UK: Overview Of Key Changes To The ICC Rules For International Arbitration

Last Updated: 22 July 1997

Stewart R Shackleton

Meeting in Shanghai on 8 April 1997, the 173rd ICC International Council approved a series of proposed amendments to the ICC Rules of Arbitration. The new Rules are now set to come into force on 1 January 1998. ICC Rules have long enjoyed international popularity because of their concise and simple statements of universally adaptable procedures. The Rules have been tested in a wide variety of legal systems in jurisdictions around the world. They are of proven workability.

Why the recent changes?

Apart from certain minor adjustments in 1988, the last time the ICC Rules underwent any significant modification was in 1975. Recent reforms are the result of developments since then. There is increased competition. More arbitration centres have been set up. Improved arbitration rules have been developed for the new centres. In addition, ad hoc arbitration has been given renewed popularity following the publication and dissemination by the UN in 1976 of comprehensive procedural rules (UNCITRAL Rules).An increasing number of countries, including most of the important trading nations, have adopted, or are about to adopt, versions of the 1985 UNCITRAL model arbitration law which makes ad hoc arbitral proceedings in some major centres safer and more effective than ever. There are today, arguably fewer benefits and thus less justification for the extra costs of administered arbitration.

Aims of ICC revisions

Some of the ICC revisions are aimed at reducing costs by simplifying administration and improving case management to shorten delays for the appointment of, and transmission of a file to, an arbitral tribunal. New procedures have been added. The Rules have been rearranged to increase coherence of presentation so that the procedures will be more easily understood by users. Certain ambiguities in the Rules and discrepancies between the English and French versions have been eliminated to reduce unpredictability. Allowances have been made for advances in modern communications technology. Other changes reallocate responsibilities within the ICC, confirm present ICC practice or transfer to the Rules themselves certain of the internal rules of the International Court of arbitration.

The changes in the Rules are also a response to perceived shortcomings highlighted by a few widely publicised cases before municipal courts which attracted considerable commentary and suggestions for improvement.

Terms of Reference

One unique feature of ICC arbitration since 1923, the requirement that arbitration proceed on the basis of formal Terms of Reference ('TOR'), was subject to extensive debate. Under the current r 13, the TOR must include inter alia brief statements of each party's respective claims, a definition of the issues to be determined by the arbitrators and particulars of the rules of procedure to be followed.

Because parties sometimes engage in protracted negotiations over the wording of the TOR, the procedure has been criticised as a cause of unnecessary complication leading to more cost and delay. Some view it as a comparative disadvantage since no other institutional rules contain a similar requirement. Common law lawyers often find the TOR to be a restrictive practice which defines issues prematurely and shuts out the possibility that issues may evolve during the course of proceedings.

Advantages of TOR

Supporters of the TOR, on the other hand, see them as the principal advantage and distinguishing feature of ICC arbitration. They consider the TOR to be a valuable procedural tool which saves costs and reduces delays in the long term by focusing attention early in a dispute, thereby reducing the amount of litigation unrelated to the central issues. The TOR facilitate the structuring of an arbitration. They can also serve to cure defective arbitration clauses or settle at the outset questions of place, language and procedure of the arbitration. This can be a positive element for dispute settlement between parties of divergent cultural and legal backgrounds who may approach arbitration with conflicting expectations. The TOR allow parties an opportunity to resolve other important preliminary questions such as the applicable law. The TOR also assist the ICC Court in the scrutiny of awards and help to ensure that a final award will be enforceable by providing a means of ultra petito control.

The working party entrusted with the revision of the ICC Rules was, as part of its mission, instructed to retain the TOR as one of the 'fundamental characteristics of ICC arbitration'. However, an essential part of the TOR is now effectively optional. The new r 18 requires ICC arbitrators to include a list of issues in the TOR unless they consider this to be inappropriate.

TOR and payment of advance on costs

At present, the TOR become 'operative' only with respect to claims for which the advance on costs for the fees and expenses of the arbitrators and administrative costs has been paid. To reduce delays, the new Rules aim completely to disconnect the TOR from payment of the advance on costs. When proceedings are commenced under the new Rules, the ICC Secretary General will be able to request the claimant to pay a 'provisional advance' on costs calculated to cover only the period up to the time at which the TOR are drawn up (r 30. ]).This amount will be credited against the full advance on costs to be fixed by the ICC Court 'as soon as practicable' (r 30.2). In any event, under the new r 18(3), once the TOR 'are approved by the Court the arbitration shall proceed'.

Where an advance on costs has not been paid, the Secretary General will be able to request the tribunal to suspend work (r 30.4). It should be noted, however, that appendix III(I)(3) to the Rules instructs the tribunal to proceed after approval of the TOR, 'in general' and in accordance with r 30.4, only with claims for which payment has been received.

TOR and 'new claims'

Under the current r 16. parties may make new claims or counterclaims during the course of proceedings only if these remain within the limits fixed by the TOR. To allow greater flexibility, a new rule on 'new claims' (r 19) confers discretion on the arbitrators to authorise parties to raise claims which fall outside the TOR. The tribunal must have regard to relevant circumstances including the nature of the new claims or counterclaims and the stage of proceedings.

