Introduction
The Saudi Center for Commercial Arbitration (SCCA) has released its new Arbitration Rules which came into effect on 1 May 2023 (the 2023 Rules) and will apply to all arbitrations filed on or after that date. The 2023 Rules replace the first edition published in 2016 along with the subsequent amendments and appendices incorporated in subsequent years. The 2023 Rules are the culmination of an extensive drafting process by the SCCA Rules Advisory Committee, which included Freshfields partner Erin Miller Rankin, and public consultation roundtables in Riyadh, Abu Dhabi and Dubai.
The 2023 Rules introduce significant amendments to the previous edition and constitute, in the words of the SCCA’s Vice-Chairman, “a first class, state-of-the-art framework for international arbitration”. The key features of the 2023 Rules include the establishment of the SCCA Court, expansion of the arbitral tribunal’s powers, removal of references to Sharia law, the addition of new grounds for arbitrator challenges, a new mechanism for summary disposition of claims and defences, and new provisions regulating the consolidation of proceedings and cybersecurity. In addition, the 2023 Rules amend the provisions on representation and assistance, joinder and emergency measures of protection.
The 2023 Rules do not revise the SCCA Mediation Rules, which were last amended in 2018.
SCCA Court
The 2023 Rules provide that the “SCCA Court”, the independent body formed in November 2022 to replace the Committee for Administrative Decisions, shall perform certain decision-making functions. Composed of 15 arbitration experts from 12 countries and led by Jan Paulsson, the SCCA Court will be responsible for key administrative and technical decisions related to SCCA arbitrations, including reviewing emergency applications, deciding on jurisdictional objections and arbitrator challenges, appointing arbitrators, as well as resolving disputes regarding the place of arbitration, the number of arbitrators, advance deposits of arbitration costs, and scrutinising awards.
The establishment of a professional and independent body to oversee the administration of SCCA arbitrations follows in the footsteps of other major institutions such as the International Chamber of Commerce (the ICC) and London Court of International Arbitration. This underscores the SCCA’s commitment to observing the highest standards of quality and efficiency in case management.
Emergency Arbitration
Unlike the previous edition which did not provide a deadline for the issuance of an interim award by an Emergency Arbitrator, Article 7(8) of the 2023 Rules requires an Emergency Arbitrator to issue an interim order or award no later than 15 days from transmission of the file to them. This time limit may be extended following a reasoned request from the Emergency Arbitrator to the SCCA, or on the SCCA’s own initiative as necessary. Tight time limits are the norm in emergency arbitrations to ensure the efficiency of the process as well as the effectiveness of any protective measures.
Expanding the Tribunal’s Powers
The 2023 Rules have also expanded the powers of the arbitral tribunal. For example, Article 8(2) empowers the arbitral tribunal to order a party seeking to amend or supplement its claim to pay appropriate security before granting the request. This ensures that the requesting party is held accountable for any potential delay or prejudice to the other parties.
Similarly, Article 9(3) enables the arbitral tribunal to refuse a proposed change in legal representation if it deems that necessary to protect the composition of the tribunal or the finality of the award. In making this determination, the arbitral tribunal shall take into account the stage of the arbitration and the likely impact of the change or addition in representation.
To enhance procedural efficiency, the arbitral tribunal may now issue orders related to the exchange of information, such as limiting the length or content of written submissions, restricting the testimony of any witness, mandating electronic correspondence, or requiring parties to submit all written submissions exclusively through email or other electronic means.
Representation by Foreign Counsel
The 2023 Rules build on the SCCA’s confirmation in August 2022, in coordination with the Ministry of Justice, that Saudi legislation protects party autonomy in selecting representatives before arbitral tribunals.
Article 9 of the 2023 Rules expressly permits the parties to be represented or assisted by persons of their choosing, including foreign counsel and “any other authorized representatives”, which indicates the possibility of representation by non-lawyers. This provision is also in line with the recent reforms to the Saudi Code of Law Practice allowing foreign law firms to establish offices in the Kingdom.
