Canada: Amendment To ICC International Arbitration Rules Adding Expedited Procedures

For decades the Rules of Arbitration of the International Chamber of Commerce (the "Rules") have been used by companies as a means for resolving disputes — particularly in international transactions. On November 4, 2016 the ICC announced an amendment to these Rules in order to incorporate a procedure for resolving cases on an expedited basis (the "Expedited Procedure Rules"). This amendment is of interest to any entity that uses the Rules as a means for resolving its disputes.

The Expedited Procedure Rules will come into effect on March 1, 2017.

When will the Expedited Procedure Rules apply?

The Expedited Procedure Rules are aimed at cases with a relatively (in terms of ICC cases) low value. They will apply in cases where the value in dispute does not exceed US$ 2 million or where the parties have agreed that they should apply.

The Expedited Procedure Rules will also apply only to contracts that are made after they come into force i.e. after March 1, 2017.

The application of the Expedited Procedure Rules is not automatic. The normal procedure when starting an arbitration is that a claimant will file a Request for Arbitration and then the respondent will file an Answer. After the filing of these two documents, the Court of Arbitration (an independent arbitration body of the ICC) will decide whether the Expedited Procedure Rules should apply to that case or not.

Interestingly, the Rules have not been amended to provide for the parties to give their input into this decision through the Request and the Answer, but prudent parties and counsel should nevertheless include their comments in these documents.

The reason for the "non-automatic" application of the Expedited Procedure Rules is because there are some cases that might fit the requirements but that might nevertheless not be suitable for an application of those rules. For example, some disputes might have a relatively low monetary amount in dispute, but might seek other non-monetary relief (e.g. enforcement of intellectual property rights) that is significant to one of the parties.

The Expedited Procedure Rules are "opt out" rather than "opt in" so they have the potential to apply to all contracts (that choose ICC arbitration) that are made on or after March 1, 2017, even if the parties do not mention the Expedited Procedure Rules. However, parties can agree to "opt out" once a dispute has arisen but before the case is put into the Expedited Procedure track. It is unclear whether parties can "opt out" of the Expedited Procedure Rules after the ICC Court has determined that the Expedited Procedure Rules will apply and the Tribunal has been constituted.

What do the new Expedited Procedure Rules do?

Key features of the Expedited Procedure Rules are:

  • There shall be a sole arbitrator, except in exceptional circumstances.
  • There shall be no "Terms of Reference". The Terms of Reference are a signature feature of ICC Arbitrations, but they would not apply in Expedited cases.
  • No new claims (without permission) after constitution of the tribunal. Normally, new claims can be brought without permission until the signing of the Terms of Reference.
  • The default procedure is that the arbitration shall be based on documents only, with no hearing. However, the tribunal may (after consulting the parties) decide to hold a hearing.
  • The tribunal has the discretion to structure a procedure so as to resolve the case quickly. The Expedited Procedure Rules specifically mention that parties might not be permitted to request production of documents from the other side, that such requests might be severely limited or that there may be limits on the scope and breadth of written submissions.
  • The final award must be rendered within six months from the date of the constitution of the tribunal. This may be extended by the Court in exceptional circumstances, but the clear message from the ICC is that awards should be rendered within six months in almost all cases. The time limit for "normal" cases is six months from the conclusion of the Terms of Reference, but in practice this is extended almost as a matter of course.
  • The reasons for the award may be stated in short form.
  • The fee schedule for the tribunal is lower than for a non-expedited case.

These features are aimed at reducing the time and cost of ICC arbitration.

What do these new rules mean for my company?

As indicated above, these rules will only apply to contracts made on or after March 1, 2017, so they will not affect any existing contracts.

If you like the idea of an Expedited Procedure for cases where the value in dispute is below US$ 2 million (and you choose ICC arbitration for dispute resolution) you can use the existing model ICC arbitration clause.

However, these rules may not be appropriate for every company or every contract. For some companies, a 1.9 MUSD case might be a "bet-the-company" type case — a case that could make the difference between the company surviving or disappearing. There may be other reasons that a company might not want its disputes referred to arbitration through the Expedited Procedure Rules.

In these cases, it will be important to modify the applicable arbitration agreement. If the parties want to opt out, language like the following could be used: "The Expedited Procedure Rules shall not apply." However, as with the drafting of any arbitration agreement, advice of experienced counsel should be sought to ensure that your company's rights are properly protected.

Reduced time, reduced cost – that sounds pretty good! Should we "opt in" and use Expedited Procedure for all disputes?

As mentioned above, advice should be sought before deciding whether to opt in or exclude the Expedited Procedure Rules.

The Expedited Procedure Rules are intended to give swift results in cases that are — as far as the ICC is concerned — relatively low in value. Many of the procedural rights and safeguards that are taken for granted in a "standard" ICC arbitration are likely to be dispensed with, e.g.: the possibility of three arbitrators (with each party choosing one); Terms of Reference; production of documents; a full evidentiary hearing; cross-examination of witnesses; and a fully reasoned award.

These "shortcuts" might be acceptable to large companies that are dealing with relatively small disputes. The savings in time and cost, coupled with a relatively quick determination of the dispute might outweigh the reduction of some of the procedural steps that come with a full ICC arbitration procedure.

However, the short time frame and reduced procedural steps could make it logistically difficult if not impossible for one party (or both parties) fully to present their case(s). It is easy to imagine two parties being attracted to the idea of reduced time and costs promised by adoption of the Expedited Procedure Rules, only to find that a particular dispute is worth US$ 300 million and is very complex. However, if the parties have already agreed to use them, the ICC Court may feel compelled to hold the parties to their bargain. Once a dispute has arisen, it is usually much more difficult for parties to agree to any modifications to the arbitration agreement set out in their contract.

Accordingly, the safer route may be to avoid opting in to the Expedited Procedure Rules in the arbitration agreement, particularly for large contracts, given that the rules already apply to cases below US$ 2 million, and the parties can opt in by agreement in appropriate circumstances if they so choose.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions