United States: The ICC Expedited Arbitration Procedures: Checking The "Fine Print"

Not unlike the fine print of a consumer contract, next to clearly appealing provisions (such as the reduced arbitrator's fees), the latest version of the ICC rules contain material deviations from the standard ICC procedure, which require careful consideration.

The latest version of the International Chamber of Commerce (ICC) Rules of Arbitration came into effect on 1 March 2017. They include new Expedited Procedure Rules, which are specially designed and apply by default to all smaller claims (below U.S. $2 million) submitted pursuant to arbitration agreements concluded after 1 March 2017, unless the parties explicitly opt out. The Rules are also available for the resolution of bigger claims, as long as the parties expressly agree to their application.

This innovation brings the ICC Rules into line with a number of other leading international arbitration institutions that introduced expedited procedures in the recent past, including the International Centre for Dispute Resolution (ICDR) in 2014, the Hong Kong International Arbitration Centre (HKIAC) in 2008, the Singapore International Arbitration Centre (SIAC) in 2010, the China International Economic and Trade Arbitration Commission (CIETAC) in 2012, the Vienna International Arbitral Centre (VIAC) in 2013, and the Stockholm Chamber of Commerce (SCC) in 2010. The Swiss Chambers' Arbitration Institution (SCAI) instituted its expedited procedures over a decade ago in 2004. Although less popular with parties outside North America, JAMS International and CPR (the International Institute for Conflict Prevention & Resolution) also offer optional expedited arbitration procedures.

The new ICC Expedited Procedure Rules differ from the expedited procedures of other institutions in a number of important ways.

The ICC's automatic application of the Expedited Procedure Rules to small claims cases was intended to improve efficiency and contain costs and time. Requiring express consent by the parties, particularly ex post (i.e., once a claim has been identified and/or submitted), would allow reprobate litigants to increase time and expense. Even if the parties ultimately agreed to expedited procedures, trying to arrive at that agreement could aggravate the time and cost, thus defying the declared objective of increased efficiency.

MATERIAL DIFFERENCES BETWEEN RULES

The ICC's decision to make the Expedited Procedure Rules automatically applicable to "small claims" raises issues as to the effectivity of the parties' consent to arbitration. As of 1 March 2017, parties by referring to the ICC and its rules in their arbitration agreements refer in reality – contingent upon a future, not entirely foreseeable event (the amount of the future claims to be raised) – to two alternative sets of rules, the standard and the Expedited Rules. These two sets of rules present material differences that should be carefully vetted by the parties, considering that the Expedited Procedure Rules

  • Abandon the ICC trademark "Terms of Reference" (ICC Rules, App. VI, Article 3(1)).
  • Introduce limits to the schedule, allegations, evidence and hearings different to those in the standard Rules, including

    • A cut-off date for the making of any new claims prior to the constitution of the arbitral tribunal, absent express tribunal consent (ICC Rules, App. VI, Article 3(2)).
    • That the sole arbitrator must convene a case management conference within 15 days of receiving the file (unless the ICC Court extends this time limit), and must render a final award within six months of that conference (ICC Rules, App. VI, Articles 3(3) and 4(1)).
    • That the sole arbitrator is accorded considerable discretion to adopt the procedural measures he or she considers appropriate. For example, the sole arbitrator may limit the parties' document production, witness evidence, and written submissions, and may conduct a "distance" hearing (e.g., by videoconference or telephone), or dispense with a hearing entirely and decide on the basis of documents only (ICC Rules, App. VI, Articles 3(4) and 3(5)).
  • Override any express agreement by the parties for a panel of three (or more) arbitrators over a single arbitrator ("The Court may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator", ICC Rules, App. VI, Article 2(1), authors' emphasis added). Leaving discretion to the ICC to "exit" altogether from expedited procedures at any point in time (ICC Rules, Article 30(3)(c) and App. VI, Article 1(4)).

OPTING IN AND OUT

The concern about the effectivity of the parties' consent to arbitration has been clearly identified by the ICC and, similar to the Emergency Arbitrator Provisions introduced a few years ago with the 2012 revisions to the Rules, addressed through an opt-out provision (see ICC Rules Articles 30(3)(b) and 29(6), respectively).

This opt-out right does not, however, limit the complexity of the options that can be chosen from, such as the described material deviations from the standard ICC procedure, which require appropriate consideration.

Particular attention should be given to the provisions granting the ICC Court, i.e., a body of the institution administering the arbitration as opposed to the arbitral tribunal, discretionary powers.

As noted above, most of the leading international arbitration institutions now include the option for expedited procedures in their rules. Of those that, like the ICC, require parties to "opt out" in order to avoid expedited procedures (i.e., the ICDR, SCAI and CIETAC), the ICC applies the greatest non-discretionary cap on the amount in dispute.

For instance, the ICDR Rules contemplate that only disputes under U.S. $250,000 (or a greater amount, if agreed) will be subject to expedited procedures. Some of the "opt in" institutions, such as the SIAC and HKIAC, also allow expedited procedures to apply where the amount in dispute is above a certain threshold, but they require a showing of "urgency".

Other than the ICC, only the ICDR and SCIA reserve to the institution the right not to apply the expedited procedures for a reason other than failure to meet a specific amount in dispute. And, unlike the ICC, none of the other institutions address the issue of whether the expedited procedures can be objected to or discontinued after they have been applied. Finally, other than the ICC, the only other body to reserve to the institution the right to override the parties' agreement to the number of arbitrators in the context of expedited procedures is the SIAC.

Critically, where the parties do not opt out of the ICC expedited procedures but attempt to circumvent only part of them, this attempt may not always be successful given the explicit language that:

By agreeing to arbitration under the Rules, the parties agree that this Article 30 and the Expedited Procedure Rules set forth in Appendix VI (collectively the "Expedited Procedure Provisions") shall take precedence over any contrary terms of the arbitration agreement. (ICC Rules, Article 30(1), authors' emphasis added).

In practice, whether or not the ICC Court will enforce its discretionary power is a theoretical question and it remains to be seen how it will handle circumstances where (for example) both parties insist on the constitution of a three-member arbitral tribunal and an expedited procedure. However, parties should be aware that their preferences – and even their explicit agreement – may not be honoured in every circumstance.

PRE-PLANNING

All of this highlights the importance of parties and their counsel giving time and thought to the relevant dispute resolution mechanism during the establishment of the substantive contractual relationship, instead of simply cutting and pasting in a dispute resolution provision used before.

Based on the nuances of their business, the relevant needs in a particular circumstance, and depending on which rules are selected, parties and their counsel will want to consider whether to opt in or opt out of certain features of those rules.

Notwithstanding the fact that this opt in/opt out election usually occurs far before any controversy arises, during the negotiation of the contract, parties and their counsel should never forget that dispute resolution agreements require a separate and sometimes complex analysis.

Where parties choose the ICC Rules, that analysis now should include whether or not, based on a specific business situation and regardless of the amount of future claims, a party should

  • Opt in into the expedited provisions, because of the benefits of a prompt and cost effective resolution of the dispute, or to the contrary. Or
  • Opt out of any expedited procedure, because any potential dispute (while not necessarily of a high financial value) may warrant application of the standard rules and/or otherwise be unsuited to be heard under the expedited procedures.

The ICC Expedited Arbitration Procedures: Checking The "Fine Print"

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