Arbitration, a form of alternative dispute resolution, is a way to resolve disputes outside the courts. Rules of Arbitration are made to resolve the cross-border disputes questions by building a nonpartisan structure of activities. It is worked to control the advancement of the cases submitted to the International Court of Arbitration and the gathering is worked to help any individual, business endeavors and Governments in tackling significant debates at each level.
The International Chamber of Commerce (“ICC”) has concocted another arrangement of Arbitration Rules 2021 (“ICC Rules 2021”) which came into from effect on 01st January 2021. As noted by ICC Court President, Alexis Mourre, “the amendments to the Rules mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.”
The 2021 ICC Arbitration Rules present new strategies, update key arrangements, and formalize the current acts of the ICC Secretariat and the Court to take into consideration more noteworthy adaptability, effectiveness and straightforwardness in the organization of ICC intervention cases. But, the previous version of the regulation – the 2017 ICC Rules – will continue to apply to all cases registered with the ICC Court before January 1, 2021.
In proposing alterations to the 2017 Rules, the ICC led an exhaustive modification measure including consulting with the significant partners and the relevant stakeholders. The ICC previously uncovered the proposed adjustments to the Commission on Arbitration and ADR at its fall meeting in Seoul on 21 September 2019 and requested remarks from the different National Committees and Commission individuals. The new draft proposition was talked about at the Commission’s gathering in July 2020. Altogether, the ICC got many composed remarks from different National Committees and individual Commission Members. Moving from this conference cycle, on 6 October 2020, the ICC Executive Board endorsed the amended ICC Rules of Arbitration as proposed by the International Court of Arbitration. Around the same time, the ICC delivered the 2021 ICC Rules in a draft form.
When contrasted with the previous Arbitration Rules of 2017 (“ICC Rules 2017”), it appears to be that ICC Rules 2021 is certainly not a total patch up of the procedural standards for directing the assertion. Or maybe, it safeguards a considerable segment of the ICC Rules 2017 while presenting arrangements that show towards guaranteeing more effective arbitrational questions. The ICC Rules 2021 lays more accentuation on receiving reasonable technique and have additionally expanded the skyline for the multi-party assertion. It has additionally made an endeavor to solidify certain arrangements with a thought of staying aware of the developing dependence on electronic correspondence just as to make arbitrational procedures more helpful for the members, particularly attributable to worldwide limitations set up because of the continuous pandemic.
THE SALIENT FEATURES OF THE 2021 ICC RULES
Joinder of Parties and Consolidation of Arbitration Proceedings
Changes have been made in Article 7(Joinder of Additional Parties) and Article 10 (Consolidation of Arbitrations)in the ICC Rules 2021. Article 7 accommodates adding further parties to the arbitrational intervention even after the arbitral court is comprised, which was absent in the ICC Rules 2017. This change in Article 7 is by all accounts a more huge change because of the consideration of a new paragraph 7(5) that includes allowing for requests for joinder to be made even after the appointment or affirmation of an arbitrator. This change further does empower the arbitral tribunal to settle on any solicitation made by a party for adding further parties to the arbitration. The new revamped Article 7(5) marks a move from the 2017 Rules, where no extra party could be joined to a discretion after the affirmation or appointment of a judge, except if there was an understanding among all the parties, including the extra party, with that impact. The 2021 Rules shed the requirement for an understanding from all parties and gives the dynamic capacity to the arbitral council to join a consenting extra/additional party.
While settling on its choice on a solicitation for joinder, the court is needed to consider every applicable condition, including the prima facie of the jurisdictional council over the extra party, the circumstance of the solicitation for joinder, possible irreconcilable situations and the effect of the joinder on the methodology of the discretion. The new paragraph further explains that a choice to take into account the joinder of an additional party is without bias to the council’s choice concerning its jurisdiction over that part.
Article 10 has additionally been updated in the 2021 Rules to now unequivocally consider union where the entirety of the cases made in the field of arbitration emerges from “same arbitration agreement or agreements”. This change explains any questions with respect to the utilization of Article 10(b) to more than one arbitrational arrangement when already it must be utilized when one arbitrational understanding was being depended upon. The refreshed Article 10(c) further explains that it applies to claims not settled on under a similar arbitration agreement.
Mandatory Reporting of Third-Party Funding
Article 11 of the ICC Rules 2021 accompanies an extra arrangement, for example, Article 11(7), which forces an obligation on the parties to the Arbitration to promptly educate about a non-party who is financing the cases or protections in the procedures (outsider funder) and has a personal stake in the result of the arbitrational procedures. Such data is to be given quickly on its reality, to the Arbitral Tribunal, Secretariat of the Court (“Secretariat”) and different parties to the arbitration procedures. Such an arrangement has been included request to guarantee very much educated revelations regarding fairness, which is needed to be finished by the proposed designated judges as per Article 11(2) and 11(3) of the ICC Rules 2021 and to preclude any irreconcilable situation issues.
