At its session of 17 December 2015, the Bureau of the ICC International Court of Arbitration adopted two landmark measures, thus continuing its accrued efforts towards greater transparency and efficiency of ICC arbitration:
1. The publication on the ICC website of the composition of the arbitral tribunals:
When determining which elements were to be published, it appears that the ICC has struck a difficult balance between the necessary transparency in investment arbitration and the expected confidentiality of the arbitral process in commercial matters: for all cases registered with the Secretariat as from 1 January 2016, arbitral tribunal members’ names, nationality, method of nomination (i.e., whether they were nominated by the Court or by the parties) and function within the tribunal will be published permanently on the ICC website.
According to the ICC website, such publication should have two beneficial effects: “show the quality of [ICC] tribunals and will provide an additional incentive to promote regional, generational and gender diversity in the appointments of arbitrators”.
However, in order to preserve their users, information such as the case number or the parties’ and their counsel’s names are excluded from publication. In refusing to publish these elements, which, for example, are regularly published on the ICSID website in relation to investment arbitration cases, the ICC clearly differentiates itself as an institution preserving its users’ expectations as regards confidentiality.
In any event, and in line with the ICC’s usual procedural flexibility requirement, the parties will have the possibility to either (i) mutually agree that these elements are not to be disclosed or, to the contrary, (ii) request the Court to publish additional information about their case.
2. Cost sanctions for belated rendering of the award:
This measure is, to our knowledge, a first in arbitration: arbitrators failing to timely submit draft awards to the Court for scrutiny under Article 33 of the ICC Rules within a set time-frame from (i) the last substantive hearing on the issue(s) decided in the award or (ii) the filing of the last written submission, excluding costs, will see their fees reduced.
In taking such a measure, the ICC reaffirms that “The expeditious resolution of disputes is one of our top priorities”.
The time-frame set for 3-member tribunals is 3 months. Past this time-limit, the Court may decide to reduce arbitrators’ fees as follows:
- By 5-10%: 3 and 7 months;
- By 10-20%: 7-10 months;
- By 20% or more: over 10 months.
It should be noted that, for sole arbitrators, the time-frame set is reduced to 2 months.
In any event, when deciding to reduce arbitrators’ fees, the Court will consider a number of elements, including, for example, delays in partial awards or, in contrast, factors beyond the arbitrators’ control.
It should also be noted that, conversely, this measure implies that the Court may also increase expeditious arbitrators’ fees.
In implementing these new, innovative and groundbreaking measures, the ICC deploys always greater efforts to promote arbitration and enhance the latter’s transparency and efficiency restated with the reform of its arbitration rules in 2012, and continued by other measures such as its Guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration in June 2014, its decision to communicate reasoning of decisions in October 2015, or the recent publication of its report “Decisions on Costs in International Arbitration”.