accelerated procedures under the icc rules · accelerated procedures under the icc rules redefining...

ACCELERATED PROCEDURES UNDER THE ICC RULESREDEFINING CASE MANAGEMENT

Sergii Melnyk | Deputy CounselICC International Court of Arbitration

ICC INTERNATIONAL COURT OF ARBITRATION ®

ICC INTERNATIONAL CENTRE FOR ADR

1

I. Introduction

II. Expedited Procedure

III. Timely scrutiny and reduction of fees

OUTLINE

6 June 2018

I. INTRODUCTION



521 593 599 663 817 793 796 759 767 791

966

810

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

CASES REGISTERED ANNUALLY

CASES

2017 810 new cases registered

1,548 pending cases at year end

36 June 2018



(QMUL 2015 Survey, p. 6)

4

TIME IN INTERNATIONAL ARBITRATION

6 June 2018



GENERAL OBLIGATION

5

Article 22(1)

• “The arbitral tribunal and the parties shall make every effort to conduct the arbitration in a cost-effective manner, having regard to the complexity and value of the dispute”

6 June 2018



GENERAL OBLIGATION

6

Article 27

• As soon as possible after final hearing or final submission, shall (1) close the proceedings and (2) inform Secretariat and parties of expected date for submission of the award

Article 31(1)

• Shall render the Final Award within (1) six months or (2) any other time limit fixed by the Court pursuant to the procedural time table

6 June 2018



• 2 years 2 months2017• 2 years 3 months2016• 2 years 1 months2015• 2 years 2 months2014• 2 years 2 months2013• 2 years 2 months2012• 2 years 3 months2011• 2 years 3 months2010

IN PRACTICE…

7

Average time to render a final award

6 June 2018



2017 RULES - ENHANCING EFFICIENCY

8

Joint obligation

The arbitral tribunal and the parties shall make every effortto conduct the arbitration in a cost effective manner havingregard to the complexity and value of the dispute (Article22(1))

Parties In making decisions on costs, the arbitral tribunal may takeinto account the extent to which each party has conductedthe arbitration in an expeditious and cost effective manner(Article 37(5))

Arbitrators In setting the arbitrator’s fees, the Court shall take intoconsideration the diligence and efficiency of the arbitrator,the time spent, the rapidity of the proceedings, thecomplexity of the dispute and the timeliness of thesubmission of the draft award (Article 2(2) App. III)

6 June 2018



Request Answer Saisine ToR CMC/ PTT

Pleadings

Evidence

Hearing

Case Mgmt

Closing Award

MILESTONES IN ICC ARBITRATION (2012)

Time limit fixed by the Court pursuant to Article 30(1) or by default 6 months from Terms of Reference

8 /12 weeks

30 days

2 months

96 June 2018



Request Answer Saisine ToR CMC/ PTT

Pleadings

Evidence

Hearing

Case Mgmt

Closing Award

MILESTONES IN ICC ARBITRATION (2017)

Time limit fixed by the Court pursuant to Article 31(1) or by default 6 months from Terms of Reference

8 /12 weeks

30 days

30 days!

106 June 2018

II. EXPEDITED PROCEDURE PROVISIONS (EPP)



Article 30 + Appendix VI =

“Expedited Procedure Provisions” (or

“EPP”)

Article 30(1)By agreeing to the ICC Rules the parties agree that the Expedited Procedure Provisions shall take precedence over any contrary

terms of the arbitration agreement.

EXPEDITED PROCEDURE PROVISIONS

126 June 2018



Date Arbitration Agreement

1 March 2017

Amount in

DisputeUS$ 2 Million

Opt-In- Standard Clauses- During the arbitration - Subject to Art. 30(1)

Opt-Out

- Standard clause- During the

arbitration- Express, not

Implicit

Court’s discretion

- Upon request- On its own motion

SCOPE OF APPLICATION

136 June 2018



TIMING OF APPLICATION

Once all claims filed

and comments received

Secretariat informs the

parties

If a party objects, the

Court decides

At any time the Court may

decide that the EPP no longer

apply

146 June 2018



CONSTITUTION OF THE ARBITRAL TRIBUNAL

The Court may appoint a sole

arbitrator, notwithstanding

any contrary provision of the

arbitration agreement.

The Court will normally

appoint a sole arbitrator.

The Court may appoint

three arbitrators if

appropriate in the

circumstances and taking into consideration rules of law that may be applicable.

If the Court decides that the EPP no

longer apply it can

reconstitute the arbitral tribunal if

appropriate.

156 June 2018



Arbitrators fees are reduced by 20% under the

Expedited Procedure

Scales

The Secretary General may fix a

provisional advance on costs based on

the Expedited Procedure Scales and the amount in

dispute indicated in the Request for

Arbitration.

The Secretary General may readjust

the provisional advance on costs on

the basis of the general scales if the

EPP ultimately do not apply

The advance on costs will be fixed

under the Expedited Procedure Scales

after the parties have been informed that

the EPP apply.

