Milan chamber of arbitration: new arbitrations rules as of march 1, 2019

1) Interim or Provisional Measures

Although interim measures already existed in the previous CAM rules, the new version adds three new features. Firstly, as was already specified in many of the main arbitration rules (ICC, WIPO, UNCITRAL)[2], the parties themselves are now allowed to request “urgent and provisional measures of protection, also of anticipatory nature” (art. 26 paragraph 1 CAM-Rules). The CAM-Rules further strengthen their binding effect on the parties by stating that the arbitral tribunal can “sanction any breach of its decisions”, including interim measures (art. 9 paragraph 3 CAM-Rules) and specifying that these provisional measures have a “binding contractual effect upon the parties” (art. 26 paragraph 2 CAM-Rules). Finally, the arbitral tribunal is now authorized to require “appropriate security” before ordering such measures (art. 26 par. 3 CAM-Rules), as was already provided for by the ICC, UNCITRAL and WIPO rules.

2) Emergency Arbitrator

The CAM-Rules have introduced the notion of the “emergency arbitrator” whose appointment can be requested by one of the parties through a request for an interim or provisional measure (art. 44 CAM-Rules). This concept was already present in various other international arbitration rules, such as the ICC or the WIPO[3].

The CAM-Rules now state that, within 5 days of submitting the necessary documents, the CAM must appoint an independent arbitrator and provide the relevant files (art. 44 paragraph 2 CAM-Rules). If requested by the applying party, the arbitrator can issue the order within 5 days of receipt of the files without notifying the other party. However, at the same time, he/she must schedule a meeting with all parties to take place within the following 10 days (art. 44 paragraph 4 CAM-Rules). Conversely, without any specific notice from the applying party, the arbitrator issues an order within 15 days of receipt of the files and ensures that the principles of due process and adversarial proceedings are respected (art. 44 paragraph 3 CAM-Rules). In both cases, any measures taken by the emergency arbitrator become ineffective if no request for arbitration is filed within the mandatory time-period as set by the arbitrator (or within 60 days in the absence of any specification) (art. 44 paragraph 9 CAM-Rules). It is worth noting that, as provided for in the international rules, the CAM-Rules forbid the emergency arbitrator from acting as an arbitrator during any further arbitrations related to the case (art. 44 paragraph 10 CAM-Rules).

Thanks to the introduction of the procedure regarding the emergency arbitrator, the CAM has been able to align its Rules with the international standards.

3) Third Party Funding

The issue of third-party funding encompasses any financial support provided by a person not involved in the dispute to one of the parties in order for the latter to be able to cover the expenses of the arbitration. The international legal framework isn’t unanimous on the matter. In fact, with the aim of ensuring impartiality of the proceedings, the International Bar Association Arbitration Rules require that the parties inform the arbitral tribunal, the other party and the arbitral institution of “any relationship, direct or indirect […] or [of any] individual having a controlling influence on the party”[4], this provision notably regards funding parties. The ICC Rules endorse the same approach and provide for a disclosure of “relationships with non-parties having an interest in the outcome of the arbitration”[5] which, as interpreted by scholars, includes third party funding[6]. On the other hand, the UNCITRAL rules, after having assessed the importance of acknowledging this phenomenon, remained undecided on whether to completely prohibit it or rather to tolerate and regulate it[7]. At national level, some countries (for example, Singapore, Nigeria, etc.) have adopted a legal framework of authorizing and overseeing third party funding.

For their part, the CAM-Rules have decided to govern this increasingly used funding process by requiring the disclosure of both “the existence of the funding and the identity of the funder” (art. 43 paragraph 1 CAM-Rules). This compulsory declaration is in line with the current international standards on publicizing these operations.

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The measures described above are only a few examples of the main changes made by the Milan Chamber of Arbitration. Other modifications, such as the more precise regulation of consolidation (art. 12 CAM-Rules) or the introduction of a specific provision on the nationality of the arbitrator (art. 15 paragraph 5 CAM-Rules) could have also been mentioned. In fact, they indicate not only the internationalization of the arbitral proceedings conducted by the CAM but also its desire to adapt to the evolution which is being guided by the major international arbitration institutions.

In summary, through the development of some of the existing rules and with the introduction of new legal concepts, the CAM has aligned its arbitration rules with the international standards and, as a result of this important achievement, it will offer new opportunities and flexibility for whoever is looking at arbitration to resolve disputes.