Japan Commercial Arbitration Association (hereinafter “JCAA”) has amended its Commercial Arbitration Rules recently, and the amended rules will come into force on February 1st, 2014.
The last major amendments of JCAA Commercial Arbitration Rules dates back to year 2004, and was afterwards amended twice with minor changes in year 2006 and 2008. In the decade, UNCITRAL and other major arbitration institutions amended arbitration rules one after the other, so JACC considered it to be necessary to catch up and provide fast and convenient service for parties to arbitration.
The amended JACC Commercial Arbitration Rules has mainly added rules in the following aspects:
First, the addition of “single arbitration for multiple claims” rule.
Article 15 of the new rules stipulates that the claimant may submit a single Request for Arbitration containing multiple claims (the “Single Arbitration for Multiple Claims”), if: (1) all Parties have agreed in writing that all such claims shall be resolved together in a single arbitral proceeding; (2) all claims arise under the same Arbitration Agreement; or(3) all claims arise between the same Parties, and (a) the same or a similar question of fact or law arises from the claims; (b) the dispute is referred by the Arbitration Agreement to arbitration under the Rules or at the JCAA; and (c) the arbitral proceedings are capable of being conducted in a single proceeding with regard to the place of arbitration, the number of arbitrators, language(s), and other issues governed by the Arbitration Agreement under which the claims arise.
“Single arbitration for multiple claims” rule is actually a rule for joinder of parties or consolidation of arbitration proceedings. It is for tackling disputes arising out of different legal relations between same parties, or disputes arising out of same or similar factual or legal relations between different parties. It can save time and money for parties to resolve disputes and avoid conflicting awards by different arbitration tribunals on same or similar problems. It is common practice of world major arbitration institutions to add joinder and consolidation rules in the amended arbitration rules.
Second, the addition of emergency arbitration to decide on interim measures rule.
Article 70 to 74 of the new rules stipulate that, before the constitution of the arbitration tribunal or in circumstances when the arbitrator terminates to fulfill its duties, a party can pay to apply to JACC to appoint an emergency arbitrator to decide on interim measures. If the application to appoint an emergency arbitrator is made before application to arbitration, such party must make formal application to arbitration within 10 days. The emergency arbitrator shall render a decision two weeks from the date of appointment, whose decision is binding on parties and parties shall perform according to the decision, but the arbitration tribunal can modify, suspend or terminate the decision made by the emergency arbitrator. Unless agreed otherwise by parties, the emergency arbitrator cannot serve as member of the arbitration tribunal.
The emergency mechanism provides assistance for parties to seek out of court interim measures. When the arbitration tribunal is not yet constituted, this mechanism can fast and conveniently protect parties’ interest. However, problems still exist as to how to enforce the decision on interim measures rendered by the emergency arbitrator on parties, because it is still doubtful whether the decision constitutes an award under the 1958 New York Convention.
Third, the addition of special rule for an arbitrator to serve as a mediator.
In principle, JACC arbitration rules do not allow a same person to act as both an arbitrator and a mediator in the same disputes (article 54). However, it is an exception if all parties agree in written documents that an arbitrator can mediate in the case. The newly added article 55 sets out this special exceptional circumstance.
Meanwhile, article 55 of the new rules imposes some restrictive requirements on an arbitrator who mediates in the case in order to reduce parties’ doubt on due process. Without parties’ consent in written documents, the arbitrator who serves as the mediator cannot communicate to one party and hear his or her opinions individually in the mediation, and after each conversation the arbitrator should inform the other party the fact that conversation has been had. Mediation in the arbitration proceeding does not incur additional management fees. The time a mediator spent is charged the same as the time an arbitrator spend.
Besides, according to the new rules, consumption tax shall be imposed on the management fees that a party shall pay to JACC and the payment to arbitrators. Starting from April 1st, the consumption tax rate will increase from 5% to 8%.