The revised ICC Rules of Arbitration are in effect as of today, 1 March 2017. The Rules were revised to increase efficiency and accountability in ICC arbitrations and, most significantly, the revised Rules provide for a new expedited procedure that brings the ICC into line with fast-track procedures already available in a number of other arbitral institutions around the world.
Unless parties opt out, the ICC’s new Expedited Procedure Rules will automatically apply to all arbitrations with arbitration agreements concluded after 1 March 2017 and with amounts in dispute up to US$2 million. And while the ICC Court has discretion to determine that the expedited procedure is inadequate for any matter on a case-by-case basis, parties may elect to opt into the Expedited Procedure Rules for arbitrations amounts in dispute higher than US$2 million as well.
Arbitrations proceeding under the new Expedited Procedure Rules will be significantly simplified, allowing matters to move forward more efficiently. First, regardless of what the arbitration agreement provides, the dispute will be referred to a sole arbitrator (to be appointed by the ICC Court or the parties) whose fees are on a reduced scale. Then, expedited matters will bypass the Terms of Reference altogether – a process that could take up to 2 months under the prior Rules – and instead will go straight to a case management conference within 15 days of sending the file to the tribunal. An award then must be rendered within six months of that conference. In total, expedited proceedings should not take longer than 6.5 months from start-to-finish, unless limited and justified circumstances warrant an extension.
To allow matters to proceed on such a fast track, arbitrators may choose to limit the scope of disclosures, witness statements, expert reports and/or written submissions in the expedited proceedings. Indeed, arbitrators have discretion to decide expedited cases without any document disclosures and even without hearings. Or, if hearings are needed, the Expedited Procedure Rules allow flexibility to hold them by video or teleconference.
Parties to arbitrations with amounts in dispute greater than US$2 million or with arbitration agreements concluded before today need not feel left out: as noted above, the ICC Rules provide a mechanism to opt into the expedited procedures. And moreover, the amended Rules have new features that provide for greater efficiency and accountability in all ICC arbitrations. The timeline for the Terms of Reference was cut in half from two months to 30 days in the revised Rules, for example. And a clause in the prior version of the Rules that prohibited the ICC Court from communicating its reasons for deciding to appoint, confirm, challenge or replace an arbitrator has been deleted, providing more transparency into the Court’s decision-making process.
Overall, the 2017 ICC Rules updates are not as comprehensive as the last round of revisions in 2012, and most ICC arbitrations will continue to proceed much as they have been – with a few tweaks. But as described above, even though potential arbitration could be far off for parties who are entering into arbitration agreements now, those are the parties for whom the revisions are most relevant. For all commercial agreements with ICC arbitration clauses that conclude after today, parties should be aware that the Expedited Procedure Rules automatically will apply to disputes for amounts less than US$2 million unless the parties explicitly opt out in the arbitration agreement. And similarly, parties including ICC arbitration clauses in agreements after today should consider whether they may want to opt in to the Expedited Procedure Rules for disputes with claims over US$2 million. The parties may set their own threshold amount for opting into the expedited procedures (for example, all arbitrations with amounts in dispute below US$20 million), or they may opt into the expedited procedures for all arbitrations irrespective of the amount in dispute. The revised ICC Rules provide model language that is recommended to effect the parties’ intentions regarding opting in or out of the Expedited Procedure Rules.
For the complete set of the updated ICC Rules, please click here.