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Revised ICC Rules Reflect the Fundamental Role That Arbitration now Plays in Business, Says Hogan Lovells

12 September 2011

12 September 2011 - The International Chamber of Commerce (ICC) launched its revised Rules of Arbitration today.  The ICC is among the world's major institutions for the resolution of international commercial disputes.  It has handled over 18,000 cases since it was founded and the ICC International Court of Arbitration receives around 800 new cases a year.

The ICC Rules are well regarded by the international business community.  They were last updated in 1998 and the new rules are designed to make the process more efficient, to fully encompass modern forms of communication and technology and to be more amenable for use in investment arbitration.

Increasingly, arbitration is seen by international businesses as the most effective method of resolving disputes.  Arbitration, long established as the dispute resolution mechanism of choice in construction, energy and insurance, has become increasingly prevalent in disputes involving banking, financial services, sport, intellectual property and other complex commercial disputes.  Together with resolving investment and trade disputes, arbitration now extends to every aspect of commerce where disputes arise.

Michael Davison, co-head of the international arbitration practice in the London office of Hogan Lovells and one of the members of the Task Force on the Revision of the ICC Rules of Arbitration, said:

"Arbitration has become a fundamental part of day-to-day business for commercial organisations.  It is a cornerstone of international trade.

"The revision of these Rules has been meticulous and the ICC has taken into account all suggestions from members of the ICC, Court members and members of the Secretariat.  The new Rules are designed to allow more efficient resolution of disputes and they take into account advances in technology and the ever-evolving nature of international arbitration."

Daniel Gonzalez, co-head of the international arbitration practice in the Miami office and practitioner of international arbitration throughout the U.S. and Latin America, added:

"Arbitration institutions such as the AAA-ICDR (American Arbitration Association/ International Centre for Dispute Resolution) and the ICC continue to grow and expand as they deal with the most complex business disputes worldwide They offer parties from different national, cultural and legal backgrounds a secure alternative to litigation that addresses concerns that may exist regarding national courts or the enforcement of foreign judgments.

“As more and more parties embrace international arbitration, these important institutions, including the ICC, have recognised the need to adapt, modernise and improve their rules and procedures to accommodate the ever increasing complexity of the matters addressed by arbitral tribunals, whilst at the same time making the process more efficient and responsive. The revisions to the ICC rules recognise that “one size does not fit all” and that parties and tribunals handling particular matters in different parts of the world will still need to sensibly apply the new rules to fit the case at hand.”

Gaelle Le Quillec, counsel in the Paris office of Hogan Lovells added:

"The revised ICC Rules address the three main criticisms of the users of International Arbitration around the time, cost and complexity of arbitration proceedings. By creating Emergency Arbitration Rules and empowering the arbitrators with more "drive" over the parties and the case, the revised ICC Rules are now at the cutting edge of arbitration rules.

"The new innovative provisions on complex arbitration proceedings address head on the complex issues of multiple-party and multiple-contract arbitrations.

"The fact that Paris is the first choice as a seat for arbitration, combined with the recent reform of the French Arbitration Act in January 2011, confirms Paris as one of the leaders in International Arbitration."

Some of the key changes to the ICC Rules include:

• Emergency arbitrators: Provisions for the appointment of an emergency arbitrator to grant interim relief before the Tribunal is constituted.  The emergency arbitrator should be appointed within two days - but would only be empowered to make an interim order, not an interim Award;

• Multi-parties and multi-contracts arbitration: Entirely new provisions which facilitate joinder (of a party to the arbitration agreement), multi-party arbitrations, cross-claims and consolidation;

• Time and Costs: An express duty on the Tribunal and the parties to conduct the arbitration in a cost-effective manner; a focus on upfront case management, including a mandatory case management conference at the outset (which the Tribunal can require party representatives to attend) and a Rule which expressly allows the Tribunal to have regard to the ICC's publication "Techniques for Controlling Time and Costs in Arbitration"; a Rule permitting the Tribunal to make orders as to costs which could take account of parties' conduct; and a provision to permit better monitoring of the time taken to deliver an award to the parties;

• Jurisdiction challenges:  A default rule is established that jurisdiction issues will be determined by the Tribunal directly. The prima facie decision on jurisdiction by the Court disappears in the new Rules, unless the Secretary General of the Court decides to refer a case to prima facie decision on the existence of the arbitration agreement.

• Confidentiality: a Rule permitting the Tribunal to make orders as to confidentiality (including as to the existence of the arbitration);

• Impartiality and independence: The Rules now expressly include the requirement that arbitrators will be required to remain impartial as well as independent and will need to sign a statement setting out their availability;

• Use of IT/technology: the new Rules highlight and encourage the use of IT in the management of arbitration.  They expressly state that the arbitral tribunal or Secretariat will be able to deliver communications by email (which they do already in practice) and references to telex and telegram have been deleted;

• Administration: Only the ICC can administer matters under the ICC Rules.  This is aimed at trying to stop "mix and match" arbitration clauses since the Singapore Court of Appeal decision in Alstom v Insigma which upheld a clause providing for the administration by SIAC of an arbitration under the ICC Rules;

The Task Force was created in October 2008 and is composed of members from 41 countries.

ENDS

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