International Arbitration Legal And Case Developments: Europe

Significant developments in Germany, including new Arbitration Bill, DIS's Supplementary Rules, and notable Achmea - related German Supreme Court decision. Our updates include NAI's revised Arbitration Rules, updated IBA Guidelines on Conflicts, and the UK's Arbitration Bill and Litigation Funding Bill being casualties of the early election call.

We report on key cases from the English, French, Bavarian and German courts, including UK Court rulings in UniCredit (anti-suit relief) and Paris Court of Appeal enforcement-centric decision.

Legal Developments

Case Developments

LEGAL DEVELOPMENTS

IBA PUBLISHES UPDATED GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION

February 2024

The International Bar Association's Arbitration Committee has released new guidelines on Conflicts of Interest in International Arbitration ("IBA Guidelines"), which set out expected standards for maintaining the impartiality and independence of arbitrators as well as for disclosure. Key changes have been made in respect of the "General Standards" ("GS") and the "Traffic Light System".

KEY CHANGES TO THE GS

• Impartiality: The Guidance to GS 1 has been amended to clarify that the arbitrator's obligation of independence and impartiality ends once the final award is rendered.
• Disclosure: If an arbitrator considers that he/she should make a disclosure but is prevented from doing so by rules of professional secrecy or other rules of practice or conduct, new GS 3(e) provides that the arbitrator shall not accept the appointment, or, if already appointed, shall resign.
• Parties' Presumption and Waiver: GS(4) includes a presumption that a party has learned of a fact/circumstance that could constitute a potential conflict which a reasonable investigation at the outset/during proceedings would have disclosed and waived any defense based on that fact/circumstance if not raised within 30 days.
• Relationships: New GS 6 has been updated to clarify that: (i) an arbitrator is deemed to bear the identity not just of their law firm but also their employer; and (ii) any legal entity or natural person over which a party has a controlling influence may be considered to bear the identity of that party. Parties also have a duty to inform tribunals of persons/entities over which they have controlling influence.

KEY CHANGES TO THE TRAFFIC LIGHT SYSTEM

The major changes relate to the Orange list, which now lists additional instances which may give rise to doubts about an arbitrator's impartiality and, hence, require disclosure. These include matters in respect of experts, mock trials, arbitrators' use of social media, arbitrators' service as counsel for parties in certain circumstances and co-arbitrator situations.

DRAFT GERMAN ARBITRATION BILL PUBLISHED

February 1, 2024

Germany is set to update its arbitration law following the publication of a draft bill on February 1, 2024, marking the first major reform in 25 years and bringing it in line with international updates. As part of this reform, the legislator is continuously introducing amendments to the draft law.

Key changes include:

• a relaxation of the formal requirements for arbitration agreements;
• tribunals' new discretion to order remote hearings without the consent of the parties;
• arbitration-related court proceedings may now be conducted in English;
• the enforcement of interim measures issued by foreign courts; and
• the introduction of a formal remedy for reopening proceedings in exceptional cases, such as fraud or criminal conduct by an arbitrator.

Among the new changes introduced in the draft law is the provision on dissenting opinions. According to Section 1054(1) of the Draft Code, arbitrators may issue dissenting opinions on the award or its reasons, unless otherwise agreed by the parties. These opinions are separate from the award and must be written and signed by the arbitrator.

The admissibility of dissenting opinions in German arbitration has been a controversial issue. It should now be clarified that dissenting opinions may be submitted in arbitration proceedings with multi arbitrators. This clarification will ensure that awards containing dissenting opinions comply with procedural norms.

The inclusion of dissenting opinions allows arbitrators who disagree with the majority to share their views with the parties. This can improve the quality of arbitral dispute resolution by providing reasons for minority views that are not reflected in the final award.

ICC NEW HEARING CENTRE SET TO OPEN IN PARIS IN AUTUMN 2024

March 2024

Following the recent opening of Paris Arbitration Centre by Delos, the ICC International Court of Arbitration has unveiled plans for its new hearing centre in Paris, set to open in autumn 2024. Located on Rue Legendre in the 17th arrondissement, the centre will be conveniently accessible from major Paris law firms, the Cité judiciaire, and major train stations and airports. Spanning a single level, it will feature two sets of hearing and breakout rooms, with the option to extend to a third for overflow. Designed to cater to in-person, hybrid, and virtual hearings, the state-of-the-art premises prioritize efficiency, technology, confidentiality, accessibility, and comfort.

Developed by Groupe Galia, the property will also house a five-star boutique hotel, restaurant, café, fitness center, roof terraces, and office spaces. Alexander G. Fessas, Secretary General of the ICC International Court of Arbitration, expressed excitement about the upcoming launch. The announcement coincided with the commencement of Paris Arbitration Week, where ICC Court president Claudia Salomon revealed details about the new hearing center.

Notwithstanding other recently available hearing space in Paris (e.g., Delos's new hearing centre) this initiative seeks to offer additional hearing space in Paris, promising a significant upgrade in facilities and services for arbitration and ADR proceedings and ensuring the city's position as a key hub for international arbitration.

NETHERLANDS ARBITRATION INSTITUTE (NAI) LAUNCHES UPDATED ARBITRATION RULES

March 1, 2024

The NAI recently issued revised arbitration rules (the "2024 Arbitration Rules"). The 2024 Arbitration Rules have been in force since 1 March 2024 and aim to simplify dispute resolution, stop unfair tactics, promote the appointment of diverse arbitrators, and make the process easier to understand for those less experienced in arbitration.

NEW TOOLS FOR FASTER DISPUTE RESOLUTION

The 2024 Arbitration Rules introduce an expedited procedure for claims under EUR 1,000,000, with a single round of submissions and virtual hearings, ensuring a faster resolution within six months. They also allow for early determination of unfounded disputes within 30 days upon request.

PREVENTING GUERRILLA TACTICS

To combat disruptive tactics, the NAI Challenge Chamber can dismiss unmeritorious challenges, and tribunals take into account the parties' conduct when allocating costs, thereby discouraging delaying tactics.

PROMOTING DIVERSITY AMONG ARBITRATORS

The NAI promotes diversity by making direct appointments when parties fail to nominate arbitrators and by considering diversity in nominations and appointments.

IMPROVING ACCESSIBILITY FOR FIRST-TIME USERS

The 2024 Arbitration Rules clarify existing procedures, codify established practices, and ensure comprehensibility in the arbitration process, benefiting both first-time arbitrators and users.

FILLING THE GAPS

New provisions address previously unaddressed areas, such as multi-contract arbitrations and disclosure of third-party funding, improving the resolution of complex disputes and ensuring transparency.

In summary, the 2024 Arbitration Rules reflect the NAI's commitment to advancing arbitration practices, fostering inclusivity, and ensuring a fair and efficient resolution process.

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