On 8 October 2015, the ICC International Court of Arbitration (the “Court”) issued a press release announcing the offer of a new service to ICC arbitration users: the communication of the reasoning of some administrative decisions.
This change in policy is all the more important that Article 11(4) of the ICC Arbitration Rules (the “ICC Rules”) expressly denies communication of such reasons:
“The decisions of the Court as to the appointment, confirmation, challenge or replacement of an arbitrator shall be final, and the reasons for such decisions shall not be communicated.”
However, due to the growing user demand, the ICC has decided to change its stance as to certain of its administration decisions. Indeed, it is now possible, upon request of all parties, to obtain reasoning of:
- The Court’s prima facie decisions on jurisdiction (Article 6(4) of the ICC Rules);
- Decisions on the consolidation of procedures (Article 10 of the ICC Rules);
- Decisions on the challenge of an arbitrator (Article 14 of the ICC Rules); and
- Decisions on the initiation of replacement proceedings and, subsequently, to replace to an arbitrator (Article 15(2) of the ICC Rules).
The communication of such reasoning is subject to a prior agreement of the parties to that effect, and may lead to an increase of the administrative expenses, normally not exceeding USD 5,000.
In any event however, the Court keeps full discretion to accept or reject a request for communication of reasons.
These limitations to the communications may be explained by the fact that numerous arguments pleaded against such communications, which may have time and costs impacts on the procedure and thus impede its efficiency. For example:
- Difficulties in coming to a consensus on reasons: The ICC Court is currently composed of approximately 130 members. Given this number of people involved in the decision-making process, although a consensus on a decision is achievable, consensus on the reasons in reaching such a decision is more difficult and more time-consuming;
- Non communication of reasons for administrative decisions permits limits the possibility of parties objecting to such decisions or applying for their reconsideration, at times in bad faith to delay the procedure;
- The Court’s decisions are made on a case to case basis and thus subject to evolutions in time of the circumstances leading to its decisions. Therefore, the Court should not be bound by previous decisions it took in circumstances which would appear, prima facie, to be the same, but are not necessarily.
By offering as a new service to communicate reasons for some of its administrative decisions, the ICC seems to have achieved striking a difficult balance by satisfying its users’ need for greater transparency and better understanding of the ICC arbitration process without sacrificing core principles of ICC arbitration which are the Court’s independence and its constant efforts to promote the efficiency of the arbitral process as regards time and costs.
At a time when arbitration is decried for its lack of transparency and the opacity of its functioning, especially in disputes involving State entities (see for example A. Carlevaris’ intervention on the 2012 ICC Arbitration Rules, available here), this new service is undoubtedly welcome.