must apply the EAR by agreement. A model arbitration clause is available in the annex of the EAR if parties wish to incorporate the same into their arbitration agreements. (Article 1)
2. Parties can agree to disapply the EAR at any time during the arbitration. Exceptionally, the arbitral tribunal may determine the EAR not to apply to the arbitration, but it must do so after inviting parties’ views and stating reasons on why such a determination was made.  (Article 2)
3. A notice of arbitration under the EAR must include (a) a proposal for designating an appointing authority, and (b) a proposal for the appointment of an arbitrator. This requirement modifies Article 3(4) of the UAR as these two proposals are optional under the UAR. (Article 4)
4. A claimant should communicate its statement of claim along with its notice of arbitration. This requirement replaces Article 20(1) of the UAR which provides that a statement of claim should be communicated within a period of time determined by the arbitral tribunal. (Article 4)
5. Any party may request the Secretary-General of the Permanent Court of Arbitration to designate an appointing authority or to serve as appointing authority, where parties are unable to agree within 15 days of receiving a proposal for designating an appointing authority. This modifies Article 6(2) of the UAR by offering a shorter timeframe and simpler process. (Article 6)
6. The EAR provide for a sole arbitrator by default, unless the parties agree otherwise. (Article 7)
7. An arbitral tribunal is required under the EAR to consult the parties on how the arbitration should be conducted, e.g: through a case management conference, within 15 days after the tribunal is constituted. This requirement is supplemented by Article 17(2) of the UAR, whereby an arbitral tribunal is also required to establish a provisional timetable as soon as practicable after constitution. (Article 9)
8. The EAR enable an arbitral tribunal to use technological means to conduct proceedings, including holding remote hearings. This is consistent with Article 28(4) of the UAR. (Article 3)
9. A party cannot amend or supplement its claim or defence, including counterclaim or a claim for the purpose of a set-off, unless the arbitral tribunal considers it appropriate having regard to circumstances like delay or prejudice to other parties. This replaces Article 22 of the UAR and presents a much higher threshold for making amendments and supplements. (Article 13)
10. An award under the EAR shall be made within 6 months of the constitution of the arbitral tribunal. This time limit may be extended by the tribunal in exceptional circumstances and after inviting parties’ views.  (Article 16)

Watch this space – The Draft Explanatory Notes on the EAR are expected to be finalised by the UNCITRAL’s Working Group II in early October 2021, which will no doubt offer further insights to the interpretation of the EAR and their interaction with the UAR.