On March 1, 2017 the new Arbitration Rules of the International Chamber of Commerce (ICC) entered into force ('ICC Rules'). The new Rules have introduced a number of changes with the major one being the introduction of an expedited procedure – such an introduction brings the ICC arbitration procedures closer to those available in other international arbitration fora (for example, SIAC, AAA, Arbitration Institute of Stockholm and the Hong Kong International Arbitration Center).
The ICC in its Note to Parties and Arbitral Tribunals comments that by agreeing to the ICC Rules the parties agree to Article 30 of the Rules and Appendix VI, which comprise the expedited procedure provisions.
By virtue of Article 30, the expedited procedure provisions shall apply where:
1. the sum in dispute does not exceed US$ 2 million. For the purposes of calculating this amount (and whether the expedited procedure provisions apply, the amount in dispute includes all quantified claims, counterclaims, cross-claims and claims pursuant to Articles 7 (joinder of parties) and 8 (multiple parties);
2. the arbitration agreement was concluded after March 1, 2017; and
3. the parties have not opted out of the expedited procedure provisions in the arbitration agreement or any time thereafter. Such agreements to opt out are required to be specific. The reference for example to an arbitration before 3 arbitrators will not be sufficient to oust the application of the expedited procedure provisions. The ICC has provided standard form language for parties to use who wish to opt out of the expedited procedure provisions and it is recommended to use that language.
It can be noted that parties can elect to opt into the expedited procedure provisions even if the amount is more than USD 2 million or amend an arbitration agreement from before March 1, 2017 to provide that these provisions will apply. Again, the ICC has provided standard form language for parties to use who wish to opt in the expedited procedure provisions and it is recommended to use that language.
In brief, the main features of the expedited procedure are as follows:
1. The ICC Court may and will normally appoint a sole arbitrator – notwithstanding any contrary provision in the arbitration agreement. So, the parties' consent to arbitration under the ICC Rules is subject to the ICC Court's discretion to appoint a sole arbitrator where the expedited procedure provisions apply;
2. Once the Tribunal is constituted no new claims will be allowed; absent the Tribunal's express consent;
3. Terms of Reference – a usual feature of ICC arbitrations - are not required;
4. The case management conference shall be held 15 days after the file is transferred to the Tribunal and the final award shall be made within 6 months of the case management conference. Only the ICC Court can extend the periods.
5. The Tribunal may, after giving the parties the chance to state their views, decide the case on documents; decide not to allow requests for production of documents, and limit the number, scope and length of submissions.
6. The ICC scales for Administrative Expenses and Arbitrator's Fees for expedited procedure provisions shall apply and the arbitrator's fees under these scales are 20% less than the general ICC scales.
Additional changes introduced by the 2017 ICC Rules include:
1. Reducing the period for finalizing the terms of reference from 3 months to one month.
2. Any party can now request that the ICC Court will give its reasons for decisions made on challenges of an arbitrator, to initiate replacement arbitrator proceedings and replace an arbitrator as well as to jurisdiction and consolidation of proceedings.
3. The initial fee to be paid with a request for arbitration been increased to USD 5,000 and there is a revised fee scale effective as of January 1, 2017.
References: ICC Rules on Arbitration, 2017; ICC Note to the Parties and Arbitral Tribunals on the Conduct of Arbitration – both available on ICC website
