ICC Bulletin

Message from the President

All these efforts produce results, year after year. We will soon publish our statistics for 2018, but I can as for now share that we have seen in the past year, and for the third consecutive year, a significant growth in our caseload from all continents. With close to 850 new cases in 2018, the Court confirms its steady development in all regions and all segments of activity.

The Court constantly improves its practices in order to ensure that our services remain at the highest level of quality and efficiency and establish the highest standards of ethics and transparency. To that effect, we have adopted a revised version of our ‘Note to Parties and Arbitral Tribunals on the Conduct of ICC Arbitrations’ (the ‘Note’), which entered into force on 1 January 2019.¹ The new Note includes a significant number of developments and additional services, which I summarize below.

1. Additional services in respect of the constitution of arbitral tribunals (paras. 32-33):

Under the ICC Rules, the parties may agree to nominate a sole or a presiding arbitrator for confirmation by the ICC Court. The Note now confirms that the Secretariat is available to assist the parties by proposing possible candidates, or by providing non-confidential information on identified candidates.

The parties may also agree that the selection of a sole or a presiding arbitrator will be made with the Secretariat’s involvement, in particular by way of a list procedure. The Secretariat may in such case, upon request, assist the parties and/or the two first arbitrators in establishing a list of candidates and liaise with parties for instance for a strike and rank procedure. The Secretariat may also assist the parties in organizing pre-appointment contacts with prospective arbitrators, which of course should comply with the requirements set at paragraphs 18 to 31 of the Note. These arrangements will ensure a greater participation of the parties in the selection process and may facilitate their agreement on a candidate for confirmation by the Court.

2. Transparency (paras. 34-46):

Increasing the transparency of ICC arbitrations has been, in the past three years, an important and consistent policy of the Court. Increased transparency is an element of added trust in arbitration, which makes arbitrators and institutions more accountable, provides useful guidance to arbitral tribunals and raises the awareness of users and the general public on arbitrators’ decision making. Two important innovations have in this respect been included in the Note:

• First, as from 1 July 2019, the sector of industry and the identity of counsel representing the parties will be added to the ICC Court’s website, with the composition of ICC arbitral tribunals.²

• Second, all awards made as from 1 January 2019 may be published, no less than two years after their notification, based on an opt-out procedure. This two-year period of time is meant to ensure that any information that may be published is no longer sensitive to the parties. The parties may however agree to a longer or shorter time-period is they wish. Any party may also, at any time, object to the publication of the award, or request that the award be sanitized or redacted, in which case, the award will either not be published or be sanitized or redacted.

• The parties will of course be specifically informed of this practice and of their right to object at the time of notification of the award, as well as in advance of any publication. In the presence of a confidentiality agreement, the Secretariat will seek their specific consent. The Secretariat may also decide to seek specific consent, of exempt any award from publication, in specific sectors of industry or in sensitive cases.

3. Data protection (paras. 80-91):

An entire new section of the Note is now devoted to compliance with the European Union General Data Protection Regulation (GDPR) regulations. In particular, the Note clarifies that by accepting to participate in an ICC Arbitration, the parties, their representatives, the arbitrators, the administrative secretary, the witnesses, the experts and any individuals that may be involved in any capacity in the arbitration accept that their personal data will be collected, transferred, archived and as the case may be, published.

The Note further reminds the parties of their duty to ensure that said individuals are aware and accept the use of their personal data. Arbitral tribunals shall to that effect, at an appropriate time in the arbitration, remind the parties and other participants in the arbitration that their data may be used, as well as of their right under the GDPR Regulation to seek the correction or suppression of the same. It is in particular encouraged to include a clause to this effect in the Terms of Reference, and the Secretariat can recommend a model clause.

4. Treaty-based arbitrations and submissions by amici curiae (paras. 139-143):

The ICC Court administers a growing number of investor-state arbitrations. Hundreds of BITs provide for ICC as one of the options available to the Claimant. Since 1996, 40 treaty-based cases have been administered by the Court, and the Court has acted as appointing authority in 15 additional cases. Every year, over ten percent of the cases involve a State or a State entity. This proportion reached 15% in 2017 and several of these cases relate to investment agreements. In order to further increase the quality and efficiency of our services in this field, the Note introduces additional guidance.

Prospective arbitrators are first of all encouraged, for the sake of transparency, to disclose in their CV a complete list of treaty-based cases in which they participated as arbitrator, expert or counsel.

The Note also specifies that the parties may agree in an ICC Arbitration to apply in all or part the UNCITRAL Rules on Transparency, and that the Secretariat may in such a case act as repository.

As to the scrutiny of draft awards by the ICC Court, in view of the specificity of investment arbitration, treaty-based awards will be scrutinized in a plenary session including ICC Court members having specific experience in the field. It is also provided that treaty-based awards may be published six months after their notification, rather than the two-year applicable period for other awards.

Finally, the Note makes it clear that, pursuant to Article 25(3) of the Rules, arbitrators have the power, after consulting the parties, to hear amici curiae submissions.

5. Duties of administrative secretaries (paras. 177-192):

The previous version of the Note has at times been perceived as unduly restrictive as to the tasks that may be entrusted to an administrative secretary. The revised Note clarifies that administrative secretaries may, under the control of the arbitral tribunal, perform tasks such as drafting correspondence, sending correspondence on behalf of the tribunal, and preparing – for the tribunal’s review – drafts of procedural orders as well as of factual portions of the award (i.e. summary of the proceedings, the chronology of facts and the summary of the parties’ positions). It remains however strictly impermissible for any tribunal to delegate all or part of its decision-making functions to the secretary, whose tasks shall in no circumstance release the arbitrators from their duty to personally review the file.

6. Disclosures with respect to non-parties (para. 24):

Disclosures should be made not only with respect to the parties and their affiliates, but also to non-parties having an interest in the outcome of the arbitration. Non-parties may be affiliates of one of the parties, guarantors, insurers, banks, funders, or any individual or entity that may be affected by, or have an interest in, the outcome of the arbitration. In this regard, the Note highlights the practice of the Secretariat to identify, at the outset of the arbitration, a list of ‘relevant entities‘. That practice is meant to assist prospective arbitrators in preparing their disclosures. The identification of said entities made by the Secretariat, however, does not necessarily mean that the mentioned entities are indeed relevant for the scope or disclosures, or that disclosures should not be made with regard to other non-parties not identified by the Secretariat. Ultimately, it is for the prospective arbitrator to assess whether disclosures should be made in respect of non-parties. As the Note points out, prospective arbitrators may contact the Secretariat in case of doubt.

We hope that these innovations will contribute to further increase the quality and efficiency of our services and I wish to all our readers a very happy and prosperous 2019!

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