On Tuesday, the ICC’s International Court of Arbitration has announced two new policies aimed at enhancing the efficiency and transparency of ICC arbitration proceedings.
The first of the new policies will see the ICC publish the names of arbitrators sitting in ICCcases on its website. The website will detail the nationality of the arbitrators and whether they were appointed by the Court or by the parties. It will also indicate who the chairperson of the tribunal is. The ICC will update this information to reflect changes of the composition of the tribunal, however, without stating the reasons for a change.
The new policy will apply to all cases registered from the beginning of the year. The information will not be removed once a case has been terminated, but will remain permanently available on the website. In order to protect the confidentiality of the process, no details of the parties or counsel involved in the respective arbitration will be published. By mutual consent, the parties may opt out of this disclosure. So it will remain to be seen how parties react to this new policy. The fact that parties will explicitly have to opt out clearly creates a nudge in favour of transparency. As Mike McIlwrath has put it on the Kluwer Arbitration Blog: “This initiative could distinguish the ICC from all other institutions in the eyes of the parties, but only if parties themselves do not thwart its implementation.” If parties actually support the new policy, then indeed over time, the ICC would build something of an “Arbitral Panel 2.0” – a term coined by Ben Giaretta, meaning one that paints an accurate picture of who is actually sitting as an arbitrator in ICC proceedings, as opposed to lists of names that institutions provide without any indication who actually serves as arbitrator.
The second new policy allows the ICC Court to penalize arbitrators, by reducing their fees by 5 to 20 % or even more, if they are “unjustifiably late” in rendering their award. The fee cuts will depend on the length of their delay. This new policy again applies to all cases registered after January 1, 2016. The Court expects the release by the arbitrators of a draft award to the Court for scrutiny within three months – two months for a sole arbitrator – after the last substantive hearing or the last written substantive submissions. The way I read it, arbitrators must in the future justify any delay against that benchmark in order to avoid a fee sanction.
The announcement of these new policies follow the announcement, back in October 2015, that the Court of Arbitration will communicate reasons for many of the administrative decisions that the Court takes pursuant to the ICC Rules.