The Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules") in force as of 1 March 2017 offer access to simplified arbitration proceedings under the new Expedited Procedure Provisions of Article 30 and Appendix IV.
The Expedited Procedure Provisions offer parties more streamlined arbitration proceedings and lower fees, with the intention of responding to the need for efficient, time and cost-effective dispute resolution of primarily small-value disputes.
The Scope of the Expedited Procedure Provisions
The Expedited Procedure Provisions will be available in circumstances where the underlying arbitration agreement was concluded after 1 March 2017.
The Expedited Procedure Provisions will apply where:
- the amount of the dispute does not exceed USD 2 million at the time of the answer to the request for arbitration or where the parties otherwise agree (meaning that the Expedited Procedure Provisions are available for higher-value disputes if the parties so wish);
- the International Court of Arbitration of the International Chamber of Commerce (the "Court") does not, upon the request of one of the parties before the constitution of the arbitral tribunal or on its own motion, determine that the application of the Expedited Procedure Provisions is inappropriate in light of the circumstances of the case at hand; or
- the parties have not opted out of the Expedited Procedure Provisions.
The Expedited Procedure Provisions are also described as an "opt-out rule" as they will automatically apply to disputes with a value below USD 2 million unless the parties have expressly "opted-out".
Key features of the expedited procedures offered by the Expedited Procedure Provisions are as follows:
Constitution of the Tribunal
The parties to an ICC arbitration ordinarily choose to have their dispute resolved by a three-member tribunal, the appointment of which proves rather lengthy and time-consuming.
Under the Expedited Procedure Provisions, the Court has the power to appoint a sole arbitrator, notwithstanding any contrary provision of the arbitration agreement concluded between the parties.
The Terms of Reference, which is considered a distinctive feature of ICC arbitration, is a procedural document that determines the scope and limits of the arbitral tribunal's mandate and duties.
The Expedited Procedure Provisions do not require the preparation of the Terms of Reference, therefore intending to make a more economical use of time by allowing parties to bypass such formal procedural requirements and to move directly to the substance of the dispute.
The Expedited Procedure Provisions further provide that the case management conference be organised between the arbitrators and the parties in order to consult on procedural measures and to establish a procedural timetable no later than 15 days as of the date on which the case file is transmitted to the tribunal.
Other procedural trim-downs include limits on claim submissions and the tribunal's option to render awards without conducting hearings. Under the Expedited Procedure Provisions, parties are not allowed to submit new claims after the constitution of the tribunal, unless the tribunal authorises such party to do so. The tribunal may also decide to settle the dispute on the basis of documents submitted by the parties, without conducting hearings or calling any experts or witnesses.
Another key feature of the Expedited Procedure Provisions that may, however, prove to challenge in practice is the requirement for the tribunal to render a final award within six months from the case management conference. This time limit may, however, be extended by the Court where necessary.
The introduction of expedited procedures in ICC Rules is in line with the efforts of many arbitral institutions to establish fast-track arbitration procedures to deliver time and cost-effective resolution to small-value disputes and generally maintain the attractiveness of international institutional arbitration.
While the Expedited Procedure will need time to accumulate a body of precedents to prove itself a universally feasible and practical means of dispute resolution, there have already been examples of its successful application and the expectation is that commercial parties will increasingly consider the application of expedited procedures in the future.
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.