ICC surveys in-housers on arbitration process

In-house counsel are being invited to engage with the International Chamber of Commerce (ICC) over what role they should play in arbitration proceedings.

The move comes as the ICC gets ready to implement a new set of rules aimed at cutting costs to attract more litigants to alternative ­dispute resolution.

The rules, which come into force in January, have been broadly welcomed by the arbitration community for offering practical ­methods of dealing with the age-old problems of time and cost.

Originally arbitration was intended to be the cheaper alternative to court ­proceedings, but with little incentive to keep fees under control costs have spiralled.

“It’s out of control,” a silk comments. “I don’t think arbitration has ever been cheap or fast.”

It has been more than a decade since the ICC last addressed its rule book. The last time it did so was in 1998, when the process was lumbered with several legal challenges that threatened to derail it.

This time around the ICC is having to face up to increased competition from other arbitrator providers. With demand for change from its users, the organisation decided the time was right to look again.

The Lawyer (5 September) revealed how tensions were running high at the ICC after six former secretary generals were seen to be excluded from top-level discussions about the new rules. Insiders said that under the leadership of ­current secretary general Jason Fry the ICC was ­shaking off the ’old guard’ to enable the group to improve relationships with in-house counsel who use the service.

“Lawyers hate change; they react badly to it,” a source says. “The ICC had a small group of elite ­arbitrators who liked to hold onto everything and there were also problems about arbitrator availability because they always seemed to have packed diaries. It made them very unpopular.

“The ICC has combated them head on and they’ve been very brave to push past the critics and come up with some sensible provisions.”
In the new year the ICC will establish a group ­specifically for in-house counsel to help them adapt to the new rule book, which spells out what responsi-bility they, as arbitrating ­parties, have.

Peter Wolrich, global arbitration head for US firm Curtis Mallet-Prevost Colt & Mosle, helped draft the new rulebook.

“We wanted to listen to the users of arbitration, to know what they have to say and take into account their needs when drafting the rules,” he comments.

Olswang managing ­partner David Stewart says the new rulebook is to be ­welcomed. Writing in The Lawyer (10 October) he stated: “The new rules provide some helpful guidance on when and how the ICC can be expected to allow multiple parties to arbitrations, or even consolidation of ­arbitrations.”

Indeed this is one of three key themes to be added to the rulebook, which are: improved case management provisions; new procedures for multi-party and multi-contract arbitrations; and emergency arbitration ­provisions.

On the latter, Wolrich explains: “Sometimes ­parties may need urgent intermittent relief. We’ve decided that this needs to be an urgent need; in those circumstances you can
ask the ICC to appoint an ­emergency arbitrator and it’ll be done in 15 days.”

Joinder provisions have long been a feature of ICC arbitrations, but now those provisions have been ­written into the rulebook.

“There’s nothing controversial about this; it’s what the arbitral courts have been doing for some time,” says Wolrich. “If there’s any ­controversy it’s about the extent to which it’s ­permitted. We’ve said there needs to be clear evidence that the added party is in the same jurisdiction as the main ­parties.”

Hogan Lovells partner Michael Davison says: “The ICC has gone out to big companies to find out what they want and they’ve tried to reflect that in the new rules. The approach was really good.”

The recession has led to a boom in international ­arbitration and certain ­jurisdictions are trying to cash in on this.

Singapore, for instance, has a stated objective to be a leading finance centre by 2020 and has ploughed cash into the new arbitration court, known as Maxwell Chambers.

This in turn has led to several firms opening in the region. Reynolds Porter Chamberlain opened an office there in October (The Lawyer, 27 October), ­following Mayer Brown JSM (30 June), Olswang (9 September) and Taylor Wessing (31 August). ­Withers is also keeping an eye on the region.

For the ICC staying ahead of the competition means being able to compete in jurisdictions such as ­Singapore, while attracting litigants from emerging markets such as India an China. Shaking off the old guard and embracing ­service users is a step in the right direction.