ICC

The Rules of Arbitration of the International Chamber of Commerce ("ICC") are one of the best known sets of international arbitration rules. Although called the Rules of Arbitration of the ICC, they are administered by the independent International Court of Arbitration of the ICC (the "ICC Court") (the ICC itself being a business/trade organisation with functions beyond dispute settlement).

The 'stamp' of the ICC Court on an arbitral award can be extremely effective when it comes to trying to enforce an award. However, the 'stamp' does not come cheaply.

The ICC charges an administrative fee together with the fees for the arbitrators.There is a tendency for the ICC's fees to be higher than other institutions. This is because the ICC charges by reference to a percentage of the sum in dispute, adjusted to take account of the complexity of the matter. The ICC Website has a costs calculator which will provide an indication of the likely fees.

Unlike most other institutions, the ICC Court does not hold a central list of arbitrators. Rather, when it is called upon to choose an arbitrator, it seeks a recommendation from one of its consultative national committees. The range and expertise of the arbitrators available to the different national committees varies.

In 2012 the ICC carried out a significant revision of its arbitration rules which, whilst maintaining the main characteristics of ICC arbitration, introduced some important changes to improve efficiency and the treatment of multi-party/multi-contract scenarios (for more on the latter see 'Chains of Contracts'). The 2012 ICC Rules were amended in 2017, and the “current” version of them came into force on 1 March 2017 (and generally apply to any ICC arbitration commenced on or after that date). The 2017 amendments were introduced to add a couple of new features to the 2012 Rules. The main substantive addition is a new expedited procedure (see Article 30 & Appendix VI) which applies where the amount in dispute does not exceed US$2million (although the parties are free to opt-out of this or, conversely, agree that it should apply to higher value disputes). Further, this procedure cannot apply where the arbitration agreement was entered into before 1 March 2017, and, even if capable of application, is subject to a discretion on the part of the ICC Court not to apply it. Where the expedited procedure applies the main consequence, in general, is to provide the ICC Court with significant procedural discretion (irrespective of any contrary provision in the arbitration agreement); including choosing to appoint a sole arbitrator to resolve the dispute. Other abridgements to procedure are also made.

Aside from the expedited procedure, the 2017 amendments also introduced tweaks to improve efficiency and transparency in ICC procedure more generally; being a reduction in the time-limit for establishment of Terms of Reference, and provisions allowing the ICC Court to provide reasons for its decisions made on challenges, and other procedural decisions.

A particular feature of the ICC Rules is the Terms of Reference, which the ICC rules require to be agreed immediately after the appointment of the tribunal. In addition to administrative information, the Terms of Reference are required to summarise the parties' respective claims and the relief sought and may include a list of issues to be determined. Agreeing the list of issues is often contentious and can delay matters. Because of this, it may be better to agree in the arbitration clause to dispense with the list of issues. We recommend that this course be followed, while recognising that it can be valuable to have the issues clearly defined at the start. Our ICC clause has been amended to provide that the Terms of Reference must be prepared within a set time and are not to include a list of issues. This should be considered and applied to each case if required.

The ICC Court vets the form of the award, which also takes time, but the ICC Court often picks up mistakes which need to be corrected. The ICC Court does not review the merits of the tribunal's decision. In order to further improve transparency, the ICC Court, in respect of cases registered as from 1 January 2016, publishes the names and nationality of arbitrators sitting in ICC cases on its website, as well as whether they were party or ICC Court appointed (in order to preserve confidentiality, no information about the case, the parties or counsel is published). The ICC Court also publishes a number of practice notes, forms and checklists intended to assist parties and arbitrators with the conduct of ICC proceedings (the ICC's Note to Parties & Arbitral Tribunals on the Conduct of the Arbitration has recently been revised, and an updated version comes into force on 1 January 2019).