Ahead of the entry into force of the 2021 ICC Arbitration Rules, the International Court of Arbitration of the International Chamber of Commerce has released updates to its Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration, effective 1 January 2021.
The Note provides parties and arbitral tribunals with practical guidance concerning the conduct of arbitrations under the ICC Rules and summarises the practices of the ICC Court. The salient points of the updated Note are as follows:
1. The Note reflects a number of practice points arising from the entry into force of the 2021 ICC Arbitration Rules concerning among others (i) complex arbitrations, such as the procedure for post-constitution joinder (Article 7(5); paragraphs 17-18) and consolidation of cases in the presence of different parties (Article 10(b); paragraph 19); (ii) party disclosure of the existence and identity of third-party funding arrangements (Article 11(7); paragraphs 20-21); (iii) constitution of arbitral tribunals, such as nationality requirements in commercial and treaty-based cases (Article 13(5),(6); paragraphs 44 and 45 respectively) and the provision allowing the Court to disregard unconscionable arbitration agreements that may pose a risk to the validity of the award (Article 12(9); paragraph 43); (iv) the integrity of arbitral proceedings via the introduction of a provision empowering the arbitral tribunal to exclude from the proceedings new counsel in the presence of a conflict of interest (Article 17(2); paragraphs 14-15); and (v) additional awards (Article 36(3); paragraphs 210-214).
2. The Note incorporates the focal points of the ICC Court’s Guidance Note of April 2020 that provided guidance to parties, counsel and arbitral tribunals on possible measures to mitigate the adverse effects of the COVID-19 pandemic. It further aligns the existing practice with the new provision of Article 26(1) confirming that tribunals may, after proper consultation with the parties, decide to hold hearings by remote means of communication (paragraphs 95-108).
3. Finally, the Note sets out that ICC administrative expenses will be subject to French Value-Added Tax as of 1 January 2021, where applicable. Accordingly, ICC administrative expenses may be increased by the corresponding amount when the Secretariat issues calls for funds in pending and new cases (paragraphs 263-265), as further detailed here.