New ICC 2012 Rules of Arbitration

 

Introduction

On 1 January 2012 an updated version of the Rules of Arbitration of the International Chamber of Commerce (“ICC”) come into force (the “New ICC Rules”). These replace the ICC Rules that have been in force since 1 January 1998.

The changes made in the New ICC Rules are intended to reflect the institution’s experience in administering arbitrations since then and to improve efficiency and to take into account, in particular, the growing complexity of arbitration.

At the same time, the revision is not a radical overhaul. Many of the changes are cosmetic and the distinguishing features and processes of ICC Arbitration remain in place, so practitioners with experience of the institution’s workings will find much to be familiar.

When will the New ICC Rules apply?

The New ICC Rules come into force on 1 January 2012 and will, in general, apply to any ICC arbitration commenced on or after that date.

Key Amendments

There are a number of changes contained in the New ICC Rules. Some key ones are:

Case Management/Efficiency

The New ICC Rules contain a number of provisions designed to streamline the progress of an ICC arbitration. For example:

The arbitral tribunal and the parties are obliged to make every effort to conduct the arbitration in a cost-effective manner (article 22(1)) (a matter which is to be taken into account by the arbitral tribunal when making any costs award - article 37(5)).

The arbitral tribunal is obliged to convene a case management conference to consult the parties on the procedure to be adopted during the arbitration and to establish a procedural timetable (article 24). In order to ensure effective case management the tribunal may adopt such procedural measures as it considers appropriate (article 22(2)).

Under the previous ICC Rules, decisions on jurisdictional objections are considered by the ICC Court, a feature which has attracted criticism for causing potential delay. Under the New ICC Rules, the default position is for such matters to be determined by the arbitral tribunal – unless the Secretary General decides that it should be referred to the ICC Court (article 6(3)).

Where the ICC Court is to appoint an arbitrator there is provision, unlike the usual case under the previous ICC Rules, for it to bypass the recommendation of a National Committee if that body fails to make the same or the ICC Court considers it to be inappropriate (article 13(3)). This is intended to deal with criticism that the use of National Committees has caused delay.

Emergency Arbitrator (article 29)

A party that requires urgent interim or conservatory relief before the tribunal has been or is able to be constituted can apply for such measures from an “Emergency Arbitrator” under a new procedure introduced into the New ICC Rules. Such an application can be made only prior to the transmission of the file to the Arbitral Tribunal. The latter is not bound by the emergency arbitrators order and may modify or terminate it.

The Emergency Arbitrator procedure will not apply in all cases. Most notably if the parties have chosen to contract out of it or the arbitration agreement was concluded before the New ICC Rules came into force (article 29(6)).

Complex Arbitrations

Articles 7-10 of the New ICC Rules are a suite of provisions intended to provide a framework for the conduct of multi-party or multi-contract arbitrations. The areas which they cover are as follows:

Joinder (article 7) – these rules permit a party to submit a request to the Secretariat, before any arbitrator has been confirmed or appointed, for an additional party to be joined to the arbitration (assuming that an ICC arbitration agreement exists between it and the party making the joinder request).

Claims between multiple parties (article 8) – these complement the rules on joinder by making provision, in an arbitration with multiple parties, for any party to assert claims against any other.

Multiple contracts (article 9) – this rule clarifies that claims arising in connection with more than one contract referring disputes to ICC Arbitration may be made in a single arbitration.

Consolidation  (article 10) – provision is made for a party to be able to request that two or more arbitrations conducted under the New ICC Rules are consolidated into one. These provisions can only be activated where the parties have agreed to it (10(a)), all of the claims are made under the same arbitration agreement (10(b)); or, if the claims are made under different arbitration agreements, the arbitrations involve the same parties, the disputes are in connection with the same legal relationship and the ICC Court finds the arbitration agreements to be compatible (10(c)).

To view a copy of the New ICC Rules click here.

 

For further information please refer to your usual Linklaters LLP contact.