Alexis Mourre

I am extremely pleased to introduce the first issue of this relaunch of the Bulletin. The Bulletin now has the privilege of availing itself of a new Editorial Board composed of renowned practitioners and ably chaired by Dyalá Jiménez Figueres and Julien Fouret. I would like to take this opportunity to thank the members of the former Editorial Board for their invaluable contribution in helping to produce an outstanding publication.

The new Bulletin has several interesting novelties. Its content will be more varied, and extend to contributions from National Committees and Court members, thus becoming an effective platform for exchanges and debates within the ICC and the entire arbitration community. It will be published in electronic format, making it easier to access and consult. And it will be disseminated free of charge to all ICC members around the world, as well as to Court members, who work so hard to enable us deliver the best possible service to our users. The Bulletin will in this way become a dynamic link between the Court and the more than 80,000 ICC members around the world, thereby helping to increase awareness of the Court’s policies and activities within the ICC community.

As this first 2017 issue of the Bulletin comes out, we may pride ourselves on our achievements in 2016. With a total of 966 new cases involving 3,099 parties from 137 countries and 1,592 pending cases, the Court has established an all-time record. With a 15% rise in parties from Latin America, parties from South and East Asia up by 22%, and record figures for jurisdictions as important as Korea, Brazil, Nigeria and Turkey, the Court is more than ever the only truly global international arbitration institution.

The opening by the Court – as the first non-Asian arbitral institution to set foot in mainland China – of its new Shanghai office in March 2016 was also a great step forward in strengthening our position in this great country and, beyond, in Asia. São Paolo, Brazil, will soon be home to a case management team of the Court. These figures and developments are a testament to our relentless efforts to improve the unique quality of our services and to continually adapt them to the evolving needs of our users around the world.

On 1 March, the revised ICC Rules of Arbitration entered into force. Parties to ICC arbitration now have effective access to the new Expedited Procedure Rules, either on an opt-out basis – for arbitration agreements entered into after 1 March 2017, whenever the amount in dispute does not exceed US$ 2 million – or on an opt-in basis in all other cases. I described how the ICC Expedited Procedure Rules function in the previous issue of the Bulletin. They are an effective and bold answer to the need to control time and costs in arbitration, in particular – but not only – in cases of limited value.

Under the expedited procedure, awards are to be made within six months of the case management conference, by a sole arbitrator – irrespective of any contrary provision of the arbitration agreement –, without terms of reference and, if the sole arbitrator so decides, on the basis of documents only, with no requests to produce documents and no cross-examination of witnesses and experts – one of the main sources of excessive costs in arbitration today. The costs of the arbitration are reduced by 20% compared to ordinary cases and limited by the fact of normally having a sole arbitrator. Of course, the parties’ representation costs will also be greatly limited by the fact that the arbitration will be much shorter and may not include the most cost-generating phases of an ordinary case.

The new Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, which also took effect on 1 March, provides detailed guidance on the conduct of expedited arbitrations under the ICC Rules as well as on the manner in which the amount in dispute will be assessed by the Secretariat for purposes of deciding whether the Expedited Procedure Rules apply. Under the Note, arbitrators are encouraged to limit the factual and procedural sections of the award and to state their reasons in as concise a fashion as possible. As in ordinary cases, under the new Note, the fees of the sole arbitrator may be reduced if there is a delay in the submission of the draft award.

Scrutiny of an award made under the Expedited Procedure Rules will be carried out as soon as possible and in any event no later than two to three weeks from receipt of the draft award by the Secretariat. In order to expedite the proceedings, the award may be scrutinized by a single Court member. Again, as in ordinary cases, delays on the part of the Court in its scrutiny will result in a reduction of our administrative fees.

