ICC – More Efficiency And Transparency In 2019.
Legal News & Analysis - Asia Pacific - Dispute Resolution
6 February, 2019
The ICC committed itself to make arbitration proceedings more efficient and transparent. To reach this objective, the institution has introduced several new policies in previous years. In 2016, the ICC began to publish arbitrators’ details on its website (see GAN: New Year, New Policies: ICC to bolster arbitrator efficiency and transparency in arbitrations and GAN: ICC publishes arbitrator’s details – A new level of transparency). 2019 begins with a further attempt to bolster efficiency and transparency. On 1 January 2019, the ICC’s updated “Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration” entered into effect. This “Conduct Note” provides guidance for arbitration proceedings under the ICC Rules to both, parties and arbitrators. In particular, five amendments present another step towards more efficiency and transparency.
Publication of arbitrator’s details
As mentioned, the ICC began to publish arbitrators’ details on its website in 2016. Initially, information about the arbitrators’ nationalities, their role (i.e. their status as sole, presiding or co-arbitrator) and their appointment method were published. The updated Conduct Note now provides that further information shall be published. As of July 2019, information about the industry sector and the parties’ counsel will be released on the ICC website (Conduct Note para. 36).
Publication of awards
The ICC does not stop at publishing arbitrators’ and counsels’ details. It goes even a step further. From January 2019, the ICC will publish arbitral awards two years after the parties were notified of a final award. If parties want to prevent the publication, they have to object. In some cases, the Secretariat might decide to publish redacted versions of the award (Conduct Note paras. 40-46).
Arbitrators’ disclosures regarding non-parties
The ICC calls on (prospective) arbitrators to consider whether he/she has any relationship to a party that is not a direct party of the proceedings but might have an interest in the outcome of the arbitration. If so, the arbitrator should disclose this fact. The Secretariat can help in this process by providing a list of potentially relevant non-parties. (Conduct Note para. 24)
Transparency in treaty-based arbitrations
To improve transparency in treaty-based arbitrations the ICC suggests that prospective arbitrators list in their CVs all treaty-based arbitrations in which they acted as arbitrator, counsel or expert (Conduct Note para. 139). Parties may agree on the full or partial application of the UNCITRAL Rules on Transparency (Conduct Note para. 140).
Secretariat’s assistance in the nomination and appointment process
The Secretariat can facilitate the nomination and appointment of arbitrators. As to the nomination, the Secretariat can propose suited arbitrators, give non-confidential information about them, check their availability and potential conflicts of interest. As to the appointment, the Secretariat can provide a list of potential arbitrators and the parties can agree that the ICC Court shall appoint an arbitrator of that list as sole / presiding arbitrator. (Conduct Note paras. 32, 33)
With these amendments, the ICC once again demonstrates its leading position in the attempt to make arbitration proceedings more efficient and transparent.
For further information, please contact:
Dr. Markus Altenkirch , Partner, Baker & McKenzie