More efficiency, transparency and diversity in ICC Arbitration

The ICC International Court of Arbitration is by far the most preferred arbitral institution — in particular for high-value,  complex, international disputes – due to its unique track record, global reach and signature quality control. As part of its ongoing efforts to respond to the needs and concerns of users, the ICC Court has recently adopted even more initiatives to improve efficiency, transparency and diversity, which we will outline below. Some were included in the 2017 ICC Arbitration Rules; others have been promulgated through updates to ICC’s Note to the Parties and Arbitral Tribunals on the Conduct of Arbitration (the “ICC Note”), most recently in January of this year.

Efficiency

Users are clearly taking advantage of the ICC Court’s recent efficiency initiatives. Under the Expedited Procedure Provisions, which were introduced in 2017, disputes in an amount less than US$2 million will be resolved within six months and a reduced fee scale will apply — unless the parties agree to opt out of such procedure. These provisions allow the ICC Court to serve a larger spectrum of users in an efficient, cost-effective manner. In 2018 alone, there were 115 requests to opt in to the Expedited Procedure in matters not automatically covered by it (out of which 20 were accepted). Moreover, 21 cases were filed last year under the ICC Emergency Arbitrator Procedure, which was introduced in 2012 and aims to increase the efficiency of arbitral proceedings.

Since 2017, the ICC Note has included guidance on applications for expeditious determination of manifestly unmeritorious claims or defences. Such procedures, while used sparingly in arbitration until now, may save significant cost and time for the parties, as shown by similar procedures before certain national courts.

The time-limits for certain stages of the arbitration have been tightened in recent years. The 2017 ICC Rules require the signed Terms of Reference to be submitted to the Secretariat within one month (instead of two) of the date of transmission of the file to the tribunal. There is also increased pressure on arbitrators to comply with the goals of submitting a draft award to the ICC Court for scrutiny within three months (for a three-member tribunal) or two months (for a sole arbitrator) after the last substantive hearing or written submissions. In 2016, the ICC Court began sanctioning arbitrators for non-compliance by lowering their fees and may reward particularly expeditious arbitrators with increased fees. Recent figures show that most awards are now submitted within the two to three-month time limit and most tribunals submitting their awards late see their fees reduced.

Transparency

In an important innovation, for an award issued after 1 January 2019, the presumption is that the ICC Court may publish the award in its entirety no less than two years after its notification. Parties will have an opportunity to object to the full or partial publication of their award and various measures, including redaction of awards, which will ensure confidentiality when appropriate.

The 2019 version of the ICC Note also adds some optional tools for the arbitrator selection process. A party may now request the Secretariat to support the nomination process by contacting prospective arbitrators to check experience, availability and conflicts of interest. Parties may now agree to use a list method when an appointment is to be made by the Court. The latter in particular would result in greater transparency in such process.

The 2019 version of the ICC Note also details an enhanced protocol to ensure the independence and impartiality of arbitrators. Arbitrators are expected to not only make disclosures concerning the parties in the dispute, but also specifically with respect to non-parties with an interest in the outcome. As for investment arbitration, prospective arbitrators are encouraged to disclose all of the investment treaty cases in which they acted as counsel, arbitrator or expert.

Additionally, the most recent version of the ICC Note clarifies the types of tasks that tribunal secretaries are permitted to undertake, including drafting correspondence to the parties and preparing draft procedural orders and certain procedural and factual sections of awards. This helps to ensure better clarity, consistency and transparency of the role of administrative secretaries.

Another change made a few years ago allows parties to request the ICC Court to provide reasons for its decisions on challenges, replacements, consolidation and prima facie jurisdiction, which establish better transparency of ICC Court decisions.

Diversity

To promote gender, generational and regional diversity (as well as to further enhance transparency), the ICC Court began publishing on its website, in 2016, the names and nationality of arbitrators sitting in pending and completed cases. As of 1 July 2019, the ICC Court will also publish the names of the party’s counsel and the sector of industry involved.

Full gender equality in membership of the ICC Court was achieved last year. Recent statistics show steady growth in the number of appointments of female arbitrators, both by the ICC Court and by parties. Younger practitioners are also increasingly acting as arbitrators and even becoming members of the ICC Court.

In terms of regional diversity, Europeans still dominate the ranks of arbitrators, but an increasing number come from other regions, including the Middle East and Africa.

All these recent changes and trends reflect the ICC Court’s continuous efforts and commitment to streamlining the arbitral process and address the challenges faced by arbitration today in order to maintain and further increase its legitimacy as a means of resolving international business disputes.

*Disclaimer: The content of this interview does not reflect the official views of the International Chamber of Commerce. The opinions expressed are solely those of the authors and other contributors.