An overview of the key features of the new rules on investment procedures can be found here:
- Article 1 VRI and Article 1 VMRI define the scope of application of the VIAC Rules of Investment Arbitration and Mediation.
- Article 4 VRI contains a provision on the waiver of immunity which is of importance in investment proceedings.
- New definitions have been included in Article 6 VRI, namely for „Third-Party Funding", „Non-Disputing Parties“, and „Non-Disputing Treaty Parties" due to corresponding provisions in the rules (Article 13a, Article 14a VRI).
- The information required in a statement of claim has been amended to include the nationality of the parties (Article 7 para 2.2 VRI) as well as the instrument of consent to submit a dispute to arbtiration under the VRI (Article 7 para 2.7 VRI).
- Accordingly, the answer to the statement of claim should also contain statements in this regard (Article 8 paras 2.2 and 2.3 VRI).
- All new proceedings are administered by VIAC through an electronic case management system and the “VIAC Portal” is available to parties and arbitrators for the secure exchange of case related documents. The VRI therefore provides for the submission of the statement of claim and the transmission of documents in electronic form (Articles 7, 12 and 36 VRI and Articles 1 and 3 VMRI).
- Article 13a VRI contains a provison on third-party funding in investment proceedings to ensure the independence and impartiality of the arbitrators through appropriate disclosure. In addition, the arbitral tribunal, if it deems it necessary, may order the disclosure of specific details of the third-party funding arrangement and/or the funders’ interest in the outcome of the proceedings. It may also, if necessary, order the disclosure of whether or not the third-party funder has committed to undertake adverse costs liability.
- In order to allow for submissions by "Non-Disputing Parties" as well as "Non-Disputing Treaty Parties", which are typical and necessary in investment proceedings initiated on the basis of a treaty or statute, a respective provision was included in Article 14a VRI. The scope of Article 14 on the joinder of third parties, however, was limited to arbitration proceedings for disputes based on a contract.
- The consolidation of investment procedures is only permitted if both procedures are administered by VIAC (Article 15 para 1 VRI).
- According to the VRI, the dispute shall in principle be decided by a panel of three arbitrators; only where the amount in dispute does not exceed EUR 10 million the dispute shall be decided by a sole arbitrator. However, the Board may determine, taking into account the views of the parties, that the difficulty of the case or other relevant circumstances justify the appointment of a panel of arbitrators (Article 17 para 2 VRI).
- There is also a special feature for the appointment of the chairperson by the Board: in this case, the Secretary General shall transmit a list of candidates for appointment as chairperson to the parties and allow them to strike one name from the list and rank the remaining candidates in order of preference. The Board shall appoint the candidate with the best ranking. If two or more candidates share the best ranking, the Board shall select one of them.
- For investment proceedings, it was expressly stipulated that the nationality of the arbitrators should be different from the nationality of the parties, unless the parties have agreed otherwise (Article 17 para 8 VRI).
- An objection due to lack of jurisdiction is to be raised following the constitution of the arbitral tribunal, but no later than with the first pleading on the merits (Article 24 para 1 VRI).
- Article 24a VIR contains an important provision for investment proceedings to prevent "frivolous claims" by providing for the early dismissal of claims, counterclaims and defences at the request of a party if they are manifestly outisde the jurisdiction of the arbitral tribunal, manifestly inadmissible or manifestly without legal merit.
- In the absence of an agreement by the parties, the place of arbitration in investment proceedings is determined by the arbitral tribunal; there is no fall-back provision that provides for Vienna as the place of arbitration as foreseen in the commercial rules (Article 25 para 1 VRI).
- With respect to the applicable law in the absence of an agreement by the parties, the arbitral tribunal shall apply the applicable law or rules of law which it considers appropriate, including any relevant treaties, relevant national laws of any State, any relevant international custom and general principles of law (Article 28 para 2 VRI).
- Also in investment proceedings, oral hearings may be conducted in person or by other means (e.g. remote via videoconferencing technology); the arbitral tribunal shall decide on this, taking into account the views of the parties and the particular circumstances of the case (Article 30 para 1 VRI). The same applies to mediation sessions (Article 9 para 3 VMRI).
- In order to enable an amicable solution also in investment proceedings, it is expressly stated in the VRI that the arbitral tribunal is entitled to assist the parties in their endeavours to reach a settlement at any time during the proceedings (Article 28 para 3 VRI).
- A further provision to increase procedural efficiency is contained in Article 32 para 2 VRI, which sets a time limit for the rendering of the award. Accordingly, an award must be rendered no later than six months after the last hearing concerning matters to be decided in an award or the filing of the last authorized submission concerning such matters, whatever is the later. The Secretary General may extend the time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative.
- Article 41 VRI contains a provision on the publication of certain limited information on the arbitration (it may do so in the public interest) and anonymised summaries of awards by VIAC. This is without prejudice to the agreement of the parties on the UNCITRAL Transparency Rules.
- In fixing the advance on costs as well as the arbitrators' fees, the VIAC Secretary General has more flexibility to address the greater complexity of cases in investment proceedings (Articles 42 and 44 VRI).
- The Schedule of Fees in Annex 3 has also been revised. While the registration fee and administrative fees for low amounts in dispute have remained the same, the administrative fees for amounts in dispute above EUR 100,000 as well as the arbitrators’ fees for amounts in dispute above EUR 200,000 have been increased to reflect the increased complexity in investment proceedings as well as the extended services of VIAC (HighQ file sharing platform, electronic case management database). VIAC nevertheless remains very attractive for parties in terms of costs when compared with other institutions, but ensures that arbitrators are remunerated fairly for demanding proceedings with high amounts in dispute.
- The following model clauses for (investment) contracts are available: Arbitration Clause, Model Clause for Arb-Med-Arb Procedure; Mediation Clauses; Model Clause for VIAC as Appointing Authority; Model Clause for VIAC as Administering Authority (Annex 1).
- The Annexes 4 and 5 to the VRI and VRMI contain detailed rules for cases in which VIAC is requested to act as appointing or administering authority in ad hoc proceedings.In addition to the rules for investment arbitration, the new rules also contain separate provisions for the conduct of mediation in investment disputes in order to promote this area as well and to offer another possibility for solving disputes. Arb-Med-Arb combinations are also possible.