In the last months, the international arbitration community has discussed on a new topic: the Rules on the efficient conduct of proceedings in international arbitration (Prague Rules), officially presented on 14 December 2018 and available here.
The Prague Rules are a soft law tool aimed at increasing efficiency and reducing the costs of international arbitration. Their working group, mainly composed of practitioners from Eastern Europe and the CIS, believes that this goal may be achieved by granting the arbitral tribunal with a more active role in the case management.
The Prague Rules, on the other hand, are no longer openly opposed (as they were, for example, in their September 2018 draft, available here) to the IBA rules on the taking of evidence in international arbitration.
The first comments on the Prague Rules can be divided into two categories: some authors harshly criticized them, alleging a risk of “russification” of international arbitration (see, for example, the article by Lawrence W. Newman and David Zaslowsky, of Baker and McKenzie New York office, significantly entitled The Russians are coming, and they want to change how we conduct international arbitration, available here); other authors stress that these rules do not present a radical change, since their provisions on case management and taking of evidence are already contained in a number of institutional arbitrarion rules, as well as in the IBA Rules (see, for example, Sol Argerich, a civil law practitioner, in the article available here).
Which is the right perspective?
Neither of them.
The Prague Rules have a number of downsides (I intend to analyse them in a separate post), but they have no revolutionary content. With a few exceptions, their provisions can also be found in the IBA Rules. Nonetheless, they may present a material change from the point of view of the civil law practitioner. And also from the point of view of the common law practitioner.
First of all, I think that it is really significant that the Prague Rules, before addressing the topic of the taking of evidence, address the one of case management (Article 2). Other soft law tools address the same topic (for example, the ICC Note to parties and arbitral tribunal on the conduct of arbitration, available here). However, the emphasis on the relationship between case management and taking of evidence is the true new feature of the Prague Rules.
With respect to the taking of evidence, the Prague Rules contemplate the same procedural tools of the IBA Rules; however, from the point of view of civil law practitioners.
In this respect, I will not carry out a detailed analysis of the differences between IBA Rules and Prague Rules; I will focus instead on the provisions that drew my attention.
First of all, those relating to the experts.
Both the IBA Rules (Article 6) and the Prague Rules (Article 6) provide for the possibility of the appointment of an expert by the arbitral tribunal. It is well known, however, that, under the IBA Rules, this appointment is uncommon, as it is preferred to have parties-appointed experts (expert witnesses) under Article 5 of the IBA Rules (for instance, this is the position of Christopher Harris, QC: annual conference of the Swiss Arbitration Association of 2 February 2018).
Under the Prague Rules, on the contrary, the default rule is that of the appointment by the arbitral tribunal. A rule very close to that contained in the Italian code of civil procedure (Articles 191 ss. of the Italian code of civil procedure).
The Prague Rules have an even more restrictive approach with respect to the documentary evidence, in its particular form of the request for production of documents that one party may address to the other.
The IBA Rules have tried to limit this tool and to depart from its common law model (Article 3). The Prague Rules, on the contrary, adopt a different model (Article 4), which is also very similar to that of the order of production provided for by Italian procedural law (art. 210 of Italian code of civil procedure).
Further, the Prague Rules introduce in international arbitration another principle provided for by Italian law: the iura novit curia principle. In fact, while the Rules reiterate that the parties bear the burden of proof with respect to their legal position (Article 7.1), thay also add that the arbitral tribunal may apply legal provisions not pleaded by the parties or refer to authorities not submitted bu the parties, provided thet they have been given an opportunity to express their views (Article 7.2).
Are the Prague Rules useful? We will be able to answer this question only in the light of and depending on their practical application. Clearly, this application will also point out their downsides and the provisions that need to be amended.