On 1 March 2017, the latest amendment to the ICC Arbitration Rules (the “ICC Rules”) came into force, introducing a number of changes aimed at increasing transparency and efficiency in ICC arbitration proceedings.
I. Expedited Procedure Provisions
The introduction of the Expedited Procedure Provisions in Article 30 and Appendix VI of the ICC Rules marks the most notable amendment to the ICC Rules.
This new regime will apply by default to all proceedings based on an arbitration agreement concluded on or after 1 March 2017 with an amount in dispute of USD 2 million or less and will be an opt-in option for cases involving a higher amount in dispute. The key features of the Expedited Procedure Provisions include:
- A Sole Arbitrator: Cases will normally be heard by a sole arbitrator, irrespective of any contrary language in the arbitration agreement.
- No Terms of Reference: There will be no Terms of Reference. The case management conference will, however, remain in place.
- Submissions, Evidence and Hearing: The sole arbitrator will have the right to limit the number, length and scope of written submissions and may exclude document production. The sole arbitrator may further decide the dispute on a documents only basis, without hearings, document production or examination of witnesses and experts.
- Time Limits: The case management conference must now take place within 15 days of receipt of the case file by the sole arbitrator. The time limit for rendering the final award will be six months from the case management conference, as opposed to six months from the signing of the Terms of Reference in regular procedures. The time limits may, however, be extended by the Court if necessary.
- Reduced Fee Scale: Although the administrative expenses for expedited procedures are the same as for regular proceedings, the arbitrator’s fees are approximately 20% lower than those in the regular fee schedule.
- Scrutiny: The ICC Court and its Secretariat will continue to scrutinise awards under the Expedited Procedure Provisions in order to safeguard the quality of all ICC awards.
Whilst the ICC Court may, upon request of one of the parties or on its own motion, determine that application of the Expedited Procedure Provisions is inappropriate, parties wishing to avoid these provisions should expressly exclude the application of the Expedited Procedure Provisions in their arbitration agreement.
II. Further Amendments to the ICC Rules effective 1 March 2017
In addition to the Expedited Procedure Provisions, the ICC introduced further changes concerning ICC arbitration proceedings in general:
- The ICC Court is now allowed to provide reasons for its decisions on the appointment, confirmation, challenge and replacement of arbitrators without seeking prior consent of all parties. Due to the deletion of the relevant language in Article 11 (4) of the ICC Rules, the wording of the ICC Rules now goes beyond the ICC’s note published on 22 September 2016 which addresses this subject. If the ICC Court decides to provide reasons for its decisions, it may also fix additional fees therefor.
- The time limit for establishing the Terms of Reference is shortened from two months to 30 days following the transmission of the case file to the arbitral tribunal.
- The flat administrative fee for disputes exceeding USD 500 million will increase from USD 113,215 to USD 150,000.
III. Previous Amendments to the ICC Rules
In the recent past, the ICC Court introduced a number of amendments to its rules in order to increase transparency and efficiency in ICC arbitrations.
Since 1 January 2016, the ICC Court has published arbitrator appointments on its website.
Additionally, on 5 January 2016, the ICC Court published a note introducing penalties for arbitrators and the ICC itself. If the arbitral tribunal fails to submit the award to the ICC Court within three months of the last substantive hearing or the filing of the last written submission, without sufficient justification, its fees may be lowered, depending on the duration of such delay, by at least 5 % to 20 % or, in instances in which the delay exceeds 10 months, even more. Since the introduction of this penalty, the ICC Court imposed these sanctions against tribunals in almost a third of the cases in which such delays occurred. Additionally, if scrutiny of an award is delayed without sufficient justification, the ICC Court may cut its own fees.