The new ICC Arbitration Rules (Rules), in force since 1 January 2021, will apply to any arbitration commenced after that date unless otherwise expressly agreed between the parties.
The Rules do not apply automatically to infrastructure or commercial contracts in Ireland. Parties would need to expressly adopt the Rules in their contracts and where adopted, they would be in lieu of the rules governing international arbitration in Ireland, namely, the Arbitration Act 2010.
The principle changes to the Rules are as follows:
- Virtual/remote hearings – The arbitral tribunal can decide to conduct the hearing virtually after consulting with the parties, recognising the challenges of the current Covid-19 pandemic.
- Electronic pleadings – The default rule is that pleadings can be submitted electronically. The previously required hard copies are no longer required, representing a positive change for environmental and Covid-19 related reasons.
- Claims relating to the Court’s administration with the arbitration proceedings – A new provision is included in the Rules providing that disputes arising from how the proceedings have been managed by the International Court of Arbitration (Court) (not the original dispute itself), will be settled in France by the Paris Judicial Tribunal and French law will apply.
- Additional awards – Parties can apply for an additional award for a claim the tribunal has omitted to decide, within the noted timelines.
- Conflicts – Each party must promptly disclose any changes in its representations, so that the arbitral tribunal can assess if any measures need to be taken to address conflicts of interest.
- Third party funding – Both parties must promptly disclose the existence and identity of any third-party funder. Third party litigation funding is currently prohibited in Ireland through the torts of maintenance and champerty, but likely to come into increasing focus.
- Joinder – The rules on joining additional parties to a complex multi-party arbitration after the arbitral tribunal has been constituted have been adjusted such that they are subject to the additional party accepting of the terms of reference and constitution of the arbitral tribunal. The tribunal may then take into account possible conflicts of interest and the timing and impact of the joinder.
- Multi-party arbitrations – These may be consolidated where the claim is under the same arbitration agreement or agreements.
- Expedited procedure – There is an automatic application of the “Expedited Procedure Rules” for claims below $3m if the arbitration agreement under the Rules is post 1 January 2021 ($2m if the arbitration agreement under the Rules was concluded on or after 1 March 2017 and before 1 January 2021).
- Constitution of the arbitral tribunal by the Court – There is now ability for the Court, in exceptional circumstances, to appoint the entire arbitral tribunal to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award. Given the historic reluctance to interfere in this manner, it is unlikely this power would be exercised lightly.
- Mediation -The arbitral tribunal has the discretion to encourage parties to consider settling all or part of their dispute through negotiation or other ADR mechanism, including mediation under the ICC mediation rules.
In promoting efficiency and transparency and seeking greater flexibility, time and cost efficiencies, the Rules recognise and seek to address parties’ needs and the increasing complexity and nature of today’s international business disputes.
For more information or advice on domestic and international dispute resolution related matters on infrastructure, projects and construction contracts, including arbitration please contact Cassandra Byrne, Jarleth Heneghan or your usual William Fry contact.