The Vienna International Arbitral Centre (VIAC) has expanded its portfolio to include the administration of investment disputes. With effect from 1 July 2021, the Vienna Rules of Investment Arbitration (VRI), a newly introduced, standalone legal framework, entered into force.¹ They present VIAC’s answer to the demands of investment arbitration and the concerns raised in the ongoing reform of the investor-State dispute settlement system under the ICSID Rules Amendment procedure² and the UNCITRAL Working Group III.³

In addition to introducing the VRI, VIAC simultaneously updated its Rules of Arbitration and Mediation (Vienna Rules) applying to commercial disputes.⁴ These efforts will be detailed in this two-part article series. This first part serves to examine key features of the new VRI, focusing exclusively on the Rules of Investment Arbitration rather than Investment Mediation. Building on this, part two will outline the notable amendments to the Vienna Rules applicable to commercial arbitration.

Key Features of the Vienna Investment Arbitration Rules

Jurisdiction

The VRI do not outline special jurisdictional requirements necessary for the submission of a dispute to arbitration in accordance with the VRI. Article 1(1) of the VRI affirms that such submission is subject to party agreement, which can be expressed in a contract, treaty, statute, or other instrument. The VRI apply to investment disputes involving a State, a State-controlled entity, or an intergovernmental organization.

This rather straightforward jurisdictional rule stands in contrast to standard investment arbitration practice. Under Article 25(1) of the ICSID Convention, for instance, the Centre’s jurisdiction extends only to legal disputes arising directly out of an investment, between a Contracting State and a national of another Contracting State. By intentionally omitting objective jurisdictional requirements such as the existence of an “investment,” the VRI are intended to result in less time and cost spent on jurisdictional battles.⁵

Third-Party Funding

The VRI provide in Article 13a for a comprehensive framework regulating third-party funding that addresses international concerns over conflicts of interest of arbitrators and security for costs in investment arbitration.⁶ A party is required to “disclose the existence of any third-party funding and the identity of the third‐party funder in its statement of claim or its answer to the statement of claim, or immediately upon concluding a third-party funding arrangement.”⁷ The arbitral tribunal may order the disclosure of specific details of the funding arrangement, the funder’s interest in the outcome of the proceedings, and whether the funder has committed to undertake adverse costs liability. Third-party funding is defined in Article 6(1.11) of the VRI and excludes funding from a party’s counsel.

Early Dismissal of Claims, Counterclaims, and Defenses

Article 24a provides that a party may apply to the arbitral tribunal for the early dismissal of a claim, counterclaim, or defense on the basis that it is manifestly

1. outside the jurisdiction of the tribunal,

2. inadmissible, or

3. without legal merit.

An application for early dismissal must be filed within 45 days after the constitution of the tribunal or the submission of the answer to the statement of claim, whichever is earlier (Art. 24a(2)).

The introduction of the early dismissal procedure reflects an international effort to swiftly dismiss frivolous claims. Such procedures have their origin in the common law (summary judgment and motion to dismiss) and similar provisions have been adopted by arbitral institutions worldwide, including ICSID (ICSID Rules, Art. 41(5)), the Singapore International Arbitration Centre (SIAC Rules 2016, Art. 29), the Stockholm Chamber of Commerce (SCC Rules 2017, Art. 39), and the London Court of International Arbitration (LCIA Rules 2020, Art. Article 22.1(viii)).⁸

Non-Disputing Party and Non-Disputing Treaty Submissions

Article 14a provides the possibility for amicus curiae submissions. If a dispute has been submitted to arbitration pursuant to a treaty or statute, a non-disputing party may request to make written submissions on a factual or legal issue within the scope of the dispute. Such a request is decided on by the tribunal after hearing all parties and considering all circumstances (Art. 14a(1)).

