In November, the ICC announced an amendment to the 2012 ICC Arbitration Rules that in particular implementspecial rules for smaller claims, effective as of March 1, 2017. This “entirely new offer” to ICC users (so ICC Court President Mourre in his press statement) is enacted to resolve disputes “on a very expeditious and cost-effective manner.”
The new Expedited Procedure Rules have been added to the ICC Arbitration Rules as Appendix VI. They provide the following and important amendments:
- The Expedited Procedure Rules will not apply to arbitration agreements concluded before March1, 2017, unless the Parties so agree.
- The ICC regards any claima “small claim” the value in dispute does not exceed 2m USD.
- The ICC may appoint a sole arbitrator for the management of the case, even if the arbitration agreement of the parties provided for an arbitral tribunal composed of 3 arbitrators.
- Parties may opt out the rules, Art. 30 (3) (b).
- Parties may also opt in, so that they apply for non-small claims as well.
- The ICC court may determine that the Expedited Procedure Rules are deemed inappropriate for the circumstances of a case, either based on a motion from a party or on its own initiative, Art. 30 (3) (c).
- If none of above 4. or 6. applies, the court will make use of the Expedited Procedure Rules, as the Expedited Procedure Rules take precedence over any contrary terms of the arbitration agreement, Art. 30 (1).
- There will be no Terms of Reference, Appendix VI, Art. 31, deviation from Art. 23.
- The payment term for a provisional fee advance requested by the ICC, is, in the case of an expedited procedure, until the case management conference.
- The case management conference convened pursuant to Art. 24 shall not take place later that 15 days after the date on which the file was transmitted to the arbitral tribunal, Appendix VI, Art. 3 (3).
- Once the Tribunalis constituted, neither party is allowed to make a new claim, unless expressly authorized to do so by the tribunal, Appendix VI, Art. 3 (2). The Tribunal shall consider the stage of the arbitration, any cost implications and any other relevant circumstances.
- The tribunal shall have discretion to adopt such procedural measures as it considers appropriate, in particular limit the number, length and scope of written submissions and written witness evidence (fact witnesses and experts) and not to allow requests for document production. This shall be decided upon after consultation with the parties (Appendix VI, Art. 3 (4).
- After consulting the parties, the tribunal may decide the dispute solely on the basis of documents submitted by the parties. When a hearing is to be held, the tribunal may conduct such by videoconference, telephone or similar means of (tele-)communication, Appendix VI, Art. 3 (5).
- The award must be rendered within six months after the date of the case management conference. This deadline may be extended, Appendix VI, Art. 4 (1) and Art. 31 of the Rules. If not granted on initiative of the ICC court, such extension requires a reasoned request of the tribunal to the court.
- The costs of the tribunal shall be fixed at Appendix III, Appendix VI, Art. 4 (2).
The aim, which was to streamline the procedure in terms of time and costs, is meeting user expectations and is in a line with previous amendments of other international arbitral institutions, e.g. DIS, LCIA, SCC, HKIAC, SIAC. Nonetheless, the binding single arbitrator might get problematic and – in terms of autonomy of the parties - incite to challenge the validity of an award and cause discussions when enforcing an award, though the ICC installed party instrumentsthe functionality of which will be shown in practice. In addition, a stunning consequence of the Expedited Procedure Rules are reduced fees for arbitrators though the ICC fees remain untouched. This may cause “small claims”, the percentage of which is important (up to 30%) in practice, to be increasingly managed by junior arbitrators. The new Expedited Procedure Rules therefore are not unanimously seen as positive within the community.
About the author:
Christoph Just, LL.M. is a litigation partner in our firm and represents companies in numerous court and arbitration proceedings. He is also a specialist in administrative law and advises companies and public bodies on all matters of public commercial and public procurement law.