International Chamber of Commerce Introduces Its New Rules for Arbitration

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The International Chamber of Commerce (ICC) introduced its new Arbitration Rules on September 12, 2011, in Paris, to be effective on January 1, 2012. The purpose of the revised version, with new provisions, is to respond to developing practical issues, among them disputes involving multiple contracts and parties and emergent procedures, and to eliminate certain causes of delay and excessive costs.

One key set of changes involves multiple parties, claims and arbitration agreements. In the request for arbitration, parties now must articulate not only all relevant agreements, but also "where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made" (Article 4(3)(f)). New Article 9 provides that subject to certain jurisdictional and scope determinations, claims "arising out of or in connection with more than one contract may be made in a single arbitration . . . ." Joinder of additional parties, now addressed in Article 7 and also subject to jurisdictional and scope determinations, as well as Article 9, is made to the Secretariat. Unless the parties agree, no joinder of additional parties shall occur following confirmation or appointment of any arbitrator. Article 8 governs claims between multiple parties and sets forth timing restrictions and requirements for the information to be provided. Article 10 provides for consolidation of multiple arbitrations, and permits the International Court of Arbitration (the "Court") to consider "relevant" circumstances. Article 12(6) adds that each set jointly nominates an arbitrator for purposes of appointment and confirmation in cases of multiple claimants or respondents, and where a party has been joined, it participates in the nomination process (Article 12(7)). Whereas the current rules have the Court determining prima facie jurisdiction, under the new rules, the arbitrators will decide that unless the Secretariat refers it to the Court (Article 6(3)).

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