Alexis Mourre

One of the reasons for excessive time and costs in arbitration has been identified in the reluctance of many arbitral tribunals to address substantive issues at an early stage of the proceedings. Among the recommended practices that are included into Appendix IV of the Rules and the related ICC Commission Report on ‘Controlling time and costs’, the ICC International Court of Arbitration encourages arbitral tribunals to consider several techniques, including addressing the issues in dispute in stages. The case management conference,

which is mandatory at the outset of the procedure under the ICC Rules, should be used more frequently throughout the arbitration and more effectively as an opportunity, not only to consult the parties on procedural issues – such as the sequence of submissions and the manner in which facts and oral evidence may be submitted – but also, whenever possible and appropriate, to engage with the parties on the substantive issues that will have to be discussed in the arbitration. Other good practices may be considered, such as the ‘Reed Retreat’ and the scheduling of case management conferences in advance of a hearing.

One of the techniques that may be used by arbitral tribunals in order to streamline the proceedings is the immediate disposal of manifestly unmeritorious claims. Such decisions may be taken when a party, at the appropriate stage of the proceedings, has entirely failed to substantiate a claim or a defense, and when disposing of it immediately would enhance the efficiency of the arbitration. It is entirely possible, under the ICC Rules, for an arbitral tribunal to dispose of a manifestly unmeritorious claim on an expeditious basis. Due to the existing misconception that such dispositive motions would not be permitted in ICC arbitrations, it was necessary to add additional guidance in the ICC Note to Parties and Arbitral Tribunals.

The revised version of the ICC Note to Parties and Arbitral Tribunals will accordingly clarify that, under the Rules, any party may, as promptly as possible after they are made, apply to the arbitral tribunal for the expeditious determination of one or more claims or defenses on grounds that they are manifestly devoid of merit or fall manifestly outside the arbitral tribunal’s jurisdiction. The arbitral tribunal has discretion to decide whether to allow the application to proceed by taking into consideration the stage of the proceedings, the need to ensure time and cost efficiency, and other relevant circumstances. If it decides to proceed, the arbitral tribunal may adopt any appropriate procedural measures to allow the expeditious determination of the claim or defense, provided that all parties are given a fair opportunity to state their views. Further presentation of evidence should be allowed only in exceptional circumstances and, when a hearing is to be held, the arbitral tribunal may conduct it by videoconference, telephone or similar means of communication. The arbitral tribunal shall decide as promptly as possible and may state the reasons for its decision in a concise form. If the decision is rendered in the form of an award, it will be scrutinized by the Court as soon as practicable, in principle within one week of receipt by the Secretariat.

These guidelines complement the other measures recently adopted by the Court to increase the time and cost efficiency of ICC arbitrations, including the adoption of expedited rules for claims in which the amount in dispute is lower than US$ 2 million, the introduction of a time-limit for the submission of draft awards by arbitral tribunals to the Court, to which financial sanctions are applied in case of an unjustified delay, and the shortening of the time limit for the establishment of the Terms of Reference from two to one month. Most importantly, the Secretariat will continue to monitor closely the conduct of cases and ensure that proceedings are efficiently managed, while maintaining the highest level of quality in the administration of ICC cases.

In January 2018, our new Rules on ICC as Appointing Authority in ad hoc arbitrations will enter into force. This new set of rules will offer users a wide range of new administrative services, allowing them to opt between a full administration of the case, identified interventions of the ICC for the appointment or challenges of the tribunal, and assistance or other services in support of ad hoc proceedings.

The Court, while constantly aiming at improving the quality and efficiency of ICC arbitrations, is also pursuing its efforts to increase its global reach. Several recent developments deserve being reported on in this message.

First, our new Brazilian case management team is now up and running under the leadership of Gustavo Scheffer da Silveira, newly appointed counsel for the team and former deputy counsel in the Latin American team based in Paris. San Paulo is the third team of the Secretariat located outside of Paris, after the opening of the Hong-Kong office in 2008 and New York office in 2012. The new team ‘Ica10’ in the country of one of the main users of ICC arbitration and one of the world’s major economies will be a game changer for the Court. In spite of the huge challenges that Brazil is facing, not the least of which the fight against corruption and the establishment of a business-friendly and flexible regulatory environment for business, I have no doubt that this dynamic country will soon overcome its current difficulties and fully take the lead in today’s economy.

