Out-Law Guide | 08 Mar 2012 | 11:03 am | 4 min. read
The ICC Rules of Arbitration are the most widely-used institutional arbitral rules in the world, especially in relation to international construction and energy disputes. A new version of the Rules came into force on 1 January 2012. The 2012 Rules apply to all ICC arbitrations that commenced on or after that date, unless the parties have agreed that the previous version of the Rules will apply.
The previous version of the Rules was published in 1998. To a large extent the new Rules simply codify the solutions and approaches that the ICC Secretariat has followed since the last revision of the Rules.
Most of the changes are aimed at increasing the efficiency of the arbitration process.
The 2012 Rules explicitly require both the arbitrators and the parties to "make every effort to conduct the arbitration in an expeditious and cost-effective manner".
The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process.
The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account "the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner".
Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations.
Main changes introduced by the 2012 Rules
Emergency arbitrator: the emergency arbitrator provisions are probably the most innovative provisions in the 2012 Rules. A party which needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may apply for such measures in accordance with Article 29 and the provisions in Appendix V.
The party applying for the emergency arbitrator must file its Request for Arbitration no later than 10 days after the Secretariat receives the application. If it does not, the President will terminate the emergency arbitrator proceedings unless the emergency arbitrator determines that a longer period of time is necessary. This is quite a tight timescale.
The emergency arbitrator's decision will take the form of an order. The order will not be binding on the arbitral tribunal and it is unclear whether or not an emergency arbitrator's order would be enforceable under the New York Convention, which refers to "awards". Interim orders and measures are enforceable under national laws in some jurisdictions but not in others.
The emergency arbitrator provisions contained in Article 29 and Appendix V of the 2012 Rules will not apply if the parties' arbitration agreement was concluded before 1 January 2012. In addition the emergency arbitrator provisions will not apply if the parties have elected to opt out of those provisions or have agreed to follow another pre-arbitral procedure that provides for the granting of conservatory and interim measures.
Case Management: the Rules require the tribunal to convene a case management conference to define procedural matters at the start of the arbitration. Further case management conferences may take place if necessary to ensure that the arbitration is efficiently conducted. The arbitral tribunal is encouraged to take a proactive role in order to determine an efficient conduct of the procedure by using the management techniques set out in Appendix IV and in the ICC publication "Techniques for Controlling Time and Costs in International Arbitration".
Arbitrators have to inform the parties and the Secretariat of the date they expect to submit their draft award. According to the previous version of the Rules the arbitrators were supposed to communicate an "approximate" date (to the Secretariat only). Furthermore, the ICC Court is required to take the efficiency of the arbitrators and the timeliness of submission of the draft award into account when setting the arbitrators' fees.
Constitution of the Arbitral Tribunal: the powers of the ICC Court have been expanded in order to allow the Court to appoint a suitable arbitrator in the event that a national Committee fails to make the appointment within the deadline fixed by the Court or the president of the National Committee certifies that a direct appointment is “necessary and appropriate”. The Court can also appoint arbitrators in proceedings involving States or State entities.
Independence and impartiality of arbitrators: whereas under the 1998 Rules arbitrators had to be independent of the parties involved in the arbitration, they must now be impartial as well as independent. Accordingly they must disclose any circumstances that could give rise to reasonable doubts as to their impartiality as well as anything that might call into question their independence. In addition, prospective arbitrators must sign a statement of acceptance, indicating their availability. Such a declaration is aimed at reducing the procedural delays due to the over-commitment of arbitrators.
Challenges to jurisdiction: while the old version of the ICC Rules allowed parties to raise jurisdictional challenges to the Court on the validity of the arbitration agreement, under the new Rules such challenges will be addressed by the arbitral tribunal unless the ICC Secretary General refers the issue to the Court. Article 6 of the ICC Rules has been revised to speed up the procedure.
Multiple Parties and Multiple Contracts: the 2012 Rules include entirely new provisions on multiple parties and contracts. According to Article 7, a party may request that an additional party be joined to the arbitration by submitting a Request for Joinder to the ICC Secretariat. Article 9 confirms that claims arising out of or in connection with more than one contract may be made in a single arbitration, irrespective or whether such claims are made under more than one arbitration agreement under the Rules.
Finally, the 2012 Rules expand the powers of the ICC Court of Arbitration to consolidate arbitral proceedings under Article 10.
Technology: The new Rules explicitly allow the arbitral tribunal and the Secretariat to communicate with the parties by e-mail, as they already had in fact been doing for some time, while the previous version of the Rules referred to obsolete methods of communication, such as telex and telegram. References to these obsolete methods of communication have been deleted. Tribunals are encouraged to consider the use of video conferencing at hearings where attendance in person is not essential.