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New ICC Rules of Arbitration approved for 2021

Out-Law News | 09 Oct 2020 | 10:30 am | 2 min. read

Revised and updated International Chamber of Commerce (ICC) Rules of Arbitration are set to come into force on 1 January 2021 following approval by the ICC executive board.

The rules, which were last updated in 2017, will not be published until an official launch event later this year. However, international arbitration expert Nicholas Brown of Pinsent Masons, the law firm behind Out-Law, said that their substantive content "is already filtering into the global commercial arbitral community".

Brown said: "The broad planks were aired at a virtual town hall held in Singapore yesterday, and it appears that the revised rules are likely to cover the non-consensual joinder of additional parties; the consolidation of cases involving non-identical parties or multiple common contracts; the introduction of an obligation to notify the identity of a third party funder; a new power to exclude a newly introduced representative whose involvement would create a conflict of interest; and the clarification of the power to override imbalanced tribunal member appointment powers in the interests of equal treatment".

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The ICC has long been regarded by the international business community as a reliable and sophisticated source of rules for the administered resolution of international commercial disputes by means of arbitration.

"They are likely to also include an increase in the threshold value of disputes that will be subject to the - successful - expedited procedure on an opt-out basis; the removal of a requirement for paper copies of initial submissions; the creation of a discretion in the arbitral tribunal to decide on whether or not a hearing will be take place physically or virtually; the removal of the waiver of the emergency arbitrator provisions by prior agreement to another pre-arbitral procedure; the exclusion of state-investor treaty claims from the emergency arbitrator procedure; and the confirmation of the tribunal's power to make an additional award on claims that have not been resolved in a prior award," he said.

Brown said: "The ICC has long been regarded by the international business community as a reliable and sophisticated source of rules for the administered resolution of international commercial disputes by means of arbitration."

"Developments since the latest revision of the rules, three years ago, in such areas as the rapid adoption of technology, the achievement of a greater balance between enforceability and cost and time efficiency and responding to the demands for greater access to commercial justice doubtless featured in the community consultations and have informed the work of the working committee," he said.

In a statement, ICC court president Alexis Mourre described the amendments as "a further step towards greater efficiency, flexibility and transparency".

Figures published by the ICC earlier this year showed that the ICC Rules of Arbitration are becoming increasingly favoured by states and state-owned enterprises. Of the 869 new arbitration cases filed with the ICC last year, 212 involved states or state-owned enterprises, representing a 67% rise over the past five years.

The 869 new arbitration cases filed in 2019 is the second highest number of newly filed cases in any year the institution has recorded, after 2016. Parties involved in the cases came from a record 147 countries and independent territories.