The International Court of Arbitration of the International Chamber of Commerce (ICC) has updated the ICC Arbitration Rules as of 1 March 2017. The most significant change compared to the old Arbitration Rules is that the ICC's Expedited Procedure Rules are now the default choice in cases where the interest at stake is under USD 2 million. The ICC Secretariat confirms in the beginning of each case whether the Expedited Procedure Rules will apply.
Under the Expedited Procedure Rules, a dispute will be resolved by a sole arbitrator even if the parties have agreed to a panel of three arbitrators. The Expedited Procedure Rules further stipulate that the sole arbitrator may, after consulting the parties, decide not to allow any document production requests, limit the length and scope of the parties' written submissions, or decide the dispute without an oral hearing. Moreover, the case management conference, where practical arrangements regarding the proceedings are determined, must be held within fifteen days of the sole arbitrator receiving the case file from the ICC Court, and the sole arbitrator must render his/her final award within six months of the case management conference.
When the parties choose ICC arbitration, their future disputes under USD 2 million will be settled under the Expedited Procedure Rules unless one of three exceptions apply. First, the Expedited Procedure Rules will not apply if the parties' arbitration agreement was concluded before the updated rules entered into force, meaning before 1 March 2017. Second, the expedited procedure will not apply if the parties have expressly opted out. To effectively opt out, an express provision such as the ICC model clause "the Expedited Procedure Provisions shall not apply" must be included in the arbitration agreement.
Finally, the ICC Court may always decide, considering the circumstances of the case, that the Expedited Procedure Rules will not apply to a particular dispute. The ICC Court can decide this either upon the request of a party or on its own motion. Thus, the ICC Court will have considerable discretion in determining whether to handle a case under the expedited procedure or the standard arbitration rules.
Based on statistics published by the ICC Court in 2016, approximately one third of all new cases in 2015, which equals some 250 new cases, had a value of less than USD 2 million. Thus, it is likely that expedited arbitration under the ICC Arbitration Rules will become more common in the future.
As a main rule, expedited arbitration is a swift, cost-efficient method of resolving less complex, lower-value disputes. The updated ICC Arbitration Rules provide a practical mechanism for steering these types of disputes to expedited arbitration. However, as any contract may produce either simple or complicated disputes, this mechanism can also lead to an unwanted situation in which a complex dispute ends up in expedited arbitration against the parties' expectations. When drafting an arbitration agreement and considering whether to opt out of expedited arbitration, it is advisable to contact a dispute resolution specialist who can provide a tailor-made solution that takes into consideration all the pros and cons of different types of arbitral proceedings.