arbitration under the icc 2021 rules of arbitration
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ARBITRATION UNDER THE ICC 2021 RULES OF ARBITRATION
26 June 2021 | HKIARB
Ms Pui-Ki Emmanuelle Ta
0
OVERVIEW
26 June 2021 | HKIARB 1
PART I. THE ICC, THE INTERNATIONAL COURT OF
ARBITRATION & THE SECRETARIAT
PART II. THE COURT IN NUMBERS
PART III. THE NEW RULES OF ARBITRATION
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PART ONE:
THE ICC, THE INTERNATIONAL
COURT OF ARBITRATION &
THE SECRETARIAT
26 June 2021 | HKIARB
THE ICC
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The International Chamber of Commerce – the World Business Organization
Created 1919 after WWI by a handful of entrepreneurs to
▶expand international trade
▶represent business all over the world
ICC’s mission today still is to promote international trade and investment as vehicles
for inclusive growth and prosperity
Active in a wide variety of fields:
▶Rule setting: Incoterms
▶Policy advocacy: representing business at the WTO, UN
▶Dispute Resolution: Arbitration / ADR
THE ICC INTERNATIONAL COURT OF ARBITRATION
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Founded in 1923 To date: 26 000+ cases
Court sessions are in English, special sessions are held in other languages
Members of the Court are appointed for a renewable three-year term by the World Council of the ICC
Composition President of the Court: Alexis Mourre (until 30 June 2021) - Claudia Salomon as of 1 July 2021)
17 Vice-Presidents
177 members
Sessions Committee sessions Weekly (am/pm)
3 Court members
All type of decisions
Special sessions Twice a month
Open to all Court members
Challenges, majority awards, States
THE ICC INTERNATIONAL COURT OF ARBITRATION
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International Court of Arbitration (HQ in
Paris)
Arbitral Tribunal
(any place in the world)
▶Does not settle itself disputes
▶Supervises the work of the Arbitral Tribunals and
administers the proceedings
▶Constitution of the Arbitral Tribunal
▶Controls time limits under the Rules
▶Scrutinizes awards
▶Fixes arbitrator’s fees and administrative expenses
▶Decision on the merits of the case
▶Management of the case in consultation with the
parties
▶Principles of rapid, diligent and contradictory
process
▶Drafts the terms of reference, renders procedural
orders
▶Drafts the award(s)
▶Decides on the allocation of costs among the parties
THE SECRETARIAT OF THE COURT
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Secretary General
Deputy Secretary General
Managing Counsel
ICA 1
JPA
ICA 2
AZO
ICA 3
FS
ICA 4
SPN
ICA 5
ELU
ICA 6
PAR
ICA 7
HBH
ICA 8
PTA
ICA 9
PDP
ICA 10
PFF
ICA 11
HTG
ICA 12
MDY
TYPES OF COURT DECISIONS
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› Prima facie jurisdiction (Article 6(4))
› Consolidation (Article 10)
› Fixing place of arbitration (Article 18)
› Appointment of arbitrators (Article 12, 13)
› Terms of Reference (Article 23)
› Fixing time limits
› Challenge/Resignation/Replacement
(Articles 14 and 15)
› Fixing / readjusting the advance on costs and
other financial (Articles 37)
› Advances on fees
› Scrutiny of Awards (final awards, partial
awards, awards by consent, addenda,
decisions, additional awards)
› Fixing the costs of the arbitration (Article 38)
› Special procedures (Expedited Arbitration,
Appointing Authority Rules)
• Names, description, contact details of parties and representatives23(a)
• Addresses for notifications and communications23(b)• Summary of claims / relief sought
• Quantified claims/ other monetary estimation23(c)
• List of issues to be determined23(d)
• Names and contact details of AT23(e)
• Place of arbitration23(f)• Applicable procedural rules
• Amiable compositeur / ex aequo et bono23(g)
ARTICLE 23: TERMS OF REFERENCE
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Procedural history
Key submissions
Court decisions
Relevant dates
Constitution of AT
Description of process
Reference to alternative methods or subsequent agreements
Other
Arbitration agreement
Choice-of-law clause
Applicable version of Rules
Language /
state any decision
ADDITIONAL CONTENT
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ICC FEATURE - TERMS OF REFERENCE
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Article 34: Scrutiny of the Award by the Court
Before signing any award, the arbitral tribunal shall submit it in draft form to
the Court. The Court may lay down modifications as to the form of the award
and, without affecting the arbitral tribunal’s liberty of decision, may also draw
its attention to points of substance. No award shall be rendered by the arbitral
tribunal until it has been approved by the Court as to its form.
