The International Chamber of Commerce has successfully enforced the 2021 Arbitration Rules.

The International Chamber of Commerce has successfully enforced the 2021 Arbitration Rules.

On 1 January 2021, the International Chamber of Commerce (“ICC”) will adopt new arbitration rules (“2021 Rules”), which amend the existing rules last revised in 2017. This is the third upgrade in this decade as an attempt to “enhance more efficiency, flexibility and transparency” [1]. Although most of the improvements are incremental and only building on the previously implemented rules (2017), it ensures that international arbitration can be carried out appropriately.

Key issues

• The 2021 Rules was officially announced on 1 December 2020 and will be applied to any arbitration submitting from 1 January 2021 onward;
• Changes include Consolidation of arbitration proceeding [1], and allows for a Request for Joinder after the confirmation or starting of proceeding [2] in certain limit circumstances;
• Virtual hearings [3] and electronic filing [4];
• Online publication of ICC Awards and Procedural Orders [5];
• Allowing for the Tribunal to limit changes to party representation where it causes conflicts of interest [6];
• A requirement that parties disclose certain third-party funding agreements[7];
• ICC Court discretion in Exceptional Circumstances to deviate from party agreement on the method of constitution of the arbitral Tribunal and appoint the entire Tribunal to avoid unequal treatment [8].

Joinder and consolidation provisions

One of the most important changes in the 2021 Rules is a new Article 7(5), which allows for a Request for Joinder to be made by one of the parties after the confirmation or the appointment of the Tribunal. The Tribunal will decide the Joinder request by considering all relevant circumstances, including jurisdiction, the timing of the request, the additional party’s impact, and conflicts of interest. This contrasts to previous versions of the 2017 rules, where parties could only join proceedings after the Tribunal appointment with the consent of all parties, including such additional party [9].

For an event of Consolidation, the 2021 Rules now confirm that the Consolidation may happen where “all of the claims in the arbitrations are not made under the same arbitration agreement, or agreements provided the parties are the same and the dispute centers around the same legal relationship where the court deemed that the arbitration agreements are compatible.” [10]. This is in contrary with rules in 2017 where all the claims in the arbitration must be made under “the same arbitration agreement” [11]

Virtual hearings and electronic filing

Acknowledging the reality of arbitration practice, especially during the COVID-19 pandemic, ICC released in April 2020 ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (the “Guidance Note”). Instead of the discretion by the Arbitral Tribunal, the 2021 Rules in Article 26(1) specified that “the tribunal may decide, after consulting with the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication.” [12].

Also, Article 3(1) now allows choices for the submission of the documents without the restriction of only in a hard copy form [13].

Appointment and Confirmation of the Arbitrators

In “special circumstances” where there is a significant risk of unequal treatment and unfairness that may affect the validity of the award or ruling, 2021 Rules Article 12 (9) allows ICC courts to appoint the Arbitral Tribunal. This is a new exception to the general rule which the ICC courts could intervene only if the parties are unable to appoint a body on their own [14].

Conflict of Interest

In 2021 Rules in Article 11(7) introduces a new requirement for parties to disclose the existence and identity of any third-party funder. Also, in Article 17(2), this new amendment allows the Tribunal can take “any measure necessary” to avoid a conflict of interest [16].

In addition to the above mentioned, there are some other amendments, such as barring arbitrators who are holding the same nationality as any of the parties. Although the 2021 Rules introduce some minors change as an attempt to further modernize, bolster flexibility, and serving justice to the parties as much as possible with the current circumstances of the world.

Sources

•              https://globalarbitrationnews.com/the-new-updated-icc-rules/

•              https://hsfnotes.com/arbitration/2020/10/09/the-new-icc-rules-2021-what-you-need-to-know/

•              https://www.whitecase.com/publications/alert/new-2021-icc-arbitration-rules

•              https://www.ashurst.com/en/news-and-insights/legal-updates/icc-releases-its-revised-2021-arbitration-rules—top-5-things-you-need-to-know/

•              https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/#article_3

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•              [1] 2021 ICC Arbitration Rules, Article 10(c)

•              [2] 2021 ICC Arbitration Rules, Article 7(5)

•              [3] 2021 ICC Arbitration Rules, Article 26

•              [4] 2021 ICC Arbitration Rules, Article 3

•              [5]  2021 ICC Arbitration Rules, Section III-B.

•              [6] 2021 ICC Arbitration Rules, Article 17

•              [7] 2021 ICC Arbitration Rules, Article 11

•              [8] 2021 ICC Arbitration Rules, Article 12.9

•              [9]  2017 ICC Arbitration Rules, Article 7(1).

•              [10] 2021 ICC Arbitration Rules, Article 10(c)

•              [11] 2017 ICC Arbitration Rules, Article 10(b)

•              [12] 2021 ICC Arbitration Rules, Article 26(1)

•              [13] 2021 ICC Arbitration Rules, Article 3

•              [14] 2021 ICC Arbitration Rules, Article 12(9)

•              [15] 2021 ICC Arbitration Rules, Article 11(7)

•              [16] 2021 ICC Arbitration Rules, Article 17(2)

•              [1] https://iccwbo.org/media-wall/news-speeches/icc-unveils-revised-rules-of-arbitration

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