ACCELERATED PROCEDURES UNDER THE ICC RULES · ACCELERATED PROCEDURES UNDER THE ICC RULES REDEFINING CASE MANAGEMENT ... MILESTONES IN ICC ARBITRATION (2017) Time limit fixed by the
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ACCELERATED PROCEDURES UNDER THE ICC RULESREDEFINING CASE MANAGEMENT
Sergii Melnyk | Deputy CounselICC International Court of Arbitration
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
1
I. Introduction
II. Expedited Procedure
III. Timely scrutiny and reduction of fees
OUTLINE
6 June 2018
I. INTRODUCTION
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
521 593 599 663 817 793 796 759 767 791
966
810
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
CASES REGISTERED ANNUALLY
CASES
2017 810 new cases registered
1,548 pending cases at year end
36 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
(QMUL 2015 Survey, p. 6)
4
TIME IN INTERNATIONAL ARBITRATION
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
GENERAL OBLIGATION
5
Article 22(1)
• “The arbitral tribunal and the parties shall make every effort to conduct the arbitration in a cost-effective manner, having regard to the complexity and value of the dispute”
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
GENERAL OBLIGATION
6
Article 27
• As soon as possible after final hearing or final submission, shall (1) close the proceedings and (2) inform Secretariat and parties of expected date for submission of the award
Article 31(1)
• Shall render the Final Award within (1) six months or (2) any other time limit fixed by the Court pursuant to the procedural time table
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
• 2 years 2 months2017• 2 years 3 months2016• 2 years 1 months2015• 2 years 2 months2014• 2 years 2 months2013• 2 years 2 months2012• 2 years 3 months2011• 2 years 3 months2010
IN PRACTICE…
7
Average time to render a final award
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
2017 RULES - ENHANCING EFFICIENCY
8
Joint obligation
The arbitral tribunal and the parties shall make every effortto conduct the arbitration in a cost effective manner havingregard to the complexity and value of the dispute (Article22(1))
Parties In making decisions on costs, the arbitral tribunal may takeinto account the extent to which each party has conductedthe arbitration in an expeditious and cost effective manner(Article 37(5))
Arbitrators In setting the arbitrator’s fees, the Court shall take intoconsideration the diligence and efficiency of the arbitrator,the time spent, the rapidity of the proceedings, thecomplexity of the dispute and the timeliness of thesubmission of the draft award (Article 2(2) App. III)
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Request Answer Saisine ToR CMC/ PTT
Pleadings
Evidence
Hearing
Case Mgmt
Closing Award
MILESTONES IN ICC ARBITRATION (2012)
Time limit fixed by the Court pursuant to Article 30(1) or by default 6 months from Terms of Reference
8 /12 weeks
30 days
2 months
96 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Request Answer Saisine ToR CMC/ PTT
Pleadings
Evidence
Hearing
Case Mgmt
Closing Award
MILESTONES IN ICC ARBITRATION (2017)
Time limit fixed by the Court pursuant to Article 31(1) or by default 6 months from Terms of Reference
8 /12 weeks
30 days
30 days!
106 June 2018
II. EXPEDITED PROCEDURE PROVISIONS (EPP)
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Article 30 + Appendix VI =
“Expedited Procedure Provisions” (or
“EPP”)
Article 30(1)By agreeing to the ICC Rules the parties agree that the Expedited Procedure Provisions shall take precedence over any contrary
terms of the arbitration agreement.
EXPEDITED PROCEDURE PROVISIONS
126 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Date Arbitration Agreement
1 March 2017
Amount in
DisputeUS$ 2 Million
Opt-In- Standard Clauses- During the arbitration - Subject to Art. 30(1)
Opt-Out
- Standard clause- During the
arbitration- Express, not
Implicit
Court’s discretion
- Upon request- On its own motion
SCOPE OF APPLICATION
136 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
TIMING OF APPLICATION
Once all claims filed
and comments received
Secretariat informs the
parties
If a party objects, the
Court decides
At any time the Court may
decide that the EPP no longer
apply
146 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
CONSTITUTION OF THE ARBITRAL TRIBUNAL
The Court may appoint a sole
arbitrator, notwithstanding
any contrary provision of the
arbitration agreement.
The Court will normally
appoint a sole arbitrator.
The Court may appoint
three arbitrators if
appropriate in the
circumstances and taking into consideration rules of law that may be applicable.
If the Court decides that the EPP no
longer apply it can
reconstitute the arbitral tribunal if
appropriate.
156 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Arbitrators fees are reduced by 20% under the
Expedited Procedure
Scales
The Secretary General may fix a
provisional advance on costs based on
the Expedited Procedure Scales and the amount in
dispute indicated in the Request for
Arbitration.
The Secretary General may readjust
the provisional advance on costs on
the basis of the general scales if the
EPP ultimately do not apply
The advance on costs will be fixed
under the Expedited Procedure Scales
after the parties have been informed that
the EPP apply.
