ICC Dossiers

I. THE PURSUIT OF TIME AND COST EFFICIENCY IN INTERNATIONAL ARBITRATION

1. When a dispute arises, the parties to the dispute look for a fair, reasonably quick and cost effective way of settling their dispute. Arbitration is one of the tools, and in many instances, the preferred adjudicative one. It can be tailored to the specific needs of the parties and the dispute; it is generally expected to be confidential and therefore to protect the parties’ reputation or their trade secrets; and it is generally perceived as being efficient.
2. The efficiency of international arbitration, however, has been quite criticised by its users in that arbitration has become too complex, too long and too expensive.¹ Thus, for international arbitration to remain one of the preferred dispute resolution methods, arbitral institutions and arbitrators have been focusing on ensuring the efficiency of arbitration proceedings, that is, making sure that arbitral tribunals render, in a relatively short time frame and for reasonable costs, an award of quality, that the parties will be able to enforce at a later stage.
3. In 2010, the “Queen Mary International Arbitration Survey: Choices in International Arbitration” identified the main causes of delay, and hence of increased cost, in arbitration as being, notably, the disclosure of documents, the parties’ written submissions, the constitution of the tribunal and hearings.² “Control of proceedings was an issue raised by a number of interviewees and it was felt by many to be key to questions of cost and delay”. ³ Interviewees were of the view that “arbitration must become more streamlined and disciplined to provide an entirely effective form of dispute resolution”.⁴
4. Efficiency of the arbitral process has again received much attention in the 2015 “International Arbitration Survey: Improvements and Innovations in International Arbitration” (hereafter, the “Survey”),⁵ as well as in the publication of costs and duration data by the main arbitral institutions around 2015-2016.⁶
5. One of the potential time- and cost-saving procedural innovations, according to the Survey, is the adoption of simplified and shorter arbitration procedures for small claims (i.e. cases where the amounts claimed are relatively low) in institutional rules.⁷ These simplified and shorter procedures — also called “accelerated arbitrations” or “expedited arbitrations” — are [Page35:] “designed to result in an award being rendered within weeks or months rather than years” ⁸ with a number of recommended case management techniques and a fixed deadline to issue the arbitral award. The Survey reports that 92% of respondents are in favour of the adoption of simplified arbitration procedures in institutional rules.
6. In an effort to respond to this market demand and like many other arbitral institutions before it,⁹ the ICC Executive Board adopted amendments to the ICC Rules of Arbitration on 20 October 2016, including a new Article 30 and a new Appendix VI in the ICC Rules of Arbitration (2017) creating an “ICC EPP”(for Expedited Procedures Provisions). The new rules entered into force on 1 March 2017.
7. While the ICC EPP were added to the ICC Rules of Arbitration only recently, expedited arbitration had been at the heart of discussions and debates at ICC for some time. As early as 2002, the ICC Secretariat issued a practical “Note on Expedited ICC Arbitration Procedure” with recommendations for parties wishing to organise an expedited ICC arbitration procedure pursuant to Article 32 of the ICC Rules of Arbitration (1998), which explicitly allowed parties to shorten time limits set out in the rules. In that note, ICC reminded users that “expedited or fast-track arbitration proceedings have always been possible under the ICC Rules”.¹⁰ Indeed, independently from any specific institutional expedited procedure rules, parties and arbitrators could shape the procedure so as to make it relatively quick (in the delays set for the exchange of pleadings, in the arbitral tribunal’s decisions on whether to grant extensions requested by a party, in the time the arbitral tribunal takes to issue the award and so on…). This was merely an informative note for parties wishing to organise a quicker procedure, highlighting the parties’ possibility to agree on a simplified and accelerated procedure.
8. Later on, the ICC Commission on Arbitration went a step further and set up a Task Force, which eventually led to the publication in 2007 of a more specific and detailed report on “Techniques for Controlling Time and Costs in Arbitration”. The report recommended the use of various techniques for parties, counsels and arbitrators to better control time and costs throughout the arbitration process. For instance, it encouraged parties to provide for accelerated procedures in their arbitration agreements based on Article 32(1) of the ICC Rules of Arbitration (1998), which enabled the parties to shorten time limits.¹¹ It also recommended that arbitrators consider “whether or not it is necessary for there to be a hearing in order for the arbitral tribunal to decide the case”.¹² This report was, again, of informative nature for parties wishing to organise expedited arbitrations, but it also encouraged parties, counsel and arbitrators to shorten and simplify proceedings, based on the parties’ agreement to settle their disputes via accelerated procedures.
9. At a later stage, ICC however noted that even though the “open-ended nature of the [ICC Arbitration] Rules enable[d] the parties and the arbitral tribunal to tailor-make an effective procedure that suits the needs and particularities of each case,” and “the [ICC] Commission came to the conclusion that too often the parties and tribunals do not tailor-make the procedure at an early stage, but rather apply boilerplate solutions or simply decide procedural matters piecemeal as the case progresses. This was found to increase time and cost in many arbitrations.”¹³

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10. This is the reason why, in 2012, ICC went even further by introducing, inter alia, two new rules in its existing Rules of Arbitration. These new rules make the process of tailor-making the arbitral procedure a formal requirement, hoping to speed up, simplify and reduce the costs of arbitrations depending on the circumstances of each case.¹⁴ But they did not introduce a standardised expedited procedure. At the time, in 2012, there were debates as to whether the ICC Rules of Arbitration should include a special procedure for small claims, but the idea was not retained.¹⁵ Articles 22 and 24 introduced by the 2012 revision were general provisions, merely requiring tribunals to conduct proceedings in an efficient manner and recommending the use of certain tools depending on the type of disputes. On the one hand, Article 22 required arbitrators and parties to “make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.”. On the other hand, “Article 24 required arbitrators to convene a case management conference at an early stage of the arbitration,”¹⁶ without imposing a specific deadline, “and to consult the parties regarding procedural measures”¹⁷ which could include one or more of the case management techniques described in Appendix IV of the ICC Rules of Arbitration (2012).¹⁸
11. This flexible approach left arbitrators free to determine, on a case-by-case basis and in consultation with the parties, whether and how to accelerate the proceedings.¹⁹
12. Building upon the 2012 revision, the ICC Commission issued a guide for in-house counsel and other party representatives entitled “Effective Management of Arbitration.” The guide was “designed to help party representatives implement the new provisions [of the 2012 ICC Rules of Arbitration] and make appropriate decisions for effective case management”,²⁰ having regard to the complexity and value of the dispute, in order to reduce time and costs in arbitrations.²¹
13. In our experience however, these informative notes and recommendations have been rather rarely followed, and the case management techniques, too rarely used. Likely this is because once a dispute has arisen, the parties are, or at least one of them is, less likely to agree on procedural techniques and choices that will increase efficiency and swiftness. Instead, they are “more concerned in making sure that their right of due process is not affected”.²²
14. Therefore, when revising its Rules of Arbitration in 2016, ICC decided to radically change its approach to accelerated arbitration procedures and created a specific expedited procedure which, as a matter of principle, automatically applies to disputes below a certain amount. More precisely, the ICC EPP are based on a so-called “opt-out” system: in addition to applying when “the parties so agree,” the ICC EPP apply automatically when the amount in dispute does not exceed US$2 million and when the parties have not expressly excluded their application in the arbitration agreement, provided the arbitration agreement was concluded after 1 March 2017. Upon receipt of the answer to the request for arbitration, the ICC Secretariat informs the parties that the ICC EPP will apply to their case. Reference to the ICC Rules of Arbitration triggers the application of all provisions of the ICC EPP, regardless of any contrary terms in the arbitration agreement.²³ It follows that contrary terms in the arbitration agreement [Page37:] would not be sufficient to opt out of the ICC EPP; the parties will need to expressly exclude the application of the EPP. Thus, the ICC EPP opt-out system has been described as a “hardball approach” as opposed to a “softball approach”.²⁴
15. The opt-out system chosen by ICC might be surprising as it appears to be in contradiction with the expectations of most practitioners and parties in international arbitration. The Survey reports that, while 92% of respondents are in favour of the adoption of simplified procedures in institutional rules, a majority (59%) prefers optional procedures rather than mandatory ones (33%).²⁵ Moreover, “[s]ome interviewees [of the Survey] who did not favour the proposition cautioned that the value of a dispute does not necessarily correlate with its complexity”.²⁶
16. The ICC EPP obviously aims at increasing, or at least preserving, the time and cost efficiency of ICC arbitrations — i.e. ensuring that ICC awards are rendered quickly and at minimal costs. However, the EPP should also have at least three other goals, which are not less important. These are: to maintain the legal quality of awards, to protect party autonomy, and to ensure the enforceability of awards by avoiding to jeopardise due process and the right to a fair trial. Therefore, the pursuit of time and cost efficiency should be balanced with the imperatives of quality, party autonomy and due process in international arbitration (Title II.). In fact, these different goals should serve as guidelines for the ICC Court, the parties and arbitrator(s) as to what measures they could, should or should not take at the start of an ICC expedited procedure (Title III.).

II. THE IMPERATIVES OF QUALITY, PARTY AUTONOMY AND DUE PROCESS

17. Parties having recourse to international arbitration expect an independent and impartial arbitral tribunal that will manage the proceedings efficiently as to time and costs, while respecting the parties’ autonomy and their rights to a fair trial. They expect the arbitral tribunal to render a high-quality award, which the parties will be able to enforce at a later stage.
18. Accordingly, the ICC EPP, through the use of certain tools, seek to improve the efficiency of arbitral proceedings by simplifying and hence shortening procedures, as well as reducing their cost (Section A.). Time- and cost-efficiency, however, should not come to the detriment of the good quality of the adjudicatory service provided, which is part and parcel of the notion of efficiency (Section B.), or of one of the most fundamental features of international arbitration, party autonomy (Section C.), nor should it jeopardise due process and the right to a fair trial (Section D.). The ICC EPP should be read in view of these goals, although some provisions may be questioned as to whether they effectively reach them.

A. Time- and cost-efficiency

19. In order to improve the efficiency of international arbitration, expedited rules set criteria for the determination of cases that should (or could) be submitted to an expedited procedure, and the criteria are usually based on the amount in dispute. Indeed, in addition to applying when the parties so agree, the ICC EPP also automatically apply to cases where the amount in [Page38:] dispute does not exceed US$2 million. These “small claims” are a category of disputes where the stakes are deemed not justifying a lengthy and complex process (1).
20. These small claims are submitted to a shorter and more simplified procedure in order to improve time- and cost efficiency. The ICC EPP use a number of tools to that regard: as most expedited procedures, they set a time limit for the arbitral tribunal to render its award, they give discretion to arbitral tribunals to decide on the number and length of submissions, and whether or not to hold a hearing and hear witnesses (2).

1. "Small claims"

21. The ICC EPP automatically apply to cases where the amount in dispute does not exceed US$2 million. These “small claims” are a category of disputes where the stakes, assumingly, do not justify the standard process perceived to be too complex, lengthy and costly, such that they should be resolved through ICC expedited procedure.
22. In 2002, the ICC Commission already discussed the idea of introducing an expedited procedure for small claims, but could not achieve a consensus on the monetary ceiling.²⁷ The ICC Court’s 2016 decision to set the threshold at US$2 million was “based on its experience and taking into account the average complexity of these types of arbitrations,”²⁸ but ICC does not give further details on its reasons.
23. ICC’s choice of a ceiling of US$2 million contrasts with the fact that, according to the Survey, a large majority of users (94%) consider that disputes exceeding US$1 million should fall outside of simplified procedures.²⁹ The Survey also indicates that for 61% of respondents, fewer than 10% of their disputes would fall under US$1 million.³⁰ However, contrary to the expectations of users, a number of arbitral institutions have chosen thresholds higher than US$1 million, and ICC’s choice of US$2 million seems to be a middle ground.³¹
24. ICC’s choice to retain a criterion based soley on the amount in dispute is also questionable in view of the fact that ICC itself highlighted in its Guide for In-Counsel and Other Party Representatives on Effective Management in Arbitration (2014) that “[t]he time and cost that a party should be willing to devote to that end will vary according to the importance, complexity and value of the dispute,” ³² and not only according to the value of the dispute.
25. Indeed, the value of a claim is not necessarily indicative of the complexity of the dispute. A small claim may involve a very complex issue, requiring a detailed examination of all legal and factual arguments, an extensive production of documents and the testimonies of several experts and witnesses. Moreover, the amount in dispute is seen differently by the concerned parties in relation to their environment (e.g. country of origin, size of the company) and the transaction at stake. Some authors explained that: “A party involved in international trade from Hamburg, London or Miami will view a US$1 million claim differently than one based in Bangalore, Kinshasa or Alexandria, and so will a Fortune 500 company, on the one hand, and a star-up with fifteen employees, on the other.”³³ Hence for parties coming from places where a US$2 million dispute is not considered small, it might seem rather arbitrary and thus inappropriate for ICC to immediately apply the ICC EPP.