WHAT IS SCRUTINY?
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TYPES OF AWARDS
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Article 2(v) of the Rules
• “‘Award’ includes, inter alia, an interim, partial, final oradditional award.”
AdditionalAwards
• Resolve the claims which the Arbitral Tribunal omittedto decide in its partial or final awards
Final Awards• Resolve all of the issues submitted for resolution by the
Arbitral Tribunal and terminate the proceedings
Interim Awards• This term is generally used for Awards that do not
finally settle an issue
Partial Awards • Finally resolve some, but not all, of the issues
submitted for resolution by the Arbitral Tribunal
Awards by Consent
• Record the parties’ settlement and make the termsthereof subject to the New York Convention
SCRUTINY PROCESS
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Draft sent to
Secretariat by
arbitral tribunal
First level review
by Counsel in charge
of case
Second level review
by Secretariat
management
Court
scrutinizes draft
Revised draft
based on
Court’s comments
Sends back
to tribunal
Secretariat notifies
award to the
parties
Tribunal signs
award, sends it to
Secretariat
Comments sent to
tribunal, revised
draft reviewed
ApprovesApproves, subject
to comments
AWARDS AND TIMELINESS (TRIBUNAL)
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Generally, awards must be rendered within 6 months from the
establishment of the Terms of Reference or within any other time limit fixed
by the ICC Court.
Draft awards Expected within 2 months (SA) or 3 months (3-member ATs) fromlast substantive submissions or hearing
Arbitrator fees may be increased where the case has beenconducted expeditiously
Arbitrator fees may be decreased (5%-20%) where the draft awardis submitted with delay, such delay not being attributed to factorsbeyond the arbitrators’ control or other exceptional circumstances
AWARDS AND TIMELINESS (ICC)
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Draft awards Upon receipt, Secretariat promptly informs parties
Drafts are scrutinised within 3-4 weeks
After scrutiny, Secretariat informs parties whether draft hasbeen approved or whether further scrutiny will be required
Where scrutiny is delayed for reasons not attributable toexceptional circumstances beyond the Court’s control, theICC administrative expenses are reduced up to 20%
WHAT IS VERIFIED
BY THE SECRETARIAT AND THE COURT?
26 June 2021 | HKIARB 16
award
REASONS
award enforceable
parties
jurisdiction
relief-claims
due process
numbers
interest & costs
dispositive
local rules or practice
ICC AWARD CHECKLIST
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BENEFITS OF SCRUTINY
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allows less experienced arbitrators take cases
uses knowledge of case
improves quality of award
uses ICC experience on validity and enforcement requirements
enhances validity and enforceability
OTHER FEATURES
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ARRANGEMENT ON INTERIM MEASURES
❑ Arrangement concerning mutual assistance in court-ordered interim measures in
support of arbitral proceedings by the Courts of the Mainland and of the HKSAR:
➢ Signed on 2 April 2019
➢ Came into effect on 1 October 2019
➢ SPC interpretations on 26 September 2019
❑ Pursuant to the Arrangement:
➢ any party to arbitral proceedings in Hong Kong may apply to the competent Mainland
courts for interim measures in relation to said arbitral proceedings and in accordance
with the relevant laws and regulations of Mainland China.
➢ any party to arbitral proceedings in Mainland China may apply to the Hong Kong courts
for interim measures in relation to said arbitral proceedings and in accordance with the
relevant laws and regulations of the HKSAR.
