On October 6, 2020, the ICC published the new version of the ICC Rules of Arbitration 2021. This will apply to all ICC arbitration proceedings initiated on or after January 1, 2021, regardless of the day when the corresponding arbitration agreement was concluded. Companies that will include or have included ICC arbitration clauses in their contracts should familiarize with the new version.
The ICC is reacting to the increased number of multi-party proceedings in recent years (around a third of all ICC proceedings initiated in 2019) with new provisions. Article 7 ICC Arbitration Rules – on the inclusion of additional parties – is now supplemented by a new paragraph 5, according to which the inclusion of an additional party in the course of an arbitration procedure is possible if the arbitral tribunal decides accordingly.
Article 10 of the new ICC rules specifies when two or more arbitration proceedings can be combined in a single arbitration proceeding.
According to the new Art. 11.7, parties that use the services of a litigation financer (Third Party Funding) must disclose this to the ICC-Secretariat, the arbitral tribunal and the opposing party.
The newly inserted Art. 12.9 allows the ICC Court of Arbitration to disregard the agreement of the parties regarding the formation of the arbitral tribunal in exceptional cases and to appoint all arbitrators themselves, if otherwise due to the lack of equal treatment and fairness it is valid and the enforceability of the arbitral award would be significantly jeopardized.
According to the newly inserted Art. 17.2 , the arbitral tribunal is authorized, after hearing all parties in writing, in the interests of the integrity of the proceedings, to reject the party representatives who have been added after the arbitration tribunal was formed if this would otherwise lead to a conflict of interest.
The expedited procedure has been used automatically since 2017 in accordance with Art. 30 in conjunction with Annex VI as an opt-out solution whenever the amount in dispute was less than two million US dollars.
In 36% of the ICC arbitration proceedings initiated in 2019, the amount in dispute was below this threshold. The accelerated procedure takes place before a sole arbitrator, there is no need for an arbitration order and the arbitration award must be made within six months after the procedure management conference has been held. From January 2021, the threshold for automatic application of the expedited procedure rules will be increased from $ 2 million to $ 3 million. This increase has an impact on ICC arbitration clauses that will be concluded if the arbitration agreement under the Rules was concluded on or after 1 January 2021. The parties remain at liberty to exclude the use of the accelerated procedure (opt-out).
Article 26 now says explicitly that the arbitral tribunal, after hearing the parties and taking into account the circumstances, can decide that the oral hearing can also be conducted by video conference, telephone or other means of communication.
For arbitration proceedings that are initiated on the basis of an intergovernmental agreement, Article 13.6 now makes clear that, in the absence of a different party agreement, none of the arbitrators may have the nationality of one of the parties. Furthermore, Art. 29.6c stipulates that emergency arbitrator procedures are not applicable to these kind of arbitration.