ICC Bulletin

Message from the President

In 2018, the Court has approved a record number of 599 draft awards, up from 512 in 2017, 407 of which were final awards and 146 partial awards. In its Note to the Parties and Arbitral Tribunals, the Court has committed to perform its scrutiny of awards in five or six weeks maximum (para. 134), and we do reduce our own administrative fees in case of a delay that is not justified by the circumstances of the case. This timeframe has been complied with for almost all awards approved last year; there was only one instance of such a delay, where the draft award was submitted to the Court 11 days after the six-week deadline. To achieve this, the Court has last year organized 169 sessions, amongst which 12 plenaries and 157 committees, in four different cities (Paris, New York, Hong Kong and Miami). We are grateful for the extraordinary efforts that have been displayed by our Court members and all members of the Secretariat to ensure that reports and agendas are timely prepared and awards notified as promptly as possible. Special thanks are also due to Francesca Hill, the Court session coordinator, whose relentless efforts, kindness and immense availability makes the complex machinery of the Court work so efficiently every day.

All of these 599 draft awards - except four - were approved subject to comments by the Court, either as to the form or to the substance of the award. These comments significantly contribute to increasing the quality of our awards and are endorsed by arbitral tribunals in the vast majority of cases. The Court has also decided not to approve draft awards in 63 occasions, compared to 46 in 2017. In each of these cases, the Secretariat proactively liaised with arbitral tribunals in order to address the issues which prompted the non-approval, so as to allow approval of a revised draft at the earliest possible session of the Court.

The Court has also decided, in 2018, on 45 requests for challenges, seven of which have been accepted. These numbers compare with 48 challenges in 2017, six of which were accepted. In seven cases, one of the parties has availed itself of the possibility to request reasons for the Court’s decision, and detailed reasons were provided within ten to twenty days on average. The Court has also provided reasons for a prima facie jurisdictional decision in two instances and reasons for a decision on consolidation in three instances.

With case management teams in five different cities across four continents, Court members from 116 different jurisdictions, a Secretariat able to operate in more than 30 different languages, and above all a unique knowledge of prospective arbitrators in virtually any country in the world, the ICC Court is the only truly global arbitration institution. Our 2018 statistics show this unique international perspective, with 2,282 parties involved in ICC arbitrations, spanning 135 different jurisdictions. ICC cases were seated in 108 different cities, and the 1,484 appointments and confirmations of arbitrators involved arbitrators from 87 different countries.

We also welcome a rising proportion of young arbitrators, 35% of them being under the age of 50. The number of women in our appointments and confirmations has also doubled since 2015, from 136 (representing 10.4% of the total) to 273 in 2018 (representing 18.4% of the total). We acknowledge, however, that this proportion is still not satisfactory, and more efforts are needed on the part of the Court, as well as our National Committees and the parties, to further increase the population of women in ICC arbitrations.

The average duration of an ICC arbitration, from the request for arbitration to the award, was in 2018 of 28 months, with a median duration of 24 months. This figure shows that our cases are generally conducted efficiently, considering the many instances in which arbitration proceedings are stayed for a reason or another, such as settlement negotiations, the replacement of an arbitrator or a court decision ordering the suspension of the arbitration. Account should also be taken of the fact that a large proportion of our caseload is composed of large, complex disputes involving high-value claims and frequently involve States or State entities, which are generally settled over a longer period of time. In order to further increase the time efficiency of ICC arbitrations, the Court has introduced in 2016 a time-limit for the submission by arbitral tribunals of their draft awards to the Court, with significant fee reductions in case of unjustified delays. This policy has led to an important reduction of the duration of the final stages of the arbitration, as 38% of the 407 final awards approved by the Court in 2018 were submitted after the time-limit, down from 54% in 2016. It is in this regard interesting to note that the most egregious delays, of seven months or more, are down to 6 cases in 2018 from 18 in 2016. Likewise, the number of draft awards submitted with a delay between three and six months has decreased from 52 in 2016 to 33 in 2018. Finally, the Court has in 2018 applied reductions of fees in 44% of the instances of delays, which is explained by the fact that the above figures include de minimis delays (i.e. of a few days) and cases where consideration was given by the Court to explanations provided by arbitral tribunals based on the particular complexity of the case or the circumstances of the deliberations.

The Court is also pleased to note the encouraging two first years of operation of the ICC Expedited Procedure Rules (Appendix VI to the 2017 ICC Arbitration Rules). Because the Expedited Procedure Provisions (‘EPP’) only apply to cases based on arbitration agreements post-dating the entry into force of the 2017 Arbitration Rules, there have so far only been a limited number of cases to which the EPP applied mandatorily. In total, as of 1 April 2019, 70 cases have been or are being administered under the Expedited Procedure Rules. While parties have opted out from the EPP in only three cases, the application of the EPP resulted from an opt-in agreement of all parties in 37 cases. Out of the 70 EPP cases, 24 have resulted in a final award, which were all rendered within the six-month time limit – save for three instances in which a short extension has been granted. The scrutiny of these 24 awards was made on average in 10 days. It is also noteworthy that, in 2018, we have received 96 opt-in requests for the application of the Expedited Procedure Rules that have resulted in 22 agreements. These requests related to cases that did not comply with the requirements set for the application of the EPP either because the arbitration agreement pre-dated 1 March 2017, or because the amount in dispute was above US$ 2 million. Interestingly, these requests related to cases involving claims reaching up to US$ 100 million, which shows the interest that the ICC Expedited Procedure Rules sparks amongst arbitration users.

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