26 May 2021Arrangement on interim measures between Hong Kong
and Mainland China
20
ARBITRAL PROCEEDINGS ELIGIBLE UNDER THE ARRANGEMENT
26 May 2021Arrangement on interim measures between Hong Kong
and Mainland China
21
Parties to an arbitration
Seated in Hong Kong
Administered by one of the approved
institutions, e.g. ICC Court Asia
Office
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PART TWO:
STATISTICS
26 June 2021 | HKIARB
19,8%• Cases involving States or State entities
113• Cities as place of arbitration
2,81%• Seated in China/Hong Kong (20 cases)
62,8%• Cases exceeding US$ 2 million
149
• Emergency Arbitrator Applications (32 in 2020)
GENERAL STATISTICS (2020)
2326 June 2021 | HKIARB
1 520• Arbitrators coming from 92 countries
2 507• Parties coming from 145 countries
137• Parties from Hong Kong
236• Parties from PR China
GENERAL STATISTICS (2020)
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STATISTICS: AWARDS
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415
508491
471 459498
479 512
599586
0
100
200
300
400
500
600
700
2009 2011 2012 2013 2014 2015 2016 2017 2018 2019
Trend in number of awards approved by year Number of Awards Approved in 2020 564
DELAYED DRAFT AWARDS (2016-2019) *EXCLUDING EPP CASES
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45%(264 cases)
55%(322 cases)
Fees Reduced No reduction
586 ‘late’ draft final awards
out of 1,398
TIMELINESS OF SCRUTINY
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1447 cases
6 cases
No delay slight delay
1453 draft final awards submitted to
scrutiny (2016-2019)
No delay in EPP
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PART THREE:
THE 2021 RULES OF ARBITRATION
26 June 2021 | HKIARB
revision process at the proposal of the
Court
laid before the ICC Commission on
Arbitration & ADR
approved by the ICC Executive
Board
entry into force: 01.01.2021
2021 ARBITRATION RULES: PROCESS
ICC Arbitration Rules
Last version: 2017 Rules
New: 2021 Rules
Updates to the Note to Parties and Arbitral Tribunals
1922 1927 1955 1975 1988 1998 2012 2017 2021
2926 June 2021 | HKIARB
• GENERAL EFFICIENCY
• COMPLEX ARBITRATIONS
• CONDUCT OF ARBITRATION
• TRANSPARENCY
2021 ARBITRATION RULES: WHAT’S NEW?
3026 June 2021 | HKIARB
Increased use of Technology
Soft copy over paper (Articles 4 and 5)
Virtual / hybrid hearings
(Articles 25, 26 and 3 Appendix VI)
GENERAL EFFICIENCY
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ARTICLE 4 AND 5: REQUEST FOR ARBITRATION AND ANSWER
26 June 2021 | HKIARB 32
Amendment of paragraph 4 of Article 4
4
Together with the Request, the claimant shall:
a) submit the number of copies thereof required by Article 3(1); and
b) a) make payment of the filing fee required by Appendix III (“Arbitration Costs and Fees”) in force on the date
the Request is submitted.; and
b) submit a sufficient number of copies of the Request for each other party, each arbitrator and the Secretariat where the
claimant requests transmission of the Request by delivery against receipt, registered post or courier.
Amendment of paragraph 3 of Article 5
3
The Answer shall be submitted toin a sufficient number of copies for each other party, each arbitrator and the Secretariat
inwhere the number of copies specifiedrespondent requests transmission thereof by Article 3(1).delivery against receipt,
registered post or courier.
ARTICLE 26: HEARINGS
26 June 2021 | HKIARB 33
Amendment of paragraph 1 of Article 26
A hearing shall be held if any of the parties so requests or, failing such a request, if the
arbitral tribunal on its own motion decides to hear the parties. When a hearing is to be
held, the arbitral tribunal, giving reasonable notice, shall summon the parties to appear
before it on the day and at the place fixed by it. The arbitral tribunal may decide, after
consulting the parties, and on the basis of the relevant facts and circumstances of the
case, that any hearing will be conducted by physical attendance or remotely by
videoconference, telephone or other appropriate means of communication.
