2012 ICC RULES OF ARBITRATION: ASIA LAUNCH

Singapore witnessed the Asia Launch Conference of the New ICC Rules of Arbitration on 12 October, exactly one month after they were first released on 12 September this year. The ICC Rules of Arbitration, which are used worldwide to resolve hundreds of business disputes each year, have been newly revised to take account of current requirements and developments in arbitration practice and procedure since the last revision in 1998. The new vintage is the fruit of two years of active work within the ICC Commission on Arbitration, a think tank of 620 dispute resolution specialists from 90 countries. A core group comprising Commission members and representatives of the Secretariat of the ICC International Court of Arbitration have drawn on their own professional experience and feedback from a 200-member task force to draft the new Rules. This conference unveiled and explained the changes made to the Rules in its third revision and was a first hand opportunity for practitioners to acquire a comprehensive overview of the changes in readiness for the subsequent entry into force of the new Rules, and to have a direct exchange with several of the experts from the drafting group.

The Conference was organised at Maxwell Chambers which is the world's first integrated dispute resolution complex housing both best-of-class hearing facilities and top international ADR institutions.

The gathering was welcomed by Ms. Kim Kit Ow, Director, ICC Arbitration and ADR, Asia. Mr. Philip Jeyaretnam, Chairman of the Maxwell Chambers and Managing Partner of Rodyk & Davidson LLP and Mr. Alvin Yeo, member of ICC Commission on Arbitration, Senior Partner- WongPartnership LLP gave brief introduction to ICC Arbitration with their opening remarks.

The first session was on the General Provisions and Arbitral Tribunal. Mr. John Beechey, Chairman, ICC International Court of Arbitration, Paris and Mr W. Laurence Craig, Co-Chair of the Taskforce on the Revision of the ICC Rules of Arbitration gave the audience an overview of the same.

The focus of the first part of the session was on the opening provision of the Rules and the changes made to it seeking to provide clarification on the respective roles of the Court, its Secretariat and arbitral tribunals. It also clarified that ICC arbitration is available for a full range of disputes, including both commercial arbitration and treaty investment arbitrations. Other changes to the rules, which were presented in the session recognized the specifics of treaty investment arbitrations and arbitrations involving states or state entities. Articles 4 and 5 concerning the Request for Arbitration and the Answer are key provisions in the Rules, as these documents set the initial stage for the arbitration. The session addressed the revisions made to these provisions and explained the requirements which parties will have to meet when submitting the Request and the Answer. In addition, revisions to the rules explicitly allowing for tailor-made confidentiality orders as well as other modifications concerning confidentiality were presented.
An often used maxim says that "an arbitration is only as good as the arbitrator" and the provisions concerning the constitution of the arbitral tribunal are at the core of any set of arbitration rules. The session focused on the revisions made to those provisions, including the appointment of the arbitrators by the Court (Article 13), the arbitrators’ duty of impartiality and independence (Articles 11 and 14), and the notification of reasons for Court’s decisions concerning challenges, non-confirmation and replacement of arbitrators.

The question and answer session was moderated by Mr. Alan Thamiayah, independent Arbitrator at the Arbitration Chambers. An interesting question was posed by Mr.Nish Shetty, Partner, Clifford Chance on the fate of contracts which were entered into by virtue of decisions of the highest court of Singapore which allowed SIAC to administer arbitration under ICC Rules but are now in conflict with the new ICC Rules which specifically mention that only ICC can administer case under its rules. The answer to this given by the panel was that only time will tell how such cases are dealt but it would be advisable that such clauses were amended to avoid any problem.

The second session had Mr.Jason Fry, Secretary General, ICC International Court of Arbitration and Mr.Peter Wolrich, Chaiman, ICC Commission on Arbitration on the panel. The discussion was on Improving the Time and Cost efficiency.

One of the primary goals of the rules revision was to find ways to encourage the controlling of time and cost in arbitration. This effort was specifically requested and encouraged by the corporate users of ICC arbitration. The session presented the revisions in order to permit the Secretariat to constitute the arbitral tribunal more rapidly (Article 6(3)) and improve the turnaround time for draft awards (Articles 27, 31). The new provisions addressed to parties and arbitral tribunals concerning the conduct the arbitration proceedings in an expeditious and cost-effective manner and the corresponding cost provisions were also presented (Articles 22- 24, Appendix V, Article 36). Finally, a user’s perspective was presented by the panel.

The question and answer session was moderated by Mr. Chelva Rajah, ICC Court Member for Singapore. Interesting questions were put by the users of ICC Rules of Arbitration which were satisfactorily answered by the panel.

The third session was on a completely new area that has been introduced by ICC through its new Rules. It was on Emergency Arbitrator Provisions. The session was presented by Mr.Christopher Lau, Member of ICC Commission on Arbitration and Mr Vinayak Pradhan, President of the ICC Commission on Arbitration.

The 2012 ICC Rules for Arbitration includes provisions permitting parties to seek the appointment of an Emergency Arbitrator to decide upon urgent conservatory or interim measures that cannot await the constitution of the arbitral tribunal. The session presented the revisions made to the rules in this respect, as well as the wholly new Appendix which sets out the rules for emergency arbitrator proceedings (Article 29, and the Appendix).

The question and answer of this session was moderated by Ms.Kim Kit Ow, Director, ICC Arbitration and ADR, Asia. The presenters were asked all sorts of questions. There was an interesting discussion which ensued on the weight of "order” given by an emergency arbitrator as it is difficult to enforce under the New York Convention for not being an "award" but instead being an "order".

The fourth session which was presented by Ms. Francesa Mazza, Counsel, ICC International Court of Arbitration and Mr Andrew Foyle, ICC Court member, barrister, One Essex Court was on the new area of Multi-Party, Multi-Contract arbitration and consolidation.

The Court has seen a considerable increase in cases involving multiple parties or multiple contracts in the past decade, which reflects an increasing complexity of the transactions underlying the disputes giving rise to ICC arbitrations. The 2012 Rules of Arbitration contain for the first time a chapter devoted to arbitrations involving multiple parties or contracts and consolidation. This session presented those new provisions and related provisions concerning the fixing of the advances on costs in such situations (Articles 7, 8, 9, 10 and 36) and focused on how they will operate in practice.

The question and answer session was moderated by Mr.Yu-Jin Tay, Counsel, Sherman & Sterling. The questions asked by the audience touched various angles of such complex situations but were well answered by the presenters.

The concluding remarks were given by Mr. John Beechey and Mr.Peter Wolrich which was followed by cocktails.

I soon plan to come out with an analysis of the New ICC Arbitration Rules.