The Vienna Rules 2021 entered into force on 1 July 2021 and apply to all proceedings commenced after 30 June 2021. The revision of the Vienna Rules was triggered by the Vienna International Arbitral Centre’s (VIAC) drafting of the Vienna Rules of Investment Arbitration (VRI),¹ which were covered in part one of this series. The Vienna Rules 2021 do not represent a significant departure from their predecessor, the Vienna Rules 2018. Rather, the aim of the revision was to “adapt the existing rules for commercial disputes to new needs and developments in the market.”² In addition, the Vienna Rules now contain specific rules relating to inheritance disputes in Annex 6.

Notable Amendments in the Vienna Rules 2021

Revisions Mirroring the Vienna Rules of Investment Arbitration

• Article 1(1) of the Vienna Rules 2021 now reflects VIAC’s authority to administer investment disputes.
• A framework regulating third-party funding has been included in Article 13a. As under the VRI, 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.” Third-party funding is defined in Article 6(1.9). Unlike the VRI, Article 13a of the Vienna Rules 2021 does not expressly grant the tribunal the power to order further disclosure of specific details of the third-party funding arrangement, although such powers may be derived from Article 28(1).
• Annexes 4 and 5 contain specific rules for proceedings in which VIAC acts as appointing or administering authority, respectively, in ad hoc proceedings.

Procedural Efficiency

The Vienna Rules 2021 reflect VIAC’s effort to increase the procedural efficiency and thus the time and cost of arbitrations it administers. These efforts largely correspond to those in the VRI.

• Article 32(2) reduces the time limit for the tribunal to render the award from six to three months after the last hearing concerning matters to be decided in an award or the filing of the last authorized submission concerning such matters. The Secretary General may extend this time limit pursuant to a reasoned request by the tribunal or on its own initiative.
• The possibility of remote hearings is now expressly provided for, with Article 30(1) stating that “the arbitral tribunal may decide to hold an oral hearing in person or by other means” (e.g., via video conference). This is in line with the recent case law of the Austrian Supreme Court.³
• Numerous other provisions authorize and facilitate electronic communication. Notably, awards may be communicated electronically if it is not possible or feasible to send the hardcopy within a reasonable time, or if the parties so agree (Art. 36(5)). These amendments follow the launch of VIAC’s online case management platform, the VIAC Portal, in March 2021.⁴
• The tribunal is entitled to facilitate the parties’ endeavors to reach a settlement at any stage of the proceedings (Art. 28(3)).

Costs

• According to Article 38(3), upon request by a party, the tribunal may make a decision on costs pursuant to Article 44(1.2) and (1.3) and order payment during any stage of the proceedings.
• The Secretary General may now determine separate advances on costs for claims, counterclaims, claims raised by way of set-off, and requests for joinder (Art. 42). Article 42(11), however, provides that the “arbitral tribunal shall only address the claims or counterclaims, for which the advance on costs has been paid in full.” The proceedings may be suspended by the tribunal or terminated by the Secretary General with respect to the claims or counterclaims for which the advance on costs has not been paid.⁵
• VIAC’s administrative costs and arbitrators’ fees have been increased for amounts in dispute above EUR 100,000 and EUR 200,000, respectively (Schedule of Fees, Annex 3).

Inheritance Disputes

Annex 6 of the Vienna Rules 2021 sets out rules relating to inheritance disputes. They apply “if the parties have agreed to their application, or if the application has been foreseen by the deceased in a disposition of property upon death, including an agreement as to succession, or in any other legal act not based on an agreement of the parties.”⁶ The rules contained in Annex 6 are supplementary.

Comment

The Vienna Rules 2021 promise to increase procedural efficiency while retaining flexibility and protecting the integrity of the proceedings. The newly introduced three-month time limit for tribunals to render awards stands out as a feature of VIAC commercial arbitrations that is likely to be particularly attractive to parties regionally and internationally who desire a swift resolution of their disputes. The amendments further bring the Vienna Rules in line with technological innovations. In combination with the new legal framework pertaining to investment arbitrations, VIAC seems to have positioned itself favorably looking forward.

Footnotes

1 For more, see: Johanna Kathan-Spath and Alice Fremuth-Wolf, ‘VIAC Rules Revision 2021 Part I: Revised Vienna Rules Enter into Force on 1 July 2021 (Kluwer Arbitration Blog, 1 July 2021) http://arbitrationblog.kluwerarbitration.com/2021/07/01/viac-rules-revision-2021-part-i-revised-vienna-rules-enter-into-force-on-1-july-2021/.

2 https://www.viac.eu/en/arbitration/rules-for-arbitration-and-mediation.

3 OGH Docket No. 18 ONc 3/20s.

4 For more, see: https://www.viac.eu/en/viac-portal.

5 See also Kathan-Spath and Fremuth-Wolf (supra note i); 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 Vienna Rules 2021, Annex 6.

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