This post was originally published on the Kluwer Arbitration Blog, 7 March 2019.
ICC’s updated guidance to parties
On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (Note). The Note, which came into effect from 1 January 2019, introduces a number of significant updates to the ICC’s practical guidance on its Rules of Arbitration.)
The International Chamber of Commerce (ICC) has announced changes to its Rules of Arbitration (ICC Rules) which will come into force on 1 March 2017. The changes include the introduction of an expedited procedure for small claims, as well as general amendments designed to streamline non-expedited cases, and provide greater transparency to the arbitration process.
Practitioners and arbitral institutions alike are constantly looking for ways to smooth and improve the arbitral process. One of the latest contribution to this effort is a June 2014 guide from the International Chamber of Commerce (ICC) entitled “Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives” (the Guide).
In another pro-arbitration decision emanating from the Supreme Court of India in the case of World Sport Group (Mauritius) Ltd v MSM Satellite (Singapore) Pte Ltd,¹ the court referred to arbitration a dispute involving allegations of fraud. In doing so, the court read restrictively its previous decision in N Radhakrishnan v Maestro Engineering² – where it had held that issues of fraud fell more properly to be determined by courts. The court held that the interpretation given in Radhakrishnan applied only to domestic arbitration. The recent decision further reduces the risk of interference by courts in foreign-seated arbitrations.
On 9 September 2013, the International Swaps and Derivatives Association (ISDA) published its long-awaited Arbitration Guide. The Guide comprises an explanatory memorandum which provides an overview of arbitration, together with model arbitration clauses (and guidance notes) for use with the ISDA 2002 Master Agreement and ISDA 1992 Master Agreement (Multicurrency – Cross Border). The model clauses are designed to be included in the Schedule to new Master Agreements, but are readily adaptable for use when amending an existing Maser Agreement to provide for arbitration.
The model clauses provide for a number of different combinations of arbitral rules/institution and seat of arbitration, including the ICC Rules (London, New York or Paris seat), LCIA Rules (London seat), AAA-ICDR Rules (New York seat), HKIAC Rules (Hong Kong seat), SIAC Rules (Singapore seat), Swiss Chambers’ Arbitration Institution Rules (Zurich or Geneva seat), and PRIME Finance Rules (London, New York or The Hague seat). In each case, the governing law of the Master Agreement will be either English or New York law.
The Singapore High Court (the Court) considered whether an arbitration clause which stipulated that disputes were to be settled by arbitration under the ICC Rules in Singapore administered by a non-existent institution was inoperable. The Court ruled that the arbitration clause in question was workable provided that an arbitral institution in Singapore agreed to conduct the arbitration.
The judgment in this case appears to be in line with a previous judgment of the Singapore Court of Appeal which upheld an arbitration clause that provided for the Singapore International Arbitration Centre (SIAC) to administer an arbitration under the ICC Rules.
However, in between this judgment and the previous ruling, a new set of rules was adopted by the ICC (the 2012 ICC Rules). Rules 1(2) and 6(2) of the 2012 ICC Rules state:
“The [International] Court [of Arbitration] is made the only body authorised to administer arbitrations under the ICC Rules”
“By agreeing to arbitration under the [ICC] Rules, the parties have accepted that the arbitration shall be administered by the Court.”
The Court did not discuss the 2012 ICC Rules or how Rules 1(2) and 6(2) could raise implications for an arbitration conducted under the 2012 ICC Rules being administered by an arbitral institution that was not the ICC. The Court, therefore, did not address whether the parties had impliedly excluded the possibility of an institution besides the ICC administering the arbitration by adopting the 2012 ICC Rules.
While the SIAC previously agreed to administer an arbitration under the ICC Rules, it is yet to be seen whether the SIAC, or any other arbitral institution, will agree to do so given the introduction of Rules 1(2) and 6(2) in the 2012 ICC Rules. It is also uncertain whether the Court’s ruling will be appealed and whether the judgment will stand.
The ICC’s revised set of Arbitration Rules came into effect on 1 January 2012. The new Rules codify existing practice in several areas, but also add a number of provisions intended to address the growing complexity of today’s disputes, the particular features of disputes involving states and state owned entities, and demands for greater speed and cost-efficiency.
The webinar discussed the main innovations in the new Rules and the issues which should be borne in mind at the contract negotiation stage if the ICC Rules are being considered to resolve disputes.
The following topics were considered in particular:
- new provisions relating to complex multi-party, multi-contract disputes;
- the new ‘opt-out’ Emergency Arbitrator procedure for urgent interim or conservatory measures;
- incentives for arbitrators and parties to conduct proceedings efficiently and cost-effectively; and
- the lack of a general obligation of confidentiality.
If you would like to receive details of upcoming webinar or receive an audible download of the above webinar please contact Prudence Heidemans.