The International Chamber of Commerce (ICC) Revises its Rules of Arbitration

The new, revised 2021 ICC Rules reflect a shift toward greater modernization, efficiency, integrity, and enforceability. The changes, which apply to all cases registered with the ICC on or after January 1, 2021, are partially influenced by the impact of COVID-19 and the necessary technological adaptations that the Court, like parties and their counsel, have been forced to undergo. This shift is now codified in the revised Article 26(1), which empowers a tribunal to decide whether a hearing should be conducted in person, or remotely by videoconference or telephone, and in the revised Article 3(1), which removes the requirement of paper filing and replaces it with the presumption of electronic transmission. Other notable changes to the ICC Rules include:

• Mandatory disclosure of third-party funders with an economic interest in the outcome of the case to the tribunal, other parties, and the ICC Secretariat;
• Expanded provisions regarding joinder of parties and consolidation of proceedings to efficiently deal with complex disputes;
• Empowerment of the Court to, in “exceptional circumstances,” reject unfair or unequal agreements regarding tribunal constitution and to itself appoint each member of the tribunal to protect the validity of a future award; and
• Specific provisions for investment treaty arbitrations aimed at ensuring arbitral independence, and excluding treaty-based arbitrations from the ICC emergency arbitration provisions.

The 2021 ICC Rules entered into force on January 1, 2021, and apply regardless of the date of the underlying arbitration agreement. All cases registered between January 1, 2017 and January 1, 2021 will continue to be subject to the 2017 ICC Rules. An overview of all new and revised rules under the 2021 regime is available here.

Crowell & Moring presented on these new ICC Rules in a webinar with ICC Qatar in November 2020.