Over the past few decades, responding to the need to control the growing costs and time of arbitration proceedings, the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) has continuously sought to achieve greater efficiency of the ICC arbitration proceedings. On 4 November 2016, in its most recent step of “further increasing the efficiency and transparency of ICC arbitrations,” the ICC Court announced amendments to the ICC Rules of Arbitration (“ICC Rules“). These amendments, coming into force on 1st March 2017, introduce – among others – the rules on expedited procedure (“Expedited Procedure Rules“). On that day the ICC Court joint other leading international arbitral institutions that already introduced similar expedited rules (to name but a few: ICDR, SIAC, HKIAC, SCC, ACICA, DIS, Swiss Rules).
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Former remedies used to reduce time and costs of international commercial arbitrations.
Already in 2001, the ICC Court formed a Task Force (comprised of nearly 60 representatives from different countries), which produced the ICC Court’s Guidelines for Arbitrating Small Claims under the ICC Rules of Arbitration, published in March 2003. The Guidelines are not binding but are often used in practice. Moreover, an accelerated arbitral procedure is not entirely unknown to the users of the ICC Rules, since the parties can always – at least theoretically – use the procedure in an expedited way for mutually agreed fast-track arbitrations. For example, Article 38 (former Article 32) of the ICC Rules expressly encourages the parties to shorten various time limits under the Rules and accordingly expedite the procedure. However, this requires willingness and close cooperation of all parties, either at the time they agree on arbitration or after the dispute has arisen.
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When the Expedited Procedure Provisions can apply.
- When the arbitration agreement was concluded after 1 March 2017; and;
- when the amount in dispute does not exceed US$2,000,000, and;
- when the parties have not opted out of the Expedited Procedure Rules in the arbitration agreement or at any time thereafter.
The Expedited Procedure Provisions shall also apply, irrespective of the date of conclusion of the arbitration agreement or the amount in dispute, if the parties have agreed to opt in. Such opt in agreements can be concluded at any time, by virtue of Standard ICC Arbitration clauses.
- When the Expedited Procedure Provisions cannot apply.
- When the arbitration agreement under the Rules was concluded before 1 March 2017;
- when the parties have agreed to opt out of the Expedited Procedure Provisions; or
- when the Court, upon the request of a party before the constitution of the arbitral tribunal or on its own motion, determines that it is inappropriate in the circumstances to apply the Expedited Procedure Provisions.
- How the arbitrations proceedings are simplified by the introduction of the Expedited Procedure.
- The Tribunal may (after consultation with the parties) decide the dispute on the documents alone (i.e. without a hearing, document production or the examination of witnesses and experts);
- The ICC Court may appoint a sole arbitrator within a time limit set by the ICC Secretariat, even if the arbitration agreement provides for a three-member tribunal. On the other hand, ICC Court may appoint three arbitrators if appropriate in the circumstances;
- The Award must be rendered within six months of the Case Management Conference (unless extended by the ICC Court based on reasoned requests by the Tribunal). However, Awards are still subject to the scrutiny of the ICC Court before publication, which, in practical terms, is likely to mean that the Tribunal will need to conduct the proceedings and finalize the Award in considerably less than six months;
- The Case Management Conference should be held within 15 days of the date on which the file is sent to the Tribunal;
- No Terms of Reference need to be established;
- The parties cannot introduce new claims after the Tribunal’s appointment unless authorized to do so by the Tribunal;
- A reduced fee scale (set out in Appendix III of the ICC Rules) will apply, which is anticipated to be approximately 20% lower than as is the case for the standard procedure.
These are the most important changes made to the arbitration proceedings by the Expedited Procedure, in line with ICC’s belief that proceedings should be shorter, more efficient and cheaper than if they were conducted under the standard procedure.
Contacts:
Federico Casiraghi, Partner BCMS
f.casiraghi@bcmslaw.it
Martina Patti, Associate BCMS
m.patti@bcmslaw.it
