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Articles Arbitration 28th Feb 2017

ICC Introduces expedited procedure for small claims

The ICC is one of the best known and frequently used arbitral institutions. On 1 March 2017, changes to the ICC Rules of Arbitration come into force. The most significant change is the introduction of an expedited procedure designed to provide a quicker, more cost-effective method of dealing with lower value claims (those under US $ 2 million).

This new procedure is in line with the fast-track rules already used by a number of other arbitral institutions, such as SIAC, and is aimed at introducing a truncated, streamlined process to deal with the increasing number of lower value arbitration claims. The ICC has gone a step further, however, by providing that all disputes less than US $ 2 million will automatically be administered under the new expedited process unless the parties have expressly agreed to opt-out of this in their arbitration agreement. So, for any new arbitration clauses which specify arbitration under the ICC Rules, if you do wish to opt-out of the small claims process (or if you want to “opt-in” for higher value disputes) you will need to amend your arbitration clause accordingly.

In return for the expedited procedure, the ICC’s fees will be significantly reduced, although they will still be calculated on a scale of the amounts in dispute.

The “small claims” procedure and summary

Key features include:

  • Reference to a sole arbitrator (even if the arbitration agreement provides for a three member tribunal);
  • No requirement for terms of reference;
  • Parties can only make new claims after the constitution of the tribunal with the permission of the tribunal;
  • A case management conference is to take place within 15 days of transmission of the file to the tribunal;
  • The tribunal may refuse requests for the production of documents, limit the number and length of witness statements and expert reports and decide the dispute on the papers without an oral hearing;
  • The tribunal must render its award within 6 months of the case management conference (unless the ICC Court extends this period)
  • A reduced scale of arbitrator’s fees applies.
  • Whilst key deadlines can be extended, the intention is to drastically reduce, or remove, the typical use of disclosure, witness statements and cross-examination at hearings to allow disputes to be resolved more swiftly and at lower cost.

Other changes

  • The rule changes also introduce a number of other changes:
  • The ICC Court may now communicate its reasons for the appointment, removal, challenge or replacement of an arbitrator to the parties on the request of all parties;
  • The ICC Court now has 30 days (reduced from 2 months) to sign and return the terms of reference;
  • The non-refundable fee payable on the commencement of an arbitration has increased to US $5,000 (from US $3,000) and revised fee scales for administrative changes have been introduced.

Should we be considering arbitration as a result of these changes?

It has always been possible to expedite an arbitration, but, absent specific provisions in the relevant institutional rules, to do so required the co-operation and consent of both parties and the tribunal, meaning that this was often difficult, or impossible, to achieve in practice. The new ICC small claims process is intended to provide a quicker, more cost effective means of dealing with lower value claims. How that works in practice remains to be seen, but the intention behind the new rules is clear.

The changes introduced do not impact on the other advantages of arbitration, such as the ability to enforce an arbitral award under the New York Convention in the 156 signatory states. Nor do they complete address the lack of availability of procedures akin to default and summary judgment to dispose swiftly of uncontested claims or those where the defence filed has no realistic prospect of success, although they at least go some way to improving the position in smaller claims.

For arbitration agreements concluded on or after 1 March 2017 which specify that the arbitration will take place under the ICC Rules, the expedited small claims procedure will automatically apply to disputes valued below US $ 2 million. If you wish to disapply this change, or provide for the small claims procedure to apply to higher value disputes, you will now need to amend your arbitration agreements accordingly.

Our team would be delighted to discuss the benefits and risks associated with arbitration, together with other dispute resolution mechanisms, in the context of your own business and contract requirements and for further information please do not hesitate to contact Lindsey Clegg in the first instance.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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