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26. Besides, the value of a claim may be low but the case might require adjudication pursuant to ICC standard procedure because of its sensitivity — for example cases involving strategic / political decisions, and / or states or state companies.³⁴
27. ICC’s choice is even more questionable in that the provisions automatically apply to those disputes, unless the parties opt out. If the value of the dispute is below US$2 million and the parties do not opt out, the ICC EPP will be imposed on them with all the constraints they imply. This is likely to frequently happen since cases where the amount in dispute does not exceed US$2 million represent one third of the ICC’s caseload³⁵ and parties are unlikely to opt out of the ICC EPP for at least two reasons: (i) it is a procedure which they are not aware of and to which they had probably not thought about, (ii) it would be difficult to agree on procedural matters after a dispute arises.
28. This contrasts with the “opt-in” system, pursuant to which expedited rules only apply if the parties agree to their application and thus parties must have knowingly accepted the constraints of the accelerated procedure, may that be a good or a bad decision. The parties’ explicit agreement here justifies the constraints of the expedited procedure.³⁶
29. As a result, the ICC EPP are likely to apply to a very large number of cases submitted to ICC. One might wonder whether this may be a way for ICC to compete with other international arbitral institutions, as well as local dispute resolution platforms. One might also question whether the resulting automatic application of the ICC EPP to one third of ICC’s caseload might not affect the very efficiency of the rules. Indeed, the ICC EPP might apply indistinctively to both straightforward and complex claims, all together representing one third of ICC’s cases. For those complex claims, the ICC Court and the arbitral tribunal might have to adapt the expedited procedure as to ensure that the parties’ case is fully heard; and this will probably result in longer procedures, equivalent as having a standard ICC procedure. What would then be left of the automatic application of the ICC EPP with all the constraints they imply?

2. Short, simple and cheap proceedings

30. Expedited procedures are specific procedures, which are supposed to be faster and simplified. They are based on shorter time limits and fewer, or less burdensome, procedural steps. This is to ensure that arbitral tribunals will be able to, and will, render arbitral awards more quickly, reckoning that a reduction of arbitration costs should naturally follow.
31. The ICC EPP requires final awards to be issued within six months of the first case management conference, unless the ICC Court considers it is necessary to grant an extension.³⁷ The normal regime under the ICC Rules of Arbitration, which has existed for decades, is that the time limit to render the final award is six months starting from the signing by the arbitral tribunal, or the approval by the ICC Secretariat, of the terms of reference.³⁸ Thus, while there may be very little difference with regard to this delay between the expedited and the standard regimes, one should note that: first, the signing or approval of the terms of reference may take quite a [Page40:] while; and second, ICC intends to enforce the six-month time limit strictly for expedited procedures, as opposed to the standard regime where this delay seems to be some kind of recommendation.³⁹
32. The ICC EPP also attempt to simplify the procedure, both at the time of, and after, the constitution of the arbitral tribunal. In doing so, they appear to address the most common causes of delay in arbitration, notably, the slow constitution of the tribunal, the often-contentious disclosure of numerous documents, the parties’ repeated and lengthy written submissions, as well as the protracted and burdensome hearings.⁴⁰ Once the tribunal is constituted, it will be allowed to proceed without establishing terms of reference;⁴¹ it will have to hold the case management conference within 15 days of the transmission of the file in order to set the framework of the dispute;⁴² the parties will not be able to make new claims once the tribunal is constituted, unless they have been authorised to do so by the tribunal;⁴³ the tribunal will have discretion to allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence;⁴⁴ and it will also be able to settle the case on a documentary basis only (i.e. without a hearing).⁴⁵ It might take such procedure-related decisions at an early stage, at the first case management conference, or later on. These tools purportedly allow the arbitral tribunal to really keep the control of the proceedings and help it to comply with the six-month time limit to render its award.
33. As to cost efficiency, the ICC EPP provide for (somewhat) reduced fees for arbitrators,⁴⁶ although they do not provide for reduced ICC fees and although the parties’ costs were reported as representing the most important part of arbitration costs in ICC arbitrations.⁴⁷
34. According to ICC, it followed from the significant proportion of party costs that, “to minimise costs, special emphasis needed to be placed on reducing the costs connected with the parties’ presentation of their cases.”⁴⁸ Therefore, simplifying and shortening procedures should hopefully result in reduced party costs, as well as arbitration costs overall.

B. Quality safeguards

35. It has been suggested that parties are of the view that expedited arbitration, which focuses on only two aspects of efficiency — which are time and cost — might alter the quality of the decision-making process “in exchange for achieving a speedy resolution of the dispute.”⁴⁹ For instance, as explained above, because value and complexity of claims are not necessarily correlated, there may be small claims that will require a detailed examination of all legal and factual arguments, an extensive production of documents and the testimonies of several experts and witnesses, and thus for which the expedited procedure will not be suitable.
36. However, “quality must not be sacrificed to speed”⁵⁰ and low cost. Indeed, efficiency cannot be limited to swiftness and cost. Efficiency is also about rendering an award of quality, such that the quality of the decision-making process and the resulting award should be considered as an integral part of the definition of efficiency in international arbitration.
37. While the ICC EPP’s tools indeed focus on reducing delays and costs, ICC’s existing framework does provide for a number of quality safeguards. First, [Page41:] ICC has an efficient mechanism for appointing arbitrators, with National Committees and Groups and the ICC Secretariat assisting the ICC Court in selecting the best-suited candidates.⁵¹ The ICC Rules of Arbitration provide for a number of criteria that must be considered in appointing the tribunal, namely: “the prospective arbitrator’s nationality, residence and other relationships with the countries of which the parties or the other arbitrators are nationals and the prospective arbitrator’s availability and ability to conduct the arbitration in accordance with the Rules.”⁵² Second, the ICC Rules of Arbitration provide for scrutiny of all ICC awards before they are communicated to the parties.⁵³ Third and finally, ICC’s staff, at the Secretariat and at the Court, is highly qualified and experienced.

C. Respect of party autonomy

38. The principle of party autonomy is the corner stone of international arbitration since there is no arbitration without the consent of the parties to submit to arbitration and there is no efficient arbitral proceeding without the parties making choices, even “by default”. Indeed, one of the main reasons arbitration is one of the preferred dispute resolution methods, is that it can be tailored to the specific needs of the parties and the dispute.⁵⁴
39. Thus, party autonomy is “the guiding principle in determining the procedure to be followed in an international commercial arbitration”.⁵⁵ Party autonomy “has been endorsed not only in national laws, but by international arbitral institutions and organisations”,⁵⁶ including ICC, which Rules of Arbitration provide that “the arbitral tribunal … may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.”⁵⁷ Its violation could have an impact on the validity/enforcement of arbitral awards in numerous countries (i.e. countries which are parties to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards).⁵⁸
40. Some of the provisions of the ICC EPP, however, might be seen as, at least potentially, restraining the principle of party autonomy (1.), although ICC was minded to introduce a number of limits and exceptions attempting to safeguard party autonomy and flexibility (2.).

1. The ICC EPP may be perceived as restraining party autonomy

41. Several provisions of the ICC EPP might be seen as undermining the parties’ autonomy.
42. Firstly, pursuant to Article 30(1) of the ICC Rules of Arbitration (2017), the parties’ agreement to arbitrate under the ICC Rules of Arbitration (for agreements concluded after 1 March 2017) will automatically trigger the application of all provisions of the ICC EPP to disputes not exceeding US$2 million, notwithstanding “any contrary terms of the arbitration agreement”.⁵⁹
43. Secondly, and in line with Article 30(1) of the ICC Rules of Arbitration (2017), Article 2(1) of Appendix VI of the ICC Rules of Arbitration (2017) regarding the constitution of the arbitral tribunal provides that the ICC Court “may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator”. The ICC Court therefore reserves the right to appoint a sole arbitrator notwithstanding any general reference to the ICC Rules of Arbitration or any reference to a three-member arbitral tribunal in the arbitration agreement.⁶⁰

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44. Thirdly, the ICC EPP also give discretion to the arbitral tribunal to “adopt such procedural measures as it considers appropriate”.⁶¹ It may “decide not to allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence (both fact witnesses and experts),”⁶² or “decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts”.⁶³ This is relatively different from the ICC standard procedure, where although the tribunal “may adopt such procedural measures as it considers appropriate,” it is expressly limited by party autonomy (“provided they are not contrary to any agreement of the parties”).⁶⁴ Thus, regarding the tribunal’s decision to hold a hearing in a standard ICC arbitration, Articles 25(2) and (6) provide that the arbitral tribunal must hold a hearing if the parties so request; however, absent such request, the tribunal decides the issue on its own motion, and it can opt to decide the case solely on the basis of documents. In ICC expedited procedures, as opposed to standard ICC procedures, a careless arbitral tribunal might easily consider it can override the parties’ agreement.
45. One might attempt to rebut the idea of a potential restriction to party autonomy through these provisions by arguing that the parties implicitly accepted this when they entered into the arbitration agreement. In Société Guangzhou Ocean Shipping Company v Société Générale des Farines, the Paris Court of appeal decided that the parties’ reference to an arbitration center for the settlement of their dispute — with no further details — is tantamount to the unconditional adoption of the provisions set out therein.⁶⁵ When parties decide to submit a dispute to the ICC Rules of Arbitration, it could thus be argued that it includes the ICC EPP and more specifically Article 2(1) of Appendix VI regarding the constitution of the arbitral tribunal in expedited procedures.
46. In the case of AQZ v ARA, the Singapore High Court upheld an award rendered by a sole arbitrator appointed in an expedited procedure under the SIAC Rules of Arbitration (2010), despite the arbitration agreement referring to three arbitrators. ⁶⁶ The Singapore High Court considered that Article 5(2)(b) of the SIAC Rules of Arbitration (2010), which provides that “the case shall be referred to a sole arbitrator, unless the President determines otherwise” and is similar to Article 2(1) of Appendix VI of the ICC Rules of Arbitration, had been incorporated by reference into the parties’ arbitration agreement, and that it overrode the parties’ stipulation that there should be three arbitrators.⁶⁷
47. However, this interpretation of Article 5(2)(b) of the SIAC Rules of Arbitration⁶⁸ was rejected in a recent decision of the Shanghai Municipal No. 1 Intermediate People’s Court.⁶⁹ On 11 August 2017, the Shanghai court considered that Article 5(2)(b) should not be interpreted as allowing SIAC to override the wishes of the parties as stated in their agreement. When the parties have expressly agreed to have three arbitrators, SIAC President must give full consideration to their agreement.
48. As for the ICC EPP, one might wonder whether, when they consent to arbitration under the ICC Rules of Arbitration, the parties are really aware of the existence and the content of the ICC EPP (e.g. of Article 2(1) of Appendix VI of the ICC Rules of Arbitration, providing that the ICC Court may appoint a sole arbitrator despite the parties’ contrary agreement in the [Page43:] arbitration clause), and the fact that these may be imposed on them depending on the amount of their future potential dispute. This might cast a shadow on the consent to the applicability of the said rules. Likewise, if they explicitly provide for diverging provisions in their arbitration clause or agreement, this might be interpreted as a NON-consent. It would then be up to the ICC Court (and the Secretariat) to accept — or not — to run the procedure on the basis of those party-amended EPP.

2. The ICC EPP however contain wording to safeguard party autonomy

49. ICC has been mindful to insert provisions in the ICC EPP to safeguard party autonomy.
50. First, while the ICC EPP automatically apply to cases not exceeding US$2 million, the ICC EPP nonetheless provide: (i) that the parties can opt out in the arbitration agreement, (ii) that “the Court, upon the request of a party before the constitution of the arbitral tribunal or on its own motion, determines that it is inappropriate in the circumstances to apply the [EPP]”,⁷⁰ and (iii) that “[t]he Court may, at any time during the arbitral proceedings, on its own motion or upon the request of a party, and after consultation with the arbitral tribunal and the parties, decide that the [EPP] shall no longer apply to the case”.⁷¹
51. However laudable that effort, it might fall short of dealing with the real issue. When negotiating the arbitration agreement, it is for most of the potential parties unlikely that they will know about the existence, the scope of applicability and the content of the ICC EPP, or the fact that the EPP might be imposed on them depending on the amount of the future potential dispute. As an author has pointed out, “many, if not most future users of ICC arbitration will in all likelihood only realise that the 2017 ICC Rules are different from the 2012 Rules after they are faced with arbitration proceedings.”⁷² And even if they knew about the ICC EPP and their characteristics, it is unlikely that they would know the amount of a potential future dispute, and thus whether the ICC EPP would apply and if it would be worth opting out. Lastly, if the parties decided to opt out, they would have to include clear and express wording to that effect in order to avoid the effect of Article 30(1) of the ICC Rules of Arbitration (2017), which is equally unlikely for the same reasons mentioned at the beginning of this paragraph.
52. Moreover, while Article 1 of Appendix VI of the ICC Rules of Arbitration (2017) provides that the ICC Court may decide not to apply the ICC EPP, it is uncertain how ICC will reach its decision. While the ICC Court will have to consult the parties (which may have different views on this issue) and the tribunal (if constituted), it remains to be seen to what extent the ICC Court will take their opinion into account.
53. Second, when making decisions as to the organisation of the procedure pursuant to Articles 3(4) and 3(5) of Appendix VI, the ICC EPP provide that the arbitral tribunal should consult the parties. It has been argued that the terms of the parties’ arbitration agreement should prevail in any case because Articles 3(4) and 3(5) are not mandatory.⁷³ However, one should note that the arbitral tribunal is only required to consult with the parties, but not to obtain their agreement. Thus, it remains to be seen to what extent the arbitral tribunal will take the parties’ opinion into account.

