ICC Arbitration Decisions

ICC Announces Two Major Decisions Aimed at Enhancing the Efficiency and Transparency of Arbitration Proceedings

• On 5 January 2016, the International Chamber of Commerce (ICC), International Court of Arbitration (the Court) announced two major decisions. These decisions are aimed at enhancing the efficiency and transparency of ICC Arbitration Proceedings.

Promoting Transparency

From 1 January 2016, the Court will now publish on its website:

1. the name of the Arbitrators sitting in the ICC case;
2. their nationality;
3. whether the appointment was made by the Court or by the parties; and,
4. which Arbitrator is the Tribunal Chair person.

• The information will remain on the website once the case has been terminated.
• The case reference number and the name of the parties and their Counsel will not be published.
• It is important to note that parties will, by mutual agreement, have the option of opting out of this disclosure process.
• In addition, they will also have the ability to request the Court to publish additional information about a particular case.

Cost Consequences for Unjustified Delays in Submitting Awards

• The length of time it takes to submit an Arbitral Award is a topic in constant debate.
• The Court has set out clear information as to the cost consequences that derive from unjustified delays in submitting draft arbitration awards to the Court.
• Tribunals will be expected to submit draft awards within either 2 months (for a case with one arbitrator only), or three months (for cases with more than one arbitrator) after the later of the last substantive hearing or written submission (excluding cost submissions).
• If a draft award is submitted beyond that timeframe, the Court, unless satisfied that the delays are justified by factors beyond the Arbitrators control or to exceptional circumstances, may lower the Arbitrator’s fees as follows:

1. for draft awards submitted for scrutiny up to seven months after the last substantive hearing or written submissions, whichever is later, the fees that the Court would otherwise have considered fixing are reduced by 5 to 10%;
2. for draft awards submitted up to 10 months after the last substantive hearing or written submissions, the fees that the Court would otherwise have considered fixing are reduced by 10 to 20%; and
3. for draft awards submitted for scrutiny more than 10 months after the last substantive hearing or written submissions, the fees that the Court would otherwise have considered fixing are reduced by 20% or more.

Increase of the Fees

• Interestingly and stated as a further measure to encourage efficiency, the new policy provides the Court with the possibility to increase the Arbitrator’s fees above the amount that would otherwise have been the usual fee in cases where a Tribunal has conducted the Arbitration expeditiously.

How Will This Affect You?

• It will be useful to see the ICC’s information showing which Arbitrators have been appointed when considering which Arbitrator to appoint, not least for availability and capacity. But it isn’t likely that this serves any other purpose the usefulness of the carrot-and-stick over the Adjudicator’s fees will be one to observe.
• Will it actually have an impact on the controversial amount of time taken for Arbitrators to produce their decisions remains to be seen.

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