The advance on costs may be
readjusted on the basis of the general scales if the Court
decides that the EPP no longer apply.
SCALES AND COSTS
166 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
Regular procedure
Terms of Reference
No deadline for CMC
Award within 6 months from ToR
Party autonomy
Regular Fee scale
EPP
No Terms of Reference
CMC within 15 days from Saisine
Award within 6 months from CMC
More discretion of Tribunal (e.g. hearing,
submissions)
Reduced Fee scale
COMPARISON REGULAR PROCEDURE / EPP
176 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
COMMENCEMENT OF ARBITRATION
186 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
APPLICATION OF THE EXPEDITED PROCEDURE PROVISIONS
196 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
CONSTITUTION OF THE ARBITRAL TRIBUNAL
206 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
PROCEEDINGS BEFORE THE TRIBUNAL
216 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
INCIDENTS / AWARD
226 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ARBITRAL TRIBUNAL
Court may appoint a sole arbitrator, notwithstanding
contrary provision of arbitration agreement.
Court may appoint three arbitrators if appropriate in
the circumstances and taking into consideration rules of law that may be
applicable.
30(1) By agreeing to the ICC Rules the parties agreethat the Expedited Procedure Provisions shalltake precedence over any contrary terms of thearbitration agreement.
National
arbitrators!
National Committees
propose arbitrators!
6 June 2018 23
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
A straightforward and simplified
procedure
Not meant to drastically reduce the duration of arbitration
A CLARIFICATION ON EPP
246 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
EPP APPLICATION IN PRACTICE
86 requests&
potential cases
76 opt-in cases
1 opt-out case
256 June 2018
NB: the statistics are provided for illustrative purpose only, the numbers are changing on the daily basis.
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
EPP APPLICATION IN PRACTICE
Opt-ins: 76 cases
Automatic: 6cases
Potential cases: 4cases
266 June 2018
NB: the statistics are provided for illustrative purpose only, the numbers are changing on the daily basis.
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
IN PRACTICE…
27
Average time to render a final award in EPP
From CMS to final award Total(from RfA to Notification)
1 award5,3 months 8 months
2 award4,5 months 8 months
3 award4,5 months 8,5 months
4 award5,3 months, 10 months
5 award5,6 months 9 months
Average 5 months 8,7 months
6 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
6 Final Awards 1 Partial Award
1 Article 2(1) decision
10 currentlyongoing cases
EPP IN PRACTICE
286 June 2018
III.TIMELY SUBMISSION OF DRAFT AWARDSTIMELY SCRUTINYFEE REDUCTIONS FOR DELAY
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
§ 92 Note
• In this regard, sole arbitrators are expected to submit draft awards within two months and three-member arbitral tribunals within three months after the last substantive hearing on matters to be decided in the award or the filing of the last written submissions concerning such matters (excluding cost submissions), whichever is later (Article 27).
§ 93 Note
• Whenever the Arbitral Tribunal has conducted the arbitration expeditiously, the Court may increase the arbitrators’ fees above the amount that it would otherwise consider fixing.
NOTE TO PARTIES & ARBITRAL TRIBUNALS
Efficiency in the Submission of Draft Awards to the Court
306 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
§ 94 Note
• Where the draft award is submitted after the time referred to in paragraph 43 above, the Court may lower the fees as set out below, unless it is satisfied that the delay is attributable to factors beyond the arbitrators’ control or to exceptional circumstances…:
• Delay up to 7 months → possible reduction by 5% to 10%.• Delay up to 10 months → possible reduction by 10% to 20%.
• Delay of more than 10 months → possible reduction by 20% or more.
NOTE TO PARTIES & ARBITRAL TRIBUNALS
Efficiency in the Submission of Draft Awards to the Court
316 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
NOTE TO PARTIES & ARBITRAL TRIBUNALSEfficiency in the Submission of Draft Awards to the Court
• Factors beyond arbitrators’ control?
• Exceptional circumstances?
1. Complexity of the case
2. Parties’ behaviour:a. Unsolicited submissionsb. (Lack of) cooperativeness
3. Arbitrators’ behaviour:a. Availability throughout proceedingsb. Quality of the Awardc. Dissenting opinions
326 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
What is the ICC practice?
In 2017:
• 154 draft awards submitted late:
84 cases: fee reductions applied (between 3% and 30%)70 cases: no fee reduction applied
FEE REDUCTIONS
336 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
100%0,3%
no delay slight delay
99,7%
DELAYED SCRUTINY IN 2017
340 draft final awards (2017)
339 submitted within time limit
1 submitted outside the time limit
346 June 2018
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
QUESTIONS?
356 June 2018
Sergii MelnykDeputy CounselSergii.Melnyk@iccwbo.org
For further information, please visit our website:www.iccarbitration.org
Useful links:www.iccevents.orgwww.iccyaf.orgwww.iccdrl.com
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