The ICE Arbitration Procedure – A practical guide

The ICE Dispute Resolution Panel comprises individuals with an appropriate professional background and demonstrable experience in construction and engineering disputes, ensuring that appointments are drawn from specialists with the requisite technical and procedural expertise. 

The ICE maintains a curated list of members who have been trained, assessed and approved as “qualified and capable of acting as arbitrators”,² meaning that the arbitrators will be required to meet ICE standards and are particularly qualified for these complicated, technical disputes.

It should be bourne in mind that ICE appointed arbitrators are not always full time arbitration practitioners and many sit only occasionally, meaning procedural directions can at times resemble more rigid, court style case management due to a lower level of day-to-day experience with arbitration³. This can dilute some of the flexibility and commercial pragmatism parties typically expect from arbitration and can lead to prolonged arguments as to how the case should be managed. . However, the high level of construction and engineering experience required of ICE Arbitrators will be a benefit for technically complex claims.

The seat of the arbitration is to be agreed between the parties, failing which it is determined by the arbitrator.⁴ For the sake of efficiency and clarity of proceedings, we would recommend always including the seat of arbitration and the relevant law that governs the arbitration agreement (in addition to the standard governing law clause). Given the ICE Arbitration Procedure seems to more commonly be used in domestic arbitration,⁵ the appropriate seat of arbitration is likely to be in England and Wales. This also adds certainty for enforcement purposes.

Under the ICE Arbitration Procedure, a dispute is only deemed to arise when a claim/assertion made by one party is rejected by the other party and the rejection is not accepted/no response is received within 28 days. Thereafter, either party may serve a Notice to Refer in writing and including the matters which are being referred to arbitration. The party may nominate an arbitrator at that time or within 7 days of the Notice to Refer. There are no strict requirements on what form the Notice to Refer must take, therefore it can be quite a simple notification of the issues to be determined in the arbitration.

The 28 day period required for a dispute to arise before proceedings may be commenced is a key timeline to bear in mind in respect of limitation – it will be key to either a) build this into your timetable for notifying a dispute if reaching the end of a limitation period, or b) to amend this term within your dispute resolution procedure to avoid any risk of falling foul of limitation due to a late arising claim.

Following issuance of the Notice to Refer and appointment of the Tribunal, the parties may be requested to submit statements setting out their perception of the disputes to allow the arbitrator and parties to discuss appropriate procedures for a preliminary meeting. Such meetings shall allow the parties and arbitrator to agree directions for the arbitration (which can be submitted by the parties in advance, if agreed) and consider which procedure 
(Short,  Expedited or Full) should apply, evidence of experts, disclosure of documents, limits on recoverable costs and such other steps to achieve an quick and cost effective resolution.  

There is a large amount of flexibility in the timeline and process for arbitrations under the ICE Arbitration Procedure, which can be beneficial for ensuring efficiency and cost effectiveness where the parties are aligned. However, it may also lead to lengthy arguments as to what process to follow, therefore the parties should consider agreeing certain parameters (e.g. approach to expert evidence depending on value, disclosure of documents and standards of evidence)_in the contract, to save time if a dispute arises.

The arbitration is commenced when the Notice to Refer is issued. Within 7 days of the Notice to Refer, either party may issue a Notice to Concur, proposing one or more arbitrators. This is an unusual approach, allowing the respondent to nominate an arbitrator ahead of the claimant. Therefore, we would recommend nominating an arbitrator (or arbitrators) with the Notice to Refer.

Once either parties issues a Notice to Concur (or if the claimant proposes an arbitrator in the Notice to Refer), within 7 days, the other party must either agree one of the proposed arbitrators or propose alternative names.

If no agreement is reached within 21 days of the Notice to Refer as to which arbitrator to appoint, either party may apply to the President of the ICE to appoint the arbitrator. Once appointed by ICE, which must be done within 14 days of application or such further time as needed, the arbitrator’s appointment is complete and binding.

The ICE Arbitration does allows the parties to agree a different appointment mechanism in their contract or arbitration agreement, rather than relying on the default sole‑arbitrator process. In particularly complex contracts, parties may wish to consider a tribunal with three arbitrators. In this circumstance, we would typically recommend agreeing a bespoke procedure for collaborative appointment.  

Once appointed, the Arbitrator shall have jurisdiction over any issue connected with and necessary to the determination of any dispute or difference already referred to them (including their own jurisdiction), with the obligation  to manage proceedings efficiently and avoid unnecessary delay. 

