P.R.I.M.E. Finance launches updated Arbitration Rules

P.R.I.M.E Finance is the Panel of Recognised International Market Experts on Finance.  It is an independent and not-for-profit body based in The Hague, Netherlands.  It was established in 2012 and states its mission is to "ensure that the requisite expertise is available to anticipate and address any disputes that may arise in the financial markets".^[1]  One of P.R.I.M.E. Finance's core activities is to provide financial market dispute resolution services, which includes publishing its arbitration rules.

Parties who choose P.R.I.M.E. Finance's arbitration rules are not limited to resolving financial disputes, but generally the disputes determined under those arbitration rules include derivatives, banking, lending, financing, private equity, fintech and sustainable finance.  Although P.R.I.M.E. Finance is based in The Hague, parties are free to choose their own seat of arbitration.

In 2015, P.R.I.M.E. Finance entered into partnership with the Permanent Court of Arbitration (PCA)^[2], which has experience in administering complex and international proceedings.  P.R.I.M.E. Finance says this partnership allows users to combine "the subject matter expertise of its Panel of Experts [its panel of financial experts that parties may appoint as arbitrators] with the PCA's efficiency in administering arbitrations".^[3]

Standard documents used to govern the terms of over-the-counter (OTC) derivative trades are the International Swaps and Derivatives Association (ISDA) Master Agreements (1992 and 2002).  The ISDA Arbitration Guide (last issued in 2018)^[4] provides guidance on the use of arbitration clauses with an ISDA Master Agreement and provides selected model clauses which may be used with either the 1992 or 2002 version.  The ISDA Arbitration Guide includes a model clause for the P.R.I.M.E. Finance arbitration rules.

Some might find it strange that there is an arbitral institution focused on the financial markets.  Traditionally, parties have largely relied on the courts of England & Wales or New York to determine financial disputes (not least because the laws of those jurisdictions tend to govern financial contracts) and less regularly rely on arbitration.  However, referral of financial disputes to arbitration can bring advantages.  For instance:

1. Enforcement, particularly where the counterparty is located within an emerging market – Enforcement of foreign court judgments can be difficult in emerging markets as compared to enforcement of arbitral awards, which is often much easier with the benefit of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (known as the 'New York Convention').
   
   
2. Flexibility – Parties are free to tailor the arbitration procedure to suit the dispute in hand. In addition, parties may choose arbitrators who have the skills and experience required to understand and determine the dispute.  This is particularly helpful where the dispute is specialised or complex, as is often the case for financial market disputes.
   
   
3. Privacy and confidentiality – Generally, either by virtue of the law of the seat of arbitration or by the parties' agreement, arbitrations are private and confidential. However, this is not the case for disputes heard before the courts, which tend to be public.

The new 2022 Rules contain many changes and updates to the 2016 version (the "2016 Rules").  A number of the changes reflect broader market shifts over the last few years and mirror changes that have been made to the rules of leading arbitral institutions, such as the LCIA and ICC.

Some of the key changes in the new 2022 Rules are summarised below:

Central role of the PCA – The 2022 Rules provide the PCA with a more central role in the administration of proceedings.  Article 4(1) states that the PCA "shall administer any arbitration under these Rules".  Further, Article 11 gives the PCA the discretion to refuse the appointment of an arbitrator even where they have been nominated by the parties.  This is in contrast with the position under the 2016 Rules, which permitted the parties to choose an appointing authority other than the PCA (see Article 6(1) of the 2016 Rules).

Publication of awards – P.R.I.M.E. Financial has stated that the changes in the 2022 Rules seek to promote transparency.  In particular, the 2022 Rules provide for the publication of awards on an anonymised basis.  Article 39(10) states: "Unless any party objects within 30 days of receipt of an award or other decision of the arbitral tribunal or the PCA, the PCA shall provide P.R.I.M.E. Finance with an anonymised copy of such decision that P.R.I.M.E. Finance may make public".