With this new management team, the ICC will become even closer to Brazilian parties, thus allowing us to increase our responsiveness and the quality of our services. For the first time ever, we will introduce a scale of fees in a currency other than US dollars, thereby allowing parties to pay advances on costs in Reals to a local bank account.

The Court is also actively preparing for the opening of its Singapore case management team in the first quarter of 2018. Singapore has become one of the main international arbitration hubs thanks to the dynamism of the local arbitration community and to the vision of its Government; it was high time for us, by becoming a Singaporean arbitral institution, to provide local arbitration services to our users, in the closest and most responsive possible way.

Our team in Singapore will with our existing presence in Hong Kong, double the presence of the Secretariat in the world’s fastest growing economy. This Asian outreach already increased last year with the opening of a regional office in Shanghai, where the ICC was the first non-Asian institution to open an office in China. Our most recent conference in Beijing, on 16 September 2017, was a great success, with more than 400 delegates. On the occasion of our visit during the China Arbitration Summit on 20 September, our regional director Prof. Mingchao Fan and I had extremely constructive meetings with high ranking judges and officials of the People’s Supreme Court and the Ministry of Commerce.

The Belt and Road initiative will bolster growth in the entire region and provide great benefits to the global economy. The contracts arising from this major investment program will need a reliable, neutral and high-quality dispute resolution forum acceptable to all parties. As the only truly global arbitral institution, renowned for its neutrality, its longstanding experience, the high quality of its services and its unique system of scrutiny of awards, the ICC provides the best possible forum for the resolution of these disputes. The Chinese People’s Supreme Court has in this regard already confirmed, on two occasions in 2013 – in the Ningbo Bei Lun Case and the BP Agnati S.R.L Case – that a clause providing for ICC arbitration with a seat in mainland China was valid. Henceforth, parties may safely arbitrate their disputes under the ICC Rules with a seat in China.

On 13 September of this year, we also celebrated the opening of our new representative office in Abu Dhabi, which will be up and running in January 2018. Abu Dhabi will be a regional representative office and will essentially undertake marketing and training functions. It will contribute to developing the presence of the Court in the region, and will also serve to promote the Abu Dhabi Global Market (ADGM) free zone as a global arbitration hub and a friendly seat for international arbitrations. Our ADGM office will also allow parties in the Emirates and the region to file their ICC requests for arbitration locally, in the quickest and most convenient manner.

The ADGM move comes at a time of increased presence of the Court in the region, with the creation of the ICC Arab Arbitration Group– the second of this kind after our Latin American Arbitration Group—, for which the first meeting took place last January and the second being planned for next May in Beirut.

In Africa, our 2nd regional conference took place in Lagos on 14-16 May 2017, with 500 delegates from the entire continent.

In Europe a regional director for Europe, Laetitia de Montalivet, was recently appointed. The first and successful ICC European Regional Conference took place last year, as well as the launch of the Paris Arbitration Week at the initiative of the ICC. Its 2nd edition will take place from 9 to 13 April 2018.

The Court is also an organization which has deeply rooted values, amongst which our belief in diplomacy, in the rule of law and in the importance of multilateralism to solve international disputes. I am in this respect very proud that the Court organized its annual meeting of the ICC Latin American Group in Cuba on 25 August 2017, as well as an important event on 1 February 2017 in Teheran.

I cannot close this message without a word of praise and appreciation for the fantastic work that Chris Newmark has done during his four-year term of presidency at the ICC Commission on Arbitration and ADR. Chris has raised the Commission to a new level, by shepherding projects of such importance as the ICC Report on Decisions on Costs, the Task Force on the Emergency Arbitrator Proceedings, the Task Force on Maximizing the Probative Value of Witness Evidence and finally the ICC Report on Financial Institutions and International Arbitration, a breakthrough in the industry. Chris was also instrumental in supporting the Court’s efforts to introduce more transparency and efficiency in ICC arbitrations. For all this, we are indebted to him. I also take this opportunity to welcome and wish good luck to his successor, Carita Wallgren, who will take the helm as from January 2018. Carita is a leading figure in international arbitration. She was also one of the most active Vice-President of the Commission under Chris’ term. No better choice could have been made to take the Commission’s leadership.