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54. Lastly, it should be noted that Article 22(2) of the ICC Rules of Arbitration (2017) (applying to standard ICC arbitrations) provides that the arbitral tribunal may not adopt procedural measures that are contrary to an agreement of the parties. As per Article 1 of Appendix VI of the ICC Rules of Arbitration (2017), “[i]nsofar as [the ICC EPP] do not provide otherwise, the [Rules of Arbitration of the ICC] shall apply to an arbitration under the [EPP].” Thus, two questions follow: (1) Do the ICC EPP derogate from this general provision? (2) Shouldn’t the ICC EPP rather be interpreted in light of this general provision, Article 22(2), which would result in the prevalence of party autonomy?

D. Due process constraints

55. Expedited procedures seek to achieve the speedy and cheap resolution of disputes, but this should obviously not be at the expense of the parties’ right to a fair trial, their right to be treated equally and their right to be heard. Some provisions of the ICC EPP might be seen as potentially limiting the parties’ right to a fair trial and jeopardising the due process of law, which may as a result weaken awards rendered in ICC expedited arbitrations (1). However, this risk must probably not be overstated (2).

1. The ICC EPP put some extra strain on the parties’ right to a fair trial

56. “The principle of giving each party a sufficient opportunity to present its case is both fundamental and mandatory.”⁷⁴ It implies (i) that the parties are given an opportunity to present their case, (ii) that they are given a reasonable period of time to do so, and (iii) that they are treated equally in that respect.⁷⁵
57. The right to a fair trial is an essential principle of justice and a pillar of the arbitration process. It has been endorsed in international conventions and national laws, by international arbitral institutions and organisations. The ICC Rules of Arbitration (2017), for instance, provide that “[i]n all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.”⁷⁶ The French law of arbitration also requires arbitral tribunals to respect the parties’ due process rights, called “le principe de la contradiction,”⁷⁷ which requires the arbitral tribunal to ensure that each party can be present and heard on all of its legal and factual arguments, and is able to comment on each legal and factual argument invoked by the opponent.⁷⁸ The parties are considered as having had a satisfactory opportunity to present their case, notably when they are granted a reasonable period of time to do so; the deadlines set by the arbitral tribunal for that purpose must be reasonable.⁷⁹ Moreover, they should be treated equally in that respect.⁸⁰
58. Respect of the parties’ right to a fair trial is paramount to the recognition and enforcement of arbitral awards in almost all jurisdictions (i.e. countries that are parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”), as Article V(1)(b) of the New York Convention provides that the recognition and enforcement of an arbitral award may be denied at the request of the party against whom it is invoked if that party “was unable to present [its] case”).⁸¹ And one must have in mind that any arbitral award rendered in an expedited arbitration “is only valuable insofar as its enforceability is ensured”.⁸²

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59. In ICC expedited arbitrations, parties might resist the enforcement of awards, arguing that they were not able to fully present their case, because of the accelerated nature of the proceedings.⁸³ Indeed, arbitral tribunals, who have discretion (and sometimes probably the duty) to decide how to conduct the proceedings, will be tempted to simplify the proceedings as much as possible in order to comply with the six-month delay to render the award.⁸⁴ The tribunal might refuse extensions, limit the length and number of written submissions, authorise or reject new claims, decide the dispute solely on documents or have a hearing etc. “It is faster and cheaper to have one round of briefs rather than three, or to hold a three-day rather than a three-week hearing, but an extended opportunity to be heard will necessarily be given up. It is less expensive and less burdensome to present a witness by videoconference, but perhaps also less persuasive”⁸⁵ and “the goal of each party is most likely to persuade the arbitral tribunal in its favour.”⁸⁶
60. There might also be risks of challenges based on a violation of the parties’ right to equal treatment. The ICC EPP, in Article 3(2) of Appendix VI, provide that, “[a]fter the arbitral tribunal has been constituted, no party shall make new claims, unless it has been authorised to do so by the arbitral tribunal,” which will make amendments more difficult to make. This will likely push the parties to make much more detailed requests for arbitration and responses. And this might create inequality between the parties, as claimants will have more time to prepare their requests for arbitration (since they decide when they are ready to file the requests), than respondents will have to prepare their responses. However, when drafting its request for arbitration, the claimant may be unaware of the expedited nature of the arbitration it intends to start. In that case, the claimant will not have the same opportunity to supplement the content of its request by adding new claims than in a standard ICC procedure.
61. The risk of due process and equal treatment challenges might have consequences on the arbitral tribunals’ behaviour and result in arbitral tribunals refraining from using the tools provided by the ICC EPP, instead conducting proceedings closer to standard ICC arbitrations out of fear that their awards might be set aside on due process grounds. It has been suggested that due process has become a “paranoia”.⁸⁷ The tribunal’s fear may be even more pronounced because of the opt-out system: parties have not explicitly agreed to have recourse to the ICC expedited procedure to settle their dispute; hence frustration over the conduct of the proceedings may be more likely. This might even ultimately result in an increase in costs and delays.⁸⁸

2. There is however no reason for a "fast track due process paranoia"

62. The risk of challenges based on due process, however, should not be overstated, as the respondents of the Survey expressed.⁸⁹ In practice, very few international awards are set aside both in general and on due process grounds.⁹⁰ Indeed it is generally agreed that there is a presumption of validity of the award, that it is to the party rejecting the recognition and enforcement of the award to prove one of the grounds listed in Article V of the New York Convention, and that this burden is a heavy one. Whether the court is satisfied that the challenging party has met its burden of proof is a matter for its own discretion, and courts tend to construe the grounds of [Page46:] Article V narrowly, performing a very careful review of the alleged ground.⁹¹ That is because “the purpose of the Convention is to contribute to the effectiveness of international arbitration; presumptively that is by granting enforcement of the award.”⁹²
63. It follows, for instance, that in the presence of a violation of due process that did not affect the outcome of the arbitration (which is said to be a “de minimis” ground of refusal), courts need not allow the applicant to resist enforcement of the award.⁹³ Moreover, most courts would consider that a party that has not invoked a due process issue during the arbitral procedure, although it was aware of it, cannot invoke it later at the enforcement stage.⁹⁴ Serious violations that have justified a refusal of the recognition, or enforcement of awards notably include the tribunal’s failure to inform a party of the opposing party’s arguments, and the failure to present to one party a substantial document submitted to the arbitrator by the other party and the subsequent denial of the opportunity to comment thereupon. Lastly, an arbitral tribunal’s decision to decide the case solely on the basis of documents, if a hearing is unnecessary given the circumstances of the case, does not constitute a violation of due process.⁹⁵
64. Therefore, it appears that shortening time limits and simplifying the proceedings pursuant to the ICC EPP should not create serious risks with regard to the enforceability of the award because the courts of many jurisdictions appear generally receptive to expedited procedures in arbitration, notably in pro-arbitration jurisdictions such as Switzerland, Singapore and Sweden, where expedited arbitration seems to have been validated in essence.⁹⁶
65. This is obviously conditional on the tribunal paying attention to the particularities of each case: (i) using utmost care and attention in ensuring that each party is able to present its case and that all submissions by one party in the proceedings are presented to the other party;⁹⁷ (ii) taking into account the differences between the legal traditions of the various players, and the level of development of their jurisdictions with regard to international arbitration.
66. Jurisdictions may have diverging legal traditions with respect to procedure for instance. In common law jurisdictions, oral evidence is extremely important in the adjudication of disputes. Cross-examination there enables parties to present their case properly, by (i) demonstrating that a witness’ testimony is not safe to rely on, or (ii) confirming a party’s allegations. In these jurisdictions, a tribunal’s decision not to hold a hearing may entail more serious risks of due process challenges, although, in principle, courts accept the possibility not to hold a hearing or restrict the hearing and the appearance of certain witnesses.
67. Jurisdictions may also have more or less modern arbitration statutes, or may be more or less arbitration-friendly. Although most jurisdictions now have very similar arbitration statutes based on the UNCITRAL Model Law in International Commercial Arbitration (1985), there might still be some jurisdictions with old arbitration statutes. Those jurisdictions may be unfamiliar with the recent debates on the need for efficiency in international arbitration — in particular the jurisdictions of arbitration users, which should be distinguished from the jurisdictions hosting arbitrations.⁹⁸

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68. Expedited procedures, if they must ensure time- and cost- efficiency should not affect the three essential elements, which are: (i) the quality of the decision-making process, which is an integral part of the notion of efficiency, (ii) party autonomy and (iii) fair trial. Since the application of the ICC EPP entails many questions and possible interpretations, compliance with these essential elements will depend on how the different stakeholders, namely, the parties, the ICC Court and the arbitral tribunal, will apply the ICC EPP. Title III will therefore analyze what the parties, the ICC Court and the arbitral tribunal, could, should or should not do at the outset of the procedure, when applying the ICC EPP, in order to both safeguard time and cost efficiency and ensure the quality of the decision-making process, the respect of party autonomy and the parties’ right to a fair trial.

III. WHAT THE STAKEHOLDERS CAN DO AT THE START OF THE PROCEDURE

69. Given those constraints — being efficient, cost- and time-wise; rendering a high-quality award; respecting party autonomy; ensuring due process of law — the various players (the litigants and their counsel, the ICC Court and Secretariat, the arbitrators) should not only “play by the rules,” but have a special duty, particularly at the outset of the proceedings, to make the right cost/risk/benefit decisions as to how to conduct the proceedings.
70. The success of the ICC EPP will mainly depend on how these players will jointly conduct arbitrations under those provisions. According to ICC, it should also depend on how early on they will be able to organise the proceedings, although that statement has to be addressed. While only time will tell whether the ICC EPP will indeed improve the efficiency of the arbitral process it is already possible to assess what the different actors of international arbitration — the parties (including their counsel) (Section A), the ICC Court (Section B) and the arbitral tribunal (Section C) — could, should or should not do, once the arbitral tribunal is constituted. As this cannot be seen in isolation of decisions taken upstream, before the constitution of the tribunal, these will also be briefly mentioned.

A. The parties

71. The parties’ role in shaping the arbitral procedure, in general, is key. In fact, the main causes of delay are within the control of the parties, who in many instances have the de facto ability to slow down the procedure if they so wish, even though the ICC EPP grant a lot of powers to the ICC Court and to the arbitral tribunal, thereby counterbalancing that risk.
72. Nevertheless, there are a number of measures that the parties should take, once the tribunal is constituted in an ICC expedited arbitration, in order to ensure the proceedings will be conducted in an efficient way (1). They might also succeed in agreeing on the procedure before the constitution of the arbitral tribunal, in the arbitration agreement or afterwards (2).

1. Once the tribunal is constituted

73. Once the tribunal is constituted in an ICC expedited arbitration, there are a number of measures that the parties should take in order to ensure the proceedings will be conducted in an efficient way.

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74. Try to get out of the ICC EPP procedure, if appropriate — If the parties have not opted out in their arbitration agreement, an expedited arbitration has therefore been launched and the arbitral tribunal has been constituted, but the expedited procedure is not suitable (either because the dispute is too complex or because it involves sensitive issues), the parties could try to convince the ICC Court, which has the power to exclude the application of the ICC EPP, that it would be “inappropriate” to let their dispute be settled under the ICC EPP.⁹⁹ The parties will have to show that their dispute is too complex, or involves too sensitive issues, to be settled through an accelerated procedure, or that there would be high risks that their right to be heard would be violated.¹⁰⁰
75. Agree on the key procedural steps and features — Something else that the parties should do, once the tribunal is constituted, in order to ensure the proceedings will be conducted in an efficient way is to consult each other so as to try to reach an agreement on the applicable procedures,¹⁰¹ for instance regarding the number and length of submissions, the extent of document production, fact and expert witnesses, the conduct of the hearing (if any), etc.¹⁰² They can do so prior or during the case management conference. In some cases, it may be too early to decide some of these issues, but at least the parties could specify whether they really want a hearing to take place. They are also expected to know the case fairly better than the tribunal, so they might be able to have a rough idea of how many pleadings they would like to exchange and whether proving their case will require experts. An agreement of the parties on this point should facilitate the proceedings thereafter.
76. Even if the ultimate decision belongs to the arbitral tribunal, which seems to have a discretionary power in this respect,¹⁰³ the tribunal should consider the parties’ views, especially if they agree on the procedure, in order to comply with the principle of party autonomy.¹⁰⁴ If the parties cannot agree on procedural measures, each can present its position to the arbitral tribunal who will ultimately decide, based on what is appropriate for the case at hand.¹⁰⁵
77. Cooperate in good faith — Once the tribunal sets out the procedure, the parties will have to cooperate so that the tribunal can conduct the proceedings efficiently, both in terms of speed and quality. Given the time constraints of ICC expedited arbitrations, it is highly probable that the tribunal will ask the parties for one single exchange of written submissions on the merits, and that the parties will have to produce their submissions in a short period of time. In such instance, the parties will have to be very concise in their submissions, while providing a complete presentation of their argument. If the parties set out their case in full in their first memorials, the arbitral tribunal will be better able to understand the key issues and render an award of quality within the six-month time limit imposed by the ICC EPP.

