South Africa: The Revised ICC Rules Of Arbitration

Last Updated: 26 April 2012
Article by Nikita Lalla and Dean Ehrlich

Most Read Contributor in South Africa, September 2018


The International Chamber of Commerce (ICC) Court of Arbitration (the ICC Court) is regarded as the leading international arbitral institution. Based in Paris, France and founded in 1923, it has supervised over 15 000 cases - many high profile. Awards made by the ICC Court are celebrated for their quality which are reportedly scrutinised multiple times before being released to the parties. These factors make the ICC Rules of Arbitration (ICC Rules) one of the most used in international commercial contracts. These rules maintain the effective functioning of the ICC Court and were updated on 1 January 2012 (the new rules).

The new rules

The new rules automatically apply to all ICC arbitrations commencing after 1 January 2012, unless the parties' arbitration agreement stipulates that the ICC rules in force at the time of contracting shall apply. The new rules were necessitated as the result of changes in both arbitration practice and technology over the years.

The new rules include mechanisms for dealing with:

1.The Appointment of Emergency Arbitrators. This enables parties to claim urgent interim relief prior to the constitution of the actual arbitral tribunal. The mechanism is voluntary: parties may choose to opt out of the mechanism in favour of an alternative (and possibly less expensive) mechanism of obtaining interim relief or they may opt out of the procedure completely. The current fee for an application for an ICC emergency arbitrator is approximately US$40,000.00.

2.The Joinder of Parties and Claims. The updated provisions are said to be more robust than the old rules as they allow for several claims to be heard by the same ICC tribunal, where these arise:

  1. from the same arbitration agreement; or
  2. between the same parties.

However, the implementation of these provisions may be hamstrung by the requirement that all the relevant parties agree to the joinder.

3.Time and Costs. The new rules notably include a duty to conduct the arbitration " an expeditious and cost-effective manner, having regard to the complexity and value of the dispute." This binds the tribunal as well as the parties. Alongside this, provision has been made for consultations and/or meetings between parties. These will allow parties to separate issues that may be resolved by, amongst others:

  1. agreement between the parties;
  2. strict reliance on documentary evidence; and
  3. partial awards.

4.The Impartiality and Independence of Arbitrators. Previously, the sole requirement for arbitrators was independence. The new rules add the requirement of impartiality and arbitrators are required to sign a statement affirming their independence and impartiality along with their appointment acceptance.

5.Confidentiality. Express provision has been made in the new rules for making (by order of the tribunal) arbitration proceedings, and matters connected to them, confidential in order to protect trade secrets and sensitive information of parties.

6.Communications. The new rules make allowance for both older methods, as well as any conceivable future methods, of communication under the catch-all "and other forms of electronic communication." Presently, however, the rules indicate a preference for communication by means of email.

7.Jurisdiction. The new rules limit the ICC's jurisdiction to cases specifically referred to it by the ICC's secretary general. This is in contrast to the old rules which gave the ICC the discretion to make a prima facie decision as to its own jurisdiction.

Furthermore, the ICC Court has been given exclusive jurisdiction to administer arbitrations under the new rules. The effect of this is that parties can no longer conduct arbitrations through (local) bodies, organisations or institutions – the ICC Court itself must be used. Similarly, ad hoc arbitrations conducted using the new rules will not be effective.

The mischief this amendment seeks to address is illustrated in the case of Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24 which appeared before the Singapore Court of Appeal. In this case a "hybrid arbitration clause" (a clause in which parties agree to the administration of an arbitration by one institution, using the procedural rules of another institution rather than the administering institution's own in-house rules) was upheld. Noting that international arbitration law is based upon a foundation of party autonomy, which gives freedom to the parties to decide where and how their arbitration is to be conducted, the Singapore court upheld the enforceability of that hybrid arbitration clause.

However, this finding appears to have found disfavour with the ICC. The amendment in the new rules is a quality control mechanism to ensure that parties agreeing to an ICC-governed arbitration are assured the full benefits of the ICC rules and the quality standards associated with the ICC. In essence, the mechanism is directed at avoiding the obstacles parties face when trying to adapt ICC Rules to non-ICC institutions and the potential degradation of the ICC brand.


The new rules are a mix of practical amendments as well as substantive amendments. Clients who prefer the ICC rules to other international rules should seek advice in relation to the impact of the new rules, particularly in relation to jurisdiction. At present a simple hybrid arbitration clause referring to the ICC Rules will now contain an inherent contradiction and will not be enforceable. This gives a party a ready-made defence to any claim under a contract where a hybrid arbitration clause was used. In addition, the costs of bringing a dispute before the ICC in Paris may not be affordable or sensible given the amount in dispute. These obstacles can be overcome by effective drafting which properly reflects the autonomy of the respective parties and their common intention. So, clients who have used the ICC rules in previous contracts need to consider (before they are faced with a dispute) if an amendment to those contracts is required as a result of the new rules.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Werksmans Incorporated
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Werksmans Incorporated
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions