Recently, the International Chamber of Commerce ("ICC") published revised rules of arbitration which will enter into force as from January 2012 and will apply to ICC proceedings commenced after that date (the "2012 Rules of Arbitration"). The 2012 Rules of Arbitration will replace the current rules of arbitration that have been in force since 1998 (the "1998 Rules of Arbitration").
As of October 2008, a special "task force" of the ICC Commission on Arbitration composed of more than 175 members from 41 different countries were responsible for amending the 1998 Rules of Arbitration.
You can find the 2012 Rules of Arbitration on the website of the ICC: http://www.iccwbo.org.
In this legal alert, we provide a brief description of the most relevant changes to the 1998 Rules of Arbitration. As discussed in more detail below, under the 2012 Rules of Arbitration it is possible to appoint an emergency arbitrator before an arbitral tribunal is constituted. Further, new provisions are included that enable parties and arbitrators to manage ICC arbitral proceedings more effectively. Also the rules regarding joinder and consolidation of proceedings are amended.
The 1998 Rules of Arbitration already allowed parties to request the arbitral tribunal to order interim and/or conservatory measures. However, the 1998 Rules of Arbitration did not provide rules allowing parties to seek urgent interim relief if an arbitral tribunal was not yet constituted. Parties seeking interim relief had to turn to local courts.
The 2012 Rules of Arbitration allow parties to appoint an "emergency arbitrator" (article 29). A party that needs urgent interim or conservatory measures that cannot await an arbitral tribunal being constituted may apply for such measures (article 29(1)). Detailed rules for the application of emergency procedures, the appointment of the emergency arbitrator, time frame, the order, etc. are set out in Appendix V to the 2012 Rules of Arbitration. The whole process – from the application for an emergency measure until the issuance of a decision – is intended to last no longer than three weeks. A request for arbitration must be submitted to the ICC Secretariat within 10 days of the ICC Secretariat's receipt of the application for emergency proceedings. The emergency arbitrator's decision is in the form of an order and not of an award. Once constituted, the arbitral tribunal may modify, terminate or annul any order made by the emergency arbitrator (article 29(3)). The costs are significant: the applicant must pay USD 40,000.
The emergency arbitrator provisions apply to all ICC arbitration agreements concluded after 1 January 2012, although parties may agree to opt out.
With the addition of the rules regarding the emergency arbitrator, the 2012 Rules of Arbitration are more in line with the rules of other arbitral institutions (e.g. SIAC and SCC). The NAI Rules also provide parties with emergency proceedings. An advantage of the NAI Rules is that they merely require urgency and thus not need proof that the relief sought "cannot await constitution" of the arbitral tribunal. Additionally, under the NAI Rules a party seeking urgent interim relief is not obliged at all to initiate arbitral proceedings on the merits.
Effective case management
The 2012 Rules of Arbitration include new provisions that enable parties and arbitrators to manage ICC arbitral proceedings more effectively by controlling time and costs at different stages of the arbitral proceedings.
To accelerate the time for the appointment of arbitrators, article 13(3) of the 2012 Rules of Arbitration grants the ICC Court the right to set a fixed time limit for the national committee to propose a possible candidate. If the national committee does not make a proposal for a possible candidate within the fixed time limit, the ICC Court is allowed to directly appoint a person it regards suitable. Article 13 (4) of the 2012 Rules of Arbitration allows the ICC Court to directly appoint an arbitrator without intervention of the national committee if the President deems it necessary and appropriate.
Article 6(3) of the 2012 Rules of Arbitration also provides for improved time and cost efficiency in the first phase of arbitral proceedings. Under this new rule, arbitral proceedings will proceed despite jurisdictional objections and such objections will be directly decided by the arbitral tribunal. The Secretary General will only refer the potentially problematic matters with jurisdictional challenges to the ICC Court.
Pursuant to article 22 of the 2012 Rules or Arbitration, the arbitral tribunal and the parties must make every effort to conduct the arbitration in an expeditious and cost-effective manner. To ensure this effective case management, the arbitral tribunal may adopt procedural measures (article 22(2)). For this purpose, the arbitral tribunal will convene a case management conference (article 24). A list of case management techniques is included in Appendix IV to the 2012 Rules of Arbitration. Additional techniques are described in ICC's publication in 2007 of "Techniques for Controlling Time and Costs".
The arbitral tribunal must, as soon as possible after the last hearing, inform the parties and the Secretariat of the date by which it expects to submit its draft award to the ICC Court for scrutiny (article 27). This rule provides the desired transparency as to the date the award will be delivered and is aimed at committing the arbitral tribunal to draft its award within the indicated period of time.
Joinder and consolidation
Article 7 of the 2012 Rules of Arbitration deals with the joinder of additional parties to an arbitration. A party wishing to join an additional party must submit a request for joinder against that additional party to the ICC Secretariat. The ICC Secretariat may fix a time limit for this submission. The additional party may participate in the appointment of arbitrators and may submit an answer or (counter)claim. Unless parties agree otherwise, no additional party may be joined after the confirmation or appointment of any arbitrator.
Rules regarding the consolidation of multiple related arbitrations are introduced in article 10 of the 2012 Rules of Arbitration. The ICC Court may consolidate two or more pending arbitral proceedings into one single proceedings where
- the parties have agreed to the consolidation,
- all of the claims are made under the same arbitration agreement, or
- in the case of multiple arbitration agreements, the proceedings are between the same parties, the disputes arise in connection with the same legal relationship, and the ICC Court finds the arbitration agreements to be compatible.