2. And before the arbitral tribunal is constituted?

78. As a matter of principle, it is better that the parties agree on the procedure before the constitution of the arbitral tribunal, in the arbitration agreement or thereafter. In fact, the parties should try, as much as possible, to take measures upstream, before the constitution of the tribunal (for arbitration agreements negotiated after 1 March 2017), which will facilitate the [Page49:] conduct of the arbitration from the outset of the proceedings. This includes, as mentioned above, agreeing on a sole arbitrator, setting the number and length of submissions, the extent of document production, fact and expert witnesses, the conduct of the hearing if any, etc.
79. This is not a realistic prospect though. Indeed, at the time of entering into a contract, disputes are often far from the minds of the parties. The parties are very often excited about the new relationship and are quick to dismiss the possibility of any disputes arising. They therefore tend to expedite the closing of the deal by inserting in their contract some boilerplate language from another unrelated contract, instead of agreeing on important tailor-made features of a future arbitration.
80. Even assuming parties manage to reach an agreement upstream, the question remains whether that would really be efficient. Can the parties foresee, before the actual dispute arises, how many written submissions and how much evidence adjudication of the dispute will require, and whether a hearing will be necessary? Indeed, “experience shows that in practice it is difficult at the time of drafting the clause to predict with a reasonable degree of certainty the nature of disputes and the procedures that will be suitable for those disputes.”¹⁰⁶ One could argue that drafting a detailed arbitration clause may help avoid future disagreements on the procedure — disagreements which would slow down the proceedings. In addition, what has been agreed between the parties at an early stage can always be changed later on, and the proceedings can be adjusted in light of circumstances that the parties could not initially foresee.
81. Some efficient tools are nevertheless available upstream of the actual dispute. The parties, and especially the claimant, could do an early case assessment. Indeed, as ICC underlined, “[m]uch time and cost can be saved by not litigating matters with low chances of success, or that are not worth the cost/time/distraction to its personnel.”¹⁰⁷ It will help claimant to draft a comprehensive request for arbitration, which is important as it will be more difficult to make new claims compared to standard ICC arbitrations. A more comprehensive request for arbitration might also “avoid the need for multiple rounds of subsequent submissions and thereby help to expedite the arbitration.”¹⁰⁸ Moreover, “if the parties set out their cases in full early in the proceedings, the parties and the arbitral tribunal will be able to understand the key issues at an early stage. Doing so will help ensure that the procedure defined at the case management conference is efficient and that time and money are not wasted on matters that turn out to be of no direct relevance to the issues to be determined.”¹⁰⁹
82. It is also key that the parties, when referring to the ICC Rules of Arbitration in the arbitration clause of a contract amounting to less than US$2 million, choose a pro-arbitration jurisdiction as the seat of arbitration, as a pro-arbitration jurisdiction will be more likely familiar with expedited arbitrations.
83. But all in all, the ICC EPP seem to leave only limited room for manoeuver for the parties to effectively shape the proceedings. This should push the ICC Court and arbitral tribunals conducting arbitrations under the ICC EPP to be even more careful, making sure party autonomy and the parties’ right to a fair trial are respected.

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B. The ICC Court

84. The ICC EPP grant more significant power to the ICC Court in the administration of ICC expedited procedures than in standard ICC procedures, particularly at the outset of the proceedings (e.g., when deciding whether to apply the ICC EPP, for the constitution of the arbitral tribunal, or when deciding whether to push back the date of the first case management conference) but also afterwards, as the ICC Court may at any time decide that the EPP shall no longer apply to the case.
85. The ICC Court shall use its extensive experience in order to favour the efficient management of the procedure, in compliance with party autonomy and due process. Where ICC’s decisions do not directly pertain to case management (e.g. the ICC Court does not decide of the procedural timetable, the number and length of submissions, etc), but rather to the administration of arbitrations (e.g. the constitution of the tribunal, granting extensions to arbitrators), this does not mean that the ICC Court’s decisions have a lesser impact on the quality and efficiency of the proceedings.
86. Postpone the case management conference? — Surprisingly, the ICC Court may only take one type of decision immediately after the constitution of the tribunal: the extension of the time limit for the arbitral tribunal to hold the first case management conference. Pursuant to the ICC EPP, the tribunal should hold the first case management conference within 15 days after the date on which the file has been transmitted to the tribunal,¹¹⁰ and the ICC Court “may extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is necessary to do so.” ¹¹¹ No information is given on how the ICC Court will decide whether or not it is necessary to push back the date of the case management conference. This leaves great flexibility to the ICC Court, which will therefore be able to decide these matters on a case-by-case basis.
87. The potential impact is however particularly important, as awards must be rendered within six months from the first case management conference.
88. Decide on the number of arbitrators and appoint the tribunal — Nevertheless, there is one very important upstream decision the ICC Court will make: the constitution of the tribunal. The ICC Court’s decision as to the constitution of the tribunal (i.e., a sole arbitrator as the general rule of the ICC EPP so provides, or a three-member arbitral tribunal) and its decision as to the identity of the arbitrator(s) will have a tremendous impact on the quality and efficiency of the future proceedings.
89. The ICC EPP indeed allow the ICC Court (i) to discretionarily decide of the number of arbitrators and (ii) to appoint the sole arbitrator, even when the arbitration agreement provides differently.¹¹² Leaving these decisions to the ICC Court will generally accelerate the constitution of the tribunal, compared to when they are left to the parties.
90. In making these decisions, the ICC Court will have to carefully balance a number of elements, including: the agreement of the parties (if there is one), the complexity of the dispute, the quantum involved, as well as the availability, experience and skills of arbitrator candidates.
91. The parties may have provided for the composition of the arbitral tribunal in their arbitration agreement. In theory, the ICC Court could override the parties’ choice of a three-member tribunal in their arbitration agreement. In [Page51:] practice, however, the ICC Court should be minded to respect party autonomy to some extent, notably if both parties expressly agree to have an ICC expedited arbitration with a three-arbitrator tribunal.¹¹³ This is especially true if the seat of arbitration or the jurisdictions where the award is likely to be enforced regard party autonomy as an absolute principle — such as China, as apparently confirmed by the 11 August 2017 decision of the Shanghai Municipal No. 1 Intermediate People’s Court.¹¹⁴
92. Thus, should the parties wish to have a three-member tribunal, even when the ICC EPP apply, they should so provide in their arbitration agreement, specifying that their disputes shall be resolved under the ICC Rules of Arbitration by a three-member tribunal, even in cases where the ICC EPP of Article 30 and Appendix VI apply.
• Option 1: the ICC Court gives effect to the parties’ agreement for a three-arbitrator tribunal. On the one hand, the ICC Court would therefore respect the fundamental principle of party autonomy and have the assurance that the award will be enforceable (provided there are no other deficiencies in the proceedings / the award). On the other hand, however, wouldn’t it result in cancelling one of the main figures of the ICC EPP?
• Option 2, which is the most likely: the ICC Court takes a case-by-case approach, looking at the parties’ agreement and conducting its own analysis, carefully assessing the benefits and costs of appointing a sole arbitrator (considering the value of the case, the complexity and sensitivity of the issues at stake, etc).
93. It is also important that ICC appoints a sole arbitrator available on short notice and who is eager to, or at least accepting to, work harder for reduced fees (albeit for a shorter time period). It is also important that ICC appoints a sole arbitrator with experience and strong management skills, who will be able to play its role in managing the expedited arbitration so as to make it as cost- and time-effective as possible while complying with principles of party autonomy and due process. But it might be difficult to find an arbitrator meeting these criteria. Experienced arbitrators are usually busy and reserved for higher-value case; less experienced arbitrators will probably be available but may not, from the outset, fully realise the commitment needed.¹¹⁵

C. The arbitral tribunal

94. The last, but not least, actor taking part in the arbitration process is the arbitral tribunal. Its role in shaping arbitrations conducted pursuant to the ICC EPP is key. The tribunal will have to make itself readily available as soon as it receives the file. The earlier the tribunal understands the key facts and issues in the case and the earlier it sets out the procedure, the more time it will have to get the right perspective on the case and render a quick and good decision.
95. The tribunal should thus be proactive from the very start of the proceedings and exploit to the fullest the opportunity given by the case management conference to get a grip on the facts and the process (1). Although tribunals in ICC expedited arbitrations no longer have the obligation to establish terms of reference, they may consider taking the time to do so, as terms of reference are commonly considered as being a key tool for efficient proceedings — next to being a distinctive feature of ICC [Page52:] arbitrations (2). Throughout the proceedings, the tribunal may want to come back on certain procedural choices made from the outset, or may make some decisions that are more appropriate at a later stage such as authorising new claims or deciding whether or not to hold a hearing (3).
96. In making these procedural decisions, the tribunal will have to balance the costs and benefits of each prospected measure, having regard to the value, the volume and complexity of the dispute, the stage of the proceedings, and making sure each party has an opportunity to present its case. It will also have to take into consideration the parties’ views and/or prior agreements, as well as the legal cultures of the parties and their counsel.

