This update provides a reminder of the ICC update note issued by the ICC on 20 December 2018 (effective from 1 January 2019) to parties and arbitral tribunals on the conduct of arbitrations under the ICC Rules of Arbitration (the “2019 Update”). In particular, it addresses two elements of this 2019 Update. The first is the key provision that any ICC awards issued as of 1 January 2019 may be published by the ICC Secretariat. This is compared to the ICC’s previous approach of only publishing anonymized excerpts of awards. Coming into the latter half of 2019, this is likely to become more relevant as impacted arbitral awards are issued by the ICC. It is also something which should be borne in mind when drafting arbitration agreements. The second relates to the publication of information regarding arbitral tribunals and counsel, which was recently updated in July 2019. These are discussed in further detail below.
Publication of ICC Awards
An important thing to note is that the provision which allows the ICC to publish arbitral awards applies, not only to arbitrations commenced after the 2019 Update, but to any arbitration for which an ICC award has been or will be issued after 1 January 2019. As such, the ICC now has the option to publish awards regardless of whether the arbitration was commenced prior to 1 January 2019, and regardless of which ICC rules such arbitration was commenced under.
However, the 2019 Update does not allow the ICC Secretariat to unilaterally publish arbitral awards. Instead, it provides for the following process. At the time of notification of any final award, the ICC Secretariat is required to inform the parties and arbitrators that such final award (along with any other award and dissenting or concurring opinion) may be published no less than two years after the date of such notification. If they agree to the publication of the award, the parties are entitled to agree a longer or shorter time period for publication. Importantly, any party may object to the publication of the award, or require that an award is in all, or part, anonymized or pseudonymized at any time prior to the publication of the award. If either party objects, then the award will either not be published, or will be anonymized or pseudonymized as requested. While the 2019 Update is not entirely clear as to the objection procedure, the ICC has confirmed that such objection should be to the ICC management team and that there is no formal requirement (an email will suffice). The ICC has also confirmed that even if only one party objects the award will not be published.
The publication of any award will also be subject to:
- any confidentiality agreement covering parts of the arbitration, in which case the publication of such aspects will be subject to the parties’ specific consent; and
- the discretion of the Secretariat to exempt awards from publication, or to anonymize/pseudonymize personal data, pursuant to data protection regulations.
As a result of this provision of the 2019 Update there are a number of things to be considered.
By way of example, for many parties a key factor in choosing arbitration is confidentiality. Therefore, when drafting arbitration agreements, it may be worth carefully considering whether in light of the potential publication of the awards, the ICC should be specified as the arbitral institution. While the 2019 Update can be seen as part of a wider push for greater transparency in the arbitration sphere, the ICC’s approach can be distinguished as a step further towards transparency from the only other set of rules that utilizes an “opt out” procedure for the publication of awards, the Hong Kong International Arbitration Centre (“HKIAC”). Pursuant to its 2018 rules, the HKIAC only publishes awards if all references to the parties’ names and any identifying information is redacted, and if no party objects to such publication. The recent positions of the ICC and HKIAC are also different to other arbitral institutions such as the LCIA, ICSID and UNCITRAL, which treat publication as “opt in” upon the parties consent, rather than “opt out” within a set time limit. Further, although it is presently still possible to keep ICC awards confidential, the 2019 Update could potentially be seen as indicative of a change in direction by the ICC that may potentially develop further as time moves on. Conversely, having previous awards available could prove advantageous for parties, particularly when considering ICC nominated arbitrators, as the published awards could provide a useful source of information of their potential approaches, reasoning and experience on relevant issues.
Once arbitration is commenced, it is worth considering whether the publication (or not) of awards should be addressed upfront and agreement reached between the parties and the tribunal on this. Finally, for awards which have been issued or are yet to be issued, it would seem important to keep this issue of publication in mind and then be vigilant to the notification by the ICC so that the appropriate response can be sent.
Publication of Arbitrator and Counsel Details
A further thing to note is that, in addition to the publication of ICC awards, the 2019 Update addresses the publication of information regarding arbitral tribunals.
As of 1 January 2019, the ICC publishes the following for any arbitration registered from 1 January 2016: (a) the names of arbitrators, (b) their nationality, (c) their role within a tribunal, (d) the method of their appointment, and (e) whether the arbitration is pending or closed. Registration for this information is deemed to be from when the Terms of Reference are agreed. While the rules that state this information will not be published if the parties agree, the ICC has advised that if either party objects to the publication of this information they will not publish it. There is no formal process for objecting, the objecting party simply needs to contact their ICC management team to request that these details are not published. The current chart of available information can be accessed through the following link, which is updated monthly when Terms of Reference are established.
The names of the parties, and the arbitration reference number will not be published and so will remain confidential. As of 1 July 2019, the ICC will also publish the sector of industry involved in the dispute and, for any arbitration registered after this date, the counsel representing the parties. The ICC has confirmed that this information will be published after the receipt of the Request for Arbitration. The 2019 Update is not clear as to how this process will take place, but the ICC has confirmed that the ICC will only contact parties to obtain their consent to publication of this information, or the information regarding the arbitrators, in the event there is a confidentiality agreement covering any aspect of the arbitration. Therefore, it seems that the onus is on the parties to request that the aforementioned information is not published. Again this is something to be borne in mind when commencing an ICC arbitration. However, if the ICC has already published the relevant information, either party may request that it is removed from the ICC website.
The ICC has confirmed that it has not yet begun publishing information regarding counsel or the industry involved in disputes. When such information is published it will be found on the same chart as the information regarding arbitrator appointments (for which the link is above).