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The German Institution for Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit, “DIS”), Germany’s prime arbitration institution has adopted new arbitration rules, which came into force on 1 March 2018 (“the Rules”) and replaced the version of 1998. The Rules aim at providing the parties and the arbitral tribunal with a tool to proceed in efficient and expeditious manner.

The key features of the Rules include the following:

1. Measures for increasing procedural efficiency

The Rules oblige the tribunal to organize a case management conference, during which the application of measures for increasing procedural efficiency listed in Annex 3 to the Rules should be discussed. These measures include:

  • Limiting the length or the number of Submissions of any written fact witness statements and of any expert reports provided by the parties.
  • Dividing the proceedings into multiple phases.
  • Providing the parties with a preliminary non-binding assessment of factual or legal issues in the arbitration, provided all parties consent thereto.

2. Streamlining deadline rules

The Rules set out a number of new deadlines to accelerate the proceedings. For example, if the tribunal consists of three arbitrators, the Respondent shall nominate its co-arbitrator within 21 days after the receipt of the request for arbitration. Similarly, the case management conference shall be organized as soon as possible, in principle within 21 days after constitution of the arbitral tribunal.

3. Enhanced role of DIS

Under the Rules, DIS is responsible for matters which previously were handled by the tribunal, such as: deciding on the challenges of arbitrators, removing arbitrators from the office, deciding on the remuneration of the arbitrators when the proceedings were terminated prior to making a final award as well as determining the amount in dispute. Moreover, DIS will review the awards and make observations with regard to the form and suggest other non-mandatory modifications to the arbitral tribunal. These new tasks led to the creation of the Arbitration Council. However, the Appointing Committee will continue to exist with its role limited to decisions on appointing the arbitrators.

4. Digitalization

All the submissions of the parties and the arbitral tribunal shall be sent electronically to the DIS, by email, on a portable storage device or by any other means of electronic transmission that have been authorized by the DIS. This rule is not applicable in case of submission of the request for arbitration, which shall be sent to the DIS in paper form as well as in electronic form.

5. Multi-party and multi-contract arbitration

The Rules enable to pursue claims arising out of or in connection with more than one contract in a single arbitration, if all of the parties to the arbitration have agreed thereto and the arbitration clauses are compatible. Alike, claims made in an arbitration with multiple parties may be decided in that arbitration, if the parties agreed so. Under the Rules, it is also possible to join an additional party to the arbitration by filing with the DIS a Request for Arbitration against such additional party prior to the appointment of any arbitrator.

As to the scope of application, according to Article 1 “With respect to any arbitration, the version of the Rules in force on the date of its commencement pursuant to Article 6 shall apply,” which means that the Rules will be applicable to all the proceedings commenced as of 1 March 2018. However, it is not certain whether the Rules will also be applicable in cases where the parties specifically submitted their disputes to arbitration under 1998 Rules.

DIS Arbitration Rules in English:

http://www.disarb.org/upload/varia/180119_DIS_NewRules_EN.PDF

DIS Arbitration Rules in German:

http://www.disarb.org/upload/2018-DIS-Schiedsgerichtsordnung.pdf

Prepared by: Aleksandra Orzeł-Jakubowska, associate, Łaszczuk & Partners

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