1. Get the maximum out of the first case management conference

97. Article 3(3) of Appendix VI of the ICC Rules of Arbitration (2017) provides that the first case management conference “shall take place no later than 15 days after the date on which the file was transmitted to the arbitral tribunal.” Whenever possible, the procedure for the entire arbitration should be determined at the first case management conference and reflected in the procedural timetable to be established at that time, although some decisions, such as the decision to hold a hearing or not, or to call witnesses and experts, might require more time and thought on the part of the arbitral tribunal. These might be preferably taken at a later stage in the proceedings.¹¹⁶
98. When making case management decisions, the arbitral tribunal will notably have to balance time- and cost-efficiency with party autonomy, due process and ensuring the quality of the decision-making process.
99. Party autonomy — When determining the procedure, the tribunal should take into account the principle of party autonomy. Party autonomy seems to be left out of the ICC EPP. For each of these case management decisions, the ICC EPP provide that the tribunal must “consult” the parties, but must not necessarily obtain their consent. It follows that, in theory, the arbitral tribunal could maybe go against the parties’ will when shaping the procedure, although this is uncertain in light of Article 22(2) of the ICC Rules of Arbitration.¹¹⁷ We therefore recommend that tribunals be very attentive to the parties’ views on case management. First because, going against the parties would violate the principle of party autonomy and may, as a result, jeopardise the validity and enforceability of the award, whereas arbitrators are required to render an enforceable award. Second because, if the ICC EPP were designed as coercive rules, it was in order to facilitate the application of the rules to small claim disputes, but definitely not to override the principle of party autonomy. Third, from a practical perspective, one fails to see how the arbitral tribunal could possibly force upon the parties, or upon one of them, procedural rules that the parties explicitly discarded, and how, even if they could, such action would improve the overall efficiency of the arbitral process.
100. Time management and due process — The tribunal should also balance due process considerations with its obligation to conduct the proceedings quickly, in accordance with the six-month limit set by the ICC EPP. The arbitral tribunal will have to be extremely rigorous in its decisions regarding case management so as to stick to a realistic procedural calendar that it will have established at the outset, while keeping a certain degree of [Page53:] flexibility to ensure the parties’ due process rights are respected. It is important for the tribunal to set a realistic procedural timetable at the beginning of the proceedings. Otherwise, parties will ask the ICC Court for extensions which, according to M. Bühler and P. Heitzmann, the ICC Court is likely to grant in light of the principle of party autonomy.¹¹⁸ This would slow down the procedure.
101. Practical considerations — To avoid inappropriate procedural decisions, or procedural decisions that will have to be frequently revised — which will cost time and efforts — it will be of utmost importance for the tribunal to gather as much information as possible ahead of the first case management conference.
102. Accordingly, “the tribunal should consider asking the parties well in advance of the conference to submit joint or separate case management proposals”.¹¹⁹ This will encourage the parties to consider and exchange views on the procedure and the case management techniques that may be appropriate for the case.¹²⁰ Those will then be discussed at the case management conference.
103. The tribunal should also be aware of the key factual and legal issues of the case in order to get a sense of how complex or straightforward the case is, as this will be very important for the tribunal when deciding the procedure. If the parties have not submitted a comprehensive request for arbitration and response, the tribunal might want to address some written questions to the parties in advance of the first case management conference.
104. If the tribunal does not have enough information, or if the case is too complex to set the whole procedure ahead with certainty, “the procedural timetable [can] lay out the procedure as far as can be done,” for e.g. until a first round of pleadings exchanged between the parties, and “a second management conference [can] be held promptly thereafter to determine the remainder of the procedure for the arbitration.”¹²¹
105. The tribunal will have to consider whether an in-person meeting is really necessary. Since the tribunal must hold the conference within two weeks from its constitution, the timing will probably be too short to organise such in-person meeting. The tribunal should rather hold the conference by way of telephone, videoconference or similar means of communication — means that have proven to be quite efficient and are now commonly accepted by arbitration practitioners.
106. Decisions that could increase the efficiency of the proceedings if taken at the first case management conference include, for instance, the length and number of submissions as well as document production and evidence. It might, however, be more appropriate for the tribunal to wait and decide these issues at a later stage, depending on the particularities of the case.
107. Number and length of submissions — Pursuant to Article 3(4) of Appendix VI of the ICC Rules of Arbitration (2017), “[t]he arbitral tribunal shall have discretion to adopt such procedural measures as it considers appropriate. In particular, the arbitral tribunal may, after consultation with the parties, decide ... to limit the number, length and scope of written submissions.”¹²² This case management technique is consistent with the efficiency goal set by ICC for the expedited procedure, but it is not new. It was already [Page54:] mentioned as part of the case management techniques suggested to control time and cost of ICC arbitrations, in Appendix IV of the ICC Rules of Arbitration (2012).¹²³
108. Limiting the number of submissions may help avoid repetitions and encourage the parties to present all key issues in their first submissions, and limiting the length of submissions “can help focus the attention on the key issues to be addressed and is likely to save time and cost.”¹²⁴
109. Nevertheless, throughout the whole proceedings due process must be an essential concern when making these decisions, as according to some commentators, “parties will argue that such limitations conflict with its fundamental right to present its case and are contrary to due process.” ¹²⁵ As regards the limitations on submissions, for example, there is a serious risk that the tribunal’s decision will prevent the parties from fully presenting their case. Indeed, elements which would be key for the resolution of the dispute might remain concealed as a result of the tribunal’s limitation of the number or pages of submissions.
110. Party autonomy must also enter into play. Although in the ICC expedited procedure the tribunal can, on the face of the provisions, theoretically overrule the parties’ opinions and agreements, the tribunal should be attentive to the parties’ views in making such decisions. For example, it might be quite a challenge for the tribunal to comply with the six-month time limit to render its award if both parties strongly insist on two or three rounds of briefs during the arbitration, or if they have provided for two or three rounds of briefs in their arbitration agreement. The tribunal may then accept the parties’ proposition to make sure they are fully able to present their case, if for example it feels that the case will be rather complex, or simply to comply with the principle of party autonomy. The risk, however, is that the tribunal will not able meet the six-month time limit, in which case it may request an extension to the ICC Court, specifying reasons justifying its request. Alternatively, the tribunal may reject the parties’ proposition or refuse to apply the parties’ arbitration agreement to ensure that it will be able to render a timely decision. This might increase the risk of challenge of the award, based on a violation of party autonomy and due process, and might therefore result in a longer and more costly procedure.
111. When setting a deadline for the submission of memorials, the tribunal will also have to take into account the time it may take the parties to prepare their memorials. Writing succinctly yet thoroughly can be more time-consuming than ventilating hundreds of pages without bothering too much about conciseness and style. This may require the parties’ counsel to spend more time on the drafting of memorials.
112. Document production and evidence — Article 3(4) of Appendix VI of the ICC Rules of Arbitration (2017), referring to document production and evidence, provides as follows: “The arbitral tribunal shall have discretion to adopt such procedural measures as it considers appropriate. In particular, the arbitral tribunal may, after consultation with the parties, decide not to allow requests for document production or to limit the number, length and scope of … written witness evidence (both fact witnesses and experts).”¹²⁶ Again, this is no novel provision: it was already mentioned as part of the case management techniques suggested to control time and cost of ICC arbitrations in Appendix IV of the ICC Rules of Arbitration (2012).¹²⁷

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113. As regards requests for disclosure, the ICC EPP “leave the question of whether and how much document production will occur to the arbitrators, provided that the parties are treated fairly and impartially and that each party has a reasonable opportunity to present its case.”¹²⁸ The manner in which document production is to be executed and the degree of production can have a significant impact on time and cost.¹²⁹ Those can be reduced by agreeing upon one or more of the following: limiting the number of requests; limiting requests to the production of documents (whether in paper or electronic form) that are relevant and material to the outcome of the case; establishing reasonable time limits for the production of documents; using the Redfern schedule.¹³⁰
114. As regards witness and expert evidence, similar concerns regarding efficiency and the parties’ rights arise. The tribunal must decide on the number of witnesses and experts, and the number of rounds of witness statements and their scope. Every witness and expert adds to the costs, both when a witness statement or expert report is prepared and considered and when the witness or expert attends the hearing to give oral evidence.¹³¹
115. As suggested by ICC, “[c]osts can be saved by limiting the number of witnesses to those whose evidence is required on key issues. The arbitral tribunal may assist in identifying those issues on which witness evidence is required and in focusing the evidence from witnesses on those issues. This whole process will be facilitated if the parties can reach agreement on non-controversial facts that do not need to be addressed by witness evidence.”¹³²
116. If there are to be witness statements, the tribunal should consider their scope. “[L]engthy witness statements will increase time and cost as well as the scope of cross-examination.”¹³³ Moreover, “[m]ore than one round of witness statements will provide witnesses with the opportunity to rebut the evidence of other witnesses, but will increase time and cost.”¹³⁴
117. The tribunal should also consider the time for the exchange of such statements, so as to minimise the number of rounds of statements that are required. For example, it should consider whether it is preferable for witness statements to be exchanged after all documents on which the parties wish to rely have been produced, “so that the witnesses can comment on those documents in a single statement.”¹³⁵ Also, submitting witness statements only after the exchange of written submission may allow the parties to narrow down the factual issues in dispute before preparing and submitting witness statements, which may consequently be more focused on the disputed issues.”¹³⁶
118. As suggested by ICC, it could also be helpful for the tribunal to start with a presumption that expert evidence will not be required, and “[d]epart from this presumption only if expert evidence is needed in order to inform the arbitral tribunal on key issues in dispute.”¹³⁷
119. However, when setting out modalities regarding evidence, the tribunal must ensure that these modalities do not prevent the parties from fully presenting their case. When limiting the number of rounds of witness statements or export reports, witnesses and experts may be at risk of being pressured and over-simplifying their testimonies, leaving behind key issues, and losing their accuracy and objectivity, their authority and ultimately part [Page56:] of their impact. Time may be of the essence, but it may be more efficient, depending on complexity and other circumstances of the case, to take the time to explore the various issues of the case before making such decision.
120. There is a right balance to strike, however, between feeling obligated to allow all requests for document production by fear of breaching due process and allowing reasonable requests for document production in compliance with due process and in order to ensure efficiency. J. R. Feris noted that the new Article 3(4) thus “serves as an encouragement for arbitral tribunals to deny such requests when they consider them inappropriate or unnecessary in resolving the dispute.”¹³⁸
121. When ensuring the parties are able to present their case, tribunals must also take into account the different legal traditions of the parties and their own ones. Broad document production is often used in some common-law jurisdictions like the United States, and oral evidence is also key to legal proceedings common law jurisdictions such as the United Kingdom. The legal and cultural background of the arbitrators will also enter into play, and will notably be key to the decision of whether or not to appoint experts.¹³⁹

2. Consider the drafting of formal terms of reference, even if not mandatory

122. Pursuant to Article 3(1) of Appendix VI of the ICC Rules of Arbitration (2017), tribunals in ICC expedited arbitrations no longer have an obligation to prepare and submit terms of reference, which are a key part of the ICC institutional make-up.
123. However, terms of reference, or at least simplified terms of reference, may also be helpful in ICC expedited arbitrations. They allow parties and arbitrators to identify, agree on and confirm key procedural issues such as the procedural law and the seat of arbitration.¹⁴⁰ They may also help circumscribe the ins and the outs of the case by summarily indicating the main issues and the parties’ positions; identify and limit the parties’ claims and counterclaims.¹⁴¹ Hence, they delimit the precise scope of the tribunal’s mandate, which according to an author, “helps to protect the award ultimately rendered against attacks on the grounds that the arbitrators granted relief outside the scope of the pleadings (defense of ultra petita) or that they failed to rule on issues submitted to them (defense of infra petita)”. ¹⁴² Finally, they can also serve as a point of reference for the ICC Court “when it scrutinises the arbitrators’ draft award pursuant to Art. 33 ICC Rules.”¹⁴³
124. Despite the considerable time and energy the task may require, arbitrators conducting ICC expedited arbitrations may decide to establish terms of reference, or simply a summarised form of terms of reference in the form of an order or a decision. The tribunal can even “fix some of the points that are typically covered by TOR in writing, and require the parties’ signature of such a document.”¹⁴⁴ For the sake of time, the tribunal could consider drafting the summary of the parties’ pretentions itself, and submit it to the parties for confirmation within a short deadline.
125. In deciding whether or not to establish terms of reference or a simplified form of terms of reference, the tribunal should have regard to the likelihood of delaying the arbitration. Indeed, the tribunal’s decision to establish terms of reference might be difficult to reconcile with its obligation to render the award within the six-month time limit set by Article 4(1) of Appendix VI of [Page57:] the ICC Rules of Arbitration (2017), although if it takes the form simplified terms of reference, it should certainly not slow down the proceedings significantly. The tribunal should also take into account the parties’ views, and stick as much as possible to the parties’ agreement regarding the terms of reference (if there exists one). Should the parties disagree on whether or not the tribunal should establish terms of reference, with therefore only one party requesting terms of reference or the like, the tribunal will have to balance all the circumstances of the case and use its experience in order to make a decision.
126. Last but not least, the tribunal should also take into account national specificities. For example, the Turkish Arbitration Law provides in its Article 10(e) that “[u]nless otherwise agreed by the parties, the arbitral tribunal, following the submissions as to the claim and defence shall draw up its terms of reference.” Under the ICC EPP, parties are assumed to “have agreed otherwise.” However, it remains to be seen if Turkish courts will accept that the ICC EPP’s opt-out system allows to consider that the parties “have agreed otherwise,” especially if one of the parties expressly requests terms of reference, although if in and of itself that should probably not suffice to set aside the award.¹⁴⁵

3. Throughout the proceedings

127. Practical considerations — There might be some procedural elements which cannot or should not be determined at the first case management conference, and which will therefore be decided later on, when the arbitral tribunal has a better understanding of the case. These notably include the necessity of holding a hearing, and of calling witnesses and experts. Moreover, case management must remain flexible during the whole proceedings. If the procedure and the key issues of the case should be determined as early as possible, it does not and cannot mean that all such determinations are cast in stone. The arbitral tribunal will have to consider modifying the procedure at a later stage, notably accepting new claims, taking into account the particularities of the case: ensuring compliance with party autonomy and balancing due process with time management considerations.
128. New claims — Article 3(2) of Appendix VI of the ICC Rules of Arbitration (2017), states that “[a]fter the arbitral tribunal has been constituted, no party shall make new claims, unless it has been authorised to do so by the arbitral tribunal, which shall consider the nature of such new claims, the stage of the arbitration, any cost implications and any other relevant circumstances.” On its face, this provision of the ICC EPP does not differ so much from the standard ICC provision on new claims, Article 23(4) of the ICC Rules of Arbitration (2017), which provides that “[a]fter the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the limits of the Terms of Reference unless it has been authorised to do so by the arbitral tribunal, which shall consider the nature of such new claims, the stage of the arbitration and other relevant circumstances.” Only the starting point from which parties can make new claims changes, and the circumstances that should be taken into account in expedited proceedings include “any cost implications.” But this change in the starting point is fundamental considering the short time frame for ICC expedited procedures.

