The ICC International Court of Arbitration (the “Court”) has announced that it will provide reasoned decisions to the parties for many of its administrative decisions under the ICC Rules of Arbitration (the “Rules”) where all the parties so agree and submit a request for a reasoned decision from the Court. The new policy is effective from 8 October 2015 in all pending arbitrations.
Upon the parties’ request, the Court will explain its decisions under the Rules on (1) the challenge of an arbitrator, (2) the replacement of an arbitrator, (3) the consolidation of arbitration proceedings, and its prima facie decisions on (4) the existence of an arbitration agreement, taken under the Rules.
The reasons will be communicated only to the parties. The communication of reasons may increase the ICC administrative expenses, in the Court’s estimate, by up to US$ 5,000.
ICC is not the first arbitral institution to offer reasoned decisions on the arbitrator challenges. The London Court of International Arbitration (LCIA) Court established a practice to provide reasoned decisions on arbitrator challenges already under its 1998 Arbitration Rules and turned such practice into a rule in its new 2014 Arbitration Rules. Further, in 2011 the LCIA released sanitised digests of the LCIA Court’s reasoned arbitral challenge decisions. Similarly, the Stockholm Chamber of Commerce (SCC) published sanitised decisions on arbitrator challenges, albeit without reasons, as the SCC Board does not, as a general rule, provide reasoned decisions on such challenges. Although in its 2014 Practice Note on the Challenge of an Arbitrator, the Hong Kong International Arbitration Centre (HKIAC) provides that HKIAC has “no obligation to give reasons for its determination”, in practice HKIAC often issues reasoned arbitrator challenge decisions. In investor-State disputes, the International Centre for Settlement of Investment Disputes (ICSID) also provides reasons for arbitrator challenges, although there is no requirement to do so in its rules.
The Court’s move responds to user demand and, given the ICC’s influence in the wider arbitration community, it is likely to be followed by other arbitral institutions around the world.