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UPDATES ON THE INTERNATIONAL CHAMBER OF COMMERCE
ARBITRATION RULES
I. Introduction
International Court of Arbitration of the International Chamber of Commerce (‘’the
ICC’’) set forwards its approach for the Alternative Dispute Resolution with new
1 st 2
updated arbitration rules . The 2021 Rules were launched on 1 of December 2020 ,
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and will become effective and apply to cases that is filled from 1 of January 2021.
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Cases submitted to the ICC and registered before 1 of January 2021 will be ruled by
2017 ICC Rules, unless the parties stated otherwise. The new alterations intended to
make a further efficiency, flexibility and transparency into the arbitral practices whilst
anticipating the demands of both the arbitration community and arbitral tribunals.
II. Amendments and Features of the 2021 ICC Rules
Ø Effective Case Management
Article 22(2) of 2017 ICC Rules stated that; “in order to ensure effective case
management, the arbitral tribunal, after the consultation of parties, may adapt
procedural measures as it considers appropriate, provided that they are not contrary
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to any agreement of the parties.”. Regarding the 2021 Rules, the replacement of
“may” with “shall”, grants a complete duty on arbitrator to ensure an effective case
administration.
Ø New Scope for Consolidation
In line with the Article 10(b) of the 2017 ICC Arbitration Rule, the ICC may consent 2 or
more arbitrational consolidations that are pending under the ICC Rules where “all the
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claims are made under the same arbitration agreement”. In this context, such
phrasing unconfirmed the question as whether “the same arbitration agreement”
comprised same arbitration agreements covered in different contract. The 2021 ICC
1 2019 ICC Dispute Resolution Statistics, p. 9.
2 2021 ICC Arbitration Rules (2020), 1.
3 2017 ICC Arbitration Rules, Article 22(2).
4 2017 ICC Arbitration Rules, Article 10(b)
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rules clarifies that the ICC may present consolidation in where “all of the claims in the
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arbitrations are made under the same arbitration agreement or agreements” .
Further, revision of Article 10(c) allows the ICC to order consolidation where a different
arbitration agreement or agreements may be involved, specified that those
agreements are compatible, in-which the arbitrational disputes rise in connection with
the same legal relationship.
when a different arbitration agreement or agreements may be involved, provided that those
agreements are compatible, the parties are the same and the disputes were associated with
the same legal relationship.
Consequently, new 2021 ICC Arbitration Rules embraces wider liberal account to
consolidation, with compatibility of the related arbitration agreements becoming
more essential.
Ø Joinder of Additional Parties after the Arbitral Tribunals
Inclusion of additional parties permitted only in line with the consents of parties in the
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contract and before the construction of the arbitral tribunal through the 2017 Rules.
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Yet, the revised Article 7(5) permits an arbitral tribunal, when established and upon
requests of parties, to join an additional party even when in the lack of complete
consent. Besides, additional party is subject to accept the constitution of the arbitral
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tribunal and agree to the Terms of the Reference . Whilst deciding the joinder
application, the arbitral tribunal is subject to determine all relevant circumstances
such as the arbitral tribunals’ eligibility to have jurisdiction over the relevant party, the
timing of the application, likely conflict of interest, and lastly, the effect of the joinder
on arbitral actions.
Ø Increased Expedited Procedure Rules
The monetary limit provided in the Expedited Procedure Rules have been changed
by the 2021 Arbitration Rules and raised the opt-out threshold from 2 million to 3 million
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for arbitration agreements which are concluded on or after 1 of January 2021.
III. Compliance with Due Process Principles
5 2021 ICC Arbitration Rules, Article 10(b).
6 2017 ICC Arbitration Rules, Article 7(1).
7 2021 ICC Arbitration Rules, Article 7(5).
8 Ibid.
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Ø Additional Awards
Under the 2017 Rules, decisions already made may be subject to correction or
interpretation by the arbitral tribunals under the ICC’s direction. Currently, the 2021
Arbitration Rules entrains a new rule for additional awards. Under Article 36 (3); within
30 days of receipt of the award, a party may apply the arbitral tribunal to issue an
additional award to rule upon claims raised that been omitted during the
proceedings.
IV. Constitution of the Arbitral Tribunal
The new rules build on Article (12)8, which allows the ICC Court to nominate all three
members of the arbitral tribunal is one of the major and controversial amendments
constructed in the 2021 Arbitration Rules. Under the Article 12(9); "notwithstanding any
agreement by the parties on the method of constitution of the arbitral tribunal, in
exceptional circumstances the Court may appoint each member of the arbitral
tribunal to avoid a significant risk of unequal treatment and unfairness that may affect
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the validity of the award." The revision as described by the ICC is inspired by the
Dutco decision of the French Court de Cassation and aiming to ensure compliance
with public policy and preserve the enforceability of awards in exceptional
circumstances. Although such provision object to fairness and equality, limitation on
the right of the parties to nominate their own arbitrator will certainly have controversial
aspect on the key rights in international arbitration. Regardless of the agreements by
the parties on the method of constitution of arbitral tribunals, grating discretionary
power to ICC Court is, at first glance, an instance of infringing freedom.
V. Measures on Prevention of Conflict of Interest
Ø Third Party Funding
In line with the overriding needs on the transparency of international arbitrations, the
2021 Arbitration Rules presents a new provision in regard to the third-party funding
disclosures. New Article 11(7) highlights that; “in order to assist prospective arbitrators
and arbitrators in complying with their duties under Articles 11(2) and 11(3), each party
must promptly inform the Secretariat, the arbitral tribunal and the other parties, of the
existence and identity of any non-party which has entered into an arrangement for
the funding of claims or defences and under which it has an economic interest in the
9 2021 ICC Arbitration Rules, Article 7(5).
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outcome of the arbitration.” In this respect, intention to increase transparency is
evident for arbitrators to disclose their relationship with the funders to avoid any
possible conflict of interest.
Ø Party Representation
The new 2021 Arbitration Rules presents new provisions that purposes to strike a
balance between fair treatment and arbitrators’ independency. Under the Article 17;
parties are mandates to inform any changes in their representation to the ICC
Secretariat, the arbitral tribunal and other parties. In return, the Article 17(2) gives a
right to arbitral tribunal to decline the proposed amendment or limit the participation
of new party representative from the proceedings. Overall, measure of new provision,
gradually, aims to prevent the conflict of interest amongst the new party
representative and arbitrators.
VI. Innovative ICC Rules
Ø Arbitration of Treaty-based Disputes
About 20 percent of cases registered by the Court involved a state or state entity, with
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a 67 percent upsurge over the past 5 years. In an attempt to adapt to the
particularities of this growing portfolio, the provisions of the Rules on investor-state
dispute resolution ('ISDS') have been strengthened with a few tweaks.
The 2021 Arbitration rules provides two new rules on the treaty disputes under the
Article13(6) and Article26(9) c. Resembling to ICSID Convention Article 39, Article13(6)
asserts that none of arbitrator can have the same nationality as a party, unless the
parties agree otherwise. Thereby, introducing a new neutrality feature or requirement
in treaty-based disputes. Moreover, Article26(9)c implicitly specifies that Emergency
Arbitration Provision are not offered when “the arbitration agreement upon which the
application is based arises from a treaty." And such provision is in compliance with the
UNCITRAL Arbitrational Rules and ISCID which do not provide the emergency
arbitration provision. In sum, given provisions on treaty-based disputes are indication
10 2021 ICC Arbitration Rules, Article 11(7).
11 2019 ICC Dispute Resolution Statistics, 9.
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