The International Chamber of Commerce (ICC) has amended the ICC Rules of Arbitration to put in place an expedited procedure that automatically applies to all arbitration agreements concluded after 1 March 2017 where the amount in dispute is less than US$2 million or where the parties have otherwise agreed to use the expedited procedure.
Parties considering whether to incorporate arbitration under the ICC Rules of Arbitration as a means of dispute resolution in their contractual arrangements should carefully consider the expedited procedure provisions and any implications they may have for the resolution of disputes between the parties.
Should parties not wish to be subject to the expedited procedure provisions, they must opt out of these provisions in express terms in their arbitration agreements.
Reasons for the Amendments
The ICC expedited procedures are aimed at streamlining arbitration and reducing the scale of arbitrators’ fees. They effectively provide for an arbitration to be concluded in six months and, according to the President of the ICC Court, Alexis Mourre, are “an entirely new offer to the business community and an effective answer to the legitimate concerns of the business community as to the time and costs of the arbitration”. (ICC News Release “New ICC Arbitration Rules and Note take effect” 1 March 2017)
The Expedited Procedure Rules
The expedited procedure provisions, set out in Appendix VI of the ICC Arbitration Rules, provide the following:
- The ICC Court may appoint a sole arbitrator even if the arbitration agreement provides otherwise.
- There will be no Terms of Reference.
- The tribunal has discretion, after consultation with the parties, to decide:
- to limit discovery by not allowing document production requests;
- to limit the number, length and scope of written submissions and written witness evidence by factual and expert witnesses; and
- to determine the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts. Where a hearing is held, the tribunal may conduct it by videoconference, telephone or similar means of communication.
- The time limit within which the tribunal must render its final award is six months from the date of the case management conference (CMC), which is to be held within 15 days of the tribunal receiving the file. Extensions will be granted by the ICC Court only in limited and justified circumstances.
- The fees of the tribunal are fixed pursuant to a scale, which is 20 percent less than fees under the general scales.
The ICC appears committed to ensuring that parties and arbitrators alike apply and adhere to the expedited procedure provisions:
- The tribunal may take into account in assessing any costs award whether a party has artificially inflated its claims to prevent the expedited procedure provisions from applying (¶70 of the ICC’s Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration, 1 March 2017).
- The ICC Court considers that compliance with the time limit for rendering the award (namely, within six months from the CMC) is of the essence and may:
- increase the arbitrator’s fees above the amount it would otherwise consider fixing whenever the tribunal has conducted the arbitration expeditiously, or
- lower the arbitrator’s fees where there has been a delay in issuing the award unless such a delay is attributable to factors beyond the arbitrator’s control (Paragraphs 90-94 Ibid).
Points to Consider for Parties
Parties should consider carefully when entering into a dispute resolution clause providing for arbitration under the ICC rules whether they wish these expedited provisions to apply or whether they wish to opt-out. Matters to be taken into account include the following:
- The complexity of any dispute that may arise. It is not yet clear how the ICC will deal with complex cases under the US$2 million threshold. While the ICC Court may determine at any time upon the request of a party or on its own motion that it is inappropriate in the circumstances to apply the expedited procedure provisions (Article 30(3)(c) of the ICC Rules and Article 1(4) of Appendix VI), it remains to be seen whether the complexity of a dispute is such a circumstance.
- The suitability of a sole arbitrator appointed by the ICC Court. The choice of arbitrator is one of the most important decisions for a party in arbitration proceedings. An arbitrator’s role is to render an enforceable award and ensure that the proceedings are conducted fairly, with each party equally having a reasonable opportunity to be heard. It is also crucial that an arbitrator has the necessary qualifications and skills to understand the issues between the parties. While the expedited procedural provisions provide that the parties may nominate the sole arbitrator, if the parties are unable to agree, the sole arbitrator will be appointed by the ICC Court.
Whether the nature of any dispute is likely to require production of documents by the parties, witness evidence, expert evidence and/or a hearing. The tribunal has wide discretion under the expedited procedure provisions in relation to these matters and this may impact the parties’ ability to put their case effectively to the tribunal.