ICC Arbitration Rule Changes: Will The New Expedited Process Catch On?
New rules (the “ICC Rules”) for arbitration in the International Chamber of Commerce (“ICC”) came into force on March 1, 2017.
The ICC Rules set out a new procedure for expedited arbitrations. The expedited procedure provides for arbitrations to be concluded in six months for claims not greater than US $2 million or where the parties have “opted in” to use this new process.
The simplified procedure provides:
- The Court of Arbitration (the “Court”) of the ICC may appoint a sole arbitrator even if the provisions of the arbitration agreement provide for more than one arbitrator. The ICC Rules also note that the Court may appoint three arbitrators if required in the circumstances and will invite the parties to comment before making any decision with respect to the appointment of the tribunal;
- No Terms of Reference;
- A case management conference within 15 days from the date on which the file was provided to the tribunal;
- The tribunal may decide on a “documents only” arbitration (if a hearing is directed, there are provisions to allow it to be conducted by videoconference, teleconference or other means of communication); and
- The tribunal may limit the scope of written submissions and written evidence.
The expedited process in the ICC Rules mirrors steps taken by other arbitration bodies for expedited and cost effective arbitrations. It should be noted that the expedited process under the ICC Rules is not available for any arbitration agreement that predates March 1, 2017, or where the parties have agreed to opt out of the process. The Court also retains the ability to receive submissions from the parties should they take the position that the expedited process is not appropriate for a particular arbitration.
The tribunal must render an award within six months from the date of the case management conference, although the Court may extend the time limit.
Procedures to expedite arbitrations will be welcomed in the international business community and some arbitrations will certainly lend themselves to an expedited process. However, even in cases with a relatively low dollar value threshold, query whether the parties will be satisfied with a document only based arbitration with limited or no cross-examination of witnesses or oral submissions? Further, some cases with a low dollar value are extremely complex and would not always lend themselves to this procedure.
On the other hand, there are no doubt many disputes between commercial parties which do not warrant a full hearing and call out for a quick method of resolving a simple issue between them in a cost efficient manner. Time will tell whether the expedited process now available at the ICC and in other arbitration centers will become accepted in international dispute resolution.