The International Chamber of Commerce’s International Court of Arbitration (“ICC”) has launched the latest version of its Arbitration Rules which came into force on 1 March 2017 (“ICC Rules 2017”). The ICC has also released a Note to Parties and Arbitral Tribunals on the conduct of arbitrations under these Rules.
The ICC Arbitration Rules were last revised in 2012, during which time the ICC introduced Emergency Arbitrator provisions, Joinder of Additional Parties, Claims between Multiple Parties, Multiple Contracts and Consolidation of Arbitrations. The ICC Rules 2017 have been introduced to increase efficiency and transparency in the arbitral process. The most significant amendment in the ICC Rules 2017 has been the introduction of an Expedited Procedure for smaller claims. Some of the salient features of these new Rules are discussed below.
Applicability of New Rules
The ICC Rules 2017 would apply to all arbitration proceedings commenced on or after 1 March 2017 even where the contract between the parties was concluded earlier. However, the Expedited Procedure provisions would only apply to those proceedings where the arbitration agreement was concluded on or after 1 March 2017.
The new Expedited Procedure is provided for in Article 30 and Appendix VI of the ICC Rules 2017.These provisions would take precedence over any contrary terms that may be contained in the arbitration agreement between the parties (Article 30(1)). The Expedited Procedure provisions would automatically apply to disputes where the amount in dispute is not more than US$ 2 million, unless the parties have opted out of this procedure (Article 30(3)(b)). The amount in dispute, for the purposes of the above provision, includes all quantified claims, counterclaims, cross-claims and claims under Article 7 (Joinder of Additional Parties) and Article 8 (Claims between Multiple Parties). Parties can also agree to apply the Expedited Procedure irrespective of the amount in dispute (see Article 30 (2)(b)). The parties can opt-in for the Expedited Procedure in the arbitration agreement or by separate or subsequent agreement. It is best for parties to adopt the standard arbitration clause recommended by the ICC. Under the Expedited Procedure provisions, a sole arbitrator is usually appointed notwithstanding any contrary provision in the arbitration agreement (Appendix VI, Article 2). In other words, where the parties have agreed to refer the dispute to three arbitrators, the ICC Court has the discretion to appoint a sole arbitrator if the Expedited Procedure applied. In matters governed by the Expedited Procedure, the arbitral tribunal will not be required to draw up Terms of Reference under Article 23 and the parties may not make new claims after the tribunal is constituted unless authorized by the arbitral tribunal to do so (Appendix VI, Article 3(1) and 3(2)). The case management conference must be convened within 15 days of the arbitral tribunal receiving the file (Appendix VI, Article 3(3)) and the award must be rendered within 6 months from the date of the case management conference unless the time limit is extended by the ICC Court of Arbitration (Appendix VI, Article 4). The arbitral tribunal would have the discretion to adopt such procedural measures as it considers appropriate. The arbitral tribunal may after consultation with the parties, limit the parties’ written submissions, written witness evidence or not allow requests for document production (Appendix VI, Article 3 (4)). The arbitral tribunal may also, after consultation with the parties, decide the dispute on the basis of documents without any hearing and examination of witness or experts. In case of a hearing, the arbitral tribunal may conduct it by videoconference, telephone or similar means of communication (Appendix, Article 3(5)).
Fees for Expedited Procedure
For arbitrations conducted under the Expedited Procedure, the arbitrators’ fees is 20% lesser than the normal scale of fees.
New Time Limit for Terms of Reference
Under the ICC Rules 2017, the time period for the arbitral tribunal to draw up the Terms of Reference has been amended to 30 days (it was two months under the 2012 Rules) from the date of receiving the file (Article 23). The ICC Court can extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative (Rule 23 (2)).