Update on 2021 ICC Arbitration Rules
As of 01.01.2021, new ICC Rules for Arbitration have become effective. Here in this paper, we would like to outline the revisions that stand-out in the new 2021 ICC Rules.
Pursuant to 2017 ICC Rules, unless otherwise is agreed by all parties (including the additional parties), joinders after the confirmation or appointment of any arbitrator were not allowed. The new fifth paragraph to the Article 7 allows such joinders. It provides that the joinder requests made after the confirmation or appointment of any arbitrator will be decided by the tribunal and it will be subject to the additional party’s approval to the constitution of the arbitral tribunal and terms of reference (if applicable). The new fifth paragraph gives guidance to the arbitrators as to their decision whether to accept the joinder request. These include, but not limited to, the issue of whether the tribunal has jurisdiction over the additional party, the timing of the request, possible conflict of interest issues and the impact of the joinder over the procedure.
b. Duty to Inform Third-Party Funding
2021 ICC Rules also deal with the thorny issue of third-party funding. The new paragraph 7 of the Article 11 imposes a duty to inform the ICC Secretariat where there is a third party with an economic interest regarding the outcome of the proceedings who entered into an arrangement with one of the parties regarding funding of their claims/defences.
c. ICC’s Power to Appoint Arbitrators
With the new paragraph 9 of Article 12, 2021 ICC Rules give the ICC the power to appoint all members of an arbitral tribunal. The expression of “notwithstanding any agreement by the parties” is quite interesting. The reason underpinning this power is also stated in the new paragraph: to avoid significant risk of unequal treatment and unfairness. This presumably refers to multi-party arbitrations and the concern is of course a legitimate one. Nonetheless, witnessing ICC’s decision to undermine party autonomy, which is almost regarded as a sacred phenomenon for the international arbitration community, is very interesting and it is safe to assume that this will be a fertile area for discussion.
d. Conflicts of Interest
According to the new Article 17(1), the parties are required to promptly inform the arbitral tribunal as to any changes regarding their representation. The Article 17(2) gives the arbitral tribunal the take the required measures, including exclusion of the new representative, for avoiding conflict of interests that may arise out of such change in the representation.
e. Virtual Hearings
Virtual hearings gained popularity even in courtrooms despite the lack of sufficient infrastructure due to the current unpleasant situation caused by the ncovid-19 pandemic. Hence, it is no surprise that its popularity also increased with respect to arbitral proceedings. With the amendment made to the Article 26, the arbitral tribunal may, after consulting with the parties, decide that the hearings are to be conducted without physical attendance, but by utilising the appropriate tools that will allow the parties and the tribunal to conduct the hearings.
f. Treaty Arbitration
The new ICC Rules also introduce two provisions for arbitrations arising from agreements based on treaties. Pursuant to Article 13(6) the arbitrators should not have the same nationality with any of the parties to the arbitration. Secondly, Article 29(6)-c provides that emergency arbitration rules do not apply for treaty arbitrations.
g. Governing Law and Disputes
The new Article 43 of the 2021 ICC Rules provide that all disputes relating to ICC’s administration of arbitral proceedings shall be subject to French Law and exclusive jurisdiction of Paris Judicial Tribunal.
@Rüştü Mert Kaşka, LLM | Kesikli Law Firm