Updates to the PRIME Finance Arbitration Rules for Complex, Cross-Border Financial Disputes

January 27, 2021, Covington Alert

The Panel of Recognised International Market Experts in Finance (or “PRIME Finance”) announced last week a consultation on updates to its arbitration rules (the “PRIME Rules”), which were last updated in 2016 (the “2016 Rules”). The newly proposed rules (the “Proposed Rules”) will apply to disputes under previously concluded PRIME Finance arbitration agreements, unless the parties expressly agreed to use a specific, prior version of the rules.

This alert assesses the Proposed Rules and how they compare to other options for the resolution of complex, cross-border financial disputes. Financial services firms may submit comments on the Proposed Rules until March 22, 2021.

Background on the PRIME Finance Arbitration Rules

Established in 2012, PRIME Finance is a specialized forum for private dispute resolution, which seeks to offer tailored arbitration rules and services for complex financial disputes, including disputes concerning sovereign lending, investment and advisory banking, trade financing, project financing, private equity and investment management, and blockchain or smart contracts. PRIME Finance arbitrations are administered by the Permanent Court of Arbitration (“PCA”) in the Hague. 

PRIME Finance competes both with other arbitral institutions seeking to administer financial services disputes, and with domestic courts — particularly courts in major financial centers like London, New York, Singapore, and Dubai, several of which have established specialized financial or commercial chambers. 

PRIME Finance, and the recent updates to its rules, seek to combine the advantages of arbitration and judicial dispute resolution, including as it relates to: confidentiality and predictability; efficiency and flexibility; expertise of decision-makers; and cross-border enforceability.

Confidentiality and Predictability

Arbitration proceedings are often conducted in confidence, allowing disputes to be resolved without the disclosure of sensitive financial and commercial information. The drawback of confidentiality, however, is reduced predictability. Specifically, confidentiality raises the prospect that different tribunals may reach inconsistent outcomes on similar legal and contractual issues without being aware of their divergence. Over time, firms may be hampered in their ability to evaluate and rely on a stable body of precedent addressing common questions of law and contract.

The PRIME Rules seek to mitigate this risk by allowing for the publication of anonymized copies of arbitral awards. Under the 2016 Rules (Art. 35.5), PRIME Finance is permitted to publish anonymized excerpts of Awards in all cases, and complete anonymized copies of Awards so long as no party objects. Under the Proposed Rules (Art. 39.9), PRIME Finance will no longer have the authority to publish anonymized excerpts of Awards, and will be restricted to publishing complete, anonymized copies of Awards with the consent of all parties. This change will allow for greater party control over the confidentiality of the award, but effectively means that awards and extracts thereof will only become public where neither party has an incentive to object. If parties routinely object to publication when they have lost on an important interpretive question, that would undermine a key purpose of the publication rule.

The PRIME Rules contain other provisions aimed at enhancing consistency and predictability, however, which may offset this risk.  Both the 2016 Rules and the Proposed Rules (Arts. 30 and 29, respectively) provide for participation of amici curiae, which allows the tribunal — at the request of a party or at its own initiative — to invite submissions from a third party on any issues relevant for the proceeding. This could allow industry associations (e.g., the International Swaps and Derivatives Association (“ISDA”) or the Loan Market Association (“LMA”)) and relevant regulatory bodies to provide input on recurring questions. The Proposed Rules add new procedural safeguards around amicus participation, including by specifying that amicus participation cannot “unduly burden or unfairly prejudice either party,” and stating that both parties must be afforded the opportunity to comment on amicus submissions.

Efficiency and Flexibility

The Proposed Rules introduce deadlines intended to facilitate the prompt and efficient conduct of arbitral proceedings. For example, under the Proposed Rules, a case management conference to establish the procedures for the arbitration must be held within 30 days of constitution of the arbitral tribunal (Art. 16.2). Consistent with the approach of the 2016 Rules, the Proposed Rules also establish a presumptive 45-day timeline for written submissions (Art. 20), although the tribunal may fix different deadlines if it considers it justified. Additionally, the Proposed Rules introduce new presumptive time limits for the tribunal to render its award:  an award must be rendered within 90 days of the close of the hearing in the case of a three-arbitrator tribunal, or 60 days in the case of a sole arbitrator, although the PCA may extend this period (Art. 39.8). Under both the 2016 Rules and the Proposed Rules, parties in need of swifter, emergency injunctive relief can request such relief from the tribunal or an interim, emergency arbitrator. It remains to be seen how effectively the time limits in the rules will be enforced in practice.

