UK: ICC Produces New Arbitration Rules

Last Updated: 3 October 2011
Article by Nigel Brook

On 12 September, the International Chamber of Commerce published its revised Rules ofArbitration. These will come into force on 1 January 2012. The aim has been to make theICC a more attractive dispute resolution forum for international businesses andgovernments.

Which Arbitrations Will the new Rules Apply to?

It appears to be the case that they will apply to ICC arbitrations commenced on or after 1January 2012 (although there is a carve-out for the emergency arbitrator provision – seefurther below). There is no express provision to that effect in the Rules (the same was thecase under the current rules), but in relation to the Scales of Administrative Expenses andArbitrator's Fees, it is stated that the Scales in the revised version apply to all arbitrationscommenced on or after that date. Article 4 of the Rules provides that arbitration commenceson the date on which a Request for Arbitration is received by the Secretariat of the ICC.

Moves to make ICC arbitrations more cost-effective

A common complaint about arbitrations in general (and the ICC in particular) is that it is tooexpensive. The ICC (unlike, for example the LCIA) fixes its costs as a percentage of theamount claimed, so in large-scale, complex arbitrations, the costs to the parties are high. Inreturn, the ICC Secretariat keeps the arbitration moving along and the ICC Court scrutinisesall awards before they are handed down by the arbitral tribunals. However, critics complainthat this simply adds a layer of bureaucracy and that the Court does little more than checkfor grammatical and typographical errors, since it does not review evidence or heararguments first-hand.

It is worth noting that the Administrative Expenses under the new Rules have beenincreased. For example, the expenses for a dispute worth between USD 1 million and USD2 million have been increased from 0.70% to 0.95% of the sum in dispute. Arbitrators' fees,too, have generally increased. Under the old rules, for a dispute worth between USD 1million and USD 2 million, arbitrators could charge between a minimum of 0.50% and amaximum of 2.75% of the disputed sum. Under the new Rules, the minimum for the samedisputed sum is now 0.689% and the maximum is 3.604%.

More generally, a new provision has been introduced, specifying that both the tribunal andthe parties "shall make every effort to conduct the arbitration in an expeditious and costeffectivemanner, having regard to the complexity and value of the dispute". The tribunal isalso given power to adopt appropriate procedural measures to meet this objective (providedthe parties have not agreed otherwise).

Procedural Changes

The new Rules introduce some significant procedural changes. The main ones are listedbelow:

  1. Whereas under the old rules and arbitrator need only provide a statement ofindependence, under the new Rules, a statement of acceptance and availability isrequired. This will be of particular importance where a popular arbitrator is likely toreceive a request to act in another arbitration after agreeing to act during a particulartimeframe.Arbitrators must now also confirm their impartiality as well as their independence. Thisbrings the ICC rules into line with other major arbitral institutions, such as the LCIA(and, the English Arbitration Act 1996 also requires arbitrators to be impartial).
  2. Emergency Arbitrators: A common problem is that emergency interim relief may berequired by a potential party to an arbitration in order to preserve the status quo incircumstances where the tribunal has not yet been constituted. In appropriate cases, itis possible in a case of urgency for a party to apply to the English court (wherever theseat of the arbitration is likely to be) for an order to preserve assets or evidence.The new rules now provide that a party which needs urgent interim relief before thetribunal has been constituted can apply to an "emergency arbitrator", who isempowered to make an order which the parties agree to observe. The duly constitutedtribunal can subsequently modify or annul the emergency arbitrator's order.However, the emergency arbitrator rule applies only where parties have entered intoan arbitration agreement after 1 January 2012 (and the parties can also agree to optout of this provision or can agree another form of pre-arbitral procedure for interimrelief). It may be that parties will, in any event, prefer the perceived "force" of a courtorder over an emergency arbitrator's order.
  3. Multi-party and multi-contract arbitrations: The new rules recognise the complexity ofinternational arbitrations. The inability to join third parties to an arbitration is a difficultywhich parties to litigation do not face. Multiple arbitrations to resolve a dispute whichinvolves many different parties also push up the overall cost of the arbitration process.The ICC seeks to address this issue by widening its consolidation procedures. Underthe old rules, parties could only request that multiple claims arising out of a legalrelationship be heard together in an arbitration between the same parties.The new Rules provide that: (a) additional parties can be joined to an arbitration beforethe arbitrators have been appointed (and there is no requirement that such additionalparty be a party to the arbitration agreement); (b) claims can be made betweenmultiple parties to an arbitration; (c) claims arising out of multiple contracts can beheard in a single arbitration, even where more than one arbitration agreement applies;and (d) the ICC Court can consolidate two or more arbitrations into a single arbitrationif the parties agree or all the claims are made under the same arbitration agreement orthe disputes arise in connection with the same legal relationship and the ICC Courtfinds that the arbitration agreements are "compatible".
  4. Case management: As mentioned above, the new Rules aim to speed up ICCarbitrations. As a result, it is now compulsory for the tribunal to convene a casemanagement conference to consult the parties on measures to ensure that thearbitration is expeditious. Appendix IV of the new Rules provides examples of casemanagement techniques which the tribunal might adopt. These include requiring theparties to produce with their submissions the documents on which they rely, avoidingrequests for document production (if appropriate) to control time and costs and limitingdisclosure requests to documents which are relevant and material to the outcome ofthe case.

    So far as disclosure is concerned, these new provisions do not represent a shift in theICC's stance. As before, there is only very limited provision for documentary disclosureit is up to the parties to agree on the scope of this or ask the tribunal for an order. Thisdefault position is also adopted by, for example, the LCIA and UNCITRAL, whichprovide that parties need only disclose the documents on which they rely.
  5. Challenging jurisdiction: Under the old rules, the ICC Court itself heard anyjurisdictional challenges. Under the new rules, the decision is made by the arbitratorsthemselves, unless the Secretary General of the ICC refers the matter to the ICCCourt. This is intended to speed up the hearing of such challenges.

    Finally, it should be noted that the new Rules provide that the ICC Court is the onlybody authorised to administer arbitrations – accordingly, clauses providing for an adhoc arbitration under ICC Rules will be ineffective (although the parties could agree torefer to the ICC Rules for guidance).

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.

Nigel Brook
Similar Articles
Relevancy Powered by MondaqAI
Herbert Smith Freehills
Clyde & Co
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Herbert Smith Freehills
Clyde & Co
Related Articles
Related Video
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