The International Chamber of Commerce has adopted new arbitration rules which will become effective on January 1, 2012 (“Rules”). The main objective of the Rules is to promote efficiency in arbitration and to modernize the current rules which were last revised in 1998. Key provisions of the Rules include:
(1) a requirement that procedures be fashioned by the arbitrators and parties in a mandatory case management conference, and memorialized in the Procedural Timetable (Article 24);
(2) a recognition that while an arbitral tribunal may, after consulting with the parties, impose such procedures as it deems appropriate, it may do so only if the procedures are not contrary to any agreement of the parties (Article 22[2]);
(3) a best efforts requirement, applicable to both the tribunal and the parties, to act in an expeditious and cost-effective manner having regard to the complexity and value of the dispute (Article 22[1]);
(4) failure to meet the best efforts requirement may result in the arbitral tribunal’s fees being reduced by the ICC (Appendix III, Article 2[2]) and/or may impact the tribunal’s decision as to costs (Article 37[5]);
(5) procedures for joinder of additional parties (Article 7) and consolidation of arbitrations (Article 10);
(6) the establishment of an Emergency Arbitrator who can hear a request by a party seeking interim or conservatory measures prior to the constitution of the arbitral tribunal (Article 29);
(7) the power of the arbitral tribunal, upon request by a party, to make orders concerning the confidentiality of the arbitration and/or to impose protective measures relating to trade secrets and confidential information (Article 22[3]).