All arbitrations registered at the International Court of Arbitration of the International Chamber of Commerce (ICC) on or after 1 January 2021 are subject to the new 2021 Arbitration Rules (the 2021 Rules). The 2021 Rules revise the ICC Rules 2017 and make the 2021 Rules fit for purpose in a post pandemic world. The revised rules mark a further step towards greater “efficiency, flexibility and transparency”.
The 2021 Rules are accompanied by a revised Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (the Note to Parties) and contain some notable changes.
Virtual Hearings and electronic communication
The ability of the arbitration community to embrace new technologies to resolve cross border disputes has been long standing. Unsurprisingly during the Covid-19 pandemic there has been increased reliance on virtual arbitral hearings, with parties often pivoting at the eleventh hour to fully online arbitrations in response to lockdowns imposed in various jurisdictions. The 2021 Rules empower the arbitral tribunal to decide whether the hearing should be conducted in person or remotely contrasting with the 2017 Rules where in person hearings were referenced.
The 2021 Rules have also introduced a greater emphasis on the use of electronic communication between parties. In the pre-pandemic era, the previous rules required that all submissions, notifications and communications should be “supplied in a number of copies”, indicating that hard copies of documents were required and that they were to be sent to the other parties and the Secretariat. However, in accordance with the ICC’s objective of increasing efficiency, the 2021 Rules provide simply that all submissions, notifications and communications “shall be sent to each party”. Indeed paragraph 10 of the Note to Parties expressly states that, as a general rule, the Request for Arbitration, the Answer and any counterclaims and any Request for Joinder, should be sent to the Secretariat via email.
Consolidation and Joinder
Another important substantive procedural change comes in the form of consolidation of arbitrations. The previous ICC Rules provided that the ICC may consider consolidating two or more arbitrations under the ICC Rules, provided that the claims are made under the same arbitration agreement. However, the 2021 Rules have now gone further and allow the Court to order consolidation of multiple arbitrations not just where the claims are under the same arbitration agreement, but where the arbitrations are:
- between the same parties;
- the disputes in the arbitrations arise in connection with the same legal relationship; and
- the Court finds the arbitration agreements to be compatible.
It is hoped that this move away from the requirement of the same arbitration agreement to compatible arbitration agreements will eliminate the onerous obligations on parties who are otherwise required to pursue (or defend) multiple parallel arbitrations with overlapping issues.
In order to try and streamline arbitrations and further consolidate separate ICC arbitral proceedings, the 2021 Rules have also amended the rules concerning the joinder of additional parties. The previous rules provided that a joinder of additional parties was only permitted if the other parties to the arbitration consented and it was agreed before the constitution of the arbitral tribunal. The 2021 Rules now permit the tribunal, once constituted and upon the request of one of the parties, to join a third party to the arbitration, even if there has not been unanimous consent from the other parties for the introduction of additional parties.
Disputes can be determined under an Expedited Procedure within the rules. This was provided for in the ICC Rules in 2017 which provided a more simplified process for arbitration. The Expedited Procedure allows certain time limits in the Rules to be shortened such as the time period available to constitute the tribunal (which will typically constitute a sole arbitrator when proceeding under the Expedited Procedure), or imposing strict restrictions as to the number of submissions which may be heard during the hearing. Under the Expedited procedure an award should be made within six months of the case management conference.
Since its introduction in 2017, for disputes where the value does not exceed US $2 million, the parties are required to expressly opt-out of the Expedited Procedure. However, in light of the success of the Expedited Procedure, the 2021 Rules have increased this threshold to disputes valued at less than US $3 million. Accordingly where the value of the dispute is $3 million or less, the Expedited Procedure will automatically apply (unless the ICC Court decides that it would be inappropriate to do so in the circumstances). It is still open for parties (upon agreement) involved in higher value disputes to opt-in to the Expedited Procedure should they wish to do so.
Transparency and Accountability
Such measures serve to promote and improve efficiency. The 2021 Rules have also sought to increase the transparency and accountability in international arbitration. For this reason, the 2021 Rules now require parties to disclose third party funding arrangements for the arbitration. The introduced disclosure obligations extend beyond the parties and an arbitrator must now consider his or her own relationships with non-parties, including third party funders, other members of the arbitral tribunal, experts and witnesses.
The 2021 Rules are a welcome revision of the ICC Rules and serve to further streamline arbitral proceedings registered at the ICC both now and in a world post pandemic.
Arbitration remains the default option for international commercial dispute resolution and, as evidenced by the bespoke revisions to the ICC rules reflecting the prevailing commercial environment, continues to respond to the needs of the global business community.