The current ICC Arbitration Rules are those of 2012, as amended in 2017 (‘2017 Rules’), and have been changed to reflect the practices of the International Court of Arbitration (‘the Court’), the needs of users and developments in the dispute resolution and trade landscapes.
The 2021 Rules will apply to any ICC arbitration commencing on or after 1 January 2021, unless the parties have agreed otherwise. The 2017 Rules will continue to apply to any ICC arbitration registered prior to 1 January 2021.
Here are the most significant 7 changes in the 2021 Rules regarding commercial arbitration.
1. Digital arbitration
Generally, the Court has been modernising case management tools and had already issued a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic.
Now, the requirement to supply hard copies of pleadings and other communications has been deleted from the 2021 Rules. Electronic communication is enshrined as the primary method, which still allows the parties and the Court’s Secretariat to comply with mandatory legal requirements, as the case may be, for physical notifications.
The reference to a hearing “in person” is deleted from the 2021 Rules too. The arbitral tribunal is still bound to organise a hearing if any of parties requests so or can do so on its own motion. The rules now expressly provide that the tribunal may, after consultation with the parties, decide to conduct any hearing remotely by the appropriate means of communication.
2. Joinder and consolidation
Under the 2017 Rules, a request for joinder was impossible unless all the parties agreed prior to the constitution of the arbitral tribunal. Under the new 2021 Rules, the tribunal may, after it is constituted, decide on any joinder request even if not all the parties agree. The 2021 Rules provide for a number of circumstances that the tribunal may take into account when makings its decision.
The updated rules now allow for the consolidation of arbitration proceedings where claims stem from more than one arbitration agreement. This change addresses the confusion that existed under the 2017 Rules, which referred to claims made under the same arbitration agreement.
3. Avoiding conflicts of interest
For the first time the Arbitration Rules provide for transparency regarding third-party funding. To allow (prospective) arbitrators to assess their impartiality and independence, the parties must provide information on the involvement of any third-party funder.
Certain ‘guerilla’ tactics consist of creating a conflict of interest for an arbitrator by changing counsel. The arbitral tribunal now has, after allowing the parties to comment, the power to take appropriate measures in this respect, including the exclusion of new party representatives from participating in the proceedings.
4. Case management techniques
Under the previous rules, the arbitral tribunal had the option of adopting such procedural measures as it considered appropriate. Under the 2021 Rules the tribunal has a positive duty to ensure effective case management. The list of case management techniques referred to has not changed, apart from the option of encouraging the parties to settle.
5. Expanded scope of Expedited Procedure
Under the 2021 Rules, the Expedited Procedure provisions apply if the amount in dispute does not exceed USD 3mio and unless the parties have opted out. This amount has been increased from USD 2mio for arbitration agreements entered into on or after 1 January 2021. The previous threshold continues to apply if the arbitration agreement is entered into before 1 January 2021 (but on or after 1 March 2017).
6. Additional awards
A party may apply for an additional award in the event that the arbitral tribunal omitted to decide on a certain claim raised during the proceedings. The new rules provide for the appropriate procedural framework in this respect.
7. Organisational transparency
The new 2021 Rules provide valuable insight into the Court’s organisation and fine-tunes its internal working. The Court has also committed to communicating its reasoning on a number of decisions when requested by any party. This increases transparency in the context of the arbitral proceedings.
The Court’s update of the Arbitration Rules is useful and appropriate. A critic might regret that the opportunity was not taken to make a provision for data protection. Nevertheless, the revised rules allow for efficient and flexible arbitration in a changed landscape.