Importantly, the Proposed Rules introduce new provisions aimed at enhancing efficiency (and consistency of outcomes) in arbitrations involving concurrent disputes under trust or indenture agreements, or other multi-party financial instruments. First, the Proposed Rules provide expressly for joinder of multiple parties to a single arbitration agreement, as well as consolidation of related proceedings involving different arbitration agreements (Arts. 31, 32). Further, the Proposed Rules also allow for single arbitrations under multiple related contracts, and the coordination (without formal consolidation) of parallel proceedings before the same arbitrators (Arts. 33, 34). These new proposed provisions will be most effective when their use is anticipated and planned for in the underlying contracts.

Under both the 2016 and the Proposed Rules, parties can pursue expedited proceedings, which under the Proposed Rules will presumptively apply to disputes of EUR 4 million or less (Art. 17). Tribunals hearing expedited cases must render their final awards within 180 days from their constitution. In addition, the Proposed Rules introduce new procedures for early determination, which allow a party to request early dismissal (within 30 days) of meritless claims (Art. 35). The efficient resolution of simpler or lower-value disputes may also be enhanced by provisions allowing tribunals to determine cases on the basis of written submissions only (i.e., without a hearing), or — new to the Proposed Rules — to conduct virtual hearings (Art. 27). 

Expertise, Selection of Arbitrators, and Calculation of Damages

The 2016 Rules strongly encouraged the appointment of arbitrators from the PRIME Finance Panel of Experts, a list of approximately 200 individuals with relevant expertise in financial services law and in the resolution of related disputes (Arts. 8-10a). The Proposed Rules provide for greater flexibility, indicating only that the parties and any designated appointing authorities shall “refer[]” to the Panel of Experts (Art. 8). The Proposed Rules also change the default number of arbitrators:  unless the parties agree or the PCA determines otherwise, cases will be heard by a sole arbitrator instead of a panel of three arbitrators (Art. 7). 

In addition to facilitating the selection of qualified arbitrators, both sets of rules contain provisions on the use of tribunal-appointed independent experts on market practice and other technical issues (Art. 29 (2016 Rules); Art. 28 (Proposed Rules)). The Proposed Rules clarify that parties or their experts may make written submissions responding to the conclusions of tribunal-appointed experts, and may question tribunal-appointed experts at a hearing.

Finally, the PRIME Rules contain more specific provisions than other common arbitral rules on the currency of the award, and expressly address the tribunal’s ability to award pre- and post-judgment interest and to account for taxation of awards. While the latter provisions are not prescriptive, their inclusion should help to facilitate considered rulings on currency, interest, and taxation issues — which can critically affect the quantum of damages awarded, but are not always adequately briefed and considered. 

Enforceability

Arbitral awards under the PRIME Rules are subject to enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In common with other arbitration awards, therefore, PRIME Finance awards should be enforceable in substantially all major jurisdictions, subject only to limited grounds for objection. 

The New York Convention reflects a possible advantage of obtaining a PRIME Finance or other arbitral award, as compared to a judgment from a domestic court. Broadly speaking, the process for enforcing foreign judgments can be more complex and caveated than the process for enforcing foreign arbitral awards. Moreover, while parties obtaining judgments in major financial centers can seek to attach funds and assets flowing through those centers, attaching transitory funds and assets can pose practical and legal challenges, making enforcement under the New York Convention potentially valuable in cases involving counterparties with assets in jurisdictions that do not easily recognize the judgments of foreign courts.

Unique Role of the Permanent Court of Arbitration

The proposed amendments to the PRIME Finance rules increase party autonomy over confidentiality, arbitrator selection, and other aspects of arbitral proceedings where PRIME Finance previously took a more prescriptive approach. This may enhance the appeal of the rules — which, so far, have been recognized in ISDA’s arbitration guides and adopted by some market participants, but have not yet been widely applied in actual disputes. But, the changes also leave the rules looking more like the rules of other leading arbitral institutions that are actively seeking to enhance their appeal to financial services firms. 

Against this background, one aspect of the PRIME rules remains unique: arbitrations under the rules are administered by the PCA, a well-respected intergovernmental organization founded by treaty in 1899, and co-located with the International Court of Justice at the Peace Palace in the Hague (with additional hearing facilities in other cities, including in Asia and the Americas). The involvement of the PCA, which is adept at administering high-profile and contentious disputes, can be expected to enhance the conduct of PRIME Finance arbitrations. At the same time, the PCA’s docket has historically focused on complex inter-State and investor-State disputes rather than commercial disputes, meaning that its approach to financial services disputes is less well tested.

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The PRIME Finance rules provide a tailored framework for the resolution of complex, cross-border financial services disputes, and are one of several dispute resolution options for financial services firms to seriously consider. Firms considering commenting on the new Proposed Rules, or incorporating the PRIME Finance rules into their contracts, should contact the following members of Covington’s financial services and arbitration practices.