Gideon Fisher & Co.: The New ICC Expedited Procedure Rules03/28/2017

By Daphna Fisher and Hila Samourzik

The efficiency of arbitral proceedings and expediting such proceedings has always been a goal of many arbitration institutions as well as service providers, both national and international. It is very likely that the decision of parties regarding the arbitration institution or service provider to administer their arbitration is based upon their efficiency mainly in reducing the total duration of the arbitration.

Last December, the ICC Court of International Arbitration, the world's leading international arbitration body, presented important amendments to the ICC Rules of Arbitration, intended to improve the efficiency of the ICC arbitral proceedings and to expedite them.

These amendments, which are relevant as of March 1st, 2017, apply to arbitration agreements concluded after this date, and affect "small claims" proceedings in which the amount in dispute does not exceed 2 million US Dollars, by applying fast-track rules of procedure.

The Revised ICC rules include the new article 30 of the ICC Rules of Arbitration and the new Appendix VI, both titled "Expedited Procedure".

In brief, the expedited procedure include a more cost-efficient and shorter time period procedure reflected in the following changes:

-      A sole arbitrator will be appointed within a time limit set by the ICC Secretariat.

-      The fees of the sole arbitrator are based on a reduced scale.

-      the sole arbitrator has been appointed, the parties may no longer introduce new claims unless expressly authorized.

-      Case Management Conference must be held no later than 15 days after the sole arbitrator has received the file from the ICC.

-      The parties' written submissions will be limited unless otherwise allowed by the sole arbitrator in consultation with the parties.

-      No requests for document production will be allowed unless otherwise decided by the sole arbitrator in consultation with the parties.

-      The dispute may be decided on the basis of documents only, with no hearing and no witness examination, subject to the sole arbitrator's decision after consultation with the parties.

-      The final award must be rendered within six months of the date of the Case Management Conference,unless this deadline is extended by the ICC Court.

As one can see, there are advantages to the new ICC expedited procedure rules, in terms of time efficiency and costs saving. However, we advise parties to consider their options, in light of some of the disadvantages that these rules may entail for specific cases. For example, the arbitrator's discretion to decide the dispute solely on the basis of documents may not fit all cases, as well as the limit of written submissions, the discretion of the arbitrator regarding documents production, etc.

One should bear in mind not only the advantages and disadvantages of these rules, but also the fact that these rules apply to all disputes that do not exceed 2 million US Dollars, unless the parties opt out of these provisions. This brings us to the wording of arbitration clause included in a commercial agreement, which now will not be sufficient by merely referring the dispute to the ICC, but also requires attention to the Expedited Procedure provisions, opting in or out of them.

Understanding these rules and the issues that can impact the process at the time the agreement is drafted can help ensure that the arbitration clause meets the parties’ interests should a dispute actually arise.