The 2012 ICC Rule Changes: Efficiency and Flexibility
After over two years of study, the ICC Commission on Arbitration approved a revised set of rules for ICC Arbitrations. The revised rules include major changes for multiparty and multi-contract arbitrations, emergency arbitration procedures, case management guidelines and appointment of the arbitrators.
The ICC is well known for its high quality, high cost, time-consuming arbitration process, including its hallmark “scrutiny” of arbitration awards. ICC arbitrations also have been known in the past for their general lack of flexibility in dealing with third party claims and multiple contracts, lack of transparency in the arbitrator disqualification process, and inability to deal with emergency requests prior to the formal appointment of the arbitral tribunal. The revised arbitration rules attempt to keep those things that have made ICC arbitrations successful in the marketplace of international arbitration while attempting to fix those areas where ICC arbitrations have been properly criticized.
The long deliberative process to consider and adopt changes to the ICC Rules of Arbitration resulted in a well-considered set of rules that should solve some of the problems in the old rules without making fundamental changes to what the international arbitration community has come to expect from ICC arbitrations. That is, while there is an increased push for efficiency, practitioners should expect to see the same high-quality arbitration process. Notwithstanding the push for more efficiency, practitioners should not expect to see a fundamentally speedier or less expensive process in the near future. This is not because the rule changes do not foster greater efficiency; rather, it is because it will take a while for tribunals and practitioners to create a new “normal.” The tribunals’ ability to penalize inefficiency when allocating costs should help overcome the existing inertia.
The rationale for the disqualification decisions of the ICC Court will remain secret and the formation of tribunals will likely remain a relatively slow process, albeit with some of the worst kinks ironed out. Unless otherwise agreed, the emergency arbitration procedures will be available only where the arbitration agreement was entered into after January 1, and the award scrutiny process will continue to delay delivery of arbitration awards to the parties (though making the final product of higher quality). That being said, the revised rules do provide increased flexibility that makes them competitive with other international arbitration rules sets.
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