A new version of the ICC Arbitration Rules will come into effect on 1 January 2021 (2021 ICC Rules), replacing the 2017 Arbitration Rules. The updated rules were formally adopted on 6 October and intend to increase efficiency, flexibility and transparency, making ICC Arbitration more attractive to complex arbitrations on all scales.
The 2021 ICC Rules address some recent developments in the international arbitration space, including remote hearings in the wake of COVID-19, the growing trend of third party funding, and facilitation of large scale, multi-party arbitrations.
A notable addition to the 2021 ICC Rules is that the Tribunal is given the discretion to decide whether there should be a physical hearing or it should proceed remotely by video conference or any other appropriate means of communication, per Article 26(1).
Some other key features of the 2021 ICC Rules include:
- introducing a provision on additional awards (Article 36(3));
- allowing the joinder of additional parties in the course of the arbitration (Article 7(5));
- allowing consolidation of cases in presence of different parties (Article 10(b));
- introducing a requirement to disclose third-party funding arrangements (Article 11(7));
- allowing the arbitral tribunal to exclude from the proceedings new counsel in presence of a conflict of interests (Article 17(2)); and
- expanding the expedited arbitration provisions by increasing the threshold for their opt-out application from US$2 million to US$3 million.
The 2021 ICC Rules also include two new provisions applying specifically to investment treaty arbitrations:
- providing that no arbitrator shall have the same nationality as that of any party, aimed at ensuring the complete neutrality of the tribunal in cases involving the public interest (Article 13(6)); and
- confirming that emergency arbitration is not available in investor-State disputes (Article 29(6)(c)).
The ICC is one of the world’s top five most preferred arbitral institutions and is utilised heavily in Asia-Pacific disputes. It is also a leader of reform in international arbitration. The revision to the ICC rules is consistent with what we have seen implemented by arbitral bodies around the world, including in the revision of the Australian Centre for International Commercial Arbitration rules currently underway, and the London Court of International Arbitration 2020 Rules which took effect from 1 October.