ICC COURT: POWER TO APPOINT ARBITRATORS
Article 12 of both the Rules accommodate a methodology for the constitution of an arbitral council comprising of either a sole arbitrator or three authorities. Article 12(9) of the ICC Rules 2021 another extra temporary comparable to the constitution of the arbitral council has been embedded, which is missing in the ICC Rules 2017. Presently, Article 12(9) engages the Court to have a carefulness in designating every individual from the arbitral council in outstanding conditions of evading the critical danger of “inconsistent unequal treatment” and “unfairness” that may influence the validity of the award. Such an intensity of the Court is despite any arrangement between the parties as to the constitution of the arbitral council.
CHANGE IN PARTY REPRESENTATIVE PROCEDURE
The ICC Rules 2021 has seen a total change in Article 17 when contrasted with the ICC Rules 2017, which is corresponding to the adjustment in the portrayal of parties during the pendency of the arbitration procedures. The new Article 17 has another title as “Party Representation” which orders for a party to instantly advise the arbitral court about the adjustment in its portrayal. It likewise enables the arbitral court to take any gauge to dodge irreconcilable circumstance emerging out such change in portrayal and such measures incorporate the ability to limit the new agent from partaking to some degree or entire of the arbitrational procedures. This may be considered as an interruption on the gathering self-governance and the option to pick its direction, be that as it may, it is a route concocted by the ICC to counter the strategic advice arrangements generally done at a remiss stage in a procedure.
Digitalization of Arbitration- Virtual Hearings
Under the 2017 Rules, Article 25(2) gave that “the arbitral court will hear the parties together face to face” upon a parties solicitation or on its own movement. Since the beginning of the COVID-19 pandemic, parties having a problem with the lead of virtual hearings have utilized this provision to contend the need of actual participation, specifically where debates included an assessment of real witnesses and specialists. In its Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic delivered in April 2020 the ICC had affirmed that the principal motivation behind Article 25(2) was to guarantee “live antagonistic exchange”, which was viewed as fulfilled if the hearings were to be held “by virtual means.”
The 2021 Rules eliminate any leftover uncertainty through their new Article 26, by engaging arbitral councils in explicit design to settle on leading hearings face to face and distantly. The choice is dependent upon two necessities: (I) as a starter step, the parties should be counselled, and (ii) “the significant realities and conditions of the case” should be considered. Notwithstanding video and phone meetings, a development in innovation is foreseen in this new article by the reference to “any proper methods for correspondence.” Prior under the ICC Rules 2017, the method of videoconference and telephonic interchanges had its significance simply restricted to directing case management meetings under Article 24 and assisted intervention procedures under Article 30. Presently, under the ICC Rules 2021, the aforementioned modes have been additionally perceived, to direct regular arbitrational hearings also.
Michael Cartier, Partner at Walder Wyss notes that “Even without the new wording of the 2021 ICC Rules, hearings have of course already been conducted by way of videoconference. However, previously remote hearings were often only considered as a second-best option if a witness could otherwise not participate. COVID-19 has led to a shift in perception due to the large-scale adoption of videoconferencing in business life going hand in hand with technical improvements (bandwidth, quality of sound and video) making hearings by videoconference currently the default rather than the exception. Post COVID-19, video conferences will remain an important tool in the arbitrator’s toolbox, and this is rightly reflected in the 2021 ICC Rules.”
Despite the COVID-19 pandemic, virtual hearings are turning into an expanding choice for parties, with the commendable point of lessening deferrals and expenses. Be that as it may, this organization may not be the most intelligent response to the conditions of each case, and, regardless of the 2021 Rules permitting thus, arbitral courts may not generally be qualified for request a full virtual hearing under the lex arbitral. The truth will surface eventually with respect to how this arrangement will happen in a post-COVID-19 world.
A PROVISION FOR ADDITIONAL AWARD
Under Article 36 of the ICC Rules 2021, an arrangement has been added for recording an application by involved with the Secretariat, for an extra award on the perspectives that were raised and were discarded by the arbitral court while choosing the issue. Article 36(3) of the ICC Rules 2021 accommodates documenting the previously mentioned application after the award has been delivered and properly conveyed to the parties as per Article 35(1). Article 36(3) further accommodates a strategy timetable to be clung to while choosing the application for an award concerning overlooked cases. Prior under ICC Rules 2017, Article 36 was simply restricted to remedying any computational, typographical, administrative or some other comparable kinds of blunder in the award delivered by the arbitral council. The modified provision tries to find some kind of harmony between the conclusion of awards and protecting awards from infra petita challenges under the watchful eye of state courts. New Article 36(3) likewise aligns the Rules with various other discretion administers previously managing this issue. This will additionally improve the enforceability of ICC arbitral awards.
