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New ICC arbitration rules

New ICC arbitration rules

The International Chamber of Commerce (ICC) has amended arbitration rules as of March 2017. The most important change is the introduction of an accelerated arbitral procedure, referred to as the ‘expedited procedure’.

A few comments on this are given below.

The ICC’s website contains more information about the recent changes to the ICC arbitration rules (the ‘Rules’) as well as the full text of the Rules. The Tijdschrift voor Arbitrage (TvA 2017/21) arbitration journal also recently published an article from R. Schellaars discussing and commenting on the key changes to the Rules.

Article 30 of the Rules introduces an expedited procedure (with specific rules for this procedure in Appendix VI).

The ICC rules for the expedited procedure apply:

  • if the underlying arbitration agreement was concluded on or after 1 March 2017
  • if the amount in dispute does not exceed USD 2 million
  • if the parties have not made any opt-out agreement with respect to the expedited procedure either in the arbitration agreement or thereafter
  • despite a stipulation to the contrary in the underlying arbitration agreement (provided this does not imply an opt‑out agreement)
  • if the parties have made an opt-in agreement with respect to the expedited procedure, whereas, according to the rules, the expedited procedure would not otherwise apply.

The ICC can determine in any case, at the request of a party or on its own initiative, that the expedited procedure is not appropriate in the concrete situation and will therefore not be followed or no longer be followed. In that event, the ‘regular’ ICC Arbitration Rules apply.

What does the expedited procedure entail?

Keywords are: simpler, faster, and (therefore) less expensive.

This is achieved:

  • because just one arbitrator is appointed (even in the event the parties had made a different agreement in this respect)
  • because at the start of the arbitration, agreement does not first need to be reached on the so-called terms of reference
  • because no later than fifteen days after the arbitration dossier has been sent to the arbitrator, a case management conference is scheduled to discuss the course of affairs during the arbitration procedure
  • because the arbitrator can impose (restrictive) stipulations for the number of procedural documents (including written witness statements) and the length and scope thereof
  • because the arbitrator can determine that a hearing can be dispensed with and that a decision will be made purely on the basis of the documents (and if a hearing does indeed take place, this can also be held by telephone or video conference)
  • because a final arbitral award is handed down within six months after the case management conference – as a rule within six and a half months from the time the arbitrator receives the arbitration dossier, therefore (except in the event an extension of this period has been permitted)
  • because a specific table of costs and rates applies for the expedited procedure, with lower arbitrator’s fees.

International commercial contracts often contain an arbitration clause in which the parties agree that arbitration will take place in accordance with the ICC Arbitration Rules. It will not be long before a great deal of use is made of the new expedited procedure, therefore. A simpler, faster and less expensive procedure, and so a positive development for the international practice of arbitration.

By Cindy Snelders

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