International Chamber Of Commerce To Update Rules Of Arbitration In January 2021

• Published date: 16 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Hugh Meighen, Robert Deane, Craig Chiasson and Bruno Savoie

The International Chamber of Commerce (ICC) in Paris is one of the leading international arbitration institutions in the world with an ever-increasing caseload. In 2019, the ICC administered a record 869 cases with nearly all of those cases progressing under the ICC Rules of Arbitration (ICC Rules).

The ICC periodically updates the ICC Rules following broad consultations with users and other stakeholders, with the last version released in 2017. The next version will come into force on January, 1 2021. While many of the amendments are minor and are intended to improve the ICC Rules' practical operation, a few changes are substantive and merit closer examination. In particular, users of the ICC Rules should be aware of the following key changes, which are directed at assisting in navigating conflicts issues, improving the balance between efficiency and party autonomy, and modernizing certain procedural rules and practices.

Assisting with conflicts

• 1. Third Party Funding: the new version of the ICC Rules expressly anticipates the possibility of funded parties and, for the purposes of assisting arbitrators in navigating their ethical obligations, introduces a requirement for parties to disclose the existence and identity of funders with an economic interest in the outcome of the case (Article 11(7)).
• 2. Nationality of arbitrators: to avoid the semblance of a conflict arising from nationality, the new ICC Rules indicate that, as a default rule, sole arbitrators and tribunal presidents will not share a nationality of one of the parties. In treaty-based cases, the ICC Rules preclude any arbitrator from sharing the nationality of a party, unless the parties agree otherwise (Article 13(5)-(6)).
• 3. Exclusion of party representatives: the new version of the ICC Rules empowers the arbitral tribunal to exclude certain party representatives from participating in whole or in part in the proceedings in order to avoid a conflict of interest arising from a change in representation (Article 17(2)). A change in representation can be disruptive in any event; the addition of this provision aims to minimize the disruption in cases where it introduces a potential conflict.

Rebalancing party autonomy

• 1. Tribunal Appointments: the new version of the ICC Rules permit the ICC Court to appoint the full arbitral tribunal in exceptional circumstances to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award (Article 12(9)).
• 2....