Complex arbitrations
Joining additional parties after confirmation or appointment of an arbitrator (Article 7(5))
Consolidating pending cases to save time and costs (Article 10(b))
Appointing the full tribunal where agreement is unconscionable (Article 12(9))
COMPLEX ARBITRATIONS
3426 June 2021 | HKIARB
ARTICLE 7 - JOINDER OF ADDITIONAL PARTIES
26 June 2021 | HKIARB 35
Amendment of paragraph 1
1) A party wishing to join an additional party to the arbitration shall submit its request for arbitration against the
additional party (the “Request for Joinder”) to the Secretariat. The date on which the Request for Joinder is
received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of arbitration
against the additional party. Any such joinder shall be subject to the provisions of Articles 6(3)–6(7) and 9. No
Unless all parties, including the additional party, otherwise agree, or as provided for in Article 7(5), no additional
party may be joined after the confirmation or appointment of any arbitrator, unless all parties, including the
additional party, otherwise agree. The Secretariat may fix a time limit for the submission of a Request for Joinder.
Addition of paragraph 5
5) Any Request for Joinder made after the confirmation or appointment of any arbitrator shall be decided by the
arbitral tribunal once constituted and shall be subject to the additional party accepting the constitution of the
arbitral tribunal and agreeing to the Terms of Reference, where applicable. In deciding on such a Request for
Joinder, the arbitral tribunal shall take into account all relevant circumstances, which may include whether the
arbitral tribunal has prima facie jurisdiction over the additional party, the timing of the Request for Joinder, possible
conflicts of interests and the impact of the joinder on the arbitral procedure. Any decision to join an additional party
is without prejudice to the arbitral tribunal’s decision as to its jurisdiction with respect to that party.
ARTICLE 10 - CONSOLIDATION OF ARBITRATIONS
26 June 2021 | HKIARB 36
The Court may, at the request of a party, consolidate two or more arbitrations pending under the Rules into a
single arbitration, where:
a) the parties have agreed to consolidation; or
b) all of the claims in the arbitrations are made under the same arbitration agreement or agreements; or
c) where the claims in the arbitrations are not made under more than one the same arbitration agreement or
agreements, but the arbitrations are between the same parties, the disputes in the arbitrations arise in
connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take into account any circumstances it considers to be relevant,
including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations
and, if so, whether the same or different persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless
otherwise agreed by all parties.
ARTICLE 12 - CONSTITUTION OF THE ARBITRAL TRIBUNAL
26 June 2021 | HKIARB 37
Addition of paragraph 9
Notwithstanding any agreement by the parties on the method of constitution of the arbitral tribunal,
in exceptional circumstances the Court may appoint each member of the arbitral tribunal to avoid
a significant risk of unequal treatment and unfairness that may affect the validity of the award.
Efficient conduct of arbitration
Expedited arbitration for all cases up to USD 3 million
(Article 1(2) Appendix VI)
Emergency arbitrator application conditions eased
(Article 29.6.(c))
CONDUCT OF ARBITRATION
3826 June 2021 | HKIARB
ARTICLE 1(2) OF APPENDIX VI: NEW THRESHOLD FOR EPP
26 June 2021 | HKIARB 39
Amendment of paragraph 2
The amount referred to in Article 30(2), subparagraph a), of the Rules is US$ 2,000,000. :
a) US$ 2,000,000 if the arbitration agreement under the Rules was concluded on or after 1
March 2017 and before 1 January 2021 or
b) US$ 3,000,000 if the arbitration agreement under the Rules was concluded on or after 1
January 2021.
ARTICLE 29: EMERGENCY ARBITRATOR
26 June 2021 | HKIARB 40
Amendment of paragraph 6 (c) of Article 29
The Emergency Arbitrator Provisions shall not apply if:
a) the arbitration agreement under the Rules was concluded before 1 January 2012;
b) the parties have agreed to opt out of the Emergency Arbitrator Provisions; or
c) the parties have agreed to another pre-arbitral procedure that provides for the
granting of conservatory, interim or similar measures.
c) the arbitration agreement upon which the application is based arises from a treaty.
