China: New Year, New Rules for ICC Arbitration including Comparison of ICC, SIAC and HKIAC

Last Updated: 18 February 2012
Article by Meg Utterback and Linda Davinson

On January 1, 2012, the new International Chamber of Commerce (ICC) Arbitration rules came into effect (the last major revision of the ICC rules occurred in 1998). As international arbitration continues to grow in popularity with the rise of cross-border commercial disputes, the international dispute resolution centers have been keen on competitively addressing the new business needs of our global marketplace. The rules of various institutions over the last decade have become increasingly sophisticated, blending common and civil law systems to give rise to non-country specific forums to resolve international disputes.

In summary, for arbitration under the auspices of the ICC, the revised rules now provide for 1) interim or emergency relief; 2) joinder of multiple parties, claims and contracts; as well as 3) additional case management controls to improve cost and efficiency. The substance of the ICC rules remains largely the same with the aforementioned features intended to improve arbitrating increasingly complex transnational disputes.

Emergency Arbitrator: One of the more significant additions to the new ICC rules is the provision for "Emergency Measures" pursuant to Article 29 and Appendix V. Parties to a contract can now seek emergency relief prior to the constitution of an arbitral tribunal. Any emergency measures granted will take the form of an "order." Note that the emergency rule will not apply to arbitration agreements concluded prior to January 1, 2012. Moreover, parties may opt out or agree to other pre-arbitral relief procedures. To prevent delay, be sure to submit any emergency application in the correct language pursuant to the rules.

Joinder of Multiple Parties/Claims/Contracts & Consolidation: Modernizing the rules to address the increasingly complex cross-border disputes, the new ICC rules now expressly provide for joinder and consolidation. Multiple pending arbitrations under the ICC rules may now be consolidated in any of the three scenarios set out in Article 10. Parties and claims may now be joined pursuant to Articles 7 through 9. Pay attention to timing requirements for joinder, as no additional party may be joined after the confirmation or appointment of an arbitrator, unless the parties and the additional party agree otherwise.

Better Case Management: It is readily apparent the new rules aim to improve speediness, efficiency and cost. Several enhanced or added provisions reflect this. Article 6 now clarifies that arbitration shall proceed in the face of any pleas on jurisdiction and the arbitral tribunal will directly decide on the issue(s). A case management conference is now mandatory at around the time of the Terms of Reference. Further, the new rules reflect the duty of both the parties and arbitrators to be expeditious throughout the entire procedure including the addition of Appendix IV, which lists case management techniques to control time and costs.

Quick Comparison of Arbitration Rules

The below table is a basic summary comparison of arbitration rules under the auspices of the ICC (International Chamber of Commerce), SIAC (Singapore International Arbitration Centre) and HKIAC (Hong Kong International Arbitration Centre). Refer to the actual rules for accuracy and any changes or modifications.

ICC (January 1, 2012) SIAC (July 1, 2010) HKIAC (Sept. 1, 2008)
Initiating Arbitration Submit "Request for Arbitration" to Secretariat, with requisite information, copies, and payment of filing fee (Article 4) File "Notice of Arbitration" with Registrar with requisite information, copies and payment of filing fee (Article 3) Submit "Notice of Arbitration" to Secretariat with requisite information, copies and payment of registration fee (Article 4)
Time to Respond "Answer" due within 30 days of receipt of the "Request" from the Secretariat (Article 5) "Response" due within 14 days of the "Notice of Arbitration" (Article 4) "Answer" due within 30 days of receipt of "Notice of Arbitration" (Article 5)
Joinder of Additional

Parties, Claims
*New – Yes, joinder of parties and claims (Article 7-9). Also consolidation of arbitrations (Article 10) Yes, joinder of party only if party to arbitration agreement and consent (Article 24b) Yes, joinder of party if mutual consent in writing (Article 14)
Number of Arbitrators 1 or 3 agreed by the parties, otherwise court to appoint (Article 12) 1 arbitrator unless parties have agreed otherwise or 3 if complex (Article 6) 1 or 3 if not agreed by the parties (Article 6)
Seat of Arb & Language Place of arbitration fixed by court unless agreed by parties; Language by parties or the arbitral tribunal (Article 18; 20) Seat of arbitration agreed by parties otherwise default Singapore; Language by arbitral tribunal unless parties have agreed (Article 18; 19) Seat of arbitration is Hong Kong unless parties agree otherwise; Language determined by tribunal subject to agreement by parties (Article 15; 16)
Hearings *New – Mandatory

case management conference (Article 24)
Not mandatory Not mandatory
Emergency or Interim Relief *New – Yes (Article 28-29) Yes (Article 26 and Schedule 1) Yes (Article 24)
Time Limit For Final Award Six months (Article 30) Total time limit not specified. Option for Expedited Procedure (Article 5) Expedited procedure option with six-month time limit for claims not over $250,000USD. (Article 38)

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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