Notwithstanding the very broad power conferred by the ICE Arbitration Procedure, it sets out certain express powers, including determining all procedural and evidential matters, setting timetables, directing how hearings are conducted, deciding when and how expert and fact witness evidence should be given, limiting recoverable costs where appropriate (and ordering security for costs), deciding whether to rely on their own knowledge or expertise, determining their own levels of initiative in investigating the facts and the law and, subject to other agreement between the parties, the location and time of any hearing and the language(s) to be used. 

The arbitrator may also issue peremptory orders, with consequences for non‑compliance such as drawing adverse inferences or debarring evidence⁶.

The arbitrator has the power to order the preservation of evidence and other protective measures such as for inspection, preservation, detention, or custody of property relating to the proceedings.

The arbitrator may set requirements for written statements, document disclosure, expert evidence and all evidential and procedural matters, including the form, timing and manner of communications⁷.

Somewhat uniquely, the Arbitrator has the power to dismiss a claim if they feel there has been an inordinate and inexcusable delay in raising the claim that may a) give rise or is likely to give rise to substantial risk that it is not possible to have a fair resolution of the issues in that claim or (b) has caused or is likely to cause, serious prejudice to the other party. The risk here is that an Arbitrator could seek to override legal limitation periods, particularly the Arbitrator does not have a legal background and deprive a party of rights under the relevant law based on the Arbitrator’s view of the facts. This is important to bear in mind for longer term projects where claims may take longer to discover and limitation may be a more pertinent issue.

Claims are allocated by monetary value under the Short Procedure (Part F), Expedited Procedure (Part G) and Full Procedure (Parts F and G). 

The three tier structure allows procedures to be proportionately tailored to the value and complexity of the dispute. By allocating disputes into clear value bands, the Procedure avoids the unnecessary cost and delay associated with a one‑size‑fits‑all approach or the debate over the length of timetable and appropriate submissions depending on each parties’ view of how long the proceeding should take or how complex the issues are . 

The Special Procedure for Experts (Part H)  also deals with disputes where technical expertise dominates the issues. 

 A) The Short Procedure:

The Short Procedure (Part F) may apply to claims not exceeding £50,000 (Band A)¹⁰ and offers a highly streamlined process characterised by limited written submissions, restricted evidence and a compressed timetable (e.g. the statement of case file must be submitted within 2 working days of appointment of the arbitrator and a statement of reply file to be submitted within 14 days of receipt of the statement of case). No counterclaims may be filed, but either party may respond to the opponents file, or amend their own, within 14 days of the statement of reply file. No hearing shall be held unless the Arbitrator gives permission and only if the requesting party bears all of the costs incurred resulting from the hearing. 

B) The Expedited Procedure:

The Expedited Procedure (Part G) may apply to claims above £50,000 and not exceeding £250,000 (Band B)¹¹. It emphasises early case management to ensure proportionality and a timetable of no longer than 100 days from service of the statement of claim or the date that the Arbitrator gives instructions, whichever is later, up to costs submissions. Key features include targeted disclosure, controlled use of factual and expert evidence (including the option for the Arbitrator to questions witnesses himself and to require multiple witnesses to give evidence concurrently) and a hearing of no more than five days or final written submissions in the alternative to a hearing. The 100 day period may only be extended upon agreement by the parties but the Arbitrator may not otherwise extend the period. This prevents a party from using delaying tactics and dragging out what is intended to be time and cost efficient. However, it does allow flexibility in the event of genuine timing concerns or unexpected complexity.

C) The Full Procedure:

The Full Procedure (may apply to claims over £250,000 (Band C)¹² and provides the most comprehensive process. It allows for full submissions, broader disclosure, extensive witness and expert evidence and a traditional hearing structure with cross‑examination and is appropriate for large, technically complex disputes. The Arbitrator and parties are not restricted by set timelines for the procedural timeline and have the power to determine appropriate timings for each phase. This allows the parties significant commercial flexibility but there is a risk that the timetable may “get away from” the parties and allow for time wasting tactics. Setting a detailed timetable early in the proceedings will be key to ensure that the timetable is not unreasonably extended.

For disputes where technical expertise dominates the issues, the Special Procedure for Experts (Part H)¹³ enables the arbitrator to adopt an expert‑centric approach. This Procedure allows for site visits and provides for a meeting between the Arbitrator and experts to allow the experts to present their opinions and for the Arbitrator to question the experts. Counsel are not entitled to question the experts. No other hearing or meetings are provided for. This makes it particularly suitable for disputes turning on specialist engineering questions and especially useful during live projects where quick, technically grounded decisions are needed rather than lengthy and detailed legal submissions.  