Multiple parties

An entirely new rule for multiple parties has been introduced as a consequence of the decision by the French Cour de cassation in Siemens AG and BKMI lndustrienlagen GmbH v Dutco Consortium Construction Company Ltd (Cass Ire civ, 7 January 1992, Bull civ 1, no 2; Rev. arb, 1992.470, note Pierre Bellet). The ICCs practice had been to require multiple respondents to agree jointly on a party-appointed arbitrator, failing which the ICC would make the appointment on behalf of all of the respondents-even where the claimant or claimants had already appointed an arbitrator. The Cour de cassation took the view that this practice amounted to unequal treatment of a respondent deprived in the circumstances of the same opportunity to choose an arbitrator

Under the new r 10, multiple parties will be able to appoint arbitrators provided they act collectively for the purposes of appointment as a single claimant or respondent. If this joint nomination procedure fails as, for example, where either the claimants or respondents are unable to agree on a nomination, and the parties fail to agree on some other party-appointment method, the ICC Court will choose and appoint all three members of the tribunal and nominate one to act as the Chair

Tribunal's powers to grant interim relief

The existing Rules, do not expressly set out an arbitral tribunal's power to grant interim relief. Actual practice relies on the short phrase 'relevant powers reserved to the arbitrator', which appears in the context of provisions for application to the courts for such relief (currently r 8.5) as the basis for a tribunal's inherent power to make interim or conservatory orders. The lack of an express provision became problematic following the House of Lords decision in SA Copee-Lavalin NV v Ken-Ren Chemicals and Fertilisers Ltd [1994] 2 All ER 449. Rule 23 now clarifies the situation confirming an CC arbitral tribunal's power to order any interim or conservatory measures it deems appropriate at the request of a party and as soon as it receives the file from the ICC Secretariat. Such relief may be in the form of an order or an award and may be subject to security provided by the requesting party.

Location of arbitration

Clarification of the notion of the 'place' of an arbitration has been introduced as a result of the House of Lords decision in Hiscox v Outhwaite [1992] I AC 562, which held that an arbitration award was made in Paris simply because it was signed there. Rule 14 will allow an arbitral tribunal to conduct hearings and meetings at any location it considers appropriate unless the parties agree otherwise. The tribunal will be free to deliberate at any location it chooses regardless of the parties' views. Wherever the tribunal chooses to meet or deliberate, r 25(3) now specifically provides that an award will be deemed to be made at the place of arbitration chosen by the parties or fixed by the ICC.

Applicable 'rules of law'

The applicable law provision has been modified to bring it into line with rules recently adopted by other institutions and jurisdictions and with what is already, in fact, current ICC arbitral practice. ICC arbitrators will be required to apply the 'rules of law' chosen by the parties. They will still, 'in all cases', also apply the terms of the contract and relevant 'trade usages'. Where the parties have not made a choice of law, ICC arbitrators will apply the 'rules of law' which they consider 'appropriate' (r 17) rather than 'the proper law'. Reference to a 'rule of conflict' has likewise been deleted.

Some other modifications

The arbitral tribunal is under a duty to 'act fairly and impartially and ensure that each party has a reasonable opportunity to present its case' (r 15.2).
The words 'arbitral tribunal', 'claimant, 'respondent' and 'award' are now defined terms (r 2).
Liability of the ICC Court, arbitrators and the ICC is excluded (r 34).
A request for arbitration will have to contain inter alia a statement of the relief sought including, where possible, an indication of any amounts claimed as well as comments on the applicable rules of law, language and the place of arbitration (r 4.3).
The delay for parties to nominate an arbitrator where there is no agreement between them on the number of arbitrators, but where it appears to the ICC Court that a three-member tribunal is appropriate, has been shortened from 30 days to IS days (r 8.2).
Prospective arbitrators must be amiable and capable of conducting an arbitration (r 9. 1).
To speed appointments, the Secretary Genera], rather than the ICC Court, will be able to confirm party-nominated co-arbitrators, sole arbitrators and the chairs of arbitral tribunals (r 9.2).
Provided that advances on costs requested by the Secretariat have been paid, a file will be transmitted to the arbitral tribunal 'as soon as it has been constituted' (r 13) rather than upon receipt of the respondent's answer.
A party which proceeds with the arbitration without objecting to any failures to comply with the ICC Rules or any other applicable rules, directions given by the arbitral tribunal or the agreement relating to the constitution of the arbitral tribunal will be deemed to have waived its rights to object (r 33).
Parties may agree to shorten time limits set out in the Rules, but any variation after the arbitral tribunal is set up will be effective only if approved by the tribunal-the ICC Court will be empowered to extend any such time limits on its own initiative (r 32).
Parties will be assured of an opportunity to question tribunal-appointed experts at a hearing (r 20.4).
The arbitral tribunal will be able to summon any party to provide additional evidence (r 20.5).
The arbitral tribunal may take measures to protect trade secrets and confidential information (r 20.7).
The procedure of 'closing the proceedings' is introduced and will be mandatory (r 22).
After the close of proceedings, no further submissions or arguments may be made or evidence produced, unless requested or authorised by the arbitral tribunal (r 22.I).
Instead of replacing an arbitrator who dies or is removed after the close of proceedings, the ICC Court will be able to decide that the truncated tribunal shall continue the arbitration (r 12.5).
Provision is made for arbitrators to correct clerical errors in an award and parties will be able to apply for the correction of such errors or for the interpretation of an award by the arbitrators within 30 days of the date on which it is rendered (r 29).

The new Rules will apply to ICC arbitrations commenced after 1 January 1998 unless the parties have specifically agreed to submit to the Rules in effect on the date of their arbitration agreement.

This article was first published by F T Law & Tax in Practical Arbitration Journ. Further information can be found at http:\\ on the FT Law & Tax homepage.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.