After a year in effect, 2012 ICC Rules have proven their worth

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In November 2008, the International Court of Arbitration (ICC Court) of the International Chamber of Commerce (ICC), based in Paris, opened the first overseas branch of its Secretariat (ICC Secretariat) in Hong Kong, to administer ICC arbitrations in the Asia-Pacific region.

The Hong Kong government and the Hong Kong arbitration community enthusiastically supported the establishment of the ICC Secretariat’s office in Hong Kong. Since 1923, the ICC Court has been administering arbitrations, numbering over 18,500 as of 2012. The ICC continues to be one of the busiest and most respected international arbitration institutions, notwithstanding growing competition from international centres around the world including the Australian Centre for International Commercial Arbitration (ACICA), the China International Economic and Trade Arbitration Commission (CIETAC), the Hong Kong International Arbitration Centre (HKIAC), Korean Commercial Arbitration Board (KCAB), the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the Singapore International Arbitration Centre (SIAC) in the Asian region, among others.

The 2012 ICC Rules

On 1 January 2012, a revised version of the ICC Arbitration Rules came into force, following an exhaustive review process between 2009 and 2011 by the ICC’s Arbitration Commission (the ICC’s body responsible for drafting new arbitration rules, among other things), a taskforce and a drafting committee that it established. This included review and comment by the ICC’s national committees and groups established in more than 90 jurisdictions around the world, including the ICC Hong Kong Group.

The 2012 ICC Rules include important innovations such as:

  • Case management procedures to promote efficient proceedings and cost effectiveness;
  • Express expansion of the range of issues that may be arbitrated under ICC Rules, by referring to the broader definition of “disputes”, rather than to “business disputes of an international character”.
  • Expanded provisions to cater for multi-party and multi-contract disputes, including new provisions as to consolidation, joinder, constitution of the tribunal, and to accommodate the various types of claims and cross-claims arising from such disputes;
  • Expanded provision for direct appointment of arbitrators by the ICC Court;
  • An expanded pool of individuals from which arbitrators may be nominated by national committees and groups, by removing the previous requirement that nominees be of the nationality of the nominating national committee’s or group’s jurisdiction;
  • Emergency arbitrator provisions;
  • Utilisation of information technology;
  • More transparency of the ICC Court’s practices and internal procedures.

Nomination of arbitrators

One of the important features of the ICC Rules historically has been to give the ICC’s national committees or groups (including the ICC Hong Kong Group) the ability to nominate arbitrators in response to an invitation to do so by the ICC Court. As noted above, under the 2012 ICC Rules, such nominees no longer have to be nationals of the nominating national committee’s or group’s jurisdiction.

This amendment was strongly urged by the ICC Hong Kong Group because Hong Kong’s arbitration community includes many suitable arbitrators born in Hong Kong, or who have been living and working in Hong Kong for many years, who are not Chinese nationals, with permanent residency in Hong Kong, as the ICC had previously required Hong Kong nominees to be.

ICC arbitrations

Among other 2012 amendments of interest is the addition of article 1(2), which provides that only the ICC Court is authorised to administer arbitrations under the ICC Rules, including the scrutiny and approval of awards rendered in accordance with them. By this rule, the ICC is seeking to stop other arbitral institutions from administering arbitrations under the ICC Rules, as they have done from time to time in the past. How other institutions will respond to this has yet to be seen.

The 2012 ICC Rules have now been in effect for more than one year and have generally been well received by arbitration users and their counsel.

The author, Kim Rooney, is an arbitrator and barrister at Gilt Chambers in Hong Kong. She is also chair of the International Chamber of Commerce Hong Kong Standing Committee on Arbitration, and chair of the Hong Kong Bar Association Special Committee on International Relations