Alexis Mourre

As the main global arbitration institution, the ICC International Court of Arbitration is striving constantly to improve its services to meet users' expectations for more cost and time efficiency in the resolution of international business disputes. In many instances, arbitration has become too long, too costly and too complex. Frequent objections to the constitution of the tribunal, duplications in at times unnecessarily long and complex submissions, the boilerplate use of the Redfern Schedule, and requests for unnecessarily long hearings, combined with insufficient availability on the part of arbitrators and counsel, have produced a result that the business community is no longer prepared to accept. Delays in the procedure, especially in cases of limited value, have become entirely incompatible with the parties' need for a fast resolution of their disputes, and costs have ballooned in a way that is often completely disproportionate to the amounts at stake. If we do not act creatively to improve the system, parties will turn their backs on international arbitration and look to other ways of resolving their disputes.

As the main global arbitration institution, the ICC International Court of Arbitration is striving constantly to improve its services to meet users' expectations for more cost and time efficiency in the resolution of international business disputes. In many instances, arbitration has become too long, too costly and too complex. Frequent objections to the constitution of the tribunal, duplications in at times unnecessarily long and complex submissions, the boilerplate use of the Redfern Schedule, and requests for unnecessarily long hearings, combined with insufficient availability on the part of arbitrators and counsel, have produced a result that the business community is no longer prepared to accept. Delays in the procedure, especially in cases of limited value, have become entirely incompatible with the parties' need for a fast resolution of their disputes, and costs have ballooned in a way that is often completely disproportionate to the amounts at stake. If we do not act creatively to improve the system, parties will turn their backs on international arbitration and look to other ways of resolving their disputes.

This is by no means a novel question, and ICC has for a long time been active in taking measures to control the time and costs of the arbitration.

The ICC 2012 Arbitration Rules mandate the arbitral tribunal to conduct the arbitration in the manner that is most time and cost effective, and the adoption of an Appendix IV to the Rules, containing recommended techniques to streamline the procedure and control time and costs, has done a lot to encourage tribunals to adapt their procedures to the specificities of each case in order to foster efficiency.

The adoption, at the end of 2015, of time limits for arbitral tribunals when submitting their awards to the Court, with significant financial sanctions in the event of unjustified delays (applicable to the Court, too, for delays in the scrutiny process) have also gone a long way to meeting the business community's call for more time efficiency.

Finally, in an effort to streamline the initial phase of the arbitration, which at times takes too long, the amended ICC Rules that will come into force on 1 March 20171 will reduce from two months to one month the time arbitral tribunals have to establish Terms of Reference, subject of course to the Court's power to extend the time limit when the tribunal needs more time, as in large and complex cases where the tribunal deems it appropriate to establish a detailed list of issues to be resolved. The Court is also now encouraging parties and arbitrators to sign the Terms of Reference in counterparts and in electronic form.

The fact remains, however, that the lack of specific rules for cases where there is a need for an expedited resolution of the dispute, and also the fact that the adoption of measures to limit the length and cost of an arbitration is essentially left to each tribunal, have limited the impact of these initiatives.

There was therefore a clear need for a more prescriptive framework that would assure parties contemplating arbitration that certain categories of disputes will be resolved expeditiously with contained costs.

Some of our colleagues sometimes say in conferences - half jokingly perhaps, but half seriously as well - that in arbitration parties get to choose two out of the three advantages of quality, speed and limited costs: if you have speed and quality, you should be prepared for increased costs; or you could have quality and contained costs, but with less speed, etc. ICC takes issue with that. Our message is that if the parties so decide, they can get quality, speed and limited costs. This is the aim of ICC's new Expedited Procedure Rules, adopted by the ICC Executive Board on 20 October 2016.

The ICC Expedited Procedure Rules will enter into force on 1 March 2017. They will apply on an opt-out basis to all arbitration agreements concluded after that date whenever the amount in dispute is less than US$ 2 million, and they may also apply on an opt-in basis to any other dispute.

The amount in dispute, for purposes of determining whether the Expedited Procedure Rules apply, refers to the monetary claims and counterclaims, and the Expedited Procedure Rules will normally not apply where there are declaratory or non-quantified claims, save where it appears that they do not significantly increase the complexity or value of the dispute.

Under the ICC Expedited Procedure Rules, the case will normally be submitted to a sole arbitrator, even if the arbitration agreement provides otherwise. It is provided that the Expedited Procedure Rules will take precedence over any contrary provision of the arbitration agreement, and that the Court may always decide to appoint a sole arbitrator. In other words, by agreeing to submit to the ICC Rules, parties accept that an arbitration agreement providing for three arbitrators will be construed as requiring three arbitrators save if the amount in dispute is below US$ 2 million, in which case the parties accept that the dispute may be submitted to a sole arbitrator. As the Expedited Procedure Rules will apply only to arbitration agreements concluded after 1 March 2017, party autonomy will not be undermined. On the contrary, the new Rules will reflect the parties' will to make an exception to a contractual provision providing for three arbitrators in disputes valued at less than US$ 2 million.

