On 5 January 2016, the International Chamber of Commerce (ICC) International Court of Arbitration (Court) announced the introduction of two major measures, aimed at enhancing the efficiency and transparency of ICC arbitrations, namely (1) reduction of an arbitrator’s fees where there has been unjustified delay in submitting the draft arbitration award to the Court; and (2) publication on the Court’s website of arbitrators’ information.
Financial penalty for delay in submitting award
The policy states that:
- Three member tribunals are expected to submit draft awards to the Court within 3 months after the last substantive hearing concerning matters to be decided in an award or the last filing of written submissions (excluding cost submissions), if later.
- This timeframe is two months in the case of sole arbitrators.
If a draft award is submitted beyond the above timeframe, the Court, unless satisfied that the delay was justified by factors beyond the arbitrators' control or due to exceptional circumstances, may lower the arbitrators' fees as follows:
- for draft awards submitted for scrutiny up to seven months after the last substantive hearing or written submissions, whichever is later, the fees that the Court would otherwise have considered fixing will be reduced by 5 to 10%.
- for draft awards submitted up to 10 months after the last substantive hearing or written submissions, the fees that the Court would otherwise have considered fixing will be reduced by 10 to 20%.
- for draft awards submitted for scrutiny more than 10 months after the last substantive hearing or written submissions, the fees that the Court would otherwise have considered fixing will be reduced by 20% or more
In deciding on such reductions, the Court will take into account any delays incurred in the submission of one or more partial awards. The policy also provides that the Court may increase the arbitrator’s fees above the amount that it would otherwise have considered fixing in cases where a tribunal has conducted the arbitration expeditiously.
Arbitrators’ Information on Website
The Court will now publish on its website names of arbitrators sitting in ICC cases, as well as their nationality and whether the appointment was made by the Court, or by the parties and which arbitrator is the tribunal chairperson. This new policy applies to all cases registered as from 1 January 2016.
The information will be published once the tribunal is constituted and updated in case of changes in the tribunal's composition (without mentioning the reason for the change). The information will remain on the website once the case has concluded. In order to maintain confidentiality, case reference numbers and names of the parties and counsel will not be published on the website.
Parties will, by mutual agreement, have the option of opting out of this limited disclosure. They may also request the Court to publish additional information about a particular case.
The new policy should be welcomed by users of ICC arbitration as it increases the transparency of the appointment of arbitrators which will assist the parties in choosing suitable arbitrators for their cases. The reduction of fees for delays in rendering awards is innovative. If the arbitrator fails to submit his/her draft award within 10 months after the hearing, he/she may be faced with a reduction of fees of at least 20%. We hope that other arbitration bodies will also consider implementing similar measures to improve the efficiency of arbitration, in view of the increasing complaints about delays in arbitration.