[Page58:]

129. According to some authors, once the arbitral tribunal in an ICC expedited arbitration is constituted, “claims not included in the Request for Arbitration or in the Answer (or in any supplemental submission filed before the sole arbitrator is appointed) will be considered as inadmissible except under exceptional circumstances.”¹⁴⁶ It will therefore be more difficult, and sometimes maybe impossible, for the parties to make new claims. This could notably provide a tool for arbitrators to control the parties and avoid last-minute new claims submitted to obstruct and delay the proceedings (in other words, new claims used as “guerrilla tactics”).
130. There might be instances, however, where making a new claim is justified, for example when a party discovers new facts after the submission of its request for arbitration or response. The tribunal should also have in mind that claimants might have had more time to prepare their requests for arbitration than respondents to prepare their answers, and the tribunal should obviously give parties an equal opportunity to present their case.¹⁴⁷
131. Admitting a new claim might delay the proceedings, annihilating the main purported advantage of the ICC expedited procedure: speed. But the earlier the new claim is made in the proceedings, the more likely the tribunal should admit it. If it is made shortly after the constitution of the tribunal, the likelihood that it will disrupt the proceedings and prevent the tribunal from rendering its award within the six-month time limit is minimal. Moreover, rejecting a new claim might result in a subsequent due process challenge by the party who was not able to make its new claim, or in the launching of another arbitration to deal with the rejected new claim, resulting in higher costs and delays.
132. All in all, when making its decision on the admission of new claims shortly after its constitution, due process and fairness will be the most important considerations the arbitral tribunal should have in mind. At first sight, a tribunal should probably accept most new claims made at the early stages of the proceedings, unless the new claim manifestly lacks merit and is obviously submitted to obstruct the proceedings.¹⁴⁸
133. Hearings or not? — Once constituted, the tribunal in an ICC expedited procedure can also decide whether or not there will be a hearing; in other words, whether it is necessary to listen to the parties explaining their arguments, as well as the witnesses and experts supporting the parties’ arguments. This decision, however, should not be taken too early on.¹⁴⁹ As an author argued, “[f]or the arbitral tribunal to come to that conclusion [to not hold a hearing], it would, however, need to conduct a very careful analysis of the entire case at the time of making the decision as to whether to allow or disallow a hearing,”¹⁵⁰ which may be a challenge at the outset of the proceedings, when the tribunal has not necessarily had the time and opportunity to properly dive into the ins and outs of the case.
134. The same decision belongs to tribunals in standard ICC arbitrations,¹⁵¹ but where under the standard proceedings a hearing will take place if the parties so request, the ICC EPP indicate that the tribunal will be required to “consult” the parties before making its decision and will be allowed “to decline to hold a hearing at all if it considers this to be appropriate.” The tribunal should and shall take the ultimate decision. This will, in certain instances, affect the parties’ autonomy and may give rise to challenges by the parties.

[Page59:]

135. Therefore, if both parties request a hearing, or if the parties’ arbitration clause provides for a hearing to take place, complying with the parties’ agreement seems recommendable. The tribunal can definitely choose to hold a very short hearing, which presents the double advantage of not significantly delaying the proceedings and protecting the enforceability of the future award.
136. When deciding whether or not to hold a hearing, in addition to taking into account the parties’ views, arbitral tribunals should also determine whether the potential benefits of a hearing justify the associated time and cost and must make sure that the parties are able to fully present their case. As ICC indicated: “Hearings are expensive and the longer they are, the more costly they become. Costs are generated by a number of factors, including the extensive preparation that is usually necessary and the number of people attending the hearing. In addition, the arbitration is often delayed by the difficulty of finding a mutually convenient time in the calendars of all relevant participants.”¹⁵²
137. Nevertheless, hearings are a key opportunity for parties to present their arguments and for the arbitrators to understand them and assess the parties’ evidence,¹⁵³ which will lead to a high-quality award. Notably, “in personam contact between the parties and arbitrators is generally a very valuable tool to secure the integrity of the arbitral process. It helps to foster the trust of the parties in the arbitral tribunal, and facilitates the latter’s ability to exercise its authority.”¹⁵⁴ It should also help to foster the trust of the tribunal in the witnesses and experts testifying at the hearing, and assess the relevance and value of their evidence. Note that if a tribunal decides not to call a witness or an expert at the hearing, “[i]t would be shocking if [this] tribunal subsequently dismissed a claim for lack of evidence, if the very evidence was based on witness or expert testimony.”¹⁵⁵
138. Deciding the case solely on the basis of documents, without a hearing, should hence probably be reserved for very specific — and rare? — cases when, for example, the dispute relates exclusively to questions of contract interpretation that do not require witness testimony, or more generally to straightforward questions of law, or when a party (presumably the respondent) is not participating.
139. Tribunals may also explore the possibility for alternatives to full-blown hearings. For example, they may consider sending a written list of questions to the parties, after submission of their memorials, to which they must reply within a pre-set deadline. They may also consider holding a video or telephone conference instead of an in-person hearing. These should help ensure that the procedure remains cheap, efficient and fast, while also clarifying certain issues that would assumingly help the tribunal to reach a fully informed decision.
140. The tribunal, nevertheless, must always ensure that these means will enable the parties to present their case. For instance, in cases where a tribunal decides not to hear witnesses and experts, arbitrators must not base their decisions solely on the written testimonies and reports, because these documents will not have been tested in cross-examination and will therefore have, or be perceived as having, a lower proof value.¹⁵⁶

[Page60:]

141. When assessing compliance with due process, the tribunal must take into account the specificities of the seat and of the jurisdictions where the parties may seek enforcement of the award, “especially if one party argues that a hearing is mandatory from a procedural standpoint.”¹⁵⁷ In most countries, the absence of hearing does not necessarily violate the parties’ right to be heard and the application of due process.
142. This is particularly true in civil law jurisdictions where written pleadings and evidence have more, or at least similar value, than oral evidence. In France, the Cour de Cassation established in a 2009 decision that the absence of hearing did not constitute a violation of due process as the plaintiff had not objected to this proposition made by his opponent.¹⁵⁸ It follows, for instance, that in arbitrations involving two parties from civil law systems, it is unlikely that the parties will insist on having a cross-examination.
143. In common-law jurisdictions, hearings and oral evidence are particularly important. Therefore, when the seat of arbitration is a common-law jurisdiction where oral evidence is key to legal proceedings such as the United Kingdom,¹⁵⁹ or in cases where the enforcement might be sought there, the tribunal should have this in mind. However, generally, there are very few due process challenges accepted, including in common law jurisdictions and notably in the United Kingdom.¹⁶⁰ The possibility for arbitral tribunals to decide the case solely on the basis of documents appears to be well-accepted, after the High Court of Justice of England and Wales refused to set aside an award rendered in a procedure where the arbitral tribunal had refused to hold a hearing, as the absence of a hearing did not, according to the court, constitute a substantial injustice caused by a “serious irregularity” in the meaning of Section 68 of the English Arbitration Act (1996).¹⁶¹ Courts in less arbitration-friendly jurisdictions might have different views on this issue.

IV CONCLUSION

144. Back in 2010, the Queen Mary International Arbitration Survey provided that, although the main causes of delay are within the control of the parties, “it is the tribunal and the arbitration institution that should exert control over them to keep the arbitral process moving quickly.”¹⁶² This, in fact, seems to be what ICC implemented with the EPP, which grant substantially more power to the ICC Court, and especially to the arbitral tribunal, in the administration of small claims, somewhat to the detriment of party autonomy.
145. It will therefore be mainly the tribunal’s responsibility, when shaping the procedure, to balance speed, low cost, quality, preservation of party autonomy and respect of the parties’ right to a fair trial. In fact, the future success of the ICC EPP will probably depend on the arbitrators: “tant vaut l’arbitrage accéléré que l’arbitre l’accélérant” as could be said in French (in other words, “expedited arbitration will be worth what the expedited arbitrator will be worth”).

 

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*
Christophe Seraglini, Professor of Law & Partner, Betto Seraglini - International Dispute Resolution; Patrick Baeten, Deputy General Counsel — Disputes, ENGIE SA

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1
"ICC’s Guide for In-House Counsel and Other Party Representatives on Effective Management in Arbitration," 2014, p. 3. [Page61:]

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2
Friedland Paul and Professor Mistelis Loukas, "2010 Queen Mary International Arbitration Survey: Choices in International Arbitration," 2010, p. 32.

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3
Ibid, p. 32.

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4
Ibid, p. 32.

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5
Friedland Paul and Professor Mistelis Loukas, "2015 Queen Mary International Arbitration Survey: Improvements and Innovations in International Arbitration" (hereafter, the "Survey"), 2015, p. 24. The Survey insisted, in particular, on the need to "Reduc[e] Time and Cost".

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6
E.g. the London Court of International Arbitration in November 2015; the Singapore International Arbitration Centre (hereafter, "SIAC") in October 2016, and the Stockholm Chamber of Commerce (hereafter, the "SCC") in February 2016. An author compared this data: http://globalarbitrationreview.com/article/1076627/costs-and-duration-%E2%80%93-siac-the-lcia-and-the-scc-compared.

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7
Survey, pp. 3, 24 and 26.

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8
Waincymer Jeffrey, "Part II: The Process of an Arbitration, Chapter 6: Establishing the Procedural Framework" in Procedure and Evidence in International Arbitration (Kluwer Law International), 2012, p. 421.

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9
Many institutions had indeed already adopted specific rules for simplified arbitration procedures, either as a separate set of rules (see for e.g. the SCC; see also the World Intellectual Property Organisation (hereafter, the "WIPO"), and the DIS Supplementary Rules for Expedited Proceedings adopted by the German Institution of Arbitration of 2008), or through special provisions under the existing rules of arbitration (See for e.g. SIAC, the Hong Kong International Arbitration Centre (hereafter, "HKIAC") and the Swiss Chambers’ Arbitration Institution (hereafter, "SCAI")). The WIPO adopted its Expedited Arbitration Rules as early as 1994; the SCC adopted the SCC Expedited Arbitration Rules in 1999 (and revised them successively in 2010 and 2017); SIAC introduced specific provisions regarding an "expedited procedure" in its Rules of Arbitration in 2010 (and revised them in 2013 and 2016); the HKIAC did the same in 2008 (and revised them in 2013) and the SCAI in 2004 (and revised them in 2012).

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10
"Note on ICC Expedited Arbitration," ICC International Court of Arbitration Bulletin, Vol. 13 No. 1, para 1.

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11
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration," 1st Ed, 2007, para 6; Article 38(1) of the ICC Rules of Arbitration (2012).

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12
Ibid, para 36.

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13
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 4.

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14
Ibid, p. 4.

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15
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 124.

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16
Ibid, p. 124.

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17
Ibid, p. 124.

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18
See Appendix IV of the ICC Rules of Arbitration (2012). One should note that the case management techniques described in this Appendix IV are, to a certain extent, similar to the ICC EPP. See for e.g. paragraphs (c), (d)(ii), (d)(iii), (d)(iv), (e): the case management techniques that ICC tribunals are encouraged of using notably included:

"Identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal argument at a hearing";

"[A]voiding requests for document production when appropriate in order to control time and cost"; "in those cases where requests for document production are considered appropriate, limiting such requests to documents or categories of documents that are relevant and material to the outcome of the case"; and "establishing reasonable time limits for the production of documents";

"Limiting the length and scope of written submissions and written and oral witness evidence (both fact witnesses and experts) so as to avoid repetition and maintain a focus on key issues".

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19
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 4, where ICC notes that the ICC Rules of Arbitration (2012) "permit flexibility and do not specify precisely how an arbitration is to be conducted."

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20
Ibid., p. 4.[Page62:]

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21
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, pp. 124.

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22
Ibid., p. 130.

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23
Article 30 of the ICC Rules of Arbitration (2017): "By agreeing to arbitration under the Rules, the parties agree that this Article 30 and the Expedited Procedure Rules set forth in Appendix VI (collectively the ‘Expedited Procedure Provisions’) shall take precedence over any contrary terms of the arbitration agreement."

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24
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 141.

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25
Survey, p. 26.

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26
Ibid., p. 26.

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27
Feris José Ricardo, "The 2017 ICC Rules of Arbitration and the New Expedited Procedure Provisions: A view from Inside the institution", ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 66.

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28
Ibid. p. 66.

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29
Survey, p. 26.

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30
Ibid., p. 26.

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31
Indeed, for example, the American Bar Association and SCIA have respectively set US$75,000 and 1 million Swiss Francs (about US$980,000) for their expedited rules to apply, while SIAC and the HKIAC have chosen a threshold of 6 million SGD (about US$4.7 million) and 25 million HKD (about US$2 million) (see Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017). One should bear in mind, however, that the expedited rules of SIAC and the HKIAC, although they have a higher threshold, do not provide for the automatic application of the expedited procedure; a party, or the parties, have to file an application with the institution, which will ultimately decide that the expedited procedure will / or will not apply.

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32
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 5.

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33
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 125.

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34
Feris José Ricardo, "The 2017 ICC Rules of Arbitration and the New Expedited Procedure Provisions: A view from Inside the institution," ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 67.

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35
Nowadays, 33% of the ICC Court’s caseload relates to claims below US$2 million and would therefore fall within the scope of the new Expedited Rules. See Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 128; see also Feris José Ricardo, "The 2017 ICC Rules of Arbitration and the New Expedited Procedure Provisions: A view from Inside the institution," ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 65.