Consolidation
Article 13 of the 2023 Rules empowers the SCCA Court to consolidate two or more arbitrations in certain circumstances, ensuring that disputes arising from the same legal relationship can be resolved efficiently and swiftly.
Consolidation is permitted if: (i) the parties have agreed to consolidation; (ii) all the claims in the arbitration are made under the same arbitration agreement(s); or (iii) the claims in the arbitrations are not made under the same arbitration agreement, but the disputes in the arbitrations arise in connection with the same legal relationship, and the SCCA Court deems the arbitration agreement(s) to be compatible.
Article 13(4) provides that each party in consolidated arbitrations is deemed to have waived their right to nominate an arbitrator and that the SCCA Court has the power to complete the constitution of the arbitral tribunal in the consolidated arbitration, including to revoke the confirmation or appointment of any arbitrators, appoint additional arbitrators, or select one of the previously appointed arbitrators to serve in the consolidated arbitration. This approach seeks to minimise the complexities pertaining to the appointment of arbitrators on behalf of multiple parties (with potentially aligned or conflicting interests depending on the circumstances of the dispute) and any related due process concerns.
Third Party Funding
Article 17(6) of the 2023 Rules requires disclosure of the identity of any non-party who has an economic interest in the arbitration’s outcome, including any third party funder. The disclosure obligation reflects the SCCA’s proactive approach to ensure transparency and effectively protect the integrity of the proceedings.
Arbitrator Challenges
Article 18 outlines the circumstances in which an arbitrator may be challenged and introduces two new grounds for challenge: the first ground is where the arbitrator has failed to perform their duties, and the second is when the arbitrator manifestly lacks the qualifications agreed to by the parties.
Sustainability
To promote sustainable practices in arbitration, Article 25(2) encourages parties to conduct proceedings in an environmentally conscious manner. For example, the arbitral tribunal and the parties are urged to consider the use of technology, such as electronic communications, e-filings and electronic evidence presentation, to reduce the carbon footprint of the arbitration process. Unless the parties agree otherwise, Article 10 provides that administrative conferences shall be held remotely.
Online Dispute Resolution
The SCCA is a regional pioneer for providing for an advanced Online Dispute Resolution (ODR) regime to resolve low value disputes in a time and cost-efficient manner. A common example of disputes resolved through ODR is consumer claims arising from e-commerce.
Appendix IV of the 2023 Rules includes the third edition of the SCCA ODR Procedure Rules, which were first adopted on 15 October 2018 and revised on 1 July 2021. It provides that the ODR Procedure Rules shall apply where the parties agree in writing and the sum in dispute does not exceed SAR200,000 (representing the aggregate amount in dispute exclusive of arbitration costs). In the event of conflict between the 2023 Rules and the ODR Procedure Rules, the latter shall prevail.
The ODR Procedure Rules require the arbitrator to issue the final award within 30 days of their appointment (unless exceptionally extended by the SCCA) on the basis of written submissions only, unless the parties agree otherwise or the arbitrator considers it necessary to have a hearing (which would be held remotely).
Early Disposition of Claims or Defences
The 2023 Rules introduce an important procedural tool for the expeditious and efficient management of the proceedings. Article 26 enables the arbitral tribunal, at the request of either party, to summarily dispose of claims or defences raised at any stage of the proceedings “without the need to follow every step that would otherwise be taken in the ordinary course of an arbitration”.
Although it does not set out a definitive standard for issues that qualify for early disposition, Article 26 makes this power available to the arbitral tribunal regarding “issues of jurisdiction, admissibility or legal merit”. It also provides, for guidance, three examples of assertions that may be disposed of early—namely, assertions that (i) an allegation of fact or law material to the outcome of the case is manifestly without merit; (ii) even if the facts advanced by the other party are assumed to be true, no award could be issued in that party’s favour under the applicable law; and (iii) any issue of fact or law material to the outcome of the case is, for any other reasons, suitable for determination by way of early disposition.
