In September 2011, the International Chamber of Commerce (the ICC) held two events—one in Paris and one in New York—for the purpose of releasing the long-anticipated new version of its Arbitration Rules (the new Rules). As the ICC is the most widely-used international arbitration institution in the world, the changes heralded by the new Rules are important to any company involved in international commerce. The new Rules become effective on 1 January 2012.
The new Rules present some major revisions to the current version of the ICC Arbitration Rules (in effect since 1998), including the addition of several new articles (e.g., ”Joinder of Additional Parties”, “Multiple Contracts” and “Consolidation of Arbitrations”) and the addition of two new Appendices (IV and V). Overall, the changes provide for increased efficiency and improved neutrality to the ICC Arbitration Rules, and demonstrate a progressive evolution of the ICC arbitration regime.
The most important improvement to the efficiency of the ICC Arbitration Rules is the new, mandatory case management conference provision (new Article 24), which requires that the arbitrators convene a case management conference at the outset of the arbitration, with the parties present, both to establish a procedural timetable for the arbitration and to adopt efficient case management techniques (new Article 24 (1)). Far from simply imposing another formality on the arbitral process, this change mandates an entirely new approach in which the arbitrators and the parties must discuss and determine the most efficient way of proceeding with the arbitration. This change is supported by numerous other new efficiencies in the rules, including a new rule requiring that arbitrators confirm their availability in writing before agreeing to handle a case (new Article 11(2)), a new rule requiring both parties and arbitrators “to make every effort to conduct the arbitration in an expeditious and cost-effective manner” (new Article 22(1)), and a new rule allowing arbitrators to request the attendance of the in-house lawyers of the parties at case management conferences (new Article 24 (4)).
The new Rules also provide for improved neutrality by expressly requiring that arbitrators not only be “independent,” but also “impartial” (new Articles 11 (1) and (2)). To avoid abusive challenges to arbitrators on the ground of impartiality, however, the new Rules have set an objective standard for determining whether an arbitrator is impartial (“reasonable doubts as to the arbitrator’s impartiality”) (authors’ emphasis) that is lower than the subjective standard applied to arbitrator independence (mere appearance “in the eyes of the parties”).
The new Rules also provide for some major development in the evolution of the ICC system, including
- The integration of an emergency arbitrator provision, which, subject to opt-out by the parties, permits the parties to seek expedited injunctive relief from an “emergency arbitrator” before the constitution of the arbitral tribunal (new Article 29).
- New provisions that allow the ICC Court to make prima facie rulings on whether an arbitration can proceed among multiple parties and/or multiple contracts, whether a third-party can be joined to the arbitration, and whether two separate arbitration proceedings can be consolidated before one tribunal (new Articles 6-10).
- The opening of ICC proceedings to investment treaty arbitrations, by, for example, contemplating the possibility of States as parties to ICC arbitrations (new Article 13 (4) (a)).