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36
This is the case of some institutions that have "introduced expedited rules in separate sets of arbitrations rules to ensure that such rules may apply only if the parties have expressly referred to them, and regardless of the amounts in dispute," such as the SCC, the WIPO or the German Institute of Arbitration (see Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 127, also referring to the WIPO Expedited Arbitration Rules of 1994 and the DIS Supplementary Rules for Expedited Proceedings adopted by the German Institution of Arbitration of 2008, as examples). The ICC EPP also differ from another type of expedited rules: the HKIAC’s expedited rules, which do not automatically apply to small claims. Indeed, for the HKIAC’s expedited procedure to apply, one party (at least) must file an application with the arbitral institution in addition to the case meeting a number of alternative criteria (including when the amount in dispute does not exceed a certain ceiling) (see Article 41.1 of the HKIAC Rules of Arbitration). The institution will then make a decision to grant or reject the application, such that there is no automatic application such as ICC’s.

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37
Appendix VI, Article 4(1) of the ICC Rules of Arbitration (2017).

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38
Article 31(1) of the ICC Rules of Arbitration (2017).

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39
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 141.

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40
See Article 30 and Appendix VI of the ICC Rules of Arbitration (2017). For e.g., regarding the constitution of the arbitral tribunal, pursuant to Appendix VI, Articles 2(1) and 2(2) of the ICC [Page63:] Rules of Arbitration (2017), the ICC Court will be able to, and will generally, so it is said, appoint a sole arbitrator, instead of a three-arbitrator tribunal, and shall appoint one "within as short a time as possible."

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41
Appendix VI, Article 3(1) of the ICC Rules of Arbitration (2017). Whereas establishing Terms of Reference is an obligation under the standard ICC procedure.

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42
Appendix VI, Article 3(3) of the ICC Rules of Arbitration (2017). Whereas, in standard ICC arbitrations, there is no such time limit for holding the first case management conference, see Article 24(1) of the ICC Rules of Arbitration (2017).

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43
Appendix VI, Article 3(2) of the ICC Rules of Arbitration (2017).

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44
Appendix VI, Article 3(4) of the ICC Rules of Arbitration (2017).

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45
Appendix VI, Article 3(5) of the ICC Rules of Arbitration (2017).

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46
Appendix III of the ICC Rules of Arbitration (2017), pp. 59-61.

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47
82% according to ICC’s Guide for In-House Counsel on Effective Case Management, p. 3; and 90% in arbitration in general (Böckstiegel Karl-Heinz, "Party Autonomy and Case Management — Experiences and Suggestions of an Arbitrator," Address at the Conference of the German Institution of Arbitration (DIS) "Organising Arbitral Proceedings" in Berlin, 24-25 October 2012) — party costs includes lawyers’ fees and expenses, expenses related to witness and expert evidence, and other costs incurred by the parties for the arbitration.

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48
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 3.

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49
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 147.

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50
Welser Irene and Klausegger Christian, "Chapter II, The Arbitrator and the Arbitration Procedure — Fast Track Arbitration: Just fast or something different?" in Austrian Arbitration Yearbook, 2009, p. 268 referring to Rubino-Sammartano Mauro, International Arbitration Law and Practice, 433 et seq., 2nd ed, 2001.

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51
"Note to ICC National Committees and Groups on the proposal of arbitrators", 10 May 2016.

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52
Article 13(1) of the ICC Rules of Arbitration (2017).

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53
Article 34 of the ICC Rules of Arbitration (2017).

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54
Survey, p. 2.

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55
Hunter Martin and Redfern Alan with Blackaby Nigel and Partasides Constantine, "Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International Commercial Arbitration, 4th ed, 2004, p. 315. See also Article 19(1) of the UNCITRAL Model Law, providing: "Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings".

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56
Hunter Martin and Redfern Alan with Blackaby Nigel and Partasides Constantine, "Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International Commercial Arbitration, 4th ed, 2004, p. 315.

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57
Article 22(2), ICC Rules of Arbitration (2017).

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58
See Article V(1), (c) and (d) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). See also, for instance in France, Article 1520, §§ 2 and 3 of the Code of Civil Procedure.

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59
Article 30 of the ICC Rules of Arbitration (2017): "By agreeing to arbitration under the ICC Rules of Arbitration, the parties agree that this Article 30 and the Expedited Procedure Rules set forth in Appendix VI (collectively the "Expedited Procedure Provisions") shall take precedence over any contrary terms of the arbitration agreement." Note that this provision seems rather uncommon among other arbitral institutions. While SIAC recently added a similar provision in the SIAC Rules of Arbitration (2016), there is nothing as such in the expedited rules of the HKIAC, the SCAI, and the American Arbitration Association, for instance.

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60
Feris José Ricardo, "The 2017 ICC Rules of Arbitration and the New Expedited Procedure Provisions: A view from Inside the institution," ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 70: this provision may be justified by the ICC Court’s recent statistics highlighting that cases conducted pursuant to the general regime of the ICC Rules of Arbitration and "in which the amount in dispute is less than US$2 million are overwhelmingly submitted to a sole arbitrator (80 % of cases in 2014, 81 % of cases in 2015, 75% of cases in 2016)". Article 2(1) of Appendix VI of the ICC Rules of Arbitration (2017) differs, for instance, from the expedited rules of the HKIAC where party autonomy trumps if the parties provided for three arbitrators in their arbitration agreement (Article 41.2(a) and (b) of the HKIAC Rules of Arbitration (2013) reads as follows: "[…] a. the case shall be referred to a sole arbitrator, unless the arbitration agreement provides [Page64:] for three arbitrators; b. if the arbitration agreement provides for three arbitrators, HKIAC shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree, the case shall be referred to three arbitrators.").

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61
Appendix VI, Article 3(4) of the ICC Rules of Arbitration (2017). "[S]uch procedural measures as it considers appropriate" may include the case management techniques of Appendix IV of the ICC Rules of Arbitration, which are very similar to the tools of the expedited procedure: see for e.g. Appendix IV, (e) "limiting the length and scope of written submissions and written and oral witness evidence (both fact and experts) so as to avoid repetition and maintain a focus on key issues"; Appendix IV, (d) on the production of documentary evidence, providing that the tribunal may "avoid requests for document production when appropriate in order to control time and cost" or may "limit such requests to documents or categories of documents that are relevant and material to the outcome of the case".

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62
Appendix VI, Article 3(4) of the ICC Rules of Arbitration (2017).

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63
Appendix VI, Article 3(5) of the ICC Rules of Arbitration (2017).

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64
Article 22(2) of the ICC Rules of Arbitration (2017).

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65
CA Paris (1Ch. suppl.), Société Guangzhou Ocean Shipping Company v Société Générale des Farines, 17 January 1992, Rev. arb. 1992, p. 656.

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66
Singapore High Court, AQZ v ARA, 13 February 2015, SGHC 49.

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67
However, it must be noted that, unlike the ICC EPP, the SIAC’s expedited procedure does not automatically apply. At least one party must apply to SIAC to request the application of SIAC’s expedited rules, and SIAC will decide whether or not to grant the application based on a number of alternative criteria (which are the parties’ agreement as to the application of the rules, or the amount in dispute is below a certain amount, or urgency). Moreover, the SIAC Rules of Arbitration (2010) did not contain a similar provision as Article 30(1) of the 2017 ICC Rules of Arbitration. The analogy is thus far from perfect.

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68
In this decision of the Shanghai court, the arbitration was conducted pursuant to the SIAC Rules of Arbitration (2013), which Article 5(2)(b) is the same as in the SIAC Rules of Arbitration (2010).

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69
Thomson Douglas, "Shanghai court refuses to enforce SIAC sole arbitrator’s award", Global arb. Rev., 30 August 2017.

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70
Article 30(3)(c) of the ICC Rules of Arbitration (2017).

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71
Appendix VI, Article 1(4) of the ICC Rules of Arbitration (2017).

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72
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 129.

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73
Marchisio Giacomo, "Recent solutions to old problems: A Look at the Expedited Procedure under the Newly Revised ICC Rules of Arbitration", ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 79: "There may be other instances in which the terms of an arbitration agreement can differ from the expedited procedure, such as when parties have agreed upon specific characteristics of the arbitral proceedings (examination of witnesses, hearings, etc.); however, these situations should not constitute a problem, for the provisions contained in Articles 3(4) and 3(5) of Appendix VI, regulating the conduct of expedited proceedings, are not mandatory. The terms of the arbitration agreement will then prevail."

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74
Welser Irene and Klausegger Christian, "Chapter II, The Arbitrator and the Arbitration Procedure — Fast Track Arbitration: Just fast or something different?" in Austrian Arbitration Yearbook, 2009, p. 267.

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75
As expressly stated in Article 18 of the UNCITRAL Model Law on International Arbitration, "the parties shall be treated with equality".

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76
Article 22(4) of the ICC Rules of Arbitration (2017).

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77
The "principe de la contradiction" is set in Section VI of the French Code of Civil Procedure.

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78
See, e.g., Civ. 1e, Pakistan Atomic Energy Commission v Société Générale pour les Techniques Nouvelles, 7 January 1992, Rev. arb. 1992, p. 659, and observations by D. Bureau; CA Paris, Ganz Mozdony v SNCFT, 16 November 1993, Rev. arb. 1995, p. 477, and the commentary by Kessedjian, footnote 304; CA Paris, Torno, 19 May 1998, footnote 224; Civ. 1e, Overseas Mining Investments Ltd v Commercial Caribbean Niquel SA, 29 June 2011, No 1023321. Moreover, in a 1995 decision, the Paris Court of appeal observed that "the principle of due process implies that the arbitral tribunal cannot introduce any new legal or factual issue without inviting the parties to comment on it" (CA Paris, Thyssen Stahlunion v Maaden, 6 April 1995, Rev. arb. 1995, p. 466).

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79
Fouchard Philippe, Gaillard Emmanuel and Goldman Berthold, "Part 6: Chapter 1 — French Law" in International Commercial Arbitration, para 1642. [Page65:]

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80
See Article 1510 of the French Code of Civil Procedure: "Irrespective of the adopted procedure the arbitral tribunal must ensure that the parties are treated equally and that the principle of due process is complied with." In France, the principle of equal treatment of the parties in international arbitration proceedings was originally based on case law. It was established by the Cour de Cassation in the so-called "Dutco decision", a multi-party case where two respondents with divergent interest were asked to appoint the same arbitrator. As equality of the parties in the designation of arbitrators was not respected, the French Court set aside the award finding that it violated international public policy. See Civ. 1e, Sociétés BKMI et Siemens v Société Dutco, 7 January 1992, No 89-18708 and No 89-18726, Rev. arb. 1992, p. 470. This decision led to a change in Article 1453 of the French Code of Civil Procedure stating that in a multi-party dispute, if parties disagree on the designation of arbitrators, the person in charge of organising the arbitration or, failing that, the juge d’appui, will have to appoint the arbitrator. The equal treatment of parties is part of the French international public policy, defined broadly by case-law as the set of "principles of universal justice considered in the French public opinion as endowed with absolute international value," which violation shall result in the annulment of the award pursuant to Article 1520, paragraph 5 of the French Code of Civil Procedure. See Civ. 1e, 25 May 1948, No 37.414, Bull. civ. 1948, I, No 163, RCDIP 1949, p. 89.

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81
See also Article 1520, 4° of the French Code of Civil Procedure, and the Overseas Mining Investments Ltd v Commercial Caribbean Niquel SA case, where the French Cour de cassation approved the annulment of an award on the grounds that the arbitrators had omitted to ask the parties to comment on a legal point (Civ. 1e, Overseas Mining Investments Ltd v Commercial Caribbean Niquel SA, 29 June 2011, No 1023321). See also CA Paris, Thyssen Stahlunion v Maaden, 6 April 1995, Rev. arb. 1995, p. 466.

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82
Welser Irene and Klausegger Christian, "Chapter II, The Arbitrator and the Arbitration Procedure — Fast Track Arbitration: Just fast or something different?" in Austrian Arbitration Yearbook, 2009 p. 269. See also Article V(1)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958): "The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case."

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83
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 137.

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84
"ICC Note to Parties and Arbitral Tribunals on the Conduct of Arbitration", 2017, para 81, p. 12.

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85
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration", 2014, p. 5.

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86
Ibid, p. 5.

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87
Gerbay Remy, "Due Process Paranoia", Kluwer Arbitration Blog, 6 June 2016. See also, Reed Lucy and Saleh Shaparak, "Bon Courage, TRIBUNALS!", BCDR International Arbitration Review, (Kluwer Law International), Volume 2, Issue 1, 2015, referring to "Due Process Must Trump Efficiency, Says Derains," Global Arb. Rev., 23 September 2014: "[O]ne of the plagues of arbitration is that arbitrators are too scared to enforce time limits which the parties themselves have created … and why? Because arbitrators. . . think their award will be challenged if they don’t [grant an extension], and that is wrong: no judge would do that."

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88
Gerbay Remy, "Due Process Paranoia," Kluwer Arbitration Blog, 6 June 2016: "Obviously, the main problems with due process paranoia are excessive costs and delays. By not being robust enough for fear of seeing an award set aside or refused enforcement, some arbitrators may contribute to the excessive costs and duration of arbitration proceedings."

