3 weeks to go – ICC “fast lane” applicable: The newly amended ICC Expedited Procedure Rules will get in force in March 2017!

Christoph JustPartner, SCHULTE RIESENKAMPFF Rechtsanwaltsgesellschaft mbH

In November, the ICC announced an amendment to the 2012 ICC Arbitration Rules that implant  special rules for smaller claims with the effect of March 1, 2017. This “entirely new offer” to ICC users (so ICC Court President Mourre in his press statement) is enacted to resolve disputes “on a very expeditious and cost-effective manner.”

The new Expedited Procedure Rules have been added to the ICC 2012 rules as Appendix VI. They provide the following and important amendments:

  1.       The Expedited Procedure Rules will not apply to arbitration agreements concluded before March1, 2017.
  2.       The ICC regards any claim  a “small claim” the value in dispute does not exceed 2m USD.
  3.       The ICC will appoint a sole arbitrator for the management of the case.
  4.       Parties may opt out of the rules, Art. 30 (3) (b).
  5.       Parties may also opt in, so that they apply for non-small claims as well.
  6.       The ICC court may determine that the Expedited Procedure Rules are deemed inappropriate for the circumstances of a case, either based on a motion from a party or on its own initiative, Art. 30 (3) (c).
  7.       If none of above 4. or 6. applies,  the court will make use of the Expedited Procedure Rules, as the Expedited Procedure Rules take precedence over any contrary terms of the arbitration agreement, Art. 30 (1).
  8.       There will be no Terms of Reference, Appendix VI, Art. 31, deviation from Art. 23.
  9.       As this is the case, the court may request a fee advance not until the Terms of Reference have been drawn up (cf. Art. 37 (1) (a), but until the case management conference is set.
  10.    The case management conference convened pursuant to Art. 24 shall not take place later that 15 days after the date on which the file was transmitted to the arbitral tribunal, Appendix VI, Art. 3 (3).
  11.    Once the Tribunal  is constituted, neither party is allowed to make a new claim, unless expressly authorized to do so by the tribunal, Appendix VI, Art. 3 (2).  The Tribunal shall consider the stage of the arbitration, any cost implications and any other relevant circumstances.
  12.    The tribunal shall have discretion to adopt such procedural measures as it considers appropriate, in particular limit the number, length and scope of written submissions and written witness evidence (fact witnesses and experts) and not to allow requests for document production. This shall be decided upon after consultation with the parties (Appendix VI, Art. 3 (4).
  13.    After consulting the parties, the tribunal my decide the dispute solely on the basis of documents submitted by the parties. When a hearing is to be held, the tribunal may conduct such by videoconference, telephone or similar means of (tele-)communication, Appendix VI, Art. 3 (5).
  14.    The award must be rendered within six months after the date of the case management conference. This deadline may be extended, Appendix VI, Art. 4 (1) and Art. 31 of the Rules. If not granted on initiative of the ICC court, such extension requires a reasoned request of the tribunal to the court.
  15.    The costs of the tribunal shall be fixed at Appendix III, Appendix VI, Art. 4 (2).

 

The aim to streamline the procedure in terms of time and cost budget is meeting user expectations and are in a line with previous amendments of other international arbitral institutions, e.g. DIS, LCIA, SCC, HKIAC, SIAC. Nonetheless, the binding single arbitrator might get problematic and – in terms of party autonomy –  incite to challenge the validity of an award and cause discussions when enforcing an award, though the ICC installed party instruments  the functionality of which will be shown in practice. Further, a stunning consequence of the Expedited Procedure Rules are reduced fees for arbitrators though the ICC fees remain untouched. This may cause “small claims”, the percentage of which is important (up to 30%) in practice, to be increasingly managed by junior arbitrators. The new Expedited Procedure Rules therefore are not unanimously positive within the community.