The International Chamber of Commerce has published its new arbitration and alternative dispute resolution rules to take effect in January 2012. John Beechey, Chairman of the ICC International Court of Arbitration, in introducing the new rules stated: "It is one of the principal aims of the International Court of Arbitration to ensure that its Rules promote efficiency in the arbitral process and that they reflect current practice, consistent with the overriding objective of doing justice between the parties.... [N]ew measures and procedures have been introduced, such that the 2012 Rules of Arbitration respond to today’s business needs while remaining faithful to the ethos, and retaining the essential features, of ICC Arbitration."
The changes are both substantive and procedural. The new ICC arbitration provisions address such matters as disputes involving multiple contracts and parties, updated case management procedures, the appointment of an emergency arbitrator to address conservatory and interim measures before a tribunal is empowered to act, and changes to facilitate the handling of disputes arising under investment treaties and free trade agreements. The ICC Alternative Dispute Resolution Rules aim to facilitate a negotiated settlement with the assistance of an independent neutral. The default procedure under the ADR Rules is mediation, but the provisions also encompass conciliation, neutral evaluation and a variety of combinations of these and other techniques as agreed to by the parties.
Both the Arbitration Rules and the ADR Rules provide for administered procedures, which require parties to file an application with the International Court of Arbitration (for arbitration) or the International Centre for ADR (for ADR) as appropriate. In addition to the changes in the arbitration rules, the ICC has announced that it will focus on ensuring that every tribunal discharges its duties in a timely manner. To that end the ICC will require nominees to confirm availability to act promptly. Further, every tribunal will be required to advise the Secretariat and the parties of the date by which an award will be transmitted to the ICC Court for scrutiny. The new rules also put an emphasis on case management procedures to be adopted by a tribunal and the parties. While requests for extensions will no doubt continue to be made, these revisions should operate to improve the time from commencement to conclusion of the proceedings.
There have also been changes to the rules governing the joining of other parties into the proceedings and consolidation. Traditionally, it has been extremely difficult to join in one proceeding any related parties who were not signatories to the same arbitration agreement, resulting in the inefficiency and expense of parallel arbitration proceedings involving the same facts and issues. Under the new rules, parties will now be able to approach the tribunal at the commencement of a matter and request that the matter be joined or consolidated with a similar ongoing proceeding. Where arbitrations are to be joined, unless the parties agree otherwise, they will be consolidated into the first commenced arbitration.
The new rules also permit an application to the tribunal for an order of confidentiality at the outset. The confidentiality of arbitration proceedings is often presumed on the basis of both custom and applicable law, as well as the implied agreement of the parties, but the status of confidentiality can be questioned. Allowing the parties to agree upfront and “on the record" to strict confidentiality, and to obtain an order to that effect from the tribunal, will permit certainty on this issue where the matter is otherwise subject to a lack of clarity.
The new rules include an interesting express requirement for the arbitrators to be "impartial" as well as "independent." Again, as with confidentiality, this is often presumed but apparently is not always the case.
Whether the new ICC rules will have their intended effect remains to be seen, but they appear to be a welcome improvement to an important international arbitral regime