Conduct of arbitration
Tribunal may exclude counsel
(Article 17)
Parties disclose funding arrangements
(Article 11(7))
Additional award
(Article 36(3))
Tribunal encourages parties to consider settlement/mediation
(Appendix IV, paragraph(h)(i))
2021 ARBITRATION RULES: WHAT’S NEW?
4126 June 2021 | HKIARB
ARTICLE 17 PROOF OF AUTHORITY PARTY REPRESENTATION
26 June 2021 | HKIARB 42
Addition of paragraph 1
1) Each party must promptly inform the Secretariat, the arbitral tribunal and the other parties of any changes in its
representation.
Addition of paragraph 2
2) The arbitral tribunal may, once constituted and after it has afforded an opportunity to the parties to comment in
writing within a suitable period of time, take any measure necessary to avoid a conflict of interest of an arbitrator
arising from a change in party representation, including the exclusion of new party representatives from
participating in whole or in part in the arbitral proceedings.
ARTICLE 11 - GENERAL PROVISIONS
26 June 2021 | HKIARB 43
Addition of paragraph 7
In order to assist prospective arbitrators and arbitrators in complying with their duties
under Articles 11(2) and 11(3), each party must promptly inform the Secretariat, the
arbitral tribunal and the other parties, of the existence and identity of any non-party
which has entered into an arrangement for the funding of claims or defences and
under which it has an economic interest in the outcome of the arbitration.
Addition of new paragraph 3
Any application of a party for an additional award as stated in Article 3(1) as to claims made in the arbitral
proceedings which the arbitral tribunal has omitted to decide must be made to the Secretariat within 30 days from
receipt of the award by such party.
Amendment of paragraph 4
After transmission of an application pursuant to Articles 36(2) or 36(3) to the arbitral tribunal, the latter shall grant
the other party or parties a short time limit, normally not exceeding 30 days, from the receipt of the application by
that party or parties, to submit any comments thereon. The arbitral tribunal shall submit its decision on the
application in draft form to the Court not later than 30 days from expiry of the time limit for the receipt of any
comments from the other party or parties or within such other period as the Court may decide. A decision to
correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. A
decision to grant the application under paragraph 3 shall take the form of an additional award. The provisions of
Articles 32, 34 and 35 shall apply mutatis mutandis.
ARTICLE 36: CORRECTION AND INTERPRETATION OF THE
AWARD; ADDITIONAL AWARD; REMISSION OF AWARDS
26 June 2021 | HKIARB 44
APPENDIX IV: CASE MANAGEMENT TECHNIQUES
26 June 2021 | HKIARB 45
Amendment of paragraph h)
h) Settlement of disputes:
(i) Informing encouraging the parties that they are free to settle consider
settlement of all or part of the dispute either by negotiation or through any
form of amicable dispute resolution methods such as, for example,
mediation under the ICC Mediation Rules;
Transparency Court communicates reasons for decisions to parties(Appendix II, Article 5)
Court structure and organization reset (Appendix I and II)
Appointments and elections fully set out and regulated
TRANSPARENCY
4626 June 2021 | HKIARB
Addition of Article 5: Communication of Reasons of Decisions
1 Upon request of any party, the Court will communicate the reasons for Articles 6(4), 10, 12(8), 12(9), 14 and
15(2).
2 Any request for the communications of reasons must be made in advance of the decision in respect of which
reasons are sought. For decisions pursuant to Article 15(2), a party shall address its request to the Court when
invited to comment pursuant to Article 15(3).
3 In exceptional circumstances, the Court may decide not to communicate the reasons for any of the above
decisions.
Article 5 of APPENDIX II: Communication of reasons of
decisions
26 June 2021 | HKIARB 47
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26 June 2021 | HKIARB 48
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26 June 2021 | HKIARB 49
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