Critical Analysis of the 2021 ICC Rules on Arbitration: A comparative analysis of the nexus between the 2017 ICC Rules and the 2021 Rules

Alternative Dispute Resolution(“ADR”) provides an alternative to the monochromatic practice of litigation and allows the parties to resolve their disputes in an amicable manner. Arbitration is one form of ADR which has a plethora of important components and characteristics which are applicable both in the international as well as a national sphere.

In order to make the practice of ADR available to the general public, there are a number of institutions across the world that are constantly endeavoring to ensure that ADR is facilitated and its importance disseminated throughout the world. Amongst the various forms of ADR, Arbitration, in particular, is law-driven. The process of arbitration follows a particular general set of rules and regulations. The rules differ from place to place and are amended from time to time and are also institution-specific in certain circumstances. For example, the UNICTRAL Model Law on International Commercial Arbitration, The Rules of the American Arbitration Association etc.

One of such institutions is the International Chambers of Commerce(“ICC”) which has its specific rules on Arbitration. Recently ICC has launched its new set of Rules of Arbitration of the International Chamber of Commerce (“new rules”). The article primarily discusses the components of the new rules, the position of the rules prior to the new rules, and critically analyzes and compares both the rules in a descriptive way.

Rules of Arbitration of the International Chamber of Commerce came into effect for the first time in 2012 which was amended in 2017 (“2017 rules”) and amended further in 2021 which came into effect from the 1^st of January, 2021.  The present rules was modified by the International Chambers of Commerce to ensure that the outdated procedural exigencies of international arbitration are successfully done away with. This came in right after the London Court of International Arbitration changed its rules in October, 2021 which also introduced major changes relating to the function of arbitration in particular. The present ICC rules came into effect from the 1^st January, 2021.

Critical Analysis

The rules were in process since the end of 2020 however they came into effect from January 1, 2021. The major changes which were added and made in the rules include rules for simple and expeditious arbitration, rules for multi-party arbitration, rules for IT in coronavirus crisis, and rules for transparency of arbitration procedures. According to the ICC Court President Alexis Moore[1], the 2021 ICC Rules of Arbitration “mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.” [2]

• The new rules provide, the process of new the word additional award was introduced in the document and further engaged in the Article 36(3). An addition award is the decision of the tribunal on a matter ancillary to the original matter presented to the tribunal. The inclusion of this would mean the increasing powers and autonomy stipulated to the arbitral tribunal to decide cases which are taken up by parties.

•  Article 3 regarding the responsibility of the parties with relation to written communication between parties and the members of the arbitral tribunal. One of the essential components of Alternative Dispute Resolution in general is transparency. The emphasis on responsibility of the parties to properly communicate any written transactions means emphasizing on the creation of more transparent form arbitration.

• One of the essential features of ADR in general and arbitration, in particular, is independence and impartiality of the Arbitral tribunal which was refocused on in the new rules. In addition to above, the new rules refurbished the essential features of ADR.  For example, the addition of Article 12(9)- emphasized on the importance of impartiality and fairness in the appointment of arbitrators and the tribunal. Article 13(6) reemphasized the need for fairness in the appointment of arbitrators by ensuring that a proper background check on the nationality of the arbitrators is done to ensure that the process is not tainted by biasness. The amendment of Article 26 ensured that the arbitration process is party driven and absolute autonomy is given to ensure an amicable resolution of disputes.

• Article 17(2) reemphasised the need for the speedy redressal wherein the parties should act in a prompt and unbiased manner to maintain the principles of ADR and establish an unbiased system result. Article 11(7) relating to the promptness and the importance of the speedy disposal of the cases. Furthermore, the introduction of the words in “as soon as possible” in Article 34 refocused on the need to create a speedy forum for the redressal of the questions of the arbitration.

• Another aspect which was introduced in the new rules to ensure the proper functioning of the procedure is the joinder of parties and consolidation of cases, which will now come under the review of the arbitral tribunal. This amendment was majorly introduced to ensure party autonomy and to ensure that the process of arbitration is a party-driven process.  Disclosure of third-party funding arrangements through

• The introduction of Article 43 wherein the governing law is fixed for all the arbitral procedures ensures that the age old dispute between the seat, venue and place with regards to the jurisdiction of the arbitral tribunal is solved. This provision is however the most critical. One of the reasons for the critical nature of the provision is that the parties may not be in consensus of the law that would govern the administration specially when the arbitration proceeding is of the international nature. However, this provision can be considered to have introduced exclusivity in the rules and also given it a proper framework and direction.

•  Another important introduction and modification to the rules relates to the acknowledgement of the changing times and the introduction of technology in the field of arbitration to facilitate the procedure. For example, the Articles 4 and 5 regarding the use of technology and electronic messaging and the Article 26(1) regarding the aspect of remote hearing of disputes by the tribunal

This in a nutshell presents the emergence of the new rules, the policy makers have tried to introduce provisions to make the process flexible and party specific, however, several provisions can still be considered to be archaic. Despite the critical provisions, the news rules in particular have modernised the process of arbitration and introduced technological amendments to preserve the dynamic nature of ADR.

[1] ICC Court President Alexis Mourre, available at: https://iccwbo.org/media-wall/news-speeches/icc-unveils-revised-rules-of-arbitration/

[2] Sam Saunders, ICC 2021 Rules (May 4, 2021) https://www.charlesrussellspeechlys.com/en/news-and-insights/insights/litigation--dispute-resolution/2021/icc-2021-rules/