ADDITION OF ARTICLE 43
ICC Rules 2021 have accompanied an extra Article 43, which was not there in the ICC Rules 2017. Article 43 of ICC Rules 2021 accommodates arbitration of cases emerging out of the organization of arbitral procedures. Such cases, as indicated by Article 43, will be represented by the French Law and will be settled by the Paris Judicial Tribunal of France.
FACILITATING INVESTMENT ARBITRATION
The ICC Rules 2021 have embedded two new provisions to improve straightforwardness and procedural reasonableness as for treaty-based arbitrations. Article 13(6) has been included the new ICC Rules 2021 to deny the arrangement of a judge having a similar ethnicity to that of any of the gathering, in a circumstance where the intervention procedures are emerging out of a settlement.
Another arrangement that has gone through change is Article 29(6)(c) which presently prohibits the materialness of the Emergency Arbitration Provisions where the assertion procedures emerge out of a treaty.
EDGE FOR EXPEDITED PROCEDURE
Under the ICC Rules 2017, the Expedited Rules that are sketched out in Appendix VI were material to just such situations where the contested sum doesn’t get over US$ 2,000,000/ – . Under the new ICC Rules 2021, such cutoff has been expanded from US$ 2,000,000/ – to US$ 3,000,000/ – expanding the number of cases to be managed quickly on a default premise.
SETTLEMENT OF DISPUTES
One of the cases the board strategies suggested by the 2021 Rules incorporates “urging the parties to think about the settlement of all or part of the question”, rather than just “illuminating” them about that choice according to the past cycle. An express reference to the ICC Mediation Rules supplements this arrangement in light of the developing number of settlements saw during the COVID-19 pandemic.
Call for Green Arbitration
Necessary to the battle against environmental change, allotment of printed versions has for various reasons generally expanded during the COVID-19 pandemic. In its Guidance Note, the ICC provoked all gatherings and arbitral courts to depend on electronic submissions.
Taking action accordingly with the 2020 LCIA Arbitration Rules, the 2021 Rules affirm this pattern by eliminating the assumption of paper filings. Article 3(1) presently gives that all entries, notices and interchanges “will be sent” electronically, rather than “provided in various duplicates.” Several arrangements affirm that the gatherings should explicitly demand transmission by printed version (Articles 3(2), 4(4)(b), 5(3)), and 1 of Appendix V).
ONLINE PUBLICATION OF ICC AWARDS AND PROCEDURAL ORDERS
While not explicitly gave in the 2021 Rules, another change booked for 2021 concerns the online distribution of all ICC grants and procedural requests as a default rule. For information protection concerns, the parties will be given notification ahead of time, with the chance to protest or choose the modalities of distribution, including anonymization.
Insight into the internal running of the ICC Court
The 2021 Rules give important extra data on the inward activities of the Court. The Statutes of the Court (Appendix I) presently incorporate a modified arrangement measure for the President of the Court (Article 3(1)), two back-to-back service time boundaries all individuals from the Court (Articles 3(5) and (6), an unmistakable work division between Committees, recently made Special Committees and Single-party Committees (Articles 4, 5, and 6). The Internal Rules of the ICC are likewise adjusted to give detail on the constitution, majority, and dynamic of the Court.
ACCESS TO THE REASONING OF THE ICC COURT
The new Article 5 of Appendix II affirms that, upon any gathering’s solicitation, the Court may convey its thinking behind its choices on the presence and extent of an at first sight intervention understanding (Article 6(4), solidification of mediations (Article 10), the arrangement of judges (Article 12), difficulties to referees (Article 14) and substitution of authorities on the Court’s own movement (Article 15(2). The solicitation should be settled on ahead of time of the choice in regard to which reasons are looked for. In “excellent conditions”, the Court holds the watchfulness to decrease revelation of its reasons.
CONCLUSION
The 2021 Rules oblige the ICC Court’s proceeded with endeavors to upgrade proficiency, increment straightforwardness and responsibility to the parties. As discretion keeps on developing from created to creating portions of the world, it is significant that all arbitral organizations proceed to endeavor and meet client expectations.
Reviewed in real-time to guarantee that arbitral procedures move flawlessly during the COVID-19 pandemic and past, the 2021 ICC Rules additionally augment the authority of arbitral councils and the Court to settle on procedural issues. As a subtlety, practice will tell if extra constraints on gathering self-sufficiency for proficiency will be invited by clients and followed by contending arbitral foundations.
But all in all, 2021 ICC Rules are a welcome update. The progressions to the arbitral council’s forces are exact, mirror the development of the ICC Court and the Secretariat’s practices and are predictable with the strategies and methodology that have become the standard in ICC arbitration further solidifying the ICC’s presence as the leading arbitral institution.
