By: Jonathan Vaitl

The International Chamber of Commerce International Court of Arbitration (“ICC Court”) put amended rules into effect as of March 1, 2017, that highlights the ICC Court’s priority for streamlining smaller claims. The new Expedited Procedure Rules automatically apply to claims that do not exceed USD 2 million (“Small Claims”), although the parties may opt out.[1]

According to the ICC Court’s 2015 statistics, 8.1 percent of disputes submitted for arbitration constituted small claims.[2] This change to the rules suggests the ICC’s expectation that the number of small claims will become an even greater share of total claims in the years to come.

Under the Expedited Procedure Rules, the ICC Court may appoint a sole arbitrator as quickly as possible,[3] with a case management conference to occur no more than 15 days after the date the tribunal receives the file.[4] The tribunal will also have the option of deciding the matter solely on the basis of the documents submitted, without a hearing or examination.[5] The award must be issued within 6 months of the case management conference, although the ICC Court has the ability to extend that time period.[6]

Although the Expedited Procedure Rules would likely reduce the time and cost associated with arbitrating a small claim, the ICC Court’s power to appoint a sole arbitrator has caused some concern, particularly because of the phrasing: “[t]he Court may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator.”[7]

The ability of the ICC Court to appoint a sole arbitrator, irrespective of the arbitration agreement, has some wondering if the ICC Court is assuming too much power by taking away party autonomy.[8] Parties that may have agreed to a 3-member arbitration tribunal could find the ICC Court overriding their contractual agreements for the of expediency.

It is worth noting that the wording of the rule makes the overriding of the agreement discretionary on the part of the ICC Court. Over time, we may find that the ICC Court gauges whether to impose its power based on how quickly and effectively the parties can decide on a panel. Overriding the parties’ agreement creates a strange inconsistency in a procedure that is built on party autonomy – on parties’ desire to decide how to resolve disputes on their own terms.

Endnotes:

[1] International Chamber of Commerce Rules of Arbitration, Article 30.

[2] The Express Lane for Claims under US$ 2 Million: The New ICC Expedited Procedure Rules, White Case. (Nov. 7, 2016), https://www.whitecase.com/publications/alert/express-lane-claims-under-us-2-million-new-icc-expedited-procedure-rules.

[3] International Chamber of Commerce Rules of Arbitration, Appendix VI, Article 2.

[4] Id. at Appendix VI, Article 3(3).

[5] Id. at Appendix VI, Article 3(5).

[6] Id. at Appendix VI, Article 4(1).

[7] Id. at Article 2(1).

[8] Lucja Nowak and Nata Ghibradze, The ICC Expedited Procedure Rules – Strengthening the Court’s Powers, Wolters Kluwer. (Dec. 13, 2016), http://kluwerarbitrationblog.com/2016/12/13/reserved-for-13-december-the-icc-expedited-procedure-rules-strengthening-the-courts-powers.