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The ICC has recently released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (the “Note”). The Note (available here) intends to provide parties and tribunals with practical guidance on ICC arbitrations. It provides clarifications on various practical issues and concerns in an ICC arbitration, such as inter alia, the expedited arbitration procedure, scrutiny of the award and the submissions by amicus curiae.
One interesting aspect of the Note is its section on the Publication of Awards (paragraphs 40-46). The Note provides that parties and arbitrators in ICC arbitrations accept that all ICC awards made after 1 January 2019 may be published.
The Note provides that at the time of the notification of the Final Award, the ICC secretariat will inform the parties that such a final award (and any other award, or separate or dissenting opinion) may be published in its entirety, two years after such a notification. The parties may agree for a shorter or longer time period for such a publication.
However, any party may object to the publication of any award. Parties may also require that the award may be anonymised or pseudonymised. The Note also provides that if a confidentiality agreement governs the arbitration or award, the publication will be subject to parties’ specific consent.
The ICC’s publication of awards is important as it provides potential users with information on how tribunals treat claims and the increased focus on transparency. However, parties who choose the ICC arbitration rules should keep these provisions in mind. Confidentiality of the process is one of the most important factors considered by users when opting for arbitration. As this Note applies to all awards published after 1 January 2019, parties should keep the implication of the Note in mind, and choose between the publication, non-publication, anonymisation or pseudonymisation of any award(s) in the ICC arbitration they are involved in.
If you have any specific concerns, please do get in touch with one of our arbitration team members.
10 April 2019
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