Declaration of third-party interests – Also with a view to increasing transparency, the 2022 Rules require parties to declare the identity of any third parties with a significant interest in the outcome of the dispute, which includes but is not limited to third parties funding any claim or defence, as well as the nature of their respective interest in the outcome of the dispute (see Articles 5(3)(g), 6(2)(b) and 12(2)).

Updated provisions related to electronic communications – The 2022 Rules have been updated to reflect the common usage of electronic communications.  For instance, the 2016 Rules only permitted notices or communications to be sent electronically through the details "provided by the addressee" (see Article 2 of the 2016 Rules).  However, Article 2(2) of the 2022 Rules permits, save where the parties have designated otherwise, notices and communications to be sent "by any means, whether physical or electronic, that provides for or allows for a record of its transmissions and shall be deemed received and effective when it is delivered to the last-known place of business, habitual residence, or mailing address of the recipient or sent to any electronic address (including any name, number, account, or electronic messaging system) used in the ordinary course of business by the recipient".

Multi-party and multi-contract arbitrations – The 2016 Rules referred, in very brief terms, to the tribunal's ability to allow one or more third parties to be joined in an arbitration (see Article 17(5) of the 2016 Rules).  However, there were no other provisions relating to joinder, consolidation, or related matters.  The 2022 Rules remedy this with detailed provisions relating to joinder (see Article 31), consolidation of arbitrations (see Article 32), single arbitration under multiple contracts (Article 33) and coordination of proceedings (see Article 34).  Express provisions relating to such matters is particularly important in the context of financial disputes where often there are inter-related and inter-dependent contracts that form one overall financial transaction.

Early Determination – Article 35 of the 2022 Rules permits a party to request "early determination" of a dispute, which reflects the same right that exists under Article 22(1)(viii) of the LCIA Arbitration Rules.  In particular, Article 35 states that a party may request the early determination of a claim or defence on the basis that it is manifestly (i) outside the jurisdiction of the arbitral tribunal; (ii) inadmissible; or (iii) without legal merit.  Article 35(3) requires the tribunal to determine a request for early determination within 30 days of receipt.  These provisions will no doubt give tribunals comfort that they may, on application of the party, and where appropriate, dispose of claims at an early stage.  That said, it remains to be seen how bullish arbitrators will be given the possibility of such applications giving rise to an argument that an award should not be enforced because a party was unable to present its case (for instance, as per section 68(2)(a) of the Arbitration Act 1996 or Article V.1(b) of the New York Convention).

Expedited Procedure – The 2016 Rules allowed the parties to expedite proceedings by agreeing, subject to tribunal approval, shortened timelines (see Article 2a of the 2016 Rules).  However, similar to the ICC Arbitration Rules, the 2022 Rules provide for a full expedited arbitration procedure.  Article 1(4) of the 2022 Rules states that the expedited procedure shall apply if (i) the amount in dispute does not exceed EUR 4,000,000 at the time the response to the notice of arbitration is filed; or (ii) the parties agree.  As per Article 1(5), except as otherwise decided by the PCA, the application of the expedited procedure shall not be affected by any amendment to the claim, or the filing of additional claims, which means the amount in dispute exceeds EUR 4,000,000.  This prevents parties from filing deflated claims in order to benefit from the expedited procedure before then increasing the quantum of their claims thereafter.  The full process and timing for the expedited procedure is set out in Article 17.  In particular, Article 17 states that (i) expedited proceedings shall be determined by a sole arbitrator, notwithstanding what the parties may have agreed in the arbitration agreement, though the PCA does retain a discretion to appoint 3 arbitrators; and (ii) the arbitral tribunal shall render its final award within 180 days from the constitution of the arbitral tribunal.

The 2022 Rules contain helpful changes and updates, which bring them into line with other leading institutions and reflect the developing needs and wishes of the arbitration community.  It will be interesting to see how, in practice, tribunals manage and determine arbitrations under the 2022 Rules, particularly in relation to early determination and multi-party and multi-contract arbitrations.