In October 2016, the ICC Executive Board approved changes to the ICC Rules, which will take effect as of 1 March 2017.
Through its amendments, the ICC seeks to follow the new trends of implementing a fast-track approach in relation to lower value disputes. Essentially, all disputes which are less than US $2 million will automatically be administered under the new expedited process, unless the parties have expressly opted out of this process. Equally, parties to cases exceeding the US $2 million threshold will benefit from an opt-in mechanism to the expedited proceedings.
Features of the expedited procedure
Expedited proceedings are a relatively recent tendency in the field of arbitration, aiming at time and cost-efficient arbitration proceedings, where disputes generally concern limited amounts of money. The expedited process aims to shorten the duration of arbitration, dealing with fewer procedural steps, shorter time limits and lower costs.
Under the expedited procedure, the ICC has the discretion to appoint the sole arbitrator even where the parties have chosen a different number in their arbitration agreement. After consulting the parties, the tribunal will have the power to decide what procedural measures it adopts, limiting the extent and scope of the proceedings. In this respect, the tribunal may decide to limit document production, the length of witness evidence as well as the scope of written submissions. Furthermore, the tribunal will also be able to determine whether it can dispense with a formal oral hearing where witnesses are cross examined. It is noteworthy to mention that under the new rules, the tribunal will be required to issue an award within six months from the date when the case management conference was held, with the possibility of granting an extension only in limited circumstances. Finally, the tribunal’s fees shall be fixed at Appendix III of the Rules.
The new provisions will increase transparency, allowing the ICC to disclose to parties its reasons for decisions on appointment, confirmation, challenge or replacement of arbitrators. Additional amendments regard a shorter timeframe for establishing the terms of reference in an attempt to limit the time spent in the initial stages of the arbitration. Furthermore, the procedural timetable as well as the terms of reference no longer need to finalised before the tribunal can proceed to address the claims and counterclaims for which costs have been advanced. Lastly, the ICC Rules have been amended to allow the Court to appoint as arbitrator any individual it deems fit where one of the parties to the proceedings is a state entity.
The amendments to the ICC Rules are a welcome change and support market development. It will provide for a transparent and cost-efficient way of approaching cases, which do not exceed the US $2 million threshold. Equally, it remains to be seen whether this approach will be adopted as an opt-in mechanism for claims exceeding the stated threshold and more generally, how the business community will receive the new provisions.