ICC update - Conduct of Arbitration

Latin America Alert

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On 1 January 2019, new updates to the Note to the Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (the Note) became effective. According to the ICC Court President, Alexis Mourre, the updates, "reflect the Court's continuous efforts … to provide more transparency in its practices, increase the efficiency of our arbitrations and offer an ever wide range of services to users". The most significant updates are set out below:

Disclosures by arbitrators and prospective arbitrators (para. 24)

The Note now clarifies that disclosures by arbitrators and prospective arbitrators should be made not only with respect to the parties and their affiliates, but also with respect to non-parties having an interest in the outcome of the arbitration.

Although the Note provides that the Secretariat may assist arbitrators and prospective arbitrators by identifying "relevant entities" in the arbitration, this process does not release an arbitrator or prospective arbitrator from his or her duty to disclose with respect to other relevant entities (including non-parties) not identified by the Secretariat.

Additional services in respect of the constitution of arbitral tribunals (paras. 32 and 33)

The Secretariat may now provide additional assistance with the nomination and appointment of arbitrators. In particular, wherever the parties are to nominate a sole arbitrator or a presiding arbitrator, they may jointly request the Secretariat either to propose names of possible candidates or to provide non-confidential information on prospective arbitrators. Upon a joint request by the parties, the Secretariat may also contact prospective arbitrators in order to check their experience, availability and possible conflicts of interest.

In absence of an agreement between the parties on the appointment of a sole or presiding arbitrator, such appointment will be made by the ICC Court. If the parties wish to remain involved in this appointment process, the parties may agree that such appointment will take place following a list procedure whereby the Secretariat will provide a list of candidates to the parties for their comments before proceeding with the appointment.

Transparency

The Note acknowledges that provision of more information about the arbitral process to the parties, the business community at large and academia is key in ensuring that arbitration remains a trusted tool.

Publication of Information Regarding Arbitral Tribunals (para. 36)

For arbitrations registered as from 1 July 2019, in addition to (i) the names of the arbitrators, (ii) their nationality, (iii) their role within an arbitral tribunal, (iv) the method of their appointment, and (v) whether the arbitration is pending or closed, the Court will publish on the ICC website (vi) the sector of industry involved and (vii) counsel representing the parties in the case.

Publication of Awards (paras. 40-46)

All ICC awards rendered from 1 January 2019 may be published on an opt-out basis. The Secretariat will inform the parties that such awards, as well as any dissenting or concurring opinion, may be published in their entirety no less than two years after notification to the parties (although the parties may agree to a longer or shorter period for the publication). In case of a confidentiality agreement covering certain aspects of the arbitration or the award, publication will be subject to the parties' specific consent.

At any time before publication, any party may object or require that any award be redacted or anonymised. The parties will be reminded of their right to object to publication at the time of notification and in advance of any publication. Also, the Secretariat may always, in its discretion, exempt awards from publication. This may occur in certain sectors of industry or in sensitive cases.

Protection of Personal Data (paras. 80-91)

An entire new section of the Note is devoted to compliance with the European Union General Data Protection Regulation (GDPR). The Note clarifies that by accepting to participate in an ICC arbitration, parties, their representatives, arbitrators, the administrative secretary, witnesses, experts and any other individuals that may be involved in any capacity in the arbitration acknowledge that collecting, transferring and archiving their personal data is necessary for the purposes of arbitration proceedings, and accept that such data may be published in case of publication of an award or a procedural order. Arbitral tribunals are encouraged to include a data protection protocol in the Terms of Reference.

The Note reminds the parties that they shall ensure that (i) their representatives, their witnesses, party appointed experts and any other individual appearing on their behalf or in their interest in the arbitration are aware and accept that their personal data may be collected, transferred, published and archived for the purposes of the arbitration; and (ii) applicable data protection regulations, including the GDPR, are complied with. As also stated in the Note, any individual whose personal data is collected and processed for the purposes of the arbitration may request to access such information and that inaccurate data be corrected or deleted.

Parties and arbitrators must ensure that secure means of collecting, communicating, and archiving data are used throughout the entire arbitration process and during the applicable retention period of such data. The Note specifies that any breach of security and confidentiality of personal data, including inadvertent disclosure to persons who should not have been identified as recipients, shall be reported immediately to the individual whose personal data may be affected and to the Secretariat.

Treaty-Based Arbitrations and Submissions by amici curiae (paras. 139-143)

Subject to any considerations of confidentiality, prospective arbitrators of investment arbitrations are encouraged to include in their CV a complete list of the treaty-based cases in which they have participated as arbitrator, expert or counsel.

The parties may agree to adopt (in full or in part) the UNCITRAL Rules on Transparency in ICC treaty-based arbitrations. In such cases, the Secretariat may act as the repository of published information.

In treaty-based cases, the draft award will be scrutinised by Vice-Presidents of the Court and Court members having experience in investment treaty arbitration. Treaty-based awards will be published within 6 months of notification, unless a party objects.

Finally, the Note makes clear that, pursuant to Article 25(3) of the ICC Rules, arbitrators have the power, after consulting the parties, to hear submissions amici curie.

Duties of Administrative Secretaries (paras. 183-188)

The arbitral tribunal cannot delegate its decision-making functions (and other essential duties of an arbitrator, including the duty to personally review the file) to the Administrative Secretary (a secretary to the arbitral tribunal appointed upon agreement of the parties to assist the tribunal).

The Note clarifies the type of tasks that an Administrative Secretary may undertake at the request, and under the supervision, of the arbitral tribunal. Such tasks should be limited to those of a purely organisational and administrative nature, and include drafting correspondence and sending it on behalf of the arbitral tribunal, writing notes or memoranda, conducting legal or similar research, preparing drafts of procedural orders for the arbitral tribunal's review, as well as drafting factual portions of the award, such as the summary of the proceedings or the summary of the parties' positions.

When in doubt about which tasks may be performed by an Administrative Secretary, the arbitral tribunal or the Administrative Secretary should consult the Secretariat.

A copy of the Note is available here in Chinese, French, German, Portuguese and Spanish.