Copyright 2012, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on International Dispute Resolution, January 2012
The International Chamber of Commerce (ICC) established the International Court of Arbitration (ICA) in 1923 as an institution to administer international arbitrations. Arbitration under the ICC is one of the arbitration institutions most commonly chosen in international agreements as a means of resolving disputes. Since 1999, the ICA has averaged more than 500 arbitrations a year and the numbers continue to grow. In 2010, 793 cases were filed from 140 countries.
Arbitration under the ICC is governed by the ICC Rules of Arbitration that were last amended in 1998. However, the Rules have been replaced with a new version that came into force on January 1, 2012. Most significantly, the 2012 Rules of Arbitration introduce new provisions to improve the overall efficiency of case management, allow for the appointment of emergency arbitrators and provide greater flexibility.
Efficiency of Case Management
The 2012 Rules introduce new provisions meant to improve the overall efficiency of case management. Article 22, titled 'Conduct of Arbitration', sets out the overall goal of these new 2012 Rules: "The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute." To enforce this goal, a new provision in the 2012 Rules clarifies that failure by a party to make every effort to conduct the arbitration in an expeditious and cost-effective manner can result with that party being penalized with costs (Art. 37).
While case management conferences were generally standard under the previous Rules, parties themselves are now required to attend a case management conference. Case management techniques that are to be considered at the case management conference include:
- Identifying issues that can be resolved by agreement between the parties or their experts.
- Identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal argument at a hearing.
- Establishing reasonable time limits for the production of documents.
- Use of telephone or videoconferencing for hearings where attendance in person is not essential.
- Limiting the length and scope of written submissions and oral witness evidence to avoid repetition and maintain a focus on key issues.
In keeping with the overall goal of expeditious hearings, the tribunals are now required to render a final award within six months of the commencement of the dispute (Art. 30). This deadline can be extended only with the permission of the ICA itself.
Multi-party and Multi-contract Arbitrations
The 2012 Rules introduce new provisions for complex arbitrations such as those involving more than two parties and those including more than one contract. These new provisions include:
- A party can submit a written request to the Secretariat of the ICC Court to join an additional party to the arbitration (Art. 7).
- Any party in a multi-party arbitration may make claims against any other party (Art. 8).
- Claims arising out of more than one contract can be made in a single arbitration (Art. 9).
- Two or more arbitrations may be consolidated into a single arbitration (Art. 10). The ICA can order the arbitrations be consolidated into a single arbitration if the parties all consent, or if the arbitrations arise out of the same contract. If the claims arise out of different contracts, the ICA can still order for consolidation if they find the claims to be "compatible".
Emergency Arbitrator
A significant new mechanism in the 2012 Rules is a series of provisions regarding the appointment of an emergency arbitrator (Art. 29). A party that requires urgent measures and cannot wait for the constitution of an arbitral tribunal can apply for an emergency arbitrator up to the time a tribunal has been appointed in the proceeding. This new mechanism will only be available to agreements signed after January 1, 2012 and the 2012 Rules specifically mention the ability for parties to contract out of these provisions (Art. 29 (6)). The order of an emergency arbitrator does not bind the tribunal once it is appointed and the tribunal may modify or annul the order as it sees fit (Art. 29 (3)). While interim relief is generally available from domestic courts, this procedure may increase the use of the arbitration tribunal's own authority to order emergency relief.
Conclusion
The new provisions in the 2012 Rules and their emphasis on efficiency are in keeping with similar trends in amendments to civil procedure rules and arbitration rules around the world. Unless parties provide otherwise, the 2012 Rules will automatically apply to all arbitrations under the ICA commenced after January 1, 2012.
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