Non-disputing treaty parties, however, have the right to make an amicus curiae submission (Art. 14a(2)). The tribunal may also request the non-disputing treaty party to do so. This provision was adopted considering the necessity of ensuring better State control over the interpretation of investment treaties.⁹

Nationality of Arbitrators

In contrast to the Vienna Rules, the VRI expressly stipulate that arbitrators shall have nationalities different from those of the parties unless otherwise agreed by the parties (Art. 17(8)). This is standard practice in investor-State arbitrations. In ICSID arbitrations, for example, the majority of the arbitrators on a tribunal must be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute. Also here, however, the parties can deviate from this by appointing a sole arbitrator or each individual member of the tribunal by agreement (ICSID Convention, Art. 39; Arbitration Rule 1(3)).

Procedural Efficiency

In addition to the above, the VRI contain further provisions that aim to streamline investment arbitration proceedings:

• Jurisdictional objections must be raised no later than the first pleading on the merits after the constitution of the arbitral tribunal (Art. 24(1)).
• The composition of the tribunal is linked to the amount in dispute. Disputes concerning amounts exceeding EUR 10 million are, absent party agreement, by default decided by a panel of three arbitrators. If the amount in dispute is lower than that, disputes are by default decided by a sole arbitrator unless the VIAC Board considers otherwise (Art. 17(2)).
• Although this was possible before, the possibility of remote oral hearings is now provided for in the VRI. The tribunal is authorized to hold an oral hearing in person or by other means (e.g., via video conference), having due regard to the views of the parties and the specific circumstances of the case (Art. 30(1)).
• The tribunal shall render the award no later than six months after the last hearing concerning matters to be decided in an award or the last submission concerning such matters (Art. 32(2)).
• The tribunal is entitled to facilitate the parties’ endeavors to reach a settlement at any stage of the proceedings (Art. 28(3)).

Comment

It remains open whether the VRI will be able to replicate the popularity of the Vienna Rules, in particular with parties from the CEE/CIS region. VIAC has certainly laid a solid foundation. Investment-State arbitrations have become notorious for their long durations and excessive costs. The VRI, as an adaptation of the Vienna Rules, provide a carefully drafted legal framework that seeks to account for and respond to the challenges and peculiarities of investment disputes. As the analysis above has shown, the particular focus on streamlining the proceedings promises to increase time and cost efficiency for the parties involved. The VRI are expected to make investment arbitration a viable option for smaller and larger investors alike.

VIAC’s revision of the Vienna Rules applicable to commercial disputes will be the subject of part two of this series.

Footnotes

1. The Vienna Rules of Investment Arbitration are available via: https://www.viac.eu/en/investment-arbitration/content/vienna-rules-investment-2021-online.

2. For more, see: https://icsid.worldbank.org/resources/rules-amendments.

3. For more, see: https://uncitral.un.org/en/working_groups/3/investor-state.

4. The Vienna Rules are available via: https://www.viac.eu/en/arbitration/rules-for-arbitration-and-mediation

5. Veronika Korom, ‘VIAC Rules Revision 2021 Part II: The New VIAC Rules of Investment Arbitration and Mediation’ (Kluwer Arbitration Blog, 28 July 2021) http://arbitrationblog.kluwerarbitration.com/2021/07/28/viac-rules-revision-2021-part-ii-the-new-viac-rules-of-investment-arbitration-and-mediation/; Lucia Raimanova and Peter Plachy, ‘Vienna International Arbitral Centre launches new investment arbitration and mediation rules’ (Allen & Overy, 6 July 2021) https://www.allenovery.com/en-gb/global/news-and-insights/publications/vienna-international-arbitral-centre-launches-new-investment-arbitration-and-mediation-rules.

6. See also Korom (supra note v).

7. VRI, Art. 13a(1).

8. For a detailed discussion of early determination procedures, see: Harshal Morwale, ‘Austria: Addressing Time And Cost Concerns In International Arbitration Through Early Determination Procedure’ (OBLIN Attorneys at Law LLP, 8 February 2021) https://oblin.at/newsletter/austria-addressing-time-and-cost-concerns-in-international-arbitration-through-early-determination-procedure/.

9. Korom (supra note v).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.