The Belgian Centre for Arbitration and Mediation (CEPANI) has published its newest revision of its rules since July 2020. The new Rules will enter into force as of 1 January 2023. Highlights of the revision include specific consideration of diversity and inclusion (D&I) in the appointment of arbitrators, more flexibility around the use of virtual hearings, and recognition of the need for more sustainable and greener arbitrations.
Diversity & Inclusion Explicitly Included in Appointment of Arbitrators
The new 2023 CEPANI Rules amend article 15.1 to include a consideration for D&I: “The Appointments Committee or the President shall appoint or confirm the Arbitral Tribunal in accordance with the following rules. It shall take into account, inter alia, the availability, the qualifications and the ability of the arbitrator(s) to conduct the arbitration in accordance with the Rules, and considerations of diversity and inclusion.
The introduction of this new rule is in line with CEPANI’s D&I pledge of 10 November 2016 which confirmed that CEPANI would take all reasonable steps to ensure equal gender representation in arbitration by: (i) ensuring fair representation of women in committees, governing bodies and conference panels and on lists of potential arbitrators or tribunal chairs provided to parties; (ii) appointing a fair representation of female arbitrators where they have the power to do so; (iii) collating and publishing gender statistics for appointments; and (iv) having senior and experienced arbitration practitioners support/mentor and sponsor women to pursue arbitrator appointments and otherwise enhance their profiles and practice. The new article also solidifies CEPANI’s D&I Policy and Commitment which has a broader scope than gender alone and is aimed at “creating more opportunities for everyone, irrespective of gender, religion, sexual orientation, origin, color, nationality, disability, or socioeconomic status in the field of arbitration”.
As noted in the most recent release of statistics, 35% of the Arbitrators appointed by CEPANI in 2021 were women, 76% of which were appointed by the CEPANI Appointments Committee and 24% directly by the Parties. In 2019 only 10% of women Arbitrators were appointed, and in 2020 15% of the appointed Arbitrators were women.
The insertion of the D&I consideration is thus an important first step towards D&I in arbitrations administered under CEPANI. It broadens the scope and ambitions beyond gender diversity and it identifies D&I as a consideration for arbitrator appointments that is equally important as availability, qualifications and ability. However, it is notable that some arbitration institutions have gone further than this, and have sought D&I considerations to play a role not just at the stage of the appointments by the arbitration institution, but also at the level of the party nomination process. For example, the Scottish Arbitration Centre Rules 2022 that were presented at ICCA in September 2022 require not just the institution but also “the parties, their counsel” to consider D&I (article 8.1).
The 2023 CEPANI Rules also confirm earlier amendments of the 2020 CEPANI Rules in reaction to COVID-19. For example, article 24.3 obliges tribunals to make a conscious decision about the format of the hearing. The article provides that the tribunal shall decide whether the hearing will be held physically, by videoconference, teleconference, any other appropriate means of communication or by a combination of the foregoing methods, after consulting the parties.
Although article 24.3 does not make virtual hearings mandatory, the decision is now made by the tribunal and the parties can no longer veto the tribunal’s decision (as was the case under the pre-July 2020 rules).
The article was introduced in the light of COVID-19 and two months after the publication of CEPANI’s checklist for remote hearings on 20 April 2021.
This checklist was inspired by the ICC Guidance Note of 9 April 2020 and contains guidance on particular items to be discussed during the case management conference such as choosing an online platform, scheduling a timetable considering various time zones, discussing the exchange of documents, potential recording of the hearing, and the need for tutorials or test runs. It further provides guidance on what language to include in the terms of reference or procedural orders in terms of confidentiality, data protection, privacy and cyber security (the need for cyber protocol).
Sustainability and green arbitrations
CEPANI recently also created a Study Group specifically focused on sustainability and green arbitrations. Flip Petillion, chair of this Study Group, addressed the role of CEPANI in making arbitrations more sustainable during the CEPANI-NAI Colloquium held on 22 April 2022.
Even though the Study Group is not envisaging a change to the CEPANI Rules itself, it will focus on the drafting of a Green Protocol for CEPANI (including a pledge) and a CEPANI Model Green Procedural Order based on Lucy Greenwood’s Campaign for Greener Arbitrations in 2023.
This new initiative is in line with CEPANI’s previous endeavors to increase digitalization and sustainability within CEPANI. By way of example, the current CEPANI rules already allow all procedural documents to be sent by email and allow terms of reference and procedural orders to be signed electronically. Since 2016, CEPANI also has a secure file sharing platform called “Box” for the exchange and storage of files to reduce paper waste.
On the other hand, CEPANI seems to adopt a more cautious approach in a number of areas. With respect to e-awards, for example, CEPANI continues to value hard copy originals since the Study Group and CEPANI seem to take the view that electronically signed awards could be unenforceable under the New York Convention. Enforceability (legality) is one of the basic principles that guides the Study Group on sustainability apart from party autonomy and regulatory minimalism. Time will therefore tell how far the CEPANI Model Green Procedural Order will go and whether it will include more far-reaching elements such as the power for the tribunal to allocate the costs of offsetting carbon emissions or whether it will be limited to more conservative elements such as the use of a document sharing platform.
Crowell & Moring’s IDR Group resolves commercial and governmental disputes anywhere in the world.
Organizations with cross-border interests turn to the International Dispute Resolution (IDR) practice at Crowell for end-to-end advice on the full range of business and governmental disputes worldwide. From commercial and investor state arbitration to litigation and beyond, our team has the legal skills and firsthand knowledge of international markets, local business and legal customs, venues, cultures, and languages necessary to resolve complex and high-stakes disputes across the globe.
Crowell’s team has been consistently recognized by publications such as Global Arbitration Review, Chambers, and Latinvex as a leader in international disputes.
For further information, please contact:
Evelien Van Espen, Crowell & Moring