The ICC's 2017 Arbitration Rules entered into force on 1 March 2017 and apply to arbitrations commenced on or after that date.
The new rules are designed to foster the efficiency and transparency of ICC arbitrations, in a bid to answer parties' concerns about the cost and time involved in arbitration procedures.
New Expedited Procedure
To that end, the key change in the 2017 rules is the introduction of an Expedited Procedure to compete with those offered by other arbitral institutions, which will allow for the resolution of arbitrations within a compressed timescale (approximately six months).
The Expedited Procedure will automatically apply to arbitrations where the arbitration agreement was entered into on or after 1 March 2017, and where the sum in dispute is less than $2 million, unless the ICC Court deems the procedure inappropriate in the circumstances.
Parties can also opt-in to the Expedited Procedure where the sum in dispute exceeds $2 million, or the arbitration agreement was concluded before the 2017 rules came into force.
Parties entering into arbitration agreements after 1 March 2017, who do not want the Expedited Procedure to apply, will need expressly to exclude the procedure in their arbitration agreement. The ICC has provided suggested wording for arbitration clauses where parties wish to opt-in or opt-out.
Features of the Expedited Procedure are:
- The ICC Court may appoint a sole arbitrator, notwithstanding any contrary provision of the arbitration agreement between the parties. In the absence of a nomination by the parties within a specified timescale, the ICC Court will appoint an arbitrator in 'as short a time as possible'
- Once the tribunal has been constituted, the parties may not generally bring any new claims
- The tribunal is not required to produce terms of reference, but will arrange for a case management conference to take place within 15 days of the file being transmitted to it
- Although a tribunal always has discretion to adopt such procedural measures as it considers appropriate to manage the case efficiently, the Expedited Procedure positively encourages such measures including:
- restricting document production
- limiting the length, number or scope of written submissions and written fact and expert witness evidence;
- holding a hearing by telephone or videoconference; or
- deciding the dispute solely on the basis of documents, with no oral hearing or examination of witnesses or experts
- The Award must be rendered within six months of the first case management conference.
Of course, the overall cost of an arbitration under the Expedited Procedure should be much lower than the standard procedure, not only because the arbitrator's fees will be reduced but the legal fees in such cases should also be significantly lower. In addition to the ICC's fee structure (where fees are referable to the amount in dispute) this should make ICC rules more attractive for smaller disputes than previously.
Other changes in the 2017 Rules include:
- Expedited production of terms of reference (in cases outside the Expedited Procedure) by tribunals - down from 60 days to 30. This should accelerate the initial phase of arbitration.
- The ICC Court may now communicate its reasoned decisions for the appointment, confirmation, challenge or replacement of arbitrators at the request of a party, where previously these were only available at the request of all parties.
Alongside the 2017 rules, the ICC has published a revised Note to Parties and Arbitral Tribunals on the Conduct of Arbitration. The note provides a further gloss on the 2017 Rules, consolidates separate existing notes, and establishes new ethical provisions on conduct, encouraging parties, witnesses and experts to abide "by the highest standards of integrity and honesty, and to conduct themselves with honour, courtesy and professionalism".
Taken together, the changes in the 2017 rules go some way to addressing often voiced criticisms of the arbitral process as being too costly and slow. The Expedited Procedure will be particularly welcomed by parties involved in smaller disputes where ICC Rules may previously have been considered too expensive or unwieldy for the sums in dispute.