ICC Rules of Arbitration 2012 launched

The International Chamber of Commerce (ICC) has launched its revised Rules of Arbitration, which will come into force on 1 January 2012.

PLC Arbitration

The International Chamber of Commerce (www.practicallaw.com/8-201-5878) (ICC) has published revised rules of arbitration, which will come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012, which are published in a booklet along with the ICC ADR Rules, were launched in Paris on 12 September, at the first of a series of launch events scheduled for the coming months (for further details, see the PLC Arbitration Events Calendar (www.practicallaw.com/2-210-1968)).

The ICC Rules 2012 will apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). They take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.

The launch of the ICC Rules 2012 coincides with the launch of the ICC International Centre for ADR, previously informally known as the ICC "green services".

Key features of the ICC Rules 2012 include:

  • The ICC Court will be the only body authorised to administer resolution of disputes under the ICC Rules 2012.

  • An emergency arbitrator procedure.

  • New provisions for multi-party and multiple contract situations.

  • Provisions aimed at efficient case management.

  • The power of the arbitral tribunal to decide questions of jurisdiction.

  • The appointment of arbitrators by the ICC Court directly, rather than following a proposal by an ICC National Committee or Group, where one or more of the parties is a state or a state entity.

  • Requirement for arbitrators to be "impartial and independent" (as opposed to just "independent").

  • Express power to make confidentiality orders.

  • Deletion of references to outmoded methods of communication (such as telex, facsimile transmission and telegram), to be replaced by reference to e-mail.

PLC Arbitration is reviewing and amending its materials to reflect the ICC Rules 2012.

Only ICC Court authorised to administer arbitration under ICC Rules 2012

The ICC Court will be the only body authorised to administer arbitrations under the ICC Rules 2012 (Article 1(2)). By agreeing to arbitration under the ICC Rules 2012, the parties will have accepted that the arbitration will be administered by the ICC Court (Article 6(2)).

This provision means that clauses that provide for arbitration under the ICC Rules but administered by another institution (or ad hoc arbitrations under the ICC Rules) will no longer be effective. Such a clause was upheld by the Singapore Court of Appeal in Insigma Technology Co Ltd v Alstom Technology [2009] SGCA 24 (see Legal update, Singapore: important developments in 2009 (www.practicallaw.com/5-501-0459)).

Emergency arbitrator

Like the Stockholm Chamber of Commerce (SCC) and the Singapore International Arbitration Centre (SIAC), the ICC Rules 2012 now include provisions allowing the appointment of an emergency arbitrator to deal with applications for urgent interim or conservatory measures ("emergency measures") before the constitution of a tribunal (Article 29 and Appendix V). However, the emergency arbitrator provisions will not apply where:

  • The arbitration agreement was concluded before 1 January 2012.

  • The parties have agreed to opt out of them.

  • The parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures (such as the ICC Pre-Arbitral Referee Procedure).

(Article 29(6).)

Furthermore, the emergency arbitrator provisions only apply to parties that are either signatories to the arbitration agreement or successors to such signatories.

Any application for "emergency measures" must be received by the Secretariat before transmission of the file to the tribunal and can be made before the Request for Arbitration is filed (Article 29(1)). The current fee for an application is US$40,000 (US$10,000 for ICC administrative expenses and US$30,000 for the emergency arbitrator's fees and expenses), subject to increase depending on the circumstances (Article 7 of Appendix V).

The emergency arbitrator may make an order, which the parties agree to comply with (Article 29(2)). Once an arbitral tribunal has been constituted, it is not bound by the emergency arbitrator's order, which it may modify, terminate or annul (Article 29(3)).

Multiple parties, multiple contracts and consolidation

The ICC Rules 2012 contain provisions that reflect the increasingly complex nature of disputes, which frequently involve multiple parties or contracts. Article 10 broadens the more limited consolidation mechanism currently found in Article 4(6) of the ICC Rules 1998. The ICC Court may now consolidate two or more arbitrations where the parties agree, all of the claims are made under the same arbitration agreement, or, if not the same arbitration agreement, the parties are the same and the arbitration agreements are compatible.

There are also new rules on:

  • Joinder of additional parties. A party can apply to the Secretariat to join an additional party to the arbitration. Any application must be made before the tribunal is constituted, unless all the parties agree otherwise (Article 7).

  • Claims between multiple parties. In multi-party arbitrations, Article 8 permits any party to make claims against any other party.

  • Multiple contracts. Claims arising out of or in connection with more than one contract may be made in a single arbitration (Article 9).

Provisions for efficient case management

The ICC Rules 2012 contain a number of provisions designed to promote a more efficient, timely and cost-effective arbitral process. For example:

  • The tribunal and the parties must "make every effort" to conduct the arbitration in an expeditious and cost-effective manner (Article 22(1)).

  • The tribunal is empowered to adopt appropriate case management measures in consultation with the parties (Article 22(2)). Examples of the type of measures the tribunal can adopt are set out in Appendix IV and in the ICC's report on Techniques for Controlling Time and Costs in Arbitration.

  • To facilitate case management, the tribunal must convene a case management conference with the parties when drawing up the Terms of Reference or as soon as possible after doing so (Article 24(1)). This may be followed by further case management conferences or consultation with the parties, to ensure effective case management throughout the arbitration (Article 24(3)). It will be open to the tribunal to request that the parties attend any case management conference in person (Article 24(4)).

  • The tribunal is expressly authorised to take the parties' conduct into account when making decisions about costs, including the extent to which they have conducted the arbitration expeditiously and cost-effectively (Article 37(5)).

  • There is an attempt to streamline the timetable for delivering an award, including by requiring the tribunal to inform the Secretariat of the date by which it expects to send its draft award to the ICC Court for scrutiny (Article 27). (The ICC Rules 1998 require the tribunal to give an approximate date (see Article 22).)

In the context of efficient case management, the ICC has also published a report of of the ICC Commission on Arbitration Task Force on the Production of Electronic Documents in International Arbitration (see Techniques for Managing Electronic Document Production When it is Permitted or Required in International Arbitration).

Power of arbitral tribunal to decide questions of jurisdiction

Under the ICC Rules 1998, the ICC Court gives a prima facie decision on the existence of an arbitration agreement. However, under the ICC Rules 2012, it is the tribunal that will decide any question of jurisdiction, including whether all the claims can be heard in one arbitration, unless the Secretary General refers the matter to the ICC Court (Article 6(3)).

Appointment of arbitrators

The two main changes to the rules on appointment of arbitrators are:

  • Arbitrators must now be and remain "impartial and independent", rather than just "independent" as under the ICC Rules 1998 (Article 11(1)). The ICC Rules 2012 will therefore be consistent with the wording in the LCIA Rules and the UNCITRAL Rules, as well as the IBA Guidelines on Conflicts of Interest in International Arbitration. The ICC Rules 2012 also codify the requirement for arbitrators to sign a statement of acceptance, availability, impartiality and independence, following the introduction of the form of statement in August 2009 (Article 11(2)).

  • The ICC Court may appoint arbitrators directly, rather than following a proposal by a National Committee or Group, in certain cases. These include where one or more of the parties is a state or claims to be a state entity (Article 13(4)).

Confidentiality

The tribunal will now have express power to make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration (Article 22(3)).

Amendment to reflect current technology

The ICC Rules 2012 have been amended to reflect changes in technology and methods of communication since the last revision in 1998. Therefore, references to telex, telegram and facsimile transmission have been deleted, being replaced by e-mail or "any other means of telecommunication" that provides a record of sending (Article 3(2)).

 
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