ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration
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Arbitration & ADR Commission
The first edition of the Arbitration Commission Report on Controlling Time and Costs in Arbitration was published in August 2007. It provided a range of techniques that could be used to increase the time and cost efficiency of arbitration. The Report has been updated to reflect the various modifications made in the 2012 ICC Rules of Arbitration.
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Costs incurred by the parties constitute the largest part of the total cost of international arbitration proceedings. It follows that if the overall cost of the arbitral proceedings is to be reduced, special emphasis needs to be placed on steps aimed at lowering the costs connected with the parties’ presentation of their cases. Such costs are often caused by unnecessarily long and complicated proceedings with unfocused requests for disclosure of documents and unnecessary witness and expert evidence. Costs can also be unnecessarily increased when counsel from different legal backgrounds use procedures familiar to them in a manner that leads to needless duplication.
The increasing and, on occasion, unnecessary complication of the proceedings seems to be the main explanation for the long duration and high cost of many international arbitrations. The longer the proceedings, the more expensive they will be. The 2012 ICC Rules of Arbitration (the “Rules”) have expressly addressed these concerns.1
These Techniques for Controlling Time and Costs in Arbitration (the “Techniques”) are designed to assist arbitral tribunals, parties and their counsel in devising tailor-made procedures for individual arbitrations pursuant to Articles 22−24 of the Rules.
In particular, the Techniques may be of benefit to the parties and the tribunal when preparing the case management conference and seeking agreement on procedures suitable for their case. If the parties cannot reach agreement, the Techniques may also assist the arbitral tribunal in adopting procedures that it considers appropriate, taking into account its obligation to conduct the arbitration in an expeditious and cost-effective manner. The Techniques are freely accessible online on the ICC’s website and in the ICC Dispute Resoution Library.
They are in no way prescriptive. Rather, they provide suggestions that may assist in arriving at procedures that are efficient and will reduce both cost and time. Certain procedures will be appropriate for one arbitration, but inappropriate for another. There may be other procedures not mentioned here that are well suited to a particular case. In all instances, it is for the parties and the arbitral tribunal to select the procedures that are best suited for the case. The table of contents to this document can serve as a checklist of points to consider.
While the main focus of the Techniques is to provide guidance on the procedure during the arbitration, the first two sections give suggestions on the drafting of arbitration agreements and the initiation of arbitral proceedings.