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89
Survey, p. 10: respondents to the Survey felt that "in practice, the risk of successful challenges to arbitral awards was ‘insufficient to justify tribunals’ overly cautious behaviour; consequently, arbitrators should be willing to decisively manage proceedings."

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90
Welser Irene and Klausegger Christian, "Chapter II, The Arbitrator and the Arbitration Procedure — Fast Track Arbitration: Just fast or something different?" in Austrian Arbitration Yearbook, 2009, p. 270; Bishop Doak R. & Martin E., "Enforcement of Foreign Arbitral Awards" pp. 15-18; Fouchard Philippe, Gaillard Emmanuel and Goldman Berthold, "Part 6: Chapter 1 — French Law" in International Commercial Arbitration, para 1642: "French courts show considerable caution in performing that review. They will only set aside an award on that basis where the plaintiff clearly establishes that the allocated deadlines did not enable it to present its case appropriately". See also Gerbay Remy, "Due Process Paranoia", Kluwer Arbitration Blog, 6 June 2016: "Out of the 110+ decisions citing s.33 that have been reported since the enactment of the English Arbitration Act (1996) two decades ago, we have not been able to find a single decision in which the English courts set aside an award because of an overly robust case management decision. […] We have not been able to find any decision where an award was set aside because the tribunal had been overly robust, e.g. by rejecting one or more applications for an extension of time, refusing amendments to some written submissions, rejecting new defences or fresh evidence, or [Page66:] declining to reschedule a hearing. To the contrary, a number of English decisions have unambiguously rejected set aside applications which were based on robust case management […] The above decisions are perhaps not surprising. First, not just any breach of s. 33 will suffice to set aside an award. It is necessary for that breach to cause a substantial injustice to the applicant. This will be the case, for example, where the outcome would have been different had the irregularity not occurred. In addition, s. 33 does not just require a tribunal to act fairly and impartially, it also requires the tribunal to ‘adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense’ […]".

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91
Paulsson Marike, "Chapter 6: Resisting the Enforcement of Awards", The 1958 New York Convention in Action (Kluwer Law International), 2016, pp. 157-216.

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92
Paulsson Marike, "Chapter 6: Resisting the Enforcement of Awards", The 1958 New York Convention in Action (Kluwer Law International), 2016, p. 160.

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93
Welser Irene and Klausegger Christian, "Chapter II, The Arbitrator and the Arbitration Procedure — Fast Track Arbitration: Just fast or something different?" in Austrian Arbitration Yearbook, 2009, p. 269: "Generally, the identification of a violation of the parties’ procedural rights will not per se suffice as a ground for refusal under Article V, Section 1(b) of the New York Convention — it is further required that the identified violation had a direct influence on the outcome of the proceedings." See for e.g. a decision of the Supreme Court of Hong Kong, Paklito Investment Limited v Klockner East Asia limited, in Yearbook Commercial Arbitration XIX (1994), pp. 664-674. See also for e.g. in England: Gerbay Remy, "Due Process Paranoia", Kluwer Arbitration Blog, 6 June 2016: "Leaving aside the issue of enforcement to focus on set aside proceedings, in England, the key statutory provisions relating to the question of whether an arbitrator has been excessively robust in respect of a case management decision are found at s.68 and s.33 of the Arbitration Act (1996). In short, s.68 provides that an award may be set aside if a serious irregularity has been committed, and if that irregularity has caused substantial injustice. It also provides that a serious irregularity has been committed when the tribunal has breached its general duty which is provided for at s. 33 to conduct the arbitral proceedings ‘fairly and impartially as between the parties giving each party a reasonable opportunity of putting his case and dealing with that of his opponent’."

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94
Federal Supreme Court of Switzerland, Chrome Resources S.A. v Leopold Lazarus Ltd, Yearbook Commercial Arbitration VI 1986, pp. 538-542, where the respondent challenged the award, arguing that the arbitrators had communicated with an expert in the absence of the parties, but the Swiss Federal Supreme Court refused to set aside the award as it found that respondent had not raised the objection during the arbitral proceedings, but had waited to do so at the enforcement stage. See also a decision of the Supreme Court of Hong Kong, China Oil Joint Service Corporation Shenzhen Branch v Gee Tai Holdings Co. Ltd., in Yearbook Commercial Arbitration XX (1995), pp. 671-680.

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95
In the United Kingdom, see EWHC, Thomas O’Donoghue v Enterprise INNS PLC, 29 September 2008, Case No. 8LS 40254; see also EWHC, Double K Oil Products 1996 Ltd v Neste Oil Oyj, 2009, where the court rejected a set aside application in a case where the arbitral tribunal has refused to make an order that employees of a party appear as witnesses at the hearing. In France, see Civ 1e, 6 May 2009, n°08-10281. In the United States, the main American arbitral institutions’ rules — the American Arbitration Association (AAA), the International Institution for Conflict Prevention and Resolution (CPR), and Judicial Arbitration and Mediation Services (JAMS) — provide for the possibility to decide the case solely on the basis of documents.

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96
Singapore High Court, AQZ v ARA, 13 February 2015, SGHC 49; Baizeau Domitille, "Award under Expedited Arbitration Rules examined by the Swiss Supreme Court", Kluwer Arbitration Blog, June 2009.

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97
Note, for e.g., that "as soon as a party is not represented by experienced counsel, or a private or state party is represented by in-house lawyers, or a member of the tribunal is less familiar with modern arbitration practice, the tribunal will have make special efforts to assure that neither party is surprised or at a disadvantage in the arbitral procedure" (Karl-Heinz Böckstiegel, "Party Autonomy and Case Management — Experiences and Suggestions of an Arbitrator", Address at the Conference of the German Institution of Arbitration (DIS) "Organising Arbitral Proceedings" in Berlin, 24-25 October 2012).

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98
For e.g., Namibia’s Arbitration Act dates back to 1965. In Venezuela, local courts do not recognise the basic principle of severability and independence of the arbitration clause and the Kompetenz-Kompetenz principle, even though the country has ratified the New York Convention. See Díaz-Candia Hernando, "Non-recognition of Kompetenz-Kompetenz in Developing Countries", Journal of International Arbitration (Kluwer Law International), Volume 24, Issue 1, 2007, pp. 25-35.

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99
Article 30(3)(c) of the ICC Rules of Arbitration (2017).

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100
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration, Kluwer Law International, Volume 34, Issue 2, 2017, [Page67:] p. 148. Since the ICC Rules of Arbitration do not provide detailed explanations as to how the amount in dispute is calculated, both in the standard ICC procedure and the ICC expedited procedure, there is also a risk that the parties may artificially increase the amount of the dispute so as to exceed the US$2 million threshold. The ICC Secretariat will take into account claims, counterclaims, and set-off claims subject to the availability of this information at the time when the Answer to the Request for Arbitration is received (see Webster Thomas & Bühler Michael, "Handbook of ICC Arbitration", 3d ed, Sweet 1 Maxwell 2014, paras 36-17, 36-18; Fry Jason, Greenberg Simon and Mazza Francesca, "The Secretariat’s Guide to ICC Arbitration", ICC Publication no. 729 2012, paras 3-1348-3-1353). Thus, claimants could claim damages of more than US$2 million to avoid the application of the Expedited Rules, while respondents could make a counterclaim so as to increase the amount in dispute and avoid the application of the expedited procedure.

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101
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 6.

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102
Ibid., p. 6.

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103
See supra., para 44.

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104
See supra., Title II(C).

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105
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 6.

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106
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration", 1st Ed, 2007, para 6.

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107
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 6.

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108
Ibid., p. 17.

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109
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration," 2nd Ed, 2014, para 46.

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110
Appendix VI, Article 3(3) of the ICC Rules of Arbitration (2017).

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111
Appendix VI, Article 3(3) of the ICC Rules of Arbitration (2017).

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112
Appendix VI, Article 2 of the ICC Rules of Arbitration (2017).

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113
The Shanghai Municipal No. 1 Intermediate People’s Court decided that, when the parties to an arbitration under the SIAC Rules of Arbitration (2013) have expressly agreed to have their dispute resolved by three arbitrators, SIAC President must give full consideration to their agreement (see Thomson Douglas, "Shanghai court refuses to enforce SIAC sole arbitrator’s award", Global arb. Rev., 30 August 2017). It has also been suggested that the ICC Court should give effect to the parties’ agreement providing for a three-member tribunal even when the ICC EPP apply (see Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, pp. 132-133).

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114
See supra., para 47.

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115
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, pp. 133-134.

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116
See infra., Title III(C)(3).

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117
See supra., para 54.

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118
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 136.

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119
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration", 1st Ed, 2014, p. 9.

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120
Ibid., p. 9.

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121
Ibid. p. 10.

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122
Appendix VI, Article 3(4) of the ICC Rules of Arbitration (2017).

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123
Appendix IV (e) of the ICC Rules of Arbitration (2017).

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124
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration", 1st Ed, 2014, p. 11.

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125
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International 2017), Volume 34 Issue 2, p. 137.

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126
Appendix VI, Article 3(4) of the ICC Rules of Arbitration (2017). [Page68:]

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127
Appendix IV (d) of the ICC Rules of Arbitration (2012), regarding case management technique, notably states that the tribunal may deny requests for document production where appropriate in order to control time and cost, and when accepting them, may limit them to documents or categories of documents that are relevant and material to the outcome of the case. The ICC Rules of Arbitration (2017) contain the same Appendix IV.

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128
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 33.

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129
Ibid., p. 33.

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130
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration," 1st Ed, 2007, para 52.

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131
Ibid., para 60.

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132
Ibid., para 60. See in "ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 38: ICC indicated a number of issues that may be considered when deciding whether fact witnesses are needed. Those notably include:
- Are there any disputed facts? The disputed facts may appear from the pleadings, but it may turn out, after discussions between the parties, that those facts are not really disputed.
- Are they relevant and material for deciding an issue in the dispute?
- Can they be proved by documents alone or do they genuinely need to be proved through fact witnesses?
- Is it useful to call fact witnesses to make a general presentation on the circumstances of the dispute?

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133
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 42.

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134
Ibid., p. 42.

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135
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration," 1st Ed, 2007, para 64.

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136
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 42.

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137
"ICC Commission Report — Techniques for Controlling Time and Costs in Arbitration," 1st Ed, 2007, para 65.

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138
Feris José Ricardo, "The 2017 ICC Rules of Arbitration and the New Expedited Procedure Provisions: A view from Inside the institution," ICC Dispute Resolution Bulletin, Issue 1, 2017, p. 72.

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139
"ICC Guide for In-House Counsel and Other Party Representatives — Effective Management of Arbitration," 2014, p. 47.

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140
Beyeler Karin, "Chapter 4, Part II: Commentary on the ICC Rules, Article 23 [Terms of reference]"’, in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner’s Guide (Kluwer Law International), 2013, p. 778.

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141
Ibid., p. 779.

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142
Ibid., p. 778.

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143
Ibid., p. 778.

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144
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 134.

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145
Aygül Musa and Gültutan Doğan, "Chapter 5: Arbitration Procedure", in Esin Ismael and Yesilirmak Ali, Arbitration in Turkey (Kluwer Law International), 2015, pp. 106-107.

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146
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 135.

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147
See supra., Title II(D).

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148
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, p. 135.

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149
Appendix VI, Article 3(5) of the ICC Rules of Arbitration (2017): "[T]he arbitral tribunal may, after consulting the parties, decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts […]."

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150
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34, Issue 2, 2017, pp. 139-140. [Page69:]

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151
Article 25(6) of the ICC Rules of Arbitration (2017): "[T]he arbitral tribunal may decide the case solely on the documents submitted by the parties unless any of the parties request a hearing."

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152
"ICC’s Guide for In-House Counsel and Other Party Representatives on Effective Management in Arbitration", 2014, p. 52.

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153
Ibid., p. 52.

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154
Bühler Michael and Heitzmann Pierre, "The 2017 ICC Expedited Rules: From Softball to Hardball?", Journal of International Arbitration (Kluwer Law International), Volume 34 Issue 2, 2017, p. 140.

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155
Ibid, pp. 139-140.

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156
Ibid, p. 140. See also supra., para 137.

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157
Ibid., p. 140.

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158
See Civ. 1e, 6 May 2009, No 081028. Note that in this case, the possibility to decide the case solely on documents was expressly made possible by the arbitration agreement.

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159
In common law jurisdictions, cross-examination is a very important part of the procedure. Its purposes are threefold: it can demonstrate that the witness’ testimony is not safe to rely on; it can serve to elicit information from the witness; and finally, the other side’s witnesses can confirm parts of one’s own story. Because these elements allow a party to present its case properly, the absence of hearing may raise serious due process risks in these jurisdictions.

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160
See supra., Title II(D)(2).

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161
EWHC, Thomas O’Donoghue v Enterprise INNS PLC, 29 September 2008, Case No. 8LS 4025.

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162
Friedland Paul and Professor Mistelis Loukas, "2010 Queen Mary International Arbitration Survey: Choices in International Arbitration", 2010, p. 3.

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