• Search

Guide to Regional Arbitration (volume 5 - 2017)

Worth a Closer Look: Western Europe

02 November 2016

Western Europe also has some newer institutions with interesting features that may make them a good fit for a particular case. Here's our selection.

BELGIAN CENTRE FOR ARBITRATION AND MEDIATION (CEPANI)

Why's it worth a closer look?

It's Belgium's largest and best-known centre, which recently celebrated its 45th birthday. It's supported by a substantial cadre of local practitioners, including some who played a central role in Belgium's recent arbitration makeover.

Such as who?

Notably, Guy Keutgen, who until recently was CEPANI's president. He chaired a 15-person drafting committee that produced a revised Belgian Arbitration Act, which came into force in September 2013, and on which the centre's new rules are based.

Another member of the drafting committee, Dirk De Meulemeester, who co-founded the centre's under-40 group. He is CEPANI's current president.

What are the rules like?

They contain most of the expected elements, including provisions on multiple parties, multiple contracts and interim measures. There's also a set of "light" rules for sub-€25,000 matters.

What's Belgium like as a seat?

It used to be something of an unusual place. For many years Belgium stood apart as the place where courts had no power to vacate arbitral awards. It was hoped such a light-touch approach would attract users from around the world. In 1998, it was accepted that the experiment failed and a new law adopted. But the new law had some flaws too (it wasn't Model Law and probably allowed a bit too much scope for court review). In 2013 it was updated, in line with the Model Law.

So now it has a modern law, but it may take some time for people's memories of it as a no-go zone to fade.

What's the new law like

 Most of the UNCITRAL provisions are taken up without significant adaptation. The preparatory works also mention that inspiration was drawn from the national arbitration laws of Germany, Switzerland and France.

What sorts of cases go to CEPANI at present?

A sizeable portion of the centre's cases are at the lower end of the price spectrum: nearly half of the procedures that filed in 2015 had award values of €625,000 or less. At the other end of the spectrum 5 per cent of its cases were worth over €12.5 million. It's also worth noting that 70 per cent are domestic.

The international cases it has a foreign connection with tend to take place in Dutch, though a quarter of its cases are in English. There are a few stories that the secretariat isn't great on international matters – sending invoices in the wrong language, for instance. And CEPANI's panel of arbitrators is heavily dominated by Belgians.

What does the future hold?

Since updating its rules CEPANI has been on the marketing trail. It has taken part in Belgian royal economic missions to such places as Saudi Arabia and Oman and forged new cooperation agreements with the Dutch Arbitration Institute and the Court of Arbitration at the Polish Chamber of Commerce.

CORTE ESPAÑOLA DE ARBITRAJE (CEA)

Why's it worth a closer look?

The CEA has been operating for more than 30 years, and, thanks to being part of a network of local and regional chambers of commerce, is firmly enmeshed in the Spain's business community.

But from the international perspective it may not have reached its true potential.

Why's that?

It faces some stiff competition from a close rival, the Corte de Arbitraje de Madrid (see above). The Madrid court is seen as having done more to appeal to the international crowd.

Is the CEA keen to become international?

It's certainly shown signs of that in the past: in 2013, it put on an event promoting cooperation between Spanish arbitration practitioners and judges in order to make Spain aimed at marketing Spain as a seat. More recently it's been reorganised. Its rules are still only in English and Spanish, but it has provided model arbitration clauses at least in French, German, Italian, Portuguese, Chinese, Arabic and Japanese.

Does it help having numerous institutions active in the same seat?

Some Spanish practitioners don't think so. A few years ago, they clubbed together to create a united body, modelled on the Swiss Arbitration Association – the Spanish Arbitration Club – to help market Spain as a seat to the world. But they stopped short of another attractive feature of Switzerland – the Swiss Rules – which all chambers of commerce can share.  It remains to be seen whether Spain's individual organisations need to take the same step.

What are the CEA's rules like?

The current rules date from 2010 and prioritise speed. In ordinary proceedings, the arbitrators are expected to render their award within five months, with a potential extension of one month. Summary and expedited proceedings were also introduced for lower-value matters.

That's fast.

It's certainly attractive to a particular type of client and dispute, but complex cases might be harder to fit in with such strict deadlines, unless counsel can go without sleep to meet them.

PARIS, THE HOME OF INTERNATIONAL ARBITRATION (THE PARIS RULES)

What is it?

A not-for-profit association of arbitration practitioners, established to promote Paris, rather than the ICC.

Why's it in a book that focuses on centres?

In 2013 it published its own rules, which don't require a centre to administer them. They're for use in ad hoc cases as an alternative to the UNCITRAL rules.

How are they different to the UNCITRAL rules?

The rules are incredibly short – deliberately so: 12 articles spread across 23 pages. They're intended to appeal to experienced arbitrators capable of taking a common-sense approach.

Are there any other innovations in there?

The rules allow parties to appoint an interim arbitrator ahead of the appointment of the tribunal. He or she is granted the same broad powers as the tribunal itself, including the ability to grant interim relief in response to joint or ex parte applications.

Who acts as appointing authority?

The secretary general of the Permanent Court of Arbitration (PCA) in The Hague is designated as the appointing authority for emergency arbitrators, replacement arbitrators and sole arbitrators, and for cases where the parties have failed to appoint. The PCA is also responsible for deciding challenges to arbitrators and determining how to compensate the tribunal where the parties have failed to agree on this.

Does the association have a figurehead?

Charles Kaplan is the association's president. The honorary presidents are Jean-Pierre Ancel and Yves Derains. The rules were written by Philippe Pinsolle and Michael Polkinghorne plus a small drafting group.

SCOTTISH ARBITRATION CENTRE

Why's it worth a closer look?

The centre offers an alternative place to arbitrate in the UK, not governed by the Arbitration Act. Though it's only six years old, it's making all the right moves to become well established.

What's it doing?

Various things. It's, sensibly, doing its best to leverage Scotland's energy expertise by releasing energy arbitration rules in collaboration with the University of Dundee, which has a well-known energy and mineral law centre. The chairman, Brandon Malone, and chief executive Andrew McKenzie, have also done a good job of promoting it around the globe, attending many of the major international meetings on its behalf.

Does it have any noteworthy selling points?

One is Scotland as a seat. Not everybody realises it, but Scotland has its own laws, separate from the rest of the UK. That includes its own Arbitration Act.

How does the Scottish Arbitration Act compare with the English Arbitration Act?

Depending who you talk to, they're like chalk and cheese. The writers of the Scottish Arbitration Act have suggested theirs is far superior, and includes all sorts of details that users are crying out for, such as more rigid rules on confidentiality and anonymity.

Are there any other selling points?

The centre's website says that arbitrating in Scotland is 40 per cent of the cost of arbitrating in London or New York.

What does the future hold?

Scotland won the right to host ICCA's congress in 2020, which will take place in Edinburgh – in no small part down to the efforts of the centre. Brexit may also offer a big opportunity, depending on how it pans out. As with arbitration in England, the uncertainty over how UK court judgments will be recognised in the rest of Europe following Brexit means some see arbitration, with the possibility of enforcement under the New York Convention, as a more secure option. Scotland's devolved administration also provides for Scotland-seated arbitration as its default mechanism for contractual disputes.