The advance on costs may be

readjusted on the basis of the general scales if the Court

decides that the EPP no longer apply.

SCALES AND COSTS

166 June 2018



Regular procedure

Terms of Reference

No deadline for CMC

Award within 6 months from ToR

Party autonomy

Regular Fee scale

EPP

No Terms of Reference

CMC within 15 days from Saisine

Award within 6 months from CMC

More discretion of Tribunal (e.g. hearing,

submissions)

Reduced Fee scale

COMPARISON REGULAR PROCEDURE / EPP

176 June 2018



COMMENCEMENT OF ARBITRATION

186 June 2018



APPLICATION OF THE EXPEDITED PROCEDURE PROVISIONS

196 June 2018



CONSTITUTION OF THE ARBITRAL TRIBUNAL

206 June 2018



PROCEEDINGS BEFORE THE TRIBUNAL

216 June 2018



INCIDENTS / AWARD

226 June 2018



ARBITRAL TRIBUNAL

Court may appoint a sole arbitrator, notwithstanding

contrary provision of arbitration agreement.

Court may appoint three arbitrators if appropriate in

the circumstances and taking into consideration rules of law that may be

applicable.

30(1) By agreeing to the ICC Rules the parties agreethat the Expedited Procedure Provisions shalltake precedence over any contrary terms of thearbitration agreement.

National

arbitrators!

National Committees

propose arbitrators!

6 June 2018 23



A straightforward and simplified

procedure

Not meant to drastically reduce the duration of arbitration

A CLARIFICATION ON EPP

246 June 2018



EPP APPLICATION IN PRACTICE

86 requests&

potential cases

76 opt-in cases

1 opt-out case

256 June 2018

NB: the statistics are provided for illustrative purpose only, the numbers are changing on the daily basis.



EPP APPLICATION IN PRACTICE

Opt-ins: 76 cases

Automatic: 6cases

Potential cases: 4cases

266 June 2018

NB: the statistics are provided for illustrative purpose only, the numbers are changing on the daily basis.



IN PRACTICE…

27

Average time to render a final award in EPP

From CMS to final award Total(from RfA to Notification)

1 award5,3 months 8 months


3 award4,5 months 8,5 months

4 award5,3 months, 10 months


Average 5 months 8,7 months

6 June 2018



6 Final Awards 1 Partial Award

1 Article 2(1) decision

10 currentlyongoing cases

EPP IN PRACTICE

286 June 2018

III.TIMELY SUBMISSION OF DRAFT AWARDSTIMELY SCRUTINYFEE REDUCTIONS FOR DELAY



§ 92 Note

• In this regard, sole arbitrators are expected to submit draft awards within two months and three-member arbitral tribunals within three months after the last substantive hearing on matters to be decided in the award or the filing of the last written submissions concerning such matters (excluding cost submissions), whichever is later (Article 27).

§ 93 Note

• Whenever the Arbitral Tribunal has conducted the arbitration expeditiously, the Court may increase the arbitrators’ fees above the amount that it would otherwise consider fixing.

NOTE TO PARTIES & ARBITRAL TRIBUNALS

Efficiency in the Submission of Draft Awards to the Court

306 June 2018



§ 94 Note

• Where the draft award is submitted after the time referred to in paragraph 43 above, the Court may lower the fees as set out below, unless it is satisfied that the delay is attributable to factors beyond the arbitrators’ control or to exceptional circumstances…:

• Delay up to 7 months → possible reduction by 5% to 10%.• Delay up to 10 months → possible reduction by 10% to 20%.

• Delay of more than 10 months → possible reduction by 20% or more.

NOTE TO PARTIES & ARBITRAL TRIBUNALS

Efficiency in the Submission of Draft Awards to the Court

316 June 2018



NOTE TO PARTIES & ARBITRAL TRIBUNALSEfficiency in the Submission of Draft Awards to the Court

• Factors beyond arbitrators’ control?

• Exceptional circumstances?

1. Complexity of the case

2. Parties’ behaviour:a. Unsolicited submissionsb. (Lack of) cooperativeness

3. Arbitrators’ behaviour:a. Availability throughout proceedingsb. Quality of the Awardc. Dissenting opinions

326 June 2018



What is the ICC practice?

In 2017:

• 154 draft awards submitted late:

84 cases: fee reductions applied (between 3% and 30%)70 cases: no fee reduction applied

FEE REDUCTIONS

336 June 2018



100%0,3%

no delay slight delay

99,7%

DELAYED SCRUTINY IN 2017

340 draft final awards (2017)

339 submitted within time limit

1 submitted outside the time limit

346 June 2018



QUESTIONS?

356 June 2018

Sergii MelnykDeputy [email protected]

For further information, please visit our website:www.iccarbitration.org

Useful links:www.iccevents.orgwww.iccyaf.orgwww.iccdrl.com

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