ICC issues updated Note providing guidance to parties

The Note provides parties and arbitral tribunals with practical guidance concerning the conduct of arbitrations under the ICC Rules and summarises the practices of the ICC Court. The updates were discussed by the Bureau of the ICC Court during its annual Working Session which took place in Paris on 25 and 26 October 2018, further to proposals made by ICC Court President Alexis Mourre and the ICC Court Secretariat.

Mr Mourre said: “These amendments reflect the Court’s continuous efforts, consistent with the new policies that have been introduced in the past three years, to provide more transparency in its practices, increase the efficiency or our arbitrations and offer an ever wide range of services to our users”

The salient points of the revised Note are as follows:

a) Disclosures by arbitrators and prospective arbitrators (par. 24):

The Note clarifies that disclosures should be made not only with respect to the parties and their affiliates, but also to non-parties having an interest in the outcome of the arbitration. In this regard, the Note highlights the practice of the Secretariat to identify, at the outset of the arbitration, a list of “relevant entities”. That practice is meant to assist prospective arbitrators in preparing their disclosures. The identification of said entities made by the Secretariat, however, does not necessarily mean that the mentioned entities are relevant for the scope or disclosures, or that disclosures should not be made with regard to other non-parties not identified by the Secretariat. Ultimately, it is for the prospective arbitrator to assess whether disclosures should be made in respect of non-parties. As the Note points out, prospective arbitrators may contact the Secretariat in case of doubt

b) Additional services in respect of the constitution of arbitral tribunals (par. 32-33):

Under the ICC Rules, parties may agree to nominate a sole arbitrator or a presiding arbitrator for confirmation by the ICC Court. In such case, the Note sets out that the Secretariat may assist the parties by proposing possible candidates or providing non-confidential information on identified candidates.

In absence of an agreement between the parties on the appointment of a sole arbitrator or a presiding arbitrator, such appointment will be made by the ICC Court. It may in certain cases be desirable, however, to allow the parties to be involved in the selection process. To that effect, the parties may agree that the appointment will be made with the Secretariat’s involvement, particularly by way of a list procedure.

c) Transparency:

Two important innovations have been included in the Note.

• First, as from 1 July 2019, the already existing information published on the ICC Court’s website as to the composition of ICC tribunals will be enriched by the sector of industry involved and the identity of counsel representing the parties (par. 36).
• Second, all awards made as from 1 January 2019 may be published, no less than two years after their notification, based on an opt-out procedure (par. 40-46). The parties may agree to a longer or shorter time-period. Any party may at any time object to publication of an award, or request that the award be sanitized or redacted. In such a case, the award will either not be published or be sanitized or redacted in accordance with the parties’ agreement.

The parties will be specifically informed of this practice and of their right to object at the time of notification of the award, as well as in advance of any publication. In the presence of a confidentiality agreement, the Secretariat will seek their specific consent. The Secretariat may also decide to seek specific consent, or exempt an award from publication, in certain sectors of industry or in sensitive cases.

d) Data protection (par. 80-91):

An entire new section of the Note is devoted to compliance with European Union General Data Protection Regulation (GDPR) regulations. In particular, the Note clarifies that by accepting to participate in an ICC Arbitration, parties, their representatives, arbitrators, the administrative secretary, witnesses, experts and any other individuals that may be involved in any capacity in the arbitration accept that their personal data will be collected, transferred, archived and as the case may be, published.

The Note further reminds parties of their duty to ensure that said individuals are aware and accept the use of their personal data. Arbitral tribunals shall to that effect, at an appropriate time in the arbitration, remind the parties and other participants in the arbitration that their data may be used, as well as of their right under the GDPR Regulation to seek the correction or suppression of the same. It is in particular encouraged to include a clause to the effect in the Terms of Reference and the Secretariat is available to recommend a model clause.

e) Treaty-Based arbitrations and submissions by amici curiae (par. 139-143):

The ICC Court administers a growing number of investor-State arbitrations, and the Note introduces some further guidance in this respect.

Prospective arbitrators are first of all encouraged, for the sake of transparency, to disclose in their CV a complete list of treaty-based cases in which they participated as arbitrator, expert or counsel.

The Note also specifies that the parties may agree in an ICC Arbitration to apply in all or part the UNCITRAL Rules on Transparency, and that the Secretariat may in such a case act as repository.

As to scrutiny of draft awards by the ICC Court, in view of the specificity of investment arbitration, treaty-based awards will be scrutinized in a plenary session including ICC Court members having specific experience in the field. It is also provided that treaty-based awards may be published six months after their notification, rather than the two years applicable for other awards.

Finally, the Note makes it clear that, pursuant to Article 25(3) of the Rules, arbitrators have the power, after consulting the parties, to hear submissions by amici curiae.

f) Duties of administrative secretaries (par. 183-188):

The previous version of the Note has at times been perceived as unduly restrictive of the tasks that may be entrusted to an administrative secretary. The revised Note clarifies that administrative secretaries may, under the control of the arbitral tribunal, perform tasks such as drafting correspondence and sending it on behalf of the tribunal, and preparing for the tribunal’s review drafts of procedural orders as well as of factual portions of the award, such as the summary of the proceedings, the chronology of facts and the summary of the parties’ positions. It, however, remains strictly impermissible for any tribunal to delegate all or part of its decision-making functions to the secretary, whose tasks shall in no circumstance release the arbitrators from their duty to personally review the file.