ICC expedited proceedings approach helps drive sector change

The ICC’s commission on arbitration and alternative dispute resolution has published the findings of research (36-page / 360KB PDF) looking back over the last eight years since the introduction of the EPP regime, to track the impact it has had for arbitrators and counsel.

The EPP approach automatically applies to disputes up to a value $3 million - for arbitration agreements concluded on or after 1 January 2021 - unless parties opt out. Parties may also opt-in to the EPP, regardless of the amount in dispute. The process makes use of a sole arbitrator in most cases, with a case management conference required within 15 days of transmission of the file to the arbitral tribunal and much greater streamlining of the case management process throughout.

Alongside this, arbitrator fees are reduced by 20% and awards must be issued within six months of the case management conference.

The EPP entered into force in March 2017, with the report finding that by the end of 2024, the ICC Court registered a total of 865 expedited cases - including a record 189 new cases in 2023.

The EPP originally applied to all disputes of $2m or lower for arbitration agreements concluded on or after 1 March 2017 – with that figure rising to the current $3m in January 2021 – in a bid to widen the number of disputes automatically captured by the provisions and thereby decrease the time and cost of a greater number of arbitration proceedings.

According to the report, the impact of that move has been to see nearly two-thirds (63%) of awards issued within the prescribed six month period, with 79% having no document production orders and 95% of final awards between 2017 and 2023 involving no expert evidence.

An unexpected side-effect of the shift towards the expedited procedures has been to drive other arbitration services in a similar direction, making cheaper and faster hearings an expectation rather than an exception.

Arbitration centres in Singapore, Dubai and the Hong Kong Special Administrative Region, amongst others, have brought in streamlined approaches in the wake of the EPP being introduced.

“ICC’s adoption of the EPP undeniably caused a shift in the market and may have triggered other institutions to offer an even shorter time frame for adjudicating more or less complex disputes of relatively lower value,” the report notes.

“The change was also prompted by the courts’ efforts to offer streamlined or faster proceedings, such as English courts who seek to resolve complex construction disputes in 28 days.”

The opt-in option for participating in the EPP process has also driven change, with the report finding that 16% of all expedited procedures between 2017 and 2024 chose to opt into the process.

With some lower value disputes ruled as still too complex to be resolved in an expedited setting, the ICC Court has the option to withdraw cases from the EPP process. However, the report found just 26 instances of such a referral being made to the ICC Court, and only 17 of those cases actually being taken out of EPP measures.

Pamela McDonald, an international arbitration expert with Pinsent Masons, said the new report showed the impact the expedited approach had brought about.

“Parties with arbitration agreements can be put off by the perception that arbitration is expensive and time-consuming,” she explained.

“Expedited arbitration has changed that perception, and is a great success story for the arbitration community. In low value, less complex cases, with an efficient and motivated arbitrator, expedited cases offer a commercial dispute resolution solution that is more appropriately balanced for all parties involved.”