Implementing the Expedited Procedure Rules will pose new and fascinating challenges for the Court and the Secretariat. Proceedings will have to be closely monitored in order to ensure that time limits are complied with, even more so in those large and complex cases for which the parties will agree to opt in. Objections over the applicability of the Expedited Procedure Rules will need to be dealt with. Arbitrators will need to make decisions as to whether it is appropriate to decide the case on documents only, thereby excluding the production of documents and the evidentiary hearing. Acting under the Expedited Procedure Rules will require availability and decision-making skills. I have no doubt that the Secretariat will be up to these challenges, and that the expedited procedure will be an extraordinary opportunity for the Court to initiate a new generation of arbitrators, whose talents will subsequently be displayed in the large and complex cases of tomorrow.

The Note also implements the ground-breaking change that was introduced into the new Rules concerning the provision of reasons. Any party can now request the Court to provide reasons for its decision on a challenge, a decision to replace an arbitrator or initiate replacement proceedings, a decision to consolidate arbitrations, or a prima facie jurisdictional decision as to whether the arbitration should proceed in respect of one or more of the claims or one or more of the parties. The provision of reasons will be made at no additional cost to the parties.

This new policy establishes a level of transparency in our case management activities that is unique and is a powerful message of commitment and accountability to the arbitration community.

The Court aims, at the same time, to increase and diversify the range of its services. Our users will find in the Note details on the assistance that the Secretariat can provide to the parties in the conduct of their arbitrations, including the organization of a hearing, the identification of a suitable administrative secretary, and the organization of proceedings subject to rules of transparency. Of notable interest in this range of new additional services is the assistance that can be provided by the Secretariat to deal with sealed offers, a very useful tool to encourage settlements.

As part of that initiative, the services offered to parties by the Court acting as appointing authority will be greatly expanded. A revised version of the Rules of ICC as Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings is due to be adopted soon. The new rules will enter into force this summer and offer a wide range of services for parties who have agreed to arbitrate under the UNCITRAL Rules or in other ad hoc or institutional arbitrations, including appointing arbitrators, deciding on challenges and providing reasons for such decisions, deciding on the tribunal’s fees and managing funds, acting as repository of information and publishing information relating to arbitrations subject to rules of transparency, and any other service the parties may have agreed upon.

One of the most interesting novelties of the new Note is the adoption of principles on the conduct of participants in arbitration. Given that arbitration is under public scrutiny as never before, we need to ensure that the integrity and fairness of the arbitration process is at all times beyond doubt. The Court accordingly expects arbitral tribunals, the parties, and their representatives, to abide by the highest standards of integrity and honesty, and to conduct themselves with honour, courtesy and professionalism. Parties and their representatives accordingly have a duty to cooperate in the expeditious resolution of the dispute and should not engage in activities designed to cause unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings. Arbitral tribunals and parties also have a duty to encourage all other participants in the arbitration, such as witnesses, experts and administrative secretaries, to behave according to the same standards.

To that effect, the Note encourages parties and arbitral tribunals to draw inspiration from, or when appropriate to adopt, the IBA Guidelines on Party Representation in International Arbitration. The Guidelines offer useful guidance for arbitrators and party representatives to ensure the integrity and fairness of the proceedings, and will contribute to establishing a level playing field between respondents from different jurisdictions and legal cultures.

The Note also introduces the clear principle that ex parte contacts between an arbitrator or prospective arbitrator and a party or party representative are prohibited, save in limited circumstances to determine the availability and experience of a prospective arbitrator or, if the parties so agree, for the selection of the president of the arbitral tribunal.

This message would not be complete without my congratulations to Alexander Fessas and Ana Serra e Moura for their well-deserved appointments as, respectively, Secretary General and Deputy Secretary General of the Court. Both will take office on 1 June 2017, as Andrea Carlevaris and José Ricardo Feris return to private practice. Alexander and Ana have displayed tremendous leadership in their past functions and proved to have a global vision for the future of the Court. I have no doubt that they will be up to the exciting challenges that lie before us in the years to come.

Alexis Mourre

President of the ICC International Court of Arbitration