This carve-out makes good sense. Given the time that is often needed for the parties to select an arbitrator, the risk of possible objections to the constitution of the tribunal, the increased availability problems with three-member tribunals, as well as the extra time needed to deliberate and discuss the award, a three-member tribunal would in practice delay the proceedings in a manner that is not compatible with the spirit of the Expedited Procedure Rules. In addition, the costs of the arbitration increase significantly with a three-member tribunal, thus defeating the objective of containing costs in cases of limited value.

However, the parties can always opt out of the Expedited Procedure Rules, in particular if their intention is to have their dispute resolved by three arbitrators in spite of its limited value. In that case, they should use the model clause offered by ICC, or at least make clear reference to their intention not to apply the Expedited Procedure Rules. For example, a clause providing for three arbitrators, or saying that the award should be made in twelve months, should not be construed as an opt-out. On the other hand, a clause providing that the dispute will be submitted to three arbitrators irrespective of the amount in dispute, or equivalent language, should be considered as such. The parties can also at any time decide to opt into the Expedited Procedure Rules, even in cases of higher value, in which case the same reduced scale of fees will apply.

A fundamental characteristic of the new Expedited Procedure Rules is that the award should be made within six months of the case management conference, which should take place as soon as possible after the transmission of the case to the sole arbitrator. This time limit will be extended only in limited circumstances upon a reasoned request to the Court by the sole arbitrator.

The Court will consider that compliance with that time limit is an essential duty of the sole arbitrator in a case submitted to the Expedited Procedure Rules, and will closely monitor the management of the case to ensure that the time limit is respected. As in other cases, financial penalties will be applied where there is a delay in the submission of the draft award to the Court. Details on this, along with precise guidance on the application of the Expedited Procedure Rules will be provided in the next iteration of the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration.2

Under the Expedited Procedure Rules, the sole arbitrator will have discretion to decide the case on the basis of documents only, with no hearings, no examination of witnesses, and no process of document disclosure. Such discretion will always have to be exercised after having properly consulted the parties, and will be subject to the sole arbitrator's duty to give each party a reasonable opportunity to present its case and to make an award that will be enforceable at law (as provided in, respectively, Articles 22(4) and 41 of the current ICC Arbitration Rules). The sole arbitrator will therefore have the means to ensure that the procedure is conducted in the spirit of the Expedited Procedure Rules and that the time limit they establish will be respected.

Although the award will need to be fully reasoned, the arbitrator will be encouraged to limit, insofar as possible, the factual parts of the award as well as the summaries of the proceedings and the parties' positions, and to state the reasoning in as concise a fashion as possible. Finally, the award will be scrutinised by the Court in less time, but without sacrificing the high level of quality that applies to all awards.

The Expedited Procedure Rules are accompanied by a scale of fees 20% lower than those of standard proceedings. The lower level of fees is justified by the fact that the procedure will be shortened and relieved of much of the burden and intricacies of ordinary proceedings.

The Expedited Procedure Rules include bold and novel solutions, and they will be an effective answer to the need expressed by users of international arbitration for greater time and cost efficiency. At the same time, we also need to ensure that arbitration continues to be perceived by the general public and by states as a fair and legitimate means of resolving international business disputes. In this regard, it is crucial that policies aimed at establishing the highest possible level of transparency and ethics are established, and institutions have in this respect a prominent role to play.

The ICC International Court of Arbitration has implemented a series of policies aimed at making its procedures transparent, first by deciding to provide reasons for its decisions, then by publishing on its website the composition of all ICC arbitral tribunals constituted as from 1 January 2016, and finally by keeping the parties informed about the scrutiny process and its outcome.

Our policy of providing reasons was limited, however, by Article 11(4) of the ICC Arbitration Rules ('the Court shall not provide reasons for its decisions'), which in fact made the provision of reasons subject to an agreement of all the parties. This provision has now been deleted, and the Court will be able to expand its policy of providing reasons, whenever one of the parties so requests, not only for its decisions on challenges, but also for prima facie jurisdictional decisions and decisions on consolidation.

I cannot finish without mentioning our decision to move now to the operational phase of establishing a team of the Secretariat in São Paulo, Brazil. This project is ably managed by Ana Serra e Moura, who currently heads our Latin American/Iberian case management team. The new team will be operational in the first semester of 2017. It will not only allow the Court to administer Brazilian cases from Brazil in local currency, which is needed to offset the cost of taxes applicable in Brazil to payments made abroad, but more generally to provide a better and closer service to our users in South America. By reinforcing its services in Latin America, the Court once again demonstrates one of its most distinctive features, which is its truly global nature, providing high-quality dispute resolution services worldwide.

1
The amended Rules can be viewed at http://www.iccarbitration.org.

2
Available at http://www.iccarbitration.org and http://www.iccdrl.com.