The International Chamber of Commerce’s (“ICC”) preliminary statistics for 2020 reveal a record total of new arbitration and Alternative Dispute Resolution (“ADR”) cases, reflecting the predicted growth in ICC dispute resolution services. In our previous client alert on the ICC’s case statistics for 2019, we discussed the rise of cases registered before the ICC. Despite the challenges of 2020, the ICC stood as a major international arbitration institution, with a record number of 949 new registered cases in 2020 — its highest number of cases registered since 2016 (966). Though the COVID-19 pandemic inhibited cross-border travel, it did not stop arbitral bodies like the ICC from transitioning to online systems and more established processes for remote hearings.

The ICC Revises Its Rules of Arbitration

The ICC is not only well regarded for its management of arbitration and other ADR proceedings, it also provides its popular ICC Rules of Arbitration, which feature party autonomy and flexibility in those proceedings. In its continuous efforts toward greater efficiency, flexibility, and transparency, in October 2020, the ICC Executive Board formally approved revised Rules of Arbitration, last updated in 2017. The revised Rules of Arbitration became effective on January 1, 2021, and apply regardless of the date of the underlying arbitration agreement. Some changes are partially influenced by the impact of COVID-19, as the ICC has moved to codify recent technological adaptations. These changes include:

• Article 3(1) removes and replaces the requirement of paper filing with the presumption of electronic transmission.
• Article 22(2) allows the tribunal to consult the parties before determining what type of hearing is appropriate and decide based on the relevant facts and circumstances of the case.
• Article 26(1) allows tribunals, after proper consultation with the parties, to hold hearings by remote means of communication (i.e., by videoconference or telephone).

Other Popular Services at the ICC Continue to Grow

The ICC also reported a record number of mediations and other alternative mechanisms of dispute resolution, signaling new trends and a move towards more creative ways for parties to resolve their disputes. As indicated in our previous client alert, the ICC has focused on bringing visibility to its services other than arbitration, such as mediation, expert appraisal, and dispute boards available through the ICC International Centre for ADR (the “Centre”). Preliminary statistics for 2020 revealed a record year for these services — with 77 new cases in 2020 spread among the following services: mediation (45); expert appraisal (22); dispute board proceedings (3); and dispute resolutions under ICC Rules for Documentary Instruments Dispute Resolution Expertise (“DOCDEX”), for disputes involving trade finance-related instruments (7). The parties may choose any of these alternative services separately, successively, or concurrently with arbitration proceedings; this allows parties to resolve their issues efficiently and in a cost-effective manner.

Among the specific services, for ICC Mediation, the parties must first have an agreement — either a pre-existing clause in the applicable contract or a subsequent agreement. The Court and Centre each preserves full confidentiality of the mediation and arbitration proceedings, whether they are concurrent or not. The Centre also offers services relating to experts and neutrals, and the administration of expert proceedings, where the ICC is chosen to administer and supervise the entire expert proceeding. The dispute boards serve as permanent panels overseeing the performance of a contract — they help avoid or overcome disagreements in order to enhance trust amongst the parties and minimize risks. In the context of disputes involving trade finance-related instruments, the Centre offers DOCDEX as a specialized confidential and cost-effective method for parties to engage in a proceeding; depending on the amount in dispute, DOCDEX caps the amount parties are charged for the proceedings, which includes administrative expenses and expert fees. The cases are decided by a panel of three impartial experts selected from a list maintained by the ICC Banking Commission.

Despite the uncertainties with the COVID-19 crisis, the ICC is finding ways to do business and resolve disputes. This diligence, coupled with the ICC’s push toward modernization and enforceability, continue to make it a preferred arbitral institution, making 2021 look like another busy year for the ICC.