ICC Arbitration Rule 2021 applies to all ICC arbitration proceedings happening after the 1^st of January 2021, regardless of the agreement end date. The exception is only when the parties at the time of submission agrees to go with the existing agreement.

The 2021 Rules aim at greater efficiency, flexibility and transparency of the proceedings with no additional costs.

KEY CHANGES

• Joinder of Additional Parties: The arbitral tribunal is allowed to join a third party even when there is no universal consent, unlike 2017 Rules which required the consent of all parties.

• Effective Case Management: The 2017 Rules states that “to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate”. The 2021 Rules brought about a huge change by changing ‘may’ to ‘shall’ making the effective case management the responsibility of the arbitrators.  

• Revisions for Expedited Arbitrations: The New Rules raised the threshold from 2 mn to 3 mn and thus expanded the scope of Expedited Procedure provisions.

• Avoidance of Unequal Treatment of Parties: The 2021 Rule allows the Court to disregard “unconscionable arbitration agreements” and appoint the arbitral tribunal in any arbitration. In order to avoid risk of unequal treatment and unfairness the court may appoint the members of the arbitral tribunal.

• Liberal Approach to Consolidations: The 2021 Rules solves the confusion  regarding the term “same arbitration agreement”. The Court may order the consolidation:
  1. Where all claims are made under the same arbitration agreement(s), and
  2. When all claims are not made under the same agreements if:
     • arbitrations are between the same parties,
     • disputes arise in connection with the same legal relationship,
     • Court finds the arbitration agreements to be compatible.
• Additional Awards: A provision on additional awards for claims on which the arbitral tribunal initially omitted to decide was introduced. A party can request to issue an additional award to arbitral tribunal to rule upon unaddressed award considerations.

• Disclosure of Third-Party Funders: Parties are made to disclose to the arbitral tribunal the identity of any non-party funders who has a monetary interest in the result of the arbitration. This ensures impartiality and independence of the arbitral tribunal by assisting prospective arbitrators in their disclosure.

DIGITALIZATION

2017 Rule provided that “the arbitral tribunal shall hear the parties together in person”. This was pointed out for objecting to virtual hearings and arguing the necessity of physical attendance. In April 2020, the COVID protocol “Guidance Note” clarified that the underlying purpose was to ensure “live adversarial exchange”, which was beautifully carried out by ‘virtual hearings’  

The 2021 removes the practice of paper filings and declares that all submissions can be electronically sent, instead of “supplied in a number of copies.” Another major change to be witnessed is the online publication of all ICC awards and procedural orders. The parties will be notified well before to avoid Data Privacy. They are given the right to object or even claim anonymity during publication.

Related Services: Arbitration