The arbitral tribunal must consider the extent to which granting the application for early disposition advances the resolution of the dispute in an expeditious and cost-effective manner in light of all relevant circumstances. It is worth noting that an order rejecting an application for early disposition is not res judicata and does not take away from the arbitral tribunal’s power to rule on the same questions of fact and law in its final award.
To deter recalcitrant parties and reduce frivolous applications, Article 26 allows the arbitral tribunal to make any decision on costs (as regards the application for early disposition) forthwith or reserve it for a later stage of the proceedings.
Time Limit for Award
Article 33 of the 2023 Rules introduces a slightly longer deadline for the making of final awards. Instead of the 60-day limit under the previous edition, the 2023 Rules allow the arbitral tribunal 75 days. The SCCA may extend this time limit on its own initiative or pursuant to a reasoned request from the arbitral tribunal.
The trigger for the time limit to render the final award has changed in the 2023 Rules to “the closing of the proceedings” as opposed to “the closing of the hearing”. This nuance provides greater clarity and ensures that the deadline for rendering the award is triggered by the actual conclusion of the arbitration rather than the final hearing which does not necessarily mark the last step in the proceedings.
Publication of Awards
The 2023 Rules seek to balance the benefits of making arbitral awards publicly accessible and the parties’ desire (if not obligation) to maintain the confidentiality of the arbitration.
Article 36(3) allows the SCCA to make public any award, order, decision or other ruling except where such publication is objected to by any party before the conclusion of the proceedings. To ensure further protection of confidentiality, the SCCA shall, if necessary, anonymise and/or redact any personal or sensitive information from the published version.
The publication of awards and rulings heeds the call for more transparency in arbitration and the need for public access to important decisions that could significantly contribute to the development of the law in many jurisdictions.
No Automatic Incorporation of Sharia Rules
The first edition of the Rules made compliance with the “rules of Sharia” mandatory in any SCCA arbitration irrespective of the applicable law chosen by the parties. The 2023 Rules omit the reference to Sharia rules and leaves the choice of the applicable law to the parties, failing that to the arbitral tribunal’s determination.
However, Sharia principles remain the foundation of Saudi law and apply to the enforcement of KSA-seated and foreign arbitral awards in the Kingdom through the gateway of public policy. Parties wishing to ensure compliance with specific rules of Sharia (when the substantive law is not Sharia-based) may rely on the relevant SCCA Standard Clause accompanying the 2023 Rules.
Law Applicable to Arbitration Agreement
The law applicable to the arbitration agreement is often overlooked by the parties and can be the source of protracted satellite proceedings when the validity, scope or interpretation of the arbitration agreement is in question. The risk is exacerbated by the varying approaches of national courts in answering this question which can result in selecting the law of the place of arbitration, the proper law of the contract or the law with which the arbitration agreement has the closest and most real connection, depending on the circumstances of each case.
To address this potential lacuna, Article 37(4) of the 2023 Rules provides that the “law applicable at the place of arbitration” shall be the default law applicable to the arbitration agreement unless the parties expressly agree otherwise. Providing for a default choice of the law applicable to the arbitration agreement serves multiple purposes—it minimises the risks associated with the parties’ failure to specify the exact law and alerts them to make an affirmative choice when drafting arbitration agreements in the future.
Cybersecurity, Privacy and Data Protection
To mitigate the growing risk of data breaches in arbitration proceedings, Article 46 of the 2023 Rules outlines five factors that parties, arbitrators, and the SCCA must consider when adopting information security measures, namely: (i) the risk profile of the arbitration; (ii) existing information security practices, infrastructure and capabilities of the parties, arbitrators and the SCCA; (ii) the burden, costs and relative resources of the parties, arbitrators and the SCCA; (iv) the proportionality of security measures to be adopted relative to the size, value and risk profile of the dispute; and (v) the efficiency of the arbitration.
Conclusion
The 2023 Rules are a significant achievement for the SCCA as it continues to position itself as a regional industry leader. The 2023 Rules are intended to bring Saudi arbitration in line with international best practice. This is another major step towards the SCCA’s vision to become “the preferred ADR choice in the region by 2030”.