This is reflected in the fact that the parties will not be entitled to costs for legal representation under this Procedure unless otherwise agreed.

Expert evidence may be permitted under the other procedures, subject strictly to Arbitrator permission.

Confidentiality under the ICE Procedure not formalised in the same way as under institutional rules such as the LCIA Rules. Communications are handled directly between the parties and the arbitrator, with no administrative institution acting as intermediary¹⁴. Should the parties wish to keep proceedings confidential, this should be agreed in the arbitration agreement in advance or in the terms governing the proceedings with the Arbitrator and the other party(ies). If confidentiality is a key consideration, then we would recommend including a confidentiality clause in your arbitration agreement to ensure that the existence and content of any proceedings are kept confidential and avoid arguments over this when a dispute arises and the parties are in a less co-operative relationship.

The Procedure does not offer a formal mechanism for joinder or consolidation, limiting the ability to combine related disputes or add additional parties. As a result, multiparty or multi‑contract disputes may require parallel proceedings, reinforcing the need for careful drafting of arbitration clauses if the parties want the option of joinder or consolidation¹⁵ If the parties contemplate the need for joinder or consolidation, such as where there is a multi-layered construction project, this should be set out explicitly in the arbitration agreement.

At the hearing, a structured yet flexible framework allows the arbitrator to hear submissions and evidence¹⁶. 

Hearings typically begin with opening submissions, followed by examination and cross‑examination of factual and expert witnesses and conclude with closing submissions, although the arbitrator may modify this sequence to ensure efficiency¹⁷. 

The tribunal has express authority to determine how evidence is presented, the extent of oral evidence and the order in which witnesses are heard¹⁸. 

Throughout, the arbitrator exercises broad discretion¹⁹ to ensure the proceedings remain fair, focused and proportionate.

The arbitrator must deliver an award that addresses all issues and provides reasons unless the parties agree to dispense with reasons²⁰. The Arbitrator may (a) order the payment of money to one or more of the parties (b) order a party to do or refrain from doing anything (c) order specific performance (d) make a declaration as to any matter to be determined (e) order rectification, setting aside or cancellation of a deed or other document (f) be a consent award in the event of a settlement, which shall include an allocation of the costs of the arbitration, or (g) be a provisional award. The Arbitrator may also deal with costs and interest.

ICE awards are issued without institutional scrutiny, making them faster to finalise but potentially less consistent in style and depth than an award issued by the ICC, for example.

Because many ICE arbitrators are practising engineers or construction professionals rather than full‑time arbitrators, parties may also encounter variability in the presentation of reasoning. 

Under the Short Procedure, an award will be delivered within 14 days of closing the files, or at most another 14 days after this if the Arbitrator so chooses within their sole discretion. Therefore, from the date of the Notice to Refer, an arbitration should be concluded within approximately two months under the Expedited Procedure. This is comparable, albeit longer, than a typical adjudication timetable but the final award shall be binding and enforceable.

Under the Expedited Procedure, an award shall be issued within 18 days of receipt of the final submissions (whether oral or written) and any costs award shall be issued within 7 days of receipt of the submissions.

Under the Full Procedure and Special Procedure for Experts there is no set deadline for delivery of the award. 

The Arbitrator has the power to (a) allocate the costs of the arbitration between the parties (b) direct the basis upon which the costs are to be determined (c) in the default of agreement by the parties, determine the amount of any recoverable costs.
Unless the parties agree otherwise, the Arbitrator shall start with the general principle that costs should follow the event except where it appears that in the circumstances this is not appropriate in relation to the whole or part of the costs. This is also the starting point under English law, but parties may wish for more flexibility in the approach and, if so, should consider setting this out in the arbitration agreement.

The Arbitrator is required to have regard to any settlement offers made prior to the Award and shall consider that a party who recovers less overall than a sum offered in settlement should recover costs only up to the date by which it was reasonable for him to have accepted that offer and the other party should recover his costs thereafter. Again, this is quite prescriptive but is also a relatively common approach in English law governed arbitrations.

Once the written and signed award is issued, it is final subject only to the limited challenge grounds under the Arbitration Act 1996²¹ (the Act)²², subject to any exclusions that the parties agree in advance 

ICE awards are fully enforceable, including internationally under the New York Convention, provided formal validity requirements are met. 

They therefore carry the same legal weight as awards issued under more prescriptive institutional rules. In common with other institutions, the parties may apply to the Arbitrator for corrections to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity. The parties may also apply for an award to be rendered in respect of a claim that was presented but not addressed. Both must be requested within 28 days of issuance of the award.