On 19 December 2018, the International Court of Arbitration of the International Chamber of Commerce (“ICC”) announced an update to its Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (the “Note”), effective from 1 January 2019. The Note provides parties and arbitral tribunals with practical guidance concerning the conduct of arbitrations under the ICC arbitration rules, which have been updated in 2017, and its own practices.
While a number of significant amendments have been made to the Note since its last edition dated 30 October 2017, the key changes which will be covered in this update are (i) changes in line with improving transparency of the arbitral process at the ICC; (ii) changes relating to treaty-based arbitration; and (iii) changes clarifying the role of administrative secretaries.
The issue of transparency has been an area of concern in much of the criticism levelled against investor-state dispute resolution and international arbitration more generally. In consequence, numerous initiatives in recent years have been aimed at making arbitration-related information more accessible to the public, e.g., the Costs and Duration Study conducted by arbitral institutions such as the Singapore International Arbitration Centre and the 2014 Mauritius Convention on Transparency in relation to investment arbitration which came into force on 18 October 2017. The updated Note includes two innovations aimed at promoting transparency: (i) the publication of additional information on cases; and (ii) the publication of awards unless parties opt out.
As to the first innovation, the ICC is currently one of the few arbitral institutions that publish information on the composition of its tribunals, having done so since 2016. From 1 July 2019, the ICC will also publish information on the sector or industry involved in the case, and the identity of counsel representing the parties in the case. It remains to be seen what level of detail will be published, whether it be the law firms retained by the parties, the individuals at those firms handling the matter, barristers instructed, and so on. The publication of advisers’ details will be of interest both in the commercial and investment arbitration spheres, particularly in the latter where the issue of so-called “double-hatting” (where individuals act as both counsel and as arbitrator in different investor-state matters) has generated considerable debate in recent years.
As to the second innovation, from 1 January 2019 ICC awards may be published in their entirety no less than two years after the date of the ICC secretariat notifying the parties and arbitrators, except for treaty-based awards which will be published within 6 months of such notification. However, parties remain in control as they may object to publication entirely, or require that the award be redacted and/or anonymised in part or in full. The ICC secretariat also retains discretion to exempt awards from publication that are not treaty-based.
As indicated above, the updated Note has made specific provisions in relation to treaty-based arbitration. Besides the publication of treaty-based awards, the ICC now recommends in the Note that prospective arbitrators are encouraged to state a complete list of treaty-based cases in which they participated as arbitrator, expert or counsel, another move that furthers the transparency objective.
Furthermore, in view of the public importance of treaty cases, the scrutiny of draft treaty-based awards is to be performed by Vice-Presidents of the Court and Court members with experience in investment arbitration.
Role of administrative secretaries
The role of administrative secretaries has been the subject of some controversy. The most well-known example is the (in)famous Yukos arbitration where the tribunal secretary was accused by the Russian Federation of having improperly acted as a fourth arbitrator. The allegations formed part of the Russian Federation’s challenge of the US$50 billion award which is currently still being determined. Arbitral institutions such as the London Court of International Arbitration have since published a number of guidelines to clarify the role of the administrative secretaries.
The ICC has similarly done so in the earlier iteration of the Note. In this updated version, the ICC provides further explanations as to the organisational and administrative tasks permitted to be performed by an administrative secretary, always on condition that the tribunal has a duty to be responsible for the administrative secretary’s conduct during the arbitration and to personally review the file.
Overall, these changes to the Note look set to reduce the information asymmetry as between arbitral institutions and their users, and are a welcome response to the increasing calls for greater transparency and accountability in the industry.