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
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
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
Establishing reasonable time limits for the production of
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
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
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.
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
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.
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,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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