From 1 January 2021, the International Chamber of Commerce (ICC) will bring into force revised 2021 Rules of Arbitration (“2021 Rules“), replacing the current rules last updated in 2017. This is the third update within a decade and, as such, most of the changes are minor, expanding on provisions introduced in previous rule updates and ensuring the practical demands of international arbitration can be met.
Notably, given the current global pandemic, the 2021 Rules include provision for virtual hearings and electronic submissions. Other changes include joinder and consolidation provisions, tribunal appointments, conflicts of interest for third party funders and expedited procedures.
* Virtual hearings and electronic filing
To align with what is now common practice in arbitration, Article 36 has been revised in the 2021 Rules to specifically allow hearings to be held in person or remotely by video conference, phone or other appropriate means. Discretion is given to the tribunal, but requires discussion with the parties. The reference to “other appropriate means” indicates the ICC’s stance on promoting flexibility and encouraging the parties to use the most suitable medium for their hearing.
Similarly, the 2021 Rules have moved away from a presumption that paper pleadings and communications will be submitted to each party, the arbitrator and the ICC Secretariat. Article 3 has removed specific language on how these should be sent, and throughout the 2021 Rules the parties are permitted to choose how to submit documents.
* 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 appointment of the tribunal. The tribunal will decide the joinder request by considering all relevant circumstances, including jurisdiction, timing of the request, the impact of the additional party, and conflicts of interest. This contrasts to previous versions of the rules, where parties could only join proceedings after the appointment of the tribunal with the consent of all parties, including the additional party.
The 2021 Rules also confirm consolidation of claims being arbitrated may occur where all claims in the arbitrations are made under the same arbitration agreement regardless of whether different parties are involved (Article 10(b)), or under different arbitration agreements provided the parties are the same, the agreements are compatible, and the dispute centres around the same legal relationship (Article 10(c)). This serves to clarify provisions first introduced in the previous rules and expand the circumstances where they can be used.
* Tribunal appointments
In “exceptional circumstances”, where there is a significant risk of unequal treatment and unfairness that may affect the validity of an award, Article 12(9) allows the ICC Court to appoint the entire tribunal. This is a new exception to the general rule that the ICC Court will intervene only when parties are unable to appoint the tribunal themselves.
* Disclosure of Third Party Funder
In addition to the constitution of the tribunal, the 2021 Rules introduce a new Article 11(7) requiring parties to disclose the existence and identity of third-party funders, as written confirmation of an existing practice. New Article 17(2) further allows the tribunal to act to prevent conflicts of interest, and allows it to take “any measure necessary” to do so.
* Expedited Procedure
Expansion of expedited proceedings to cover disputes up to USD 3 million where the arbitration agreement was concluded on or after 1 January 2021, subject to opt-out.
• Introduction of two provisions specific to investor-state disputes:
-new Article 13(6) specifying that, where the dispute arises from an arbitration agreement based on a treaty, an arbitrator must not have the same nationality as any party; and
– new Article 29(6) excluding investment treaty arbitrations from the scope of emergency
• Confirmation in new Article 43 that French law will govern claims arising out of or in connection with the ICC Court’s administration of an arbitration.
• Permission for parties to apply for an additional award where the tribunal omits to address an issue raised in arbitral proceedings in its award, in an amended Article 36.
• Clarification that the 30-day deadline by which respondents must submit the answer and claimants must reply to any counterclaim is “within 30 days from the day following the date of receipt”.