New policies give international arbitration much needed makeover

The International Chamber of Commerce (ICC) International Court of Arbitration is to adopt two new policies to enhance the transparency and efficiency of arbitration proceedings.

From 1 January 2016, the ICC Court will publish the composition of its tribunals on its website. Information on the costs of unjustified delays in submitting draft arbitration awards to the court has also been set out.

Transparency

Seeking greater transparency, the court will publish details on its website including the names of arbitrators sitting in ICC cases and their nationality, whether the appointment was made by the court or by the parties, and which arbitrator is the tribunal chairperson.

This information will be disclosed once the tribunal is constituted and updated in case of changes in its composition, but the reason for the change will not be disclosed. Once the case is finished, the information will stay online.

The names of the parties and counsel will not be published, nor the case reference number, however, the parties can, by mutual agreement, opt out of this limited disclosure. They may also request the court publish more information about a particular case.

Alexis Mourre, president of the court, believes the new policy will demonstrate the its commitment to ensuring greater transparency and accountability.

'The information published will show the quality of our tribunals and will provide an additional incentive to promote regional, generational and gender diversity in the appointment of arbitrators,' he said.

'This will provide greater confidence in the arbitration process and help protect arbitration against inaccurate and ill-informed critiques.'

Cost consequences

A new policy setting out the costs of delays has also been announced with tribunals now required to submit draft awards for scrutiny within three months, or two months for sole arbitrators, after the last substantive hearing or the last written submission.

It concerns matters to be decided in an award or, if later, the filing of the last written submissions. This timeframe will be set at two months for cases heard by sole arbitrators.

Failure to submit a draft award within the timeframe may reduce the arbitrators' fees unless the court is satisfied the delay is justified by factors beyond the arbitrators' control or due to exceptional circumstances.

For draft awards submitted for scrutiny up to seven months after the last substantive hearing or written submissions the court can reduce fees it would otherwise have considered fixing by 5 to 10 per cent.

For draft awards submitted up to ten months after the fees can be reduced by 10 to 20 per cent, and awards submitted after that period can be reduced by 20 per cent or more.

The court will take into account any delays incurred in the submission of one or more partial awards. The new policy also rewards expedited arbitration in cases by giving the court the option of increasing the arbitrators' fees above the amount it would otherwise have considered fixing.

Mourre commented: 'Users are concerned by the time and costs of international arbitrations, and rightly so. The expeditious resolution of disputes is one of our top priorities.

'The immense majority of our awards are timely made, yet there is still a minority of cases in which we see delays that are not acceptable to our users.

'By releasing this new note, we send a clear signal to tribunals that unjustified delays will not be tolerated, and we provide transparency on the consequences that the court will draw from such situations.'

Matthew Rogers is an editorial assistant at Solicitors Journal matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt