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ICC Appointing Authority Rules
Users of ICC arbitration will probably welcome the new requirement for arbitrators to disclose any relationships that might affect their independence and impartiality. This will hopefully help to reduce belated arbitrator challenges.
The new rules introduce amendments aimed at facilitating consolidation of UNCITRAL and non-UNCITRAL ad hoc arbitration proceedings. They also clarify the process for joining third parties.
Rules for the appointment of experts and neutrals
The ICC has launched a set of rules for the proposal, appointment and administration of experts and neutrals. These new expert rules are intended to make the process more efficient and effective for parties and neutrals. They also aim to ensure that the quality of the work produced by these experts meets international standards. The ICC has introduced these changes in response to the continuing growth of global economic transactions and changing needs of dispute resolution services. These new rules are a welcome addition to the existing ICC rules and may serve as an ideal complement to ICC arbitration, mediation, and Dispute Board proceedings.
The new ICC Rules for the Proposal and Appointment of Experts and Neutrals require that expert and neutrals sign a declaration of independence and impartiality. This declaration must be signed by both the expert and his or her legal representative. This declaration is a vital component of the ICC’s efforts to prevent conflicts of interest and promote transparency in expert and neutral activities. The ICC’s new expert rules also require that the expert or neutral disclose any facts and circumstances that might cause concern over his or her independence or impartiality.
In administered expert proceedings, the expert must define his or her mission in writing after consulting all parties. He or she must also specify a procedural timetable, which can be modified upon consultation with the parties. In addition, the expert must inform the Centre in writing if he or she cannot fulfil his or her tasks for any reason. The ICC’s expert rules also allow the expert to subcontract his or her activities if all parties agree to do so.
Expert-related services can be used in a variety of disputes and are a valuable tool for the settlement of commercial and investment disputes. They can be used at any stage of the dispute resolution process, whether as an initial step in conciliation or mediation or to supplement other forms of dispute resolution. In addition, they can help to avoid costly litigation.
The ICC has recently amended its rules to support the use of technology in expert and neutral hearings. The amended rules allow tribunals to conduct hearings remotely by teleconference, telephone or other appropriate means of communication. The revised rules also allow the Tribunal to issue interim measures by e-mail or other electronic means. The amendments are designed to support the use of technology in ICC proceedings and encourage efficiency. The new rules will also provide the ICC with the flexibility to adopt further improvements in these areas as necessary. The new rules were approved by the ICC Commission on Arbitration and ADR on 14 January 2015. The ICC has long been a leader in international dispute resolution, and these new rules reflect the changing needs of the global economy.
Rules for the appointment of arbitrators
In an attempt to promote the efficiency of arbitration, the ICC has revised its Rules of Arbitration to allow for remote conduct of hearings. The new provisions also allow for the use of electronic submissions and virtual conferences. These changes are expected to facilitate the conduct of more complex cases and increase speed and cost-efficiency. However, they should be exercised with caution to avoid infringements of party autonomy, which is a key element and advantage of arbitration.
The 2021 Rules have also expanded the tribunal’s authority to consolidate and join proceedings. These changes may create concerns regarding the protection of the parties’ right to appoint their own arbitrators, which is one of the core principles of international arbitration. The consolidation and joining of arbitrations could also result in inequitable results and unfairness to parties, especially when there are multiple claimants or respondents.
Another significant change to the ICC’s rules is the addition of a new section on disclosure. It requires that parties disclose the existence and identity of non-party funding arrangements and their economic interest in the outcome of the arbitration. This change moves the requirement from ICC guidance into the Rules itself, and places the onus on parties to comply with this requirement throughout the life of an arbitration.
Lastly, the rules have changed to provide for the appointment of an emergency arbitrator. This provision will allow for the faster settlement of disputes, particularly when there are time constraints or other urgent issues that require prompt action. The amendment also includes the option to select an expert or neutral as an emergency arbitrator and allows for the appointment of a co-arbitrator in urgent circumstances.
While these revisions are not as wide-ranging as those introduced in the 2012 and 2017 rules, they are nevertheless a reflection of the evolving environment for arbitration. In particular, the rules on virtual hearings and the use of electronic submissions reflect the growing use of technology in arbitration. However, these amendments should be used with caution to ensure that they do not undermine the integrity of the ICC’s renowned arbitration procedures and its reputation for impartiality. Additionally, the changes to the rules on consolidation and joinder should be implemented carefully in order to maintain a balance between efficiency and procedural fairness. The ICC’s ability to address these issues is vital in the face of growing competition from other arbitral institutions. It is therefore important that the ICC continues to remain at the forefront of global arbitration practice. The 2021 Rules are a positive step in this regard, but further reforms will be necessary. This will include continued efforts to promote transparency, which is the hallmark of a fair and effective arbitration system. This will require the support of governments, stakeholders and the business community.
In order to promote transparency and facilitate the ICC’s role as an appointing authority in UNCITRAL and other ad hoc arbitration proceedings, the ICC has revised its existing rules for such appointments. The new rules also aim to improve efficiency in the proceedings by introducing clearer procedures. Previously, requests for the ICC’s appointment as appointing authority were handled by different authorities within the ICC. The new rules introduce a single procedure that ensures clarity and consistency in the handling of such requests.
The ICC’s appointing authority is an independent body that selects the arbitrators for disputes referred to arbitration under the ICC Rules of Arbitration. The selection process is based on a thorough review of the application by the parties. It takes into account the expertise of each individual and the best interests of the dispute. It is important that the appointing authority chooses arbitrators with extensive experience in international commercial arbitration and good standing. The appointing authority must also take into account the language of the dispute and any special requirements of the arbitration.
In three-member tribunals, the parties may agree on a procedure for appointing a President of the Tribunal. However, in the absence of such an agreement, the Secretary-General of ICSID will appoint the President of the Tribunal. The appointing authority is also expected to encourage the parties to settle their dispute.
Another change to the ICC Rules is the requirement that parties disclose their funding arrangements to the tribunal at the outset of the case. The new rule is intended to prevent secret financing of arbitration and to promote a level playing field for all parties. It is similar to the provision in Hong Kong International Arbitration Centre’s Rules.
The new ICC rules also clarify that the tribunal has discretion to conduct hearings either in person or remotely. This has been a controversial issue during the COVID-19 pandemic, with some parties insisting that hearings should only be held in person. The revised rules should help to resolve this controversy by making it clear that a tribunal has the discretion to decide whether or not hearings should be conducted in person or remotely.
The 2021 ICC Rules also include several other innovations, including more streamlined consolidation provisions and a shift in approach to joinder. Among the most significant changes is Article 12.9, which gives the ICC Court a fall-back discretion to disapply an agreed tribunal constitution mechanism where it might lead to inequality between the parties. This is an important new development, but it remains to be seen how the ICC will interpret this provision in future. It will be particularly interesting to see how the ICC’s fall-back discretion is applied in practice, given that equality of representation is a fundamental principle for many parties.