The International Chamber of Commerce (ICC) International Court of Arbitration has, on 5 January 2016, announced two new policies designed to enhance the transparency and efficiency of ICC arbitration proceedings. This announcement comes on the heels of the sixth annual survey on international arbitration published by the School of International Arbitration at Queen Mary College in London which we comment on here. The ICC’s new policies were adopted unanimously at the 17 December 2015 session of the Bureau of the Court, and announced at the Court’s Plenary session on the same day.
Publication of arbitrators’ details
The first policy requires that for cases registered from 1 January 2016, the names of the arbitrators will be published on the ICC website. Arbitrators’ nationality and whether they were appointed by the court or the parties will also be published, as well as the identity of the tribunal chair. This information will be made public following the constitution of the tribunal and will remain on the website after cases are finished. Any changes to the constitution of the tribunal during proceedings will be published but the reason for the change will not be given. In order to protect parties’ confidentiality, case reference numbers and the names of parties and their counsel will not be made public. Parties will also be able to request that the Court publishes additional information about a specific case.
Parties will however have the option to opt out of this new disclosure policy by mutual agreement. It therefore remains to be seen just how successful the policy will be as its effectiveness is largely dependent on parties’ attitudes towards it. Nevertheless, the fact that parties will have to explicitly opt out of the policy certainly indicates a move towards greater transparency at the ICC.
Timeframe for submission of draft awards
The second policy concerns the timing of the submission of draft awards. ICC tribunals will have three months from the date of the last substantive hearing concerning matters to be decided in the award or, if later, the filing of the last written submissions (excluding cost submissions) to submit their draft award. This timeframe is shortened to two months for tribunals consisting of a sole arbitrator. Again, this new policy applies to all cases registered from 1 January 2016.
If a draft award is not submitted within the specified timeframe, and the Court is not satisfied that the delay is justified by exceptional circumstances or factors outside of the arbitrators’ control, the arbitrators’ fees may be reduced as follows:
- for a draft award submitted up to seven months after the last substantive hearing or written submissions, the fees that the Court would have set will be reduced by 5 to 10%;
- for a draft award submitted up to ten months after the last substantive hearing or written submissions, the fees that the Court would have set will be reduced by 10 to 20%; and
- for a draft award submitted more than ten months after the last substantive hearing or written submissions, the fees that the Court would have set will be reduced by 20% or more.
A further measure aimed at improving efficiency is a new power for the Court to increase arbitrators’ fees where a tribunal has conducted a case particularly expeditiously.
Transparency, efficiency and accountability
As reported in the 2015 International Arbitration Survey conducted by Queen Mary College at the University of London, the transparency and efficiency of arbitration proceedings are two of the key concerns of users. The introduction of these new policies at the ICC is a clear attempt to alleviate these concerns, with Alexis Mourre, the president of the ICC Court, commenting that the new ICC policies are intended to inspire greater confidence in the arbitration process. 59% of respondents in the Queen Mary survey favoured a requirement for tribunals to commit to a schedule for deliberations and delivery of final awards. The ICC’s new policy in this regard demonstrates a commitment to ensuring the expeditious resolution of disputes in line with users’ priorities, while the publication of arbitrators’ details is intended to encourage greater gender, regional and generational diversity in the appointment of arbitrators.