On March 1st, the revised Arbitration Rules of the International Chamber of Commerce (ICC) took effect. The revised Rules seek to enhance time and cost efficiency as well as transparency, and will apply to all arbitrations initiated on or after that date.

An expedited procedure for smaller cases

The major innovation is that the Rules now provide for an expedited procedure that applies automatically to smaller disputes. The expedited procedure rules will apply only to arbitration agreements entered into after March 1, 2017.

The expedited procedure provisions, set forth at Article 30 and Appendix VI of the Rules, apply to all arbitrations in which the amount in dispute is $2 million or less, unless the parties opt out of the procedure. Parties can also agree to opt in to this procedure in cases with higher stakes.

When triggered, the essential features of the expedited procedure are as follows:

  • Generally, a sole arbitrator will be appointed by the ICC Court, even if the arbitration agreement provides for three arbitrators;
  • There will be no Terms of Reference (a formal document usually drawn up early in an ICC proceeding to, inter alia, define the scope of the arbitration);
  • The arbitral tribunal has the power to decide the dispute on the basis of documents only without any hearings or witness examination;
  • The arbitral tribunal has express discretion not to allow requests for document production and to limit the number, length and scope of written submissions and written witness evidence;
  • The arbitral tribunal must convene an initial case management conference within only fifteen days of receiving the file;
  • The arbitral tribunal has only six months to render the final award from the date of the case management conference. (The ICC Court has the power to extend that time limit if necessary.)

According to ICC Court President Alexis Mourre, “disputes will now be resolved on a very expeditious and cost-effective manner, providing an effective answer to the legitimate concerns of the business community as to time and costs.”

Parties wishing to opt out of the expedited procedure must do so expressly. Importantly, the ICC indicates that such an intention will not be implied simply because “the parties have referred in the arbitration agreement to a three-member arbitral tribunal, or have adopted time limits that depart from those provided by the Expedited Procedure Provisions.” It is recommended that parties wishing to opt out of the expedited procedure provisions in their arbitration agreement do so by following standard clauses proposed by the ICC.

Enhanced Efficiency and Transparency

With regard to arbitrations that do not follow the expedited track, the revised Rules reduce the time limit for establishing the Terms of Reference from two months to 30 days. This time limit may be extended by the ICC Court if necessary.

The revision further enhances transparency by allowing the ICC Court to provide the parties with reasons for its decisions on arbitrator challenges and on jurisdictional issues. In the past, the ICC Court made those decisions without providing its reasoning, unless both parties requested otherwise. The request of one party will now be sufficient.

Alongside the entry into force of the new Rules, the ICC has released the latest version of its Note to Parties and Arbitral Tribunals, which provides detailed guidance on the application of the new rules, and the expedited provisions in particular. Mr. Mourre comments that the “Note is an important step towards the implementation of our new policies to foster the efficiency and the transparency of ICC arbitrations. The possibility for any party to seek the provision of reasons for a wide range of Court decisions is a landmark change as well as a message of accountability to our users.”

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Photo of Ana Vermal Ana Vermal

Ana Vermal is a partner in the Litigation Department and co-head of the firm’s International Arbitration Group.

Ana Vermal is a quadrilingual common law and civil law lawyer with over 20 years of experience representing corporations from around the world in complex arbitrations…

Ana Vermal is a partner in the Litigation Department and co-head of the firm’s International Arbitration Group.

Ana Vermal is a quadrilingual common law and civil law lawyer with over 20 years of experience representing corporations from around the world in complex arbitrations arising out of their cross-border business transactions such as acquisitions, joint ventures, distribution and licensing agreements. Ana handles arbitral proceedings under the rules of all major arbitral institutions. Ana is also frequently appointed to serve as arbitrator. In addition, Ana represents clients before courts in France and the United States in connection with the enforcement or annulment of arbitral awards.

Ana sits on the International Court of Arbitration of the International Chamber of Commerce (ICC). In that capacity, Ana participates in the Court’s judicial supervision of ICC arbitrations, including the appointment of arbitrators, decisions on challenges against arbitrators and the scrutiny and approval of ICC arbitral awards.

Ana is Vice Chair of the Arbitration Committee of the International Bar Association, and also serves as the Argentine representative to the ICC Commission on Arbitration and ADR.  She is a frequent speaker on international arbitration topics.

The wealth of Ana’s legal and cultural experience is highly sought after by our clients. An Argentine national, she has lived in Germany, Spain, the United States and France, and is fluent in English, French, Spanish and German.  Ana is qualified to practice in both New York and Paris.

Chambers Global notes that “clients highlight her ‘extremely strong courtroom presence and strong cross-examination skills’,” while The Legal 500 EMEA reports that clients view Ana as “a great strategic thinker” who “shows an unmatched commitment to her clients and a knowledge and understanding of case law and the intricacies of each case that distinguish” her. Who’s Who Legal notes that Ana “is recognized as a ‘brilliant and insightful counsel with vast knowledge of international arbitration proceedings’. She comes highly commended for her expertise in post-M&A and contractual disputes.”