Jurisdiction - New Zealand
Reports and Analysis
Asia Pacific – ICC Rules of Arbitration 2012.

17 November, 2011

 

 

The ICC launched its revised Rules of Arbitration (“ICC Rules 2012”) on 12 October 2011 in Singapore. The ICC Rules 2012 will come into effect on 1 January 2012.  
 
These revisions reflect developments in arbitration practice and procedure, and in information technology since 1998, when the rules were last updated (“ICC Rules 1998”).
 
The ICC Rules 2012 applies to arbitrations commencing on or after 1 January 2012, unless parties agree to adopt the rules of arbitration in effect on the date of their arbitration agreement.
 
Under the ICC Rules 2012, the ICC International Court of Arbitration (“ICC Court”) is the only body authorised to administer arbitrations. 
 
Some of the key features of the ICC Rules 2012 are set out below.
 
EMERGENCY ARBITRATOR – A NEW CREATURE UNDER THE ICC RULES 2012 
 
A party requiring urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may apply for an emergency arbitrator to be appointed, provided that the arbitration file has not yet been transmitted to the arbitral tribunal.   
 
The provisions relating to an emergency arbitrator do not apply if the parties to the arbitration have agreed to opt out of them, or if they have agreed to another pre-arbitral procedure that provides for interim measures. 
 
The emergency arbitrator’s decision is rendered in the form of an order (rather than an award) which binds the parties.  
 
NEW PROVISIONS FOR MULTI-PARTY AND MULTI-CONTRACT SITUATIONS 
 
The ICC Rules 2012 introduce provisions to address the increasing complexity of arbitration cases brought about by the increase of disputes  involving multiple parties and multiple contracts. 
 
These provisions provide that: 
 
(a) a party may request the Secretariat of the ICC Court (“Secretariat”) to enjoin additional parties to an arbitration before the confirmation or appointment of any arbitrator, unless all parties (including the additional party) agree otherwise;  
 
(b) any party may make claims against any other party in multi-party arbitrations;  
 
(c) claims arising out of or in connection with more than one contract may be made in a single arbitration; and  
 
(d) the ICC Court may consolidate two or more arbitrations provided all the parties agree, or, if all of the claims are made under the same arbitration agreement or, if not under the same arbitration agreement, the parties are the same and the arbitration agreements are compatible.  
 
CONFIDENTIALITY
 
The ICC Rules 2012 empower the arbitral tribunal to make orders relating to the confidentiality of the arbitration proceedings upon the request of a party to the arbitration. Previously, the arbitral tribunal only had the power to take measures to protect trade secrets and confidential information.  
 
IMPARTIALITY (AS OPPOSED TO JUST INDEPENDENCE) OF AN ARBTIRATOR
 
Under the ICC Rules 1998, a prospective arbitrator was required to sign a statement of acceptance, availability and independence prior to appointment or confirmation.
 
Under the ICC Rules 2012, a prospective arbitrator will be required to sign a statement of acceptance, availability, impartiality and independence prior to his appointment or confirmation.
 
The prospective arbitrator will also be required to disclose any circumstances which could give rise to reasonable doubts about his impartiality. 
 
IMPROVING EFFICIENCY IN ARBITRATION
 
One of the aims of the ICC Rules 2012 is to reduce time and cost in arbitration.  
 
Under the ICC Rules 1998, the ICC Court may make a prima facie determination as to the existence of an ICC arbitration clause when there is a challenge to the existence, validity or scope of an arbitration agreement.  
 
However, under the ICC Rules 2012, challenges to an arbitration agreement or decisions on whether all claims may be determined together in a single arbitration will generally be dealt with by the arbitral tribunal unless the Secretary-General decides to refer the challenge to the ICC Court. Giving the arbitral tribunal such discretion expedites the resolution of these issues as there is generally no need for reference to the ICC Court. 
 
The arbitral tribunal and the parties are now expected to also make every effort to conduct the arbitration in an expeditious and cost-effective manner.  
 
To ensure effective case management, the arbitral tribunal must convene a case management conference with the parties when drawing up the terms of reference, or as soon as possible after doing so.
 
This may be followed by further case management conferences or consultations with the parties to ensure effective case management throughout the arbitration.
 
Upon the conclusion of the arbitration proceedings, the arbitral tribunal is required to inform the Secretariat and the parties of the exact date by which it expects to submit its draft award to the ICC Court for approval (as opposed to providing an approximate date under the ICC Rules 1998).  
 
THE PARTIES’ CONDUCT: A FACTOR IN DECIDING COSTS
 
The arbitral tribunal will have the discretion to consider the parties’ conduct when deciding on costs, including the extent to which the parties have conducted the arbitration expeditiously and cost-effectively. 
 
OUTDATED MODES OF COMMUNICATION REMOVED
 
The ICC Rules 2012 expressly provide for email as a form of written notification and communication between the Secretariat and the arbitral tribunal. Express reference to outdated modes of communications such as facsimile, telex and telegram have been deleted. 
 
 
For further information, please contact:
 
Jimmy Yim, SC, Drew & Napier
jimmy.yim@drewnapier.com
 
Erroll Joseph, Drew & Napier
erroll.joseph@drewnapier.com
 
 
 
 

 

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