Revised ICC Rules Of Arbitration

On 12 September 2011, the International Chamber of Commerce ("ICC") published long-awaited revisions to its arbitration rules (the "Rules"), which had been last revised in 1998. The revised Rules are effective as of 1 January 2012 and will apply to any ICC proceedings commencing on or following that date, unless the parties agree otherwise.

The ICC's International Court of Arbitration was established in Paris in 1923 (the Secretariat of the ICC Court opened a branch office in Hong Kong in 2008). There is little question that the ICC is the best known and most global arbitration institution; it administers hundreds of arbitrations taking place across the globe each year. In 2010, the ICC received nearly 800 new cases, involving parties from nearly 140 countries, and seated in more than 50 countries. The ICC also publishes Rules of Expertise, Rules of Conciliation, and Rules for a Pre-Arbitral Referee Procedure, and its revised arbitration rules have been published together with its 2002 ADR Rules.

The revision of the Rules of Arbitration has taken place over the past two years and involved a 20- member drafting committee and a task force drawn from the ICC Commission on Arbitration, and was subject to comments from members of the ICC worldwide. (The revision of the ICC Rules follows recent revisions to the UNCITRAL Rules of Arbitration and the IBA Rules on the Taking of Evidence in International Arbitration, which are discussed in more detail in the linked materials.)

The revised ICC Rules introduce changes intended to reflect current practices in international arbitration. They are also intended to improve transparency and clarity in the process, and to help address concerns about timeliness and efficiency in the arbitral process. The revisions to the ICC Rules are comprehensive and affect the majority of the 41 Articles comprising the Rules. The changes are both large and small, and range from the introduction of new mandatory procedural requirements to revising language of the Rules to reflect gender neutrality (a tribunal is now led by a "president" rather than a "chairman") and changes in technology and methods of communication.

These amendments and additions to the 1998 ICC Rules include:

1. changes to mandatory procedures, including requiring claimants to provide the "basis" for their claims in the Request, requiring a case management conference early in the process, and requiring the tribunal to inform the parties at the close of the proceedings of the expected timing of the award;

2. measures designed to enhance the ability of the parties and tribunal to act expeditiously, including codifying the requirement that an arbitrator provide a statement of availability and an Appendix providing "case management techniques";

3. a detailed provision for the appointment of an emergency arbitrator to decide on urgent conservatory or interim measures;

4. expanded rules addressing issues of multiple parties, multiple contracts and consolidation, which are set out in a separate Article; and

5. express reference to confidentiality orders.

Some of the most significant and noteworthy revisions to the ICC Rules are summarized below. We also include a chart listing optional aspects of the ICC Rules, highlighting aspects of the revised Rules that parties may want to expressly address in drafting arbitration agreements.

1. The ICC's Supervision of the Arbitral Process Under the ICC Rules

   One of the distinctive aspects of the ICC International Court of Arbitration and its Rules of Arbitration is the structure of the institution and the roles that various parts of the ICC play in the administration of proceedings under its rules. Under the ICC Rules, the ICC Court plays an important (and mandatory) supervisory role, particularly with regard to important issues such as making an initial jurisdictional determination, appointing arbitrators, deciding challenges to arbitrators, scrutinizing draft awards and fixing the costs of the arbitration. The Rules also provide a role for a Secretariat, led by a Secretary General and including teams of counsel, who are assigned to each case based on geographic criteria and help administer the rules and procedure.

   It is important, however, to distinguish between the role of the ICC Court and Secretariat, on the one hand, and the role of the arbitral tribunal appointed by the ICC to decide a particular case, on the other. It is a basic aspect of international arbitration that arbitral institutions such as the ICC (and its organs, including the ICC Court and Secretariat) do not decide a dispute.

   Rather, the institution provides the rules and administrative support for the proceedings. The arbitrators appointed by the institution are independent from the institution and actually decide the dispute. The revised Rules make some changes intended to enhance the functioning of these bodies, but do not fundamentally alter their roles in administering cases under the ICC Rules. Moreover, the ICC has taken steps in the revised Rules to underscore that the ICC itself is the only institution authorized to administer arbitration under the ICC Rules, and, arguably, to protect the integrity of its rules and its brand.

   In particular, the revised Rules respond to the use of "hybrid" arbitration clauses, in which parties agree to arbitration pursuant to the ICC Rules, but with the provision that the arbitration will be administered by an arbitral institution other than the ICC. In the best known recent example, in the case of Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24, the Singapore Court of Appeal upheld the validity of a hybrid arbitration clause which required the Singapore International Arbitration Centre ("SIAC") to administer an arbitration using the ICC Rules.

   In response to such hybrid proceedings, the ICC has added wording to Article 1(2) of the revised Rules declaring that the ICC Court "is the only body authorized to administer arbitrations under the Rules, including the scrutiny and approval of awards rendered in accordance with the Rules." The ICC also has included language in Article 6(2), which addresses the "Effect of the Arbitration Agreement," that states that "by agreeing to arbitration under the Rules, the parties have accepted that the arbitration shall be administered by the [ICC] Court." According to the ICC, these clarifications are intended to protect the integrity of its Rules, avoid potentially pathological arbitration clauses, and avoid potential difficulties in the enforcement of awards. The effect of these provisions on hybrid clauses providing for administration by institutions other than the ICC remains to be seen.

2. Expanded Scope of the ICC Rules

   While the great majority of the cases administered by the ICC involve commercial disputes, there has...