Newly published 2021 ICC Rules: notable changes
Raphaël Kaminsky (partner) & Marie-Provence Brue (associate)
On 8 October 2020, the most preferred arbitral institution, the ICC, published its revised Rules of Arbitration (“2021 ICC Rules”). The ICC Rules are periodically revised, and were last amended in 2017; building on the previous amendments, the 2021 ICC Rules were adopted by a meeting of the ICC Executive Board on 6 October 2020 and will enter into force on 1 January 2021. While the text of the 2021 ICC Rules remains subject to editorial corrections until the rules enter into force in January 2021, the current version of the text is available here: https://iccwbo.org/dispute-resolutionservices/arbitration/rules-of-arbitration/rules-of-arbitration-2021/.
In the words of ICC Court President Alexis Mourre, the 2021 ICC Rules “mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.”
To that end, the 2021 ICC Rules contain a number of notable amendments, in particular relating to complex arbitrations, conflicts of interests, transparency and integrity of the proceedings, investment treaty arbitration, emergency arbitrator provisions, the expedited procedure, remote hearings and electronic communications, claims relating to the administration of arbitration proceedings by the Court, and additional awards. The relevant changes are described below.
The ICC Rules already provided a framework for arbitrations with multiple parties and multiple contracts. The 2021 ICC Rules contain a number of changes aiming to make the ICC Rules even better suited to complex arbitrations.
The 2021 ICC Rules allow the arbitral tribunal to join additional parties after the confirmation or appointment of any arbitrator, subject to the additional party accepting the constitution of the arbitral tribunal and agreeing to the Terms of Reference. In its determination, the arbitral tribunal must take into account all relevant circumstances, including whether the arbitral tribunal has prima facie jurisdiction over the additional party, the timing of the request for joinder, possible conflicts of interests, and the impact of the joinder on the arbitral procedure (Article 7(5)). This is an important departure from the position under the 2017 ICC Rules, which required the consent of all parties for joinder of an additional party after the confirmation or appointment of any arbitrator.
The 2021 ICC Rules also allow consolidation of arbitrations where the arbitrations are between different parties and the claims are made under more than one arbitration agreement, provided that the arbitration agreements are the same (article 10(b)). This clarifies an open question under the 2017 ICC Rules, which only referred to the consolidation of claims made under the “same arbitration agreement” which raised the question of whether consolidation of arbitrations between different parties was allowed only if the arbitration agreement was indeed the same (i.e., same contract) or also allowed in the case of multiple contracts with mirror arbitration clauses.
Conflicts of interests, transparency, and integrity of the proceedings
The 2021 ICC Rules introduce changes to prevent conflicts of interests and ensure the transparency and integrity of the proceedings.
To allow arbitrators to comply with their duties of disclosure pertaining to independence and impartiality, the 2021 ICC Rules require the parties to disclose the existence and identity of thirdparty funders having an economic interest in the outcome of the arbitration (Article 11(7)).
Moreover, in the event of a change in party representation, the 2021 ICC Rules allow the arbitral tribunal to exclude new party representatives from the proceedings, to avoid any conflict of interest with an arbitrator (Article 17(2)).
Finally, they provide that, in exceptional circumstances, the Court may appoint each member of the arbitral tribunal to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award (Article 12(9)).
Investment treaty arbitrations
The 2021 ICC Rules introduce provisions specific to investment treaty arbitrations. In such cases, unless the parties agree otherwise, no arbitrator can have the same nationality as that of any party to the arbitration (Article 13(6)). This aims to ensure the neutrality of the tribunal while taking into account the fact that investment arbitrations involve issues of public interest.
The 2021 ICC Rules also provide that the emergency arbitrator provisions do not apply to arbitrations based on treaty (Article 29(6)), which is consistent with the Court’s existing policy in practice.
As mentioned above, the 2021 ICC Rules exclude the application of the emergency arbitrator provisions to investment arbitrations. They do however expand the scope of application of the emergency arbitrator provisions in another respect: under the 2017 ICC Rules, the emergency arbitrator provisions did not apply when the parties had agreed to another pre-arbitral procedure providing for the granting of conservatory, interim or similar measures. The 2021 ICC Rules no longer contain this prohibition, which according to one commentator has never been applied in practice (Article 29(6)(c)).
The expedited procedure was introduced in the 2017 ICC Rules. In light of its success, the 2021 ICC Rules expand its scope of application. They increase the threshold value of disputes to which the expedited procedure rules apply on an opt-out basis (from USD 2,000,000 to USD 3,000,000) if the arbitration agreement was concluded on or after 1 January 2021 (Article 30(2) and Annex VI, Article 1(2)).
Remote hearings and electronic communications
The 2021 ICC Rules provide that the arbitral tribunal may after consultation with the parties, decide to hold hearings remotely by videoconference, telephone or other appropriate means of communication (Article 26(1)). Provisions relating to written communications, as well as the request and answer to the request for arbitration have been modified to account for the fact that transmission of documents will not always occur physically (Article 3(1), Article 4(4), Article 5(3)). This is of particular interest in light of the COVID-19 pandemic.
Claims relating to the administration of arbitration proceedings by the Court
Notably, the 2021 ICC Rules introduce a new Article 43 pertaining to claims arising out of or in connection with the administration of the arbitration proceedings by the Court under the Rules. It provides that such claims are governed by French law and grants exclusive jurisdiction to the Paris Judicial Tribunal (Tribunal Judiciaire de Paris), which is entirely consistent with the past practice of French Courts on this point.
The 2021 ICC Rules introduce a provision on additional awards, allowing arbitral tribunals to issue an additional award on claims made during the arbitral proceedings but which the arbitral tribunal has omitted to decide (Article 36(3)). This is in addition to the already existing provisions on correction and interpretation of the award. Application of a party for an additional award must be made to the Secretariat within 30 days of the receipt of the award.
The 2021 ICC Rules do not contain groundbreaking innovations, but rather reinforce already existing mechanisms, such as the expedited procedure and the framework for dealing with complex arbitrations. They are in line with the already existing practice of the Court, in particular with regard to the emergency arbitrator provisions, as well as to the changing needs of ICC arbitration users (parties and arbitrators), for instance by allowing hearings to take place remotely. Finally, they seek to prevent any conflict of interest with an arbitrator, in order to ensure even greater transparency of the proceedings.
Ahead of the entry into force of the Rules, the ICC Court will release an updated version of its Note to Parties and Arbitral Tribunals on the Conduct of Arbitration, which will provide more guidance on how to read the rules. The ICC will also host a series of launch events around the world to introduce the new rules – the end of the year therefore promises to be busy for the ICC, already engaged in finding a successor to the current president Alexis Mourre, who will step down next year.