After a long process initiated in 2008, led by a Task Force made up of 175 arbitration professionals and users from 41 different countries, the International Chamber of Commerce (the "ICC") launched a revised version of its Rules of Arbitration on 12 September 2011, which updates the version in force since 1 January 1998. The new Rules will come into force on 1 January 2012.
The new Rules maintain the general and flexible approach to arbitration procedure, so that it is capable of adapting to disputes of a different type and amount and to parties from different legal backgrounds. The new Rules also preserve the main distinctive features of ICC arbitration, such as the Terms of Reference, the role of National Committees in the appointment of arbitrators and the scrutiny of the award, among others.
However, the new Rules contain important modifications and additions that have to be considered by all arbitration users. Most of them are the result of experience gained during the 13 years of application of the 1998 Rules. For this reason, a number of the changes are almost a "codification" of practices developed and already applied by the Secretariat of the ICC. Others are, on the contrary, new additions to the Rules. Finally, there are also changes aimed at updating the Rules to deal with the electronic age.
The changes contained in the new Rules have three principle objectives:
- Adapting the Rules to address the growing complexity of disputes and to the increasing need for urgent interim remedies in business disputes
- Reducing time and costs of arbitration
- Making the rules more amenable for use in investment arbitration.
The following paragraphs describe the main changes in the new Rules:
1. EMERGENCY ARBITRATOR
The most significant change or addition is the introduction of the Emergency Arbitrator, who may be appointed at the request of a party applying for urgent interim or conservatory measures that cannot await the constitution of the arbitral tribunal. The Emergency Arbitrator, having heard the parties, may make an order, which the parties agree to observe.
An application for such an order can be made at any time before the file is transmitted to the arbitral tribunal, even before the Request for Arbitration is submitted. In such a case, the Request for Arbitration must be submitted within a very short period thereafter.
Once the arbitral tribunal is appointed, it may modify, terminate or annul the orders made by the Emergency Arbitrator.
The Emergency Arbitrator Rule will not apply to arbitration agreements signed before the entry into force of the new Rules or where the parties have agreed to opt out of it or have agreed to another pre-arbitral interim measure mechanism.
2. MULTI-PARTY AND MULTI-CONTRACT ARBITRATIONS
The new Rules contain a detailed set of new provisions that deal with the issue of complex arbitrations (e.g. there are more than two parties or are based on more than one contract), and mostly reflect practices already applied by the ICC Secretariat. The main aspects of these new provisions are:
- Joinder of Additional Parties: any party may request that an additional party join the arbitration, before any of the arbitrators have been confirmed
- Claims between Multiple Parties: In arbitrations with more than two parties, any party may make claims against any other party
- Multiple Contracts: Claims arising out of several contracts may be made in one single arbitration
- Consolidation of Arbitrations: The Court may consolidate arbitrations under certain circumstances, including on the agreement of the parties, when claims are made under the same arbitration agreement or made under different arbitration agreements which are "compatible".
3. CHALLENGES TO JURISDICTION
The new Rules provide that any question of jurisdiction will be decided by the arbitral tribunal. The prima facie decision by the Court in respect of the existence of an arbitration agreement, which applied under the 1998 Rules, is now confined to cases specifically referred to the Court by the ICC's Secretary General.
Arbitrators are required to be and remain impartial and independent from the parties, and not just independent, as was provided in the 1998 Rules. This addition follows other arbitration texts such as the UNCITRAL Model Law on Arbitration or the IBA Guidelines on Conflicts of Interest in International Arbitration.
Before being appointed or confirmed, prospective arbitrators are required to sign a statement of independence (as in the 1998 Rules), availability, confidentiality and impartiality.
The new Rules also introduce a number of situations where the Court may directly appoint arbitrators without a previous proposal by a National Committee or Group, including where a State party is involved in the arbitration or when the President of the Court is of the opinion that a direct appointment is necessary and appropriate.
5. CONDUCT OF THE ARBITRATION
The new Rules place an express duty on the arbitral tribunal and on the parties to make every effort to conduct arbitrations in an expeditious and cost-effective manner. This general duty is developed in a number of specific rules, which include:
- The arbitral tribunal is allowed to adopt procedural measures to ensure effective case management (including the techniques listed in an Annex to the Rules which incorporate the ICC's publication "Techniques for Controlling Time and Costs in Arbitration")
- The obligation of the arbitral tribunal to hold a case management conference with the parties when drawing up the Terms of Reference or soon thereafter
- The possibility for the arbitral tribunal, when deciding on the costs of the proceedings, to take into consideration the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner
- The possibility of better monitoring the time taken to deliver an award to the parties by the Court.
Besides requiring prospective arbitrators to sign a statement of confidentiality before being appointed (as stated above), the new Rules empower the arbitral tribunal to make orders regarding the confidentiality of the proceedings and any other matters in connection with the arbitration, including taking measures to protect trade secrets and confidential information.
7. COMMUNICATION TECHNOLOGY
To reflect modern methods of communication and current practice, the new Rules reflect the use of e-mail as a means of communication by the Secretariat of the ICC and the arbitral tribunal, and delete references to facsimile transmission, telex and telegram.
8. ADMINISTRATION OF ARBITRATION
The new Rules provide that the ICC Court will be the only entity authorized to administer arbitrations under the Rules and that, by agreeing to arbitration under the Rules, the parties accept that the arbitration is administered by the ICC.
These provisions are intended to avoid the situation where parties agree to arbitration under the Rules of the ICC, but administered by another institution; or to non-administered (ad hoc) arbitration under the Rules of the ICC.
Please click on the links below to view our comparison tables where we have compared not only the old ICC Rules against the new ICC Rules, but also the new ICC Rules with the LCIA and AAA Rules.