The slow speed and high cost of litigation in some nations' courts are often cited as reasons to select arbitration to resolve international disputes. One perceived advantage of arbitration is that the right individuals appointed to an arbitral tribunal can control and streamline the process from start to finish, thereby improving on the experience in some courts.
Arbitrations administered by the International Chamber of Commerce (ICC) are now governed by its 2012 Rules of Arbitration, which came into force on January 1, 2012. The amended rules, which update and modernize the ICC's 1998 arbitration rules, aim to promote a more efficient arbitration process that is more responsive to the needs of businesses involved in a dispute. At the same time, all parties continue to enjoy procedural protections, including fairness and impartiality of the tribunal and the reasonable opportunity to present a case.
The 2012 innovations include:
- An obligation on the parties and the arbitral tribunal to make "every effort" to conduct the arbitration in an expeditious and cost-effective manner, and a number of other provisions designed to induce a more efficient process;
- New rules facilitating multi-party and multiple-dispute arbitrations; and
- The availability of an "emergency arbitrator" to hear and determine urgent matters before an arbitral tribunal is appointed.
New Rules for a Speedier, Less Costly Arbitration
The ICC's 2012 Rules impose a new, mandatory obligation on both the arbitral tribunal and on the parties to an arbitration, to make "every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute". The rules also contemplate other case management techniques, including holding a case management conference early in the process to consult the parties on procedural measures that may be adopted.
Apart from recognizing the influential role a tribunal plays in moving a dispute fairly and expeditiously towards resolution, the updated rules expressly identify specific case management techniques that an ICC arbitral tribunal may employ, including:
- Bifurcating the proceedings or rendering one or more partial awards on key issues,
- Identifying issues that may be suitably resolved by agreement between the parties or their experts,
- Identifying issues on which there may be no need for oral evidence at a hearing, and
- Placing limitations on document production and on the length of written submissions.
The 2012 Rules directly address several specific problems that tend to bog down an arbitration: jurisdiction objections are now presumed to be addressed by the tribunal directly, not the ICC Court, unless otherwise determined by the ICC; the ICC now has enhanced powers to move the arbitrator appointment process along more quickly and even to appoint arbitrators itself in some circumstances; and when accepting an appointment, individual arbitrators must declare their independence from the parties and their availability (or lack thereof) to participate on the tribunal (this latter change formally implements an existing ICC practice). Awards must now be delivered within six months of agreement on the tribunal's terms of reference, unless the case timetable requires longer or the time is specifically extended by the ICC Court.
New financial incentives are in the 2012 rules too. When deciding whether and how much costs to the successful party, tribunals may take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. And in setting the fees payable to the arbitrators, the ICC Court is required to consider the diligence and efficiency of the arbitrator and the timeliness of the submission of the draft award, among other factors.
These changes are aimed at speeding up the ICC arbitration process, deterring parties from preliminary skirmishes that incur costs but often do not affect the outcome of a case, and placing more of the financial burden on the party that deserves to bear it.
Enhanced Rules for Complex Disputes
The ICC's 2012 rules also contain expanded provision for multi-party and multiple dispute arbitrations. Thorny issues often arise in arbitrations about adding parties who may (or may not) be legally bound by the agreement to arbitrate. Issues also arise about whether related disputes (for example under different but connected agreements) can be arbitrated together, or must proceed separately.
The new rules contain measures allowing the "joinder" of a person who is not yet a party to the arbitration, for disputes under different agreements to be arbitrated together and for related arbitrations to be consolidated. Each process is subject to certain conditions.
The Emergency Arbitrator
If a party needs an urgent remedy but has agreed to arbitrate its disputes against the proposed respondent, the party's choices were usually either to seek a remedy from national courts, or try to constitute the arbitral tribunal as quickly as possible and seek the remedy from it. The ICC's 2012 rules add another option.
Article 29 of the ICC's 2012 rules allows a party to apply for the appointment of an Emergency Arbitrator to determine whether an urgent Order should be made for interim relief, for example to preserve an asset pending a final award from the arbitral tribunal. Again, the new rules contemplate speed: the appointment of the arbitrator is normally made within two days of the party's application and the Emergency Arbitrator has 15 days after receiving the file to decide whether to grant an Order and send it to the parties.
The Emergency Arbitrator provisions apply to arbitration agreements entered after January 1, 2012, unless the parties have agreed to opt-out of them. There is a fee of $40,000 for the application (which may be increased where appropriate). Parties retain the right to apply to competent national courts for relief if they so choose.
What Will Happen under the 2012 Rules?
There are various other changes to the ICC's rules that will affect how an individual dispute is conducted. Some others are noteworthy changes, such as the new express power to make orders concerning the confidentiality of the arbitration proceedings or any other matters in connection with the arbitration, including measures for protecting trade secrets and confidential information.
Whether these new measures in the ICC's 2012 rules will in fact enhance the speed, cost-efficiency and responsiveness of its arbitration process will depend on two things: whether the ICC and its arbitrators actually use the revised rules to achieve its objectives and whether disputing parties (and their counsel) perform the obligation to conduct themselves as the new rules require.
Representatives from over 40 countries spent more than two years working on the amendments to the ICC's Rules of Arbitration. They have addressed some of the major concerns raised by counsel and parties using arbitration administered by the ICC to resolve disputes. Business leaders and their counsel, as well as other reputable arbitration institutions, will be watching to see if the new rules improve the process, thereby increasing the competitive advantage of arbitration over court litigation for international disputes.
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