The International Chamber of Commerce (ICC) launched a new version of the Arbitration Rules, which entered into force on January 1, 2021. Even if there are no substantial changes, it is important to be aware of the new additions because those amendments address the arbitral procedures in a way that fits the new ‘remote’ reality.
Much has been written and spoken about the post COVID era and the need for technology, not only during the pandemic, but hereinafter. Thus, the purpose of this article is not to be reiterative in that sense, but to remark that some institutions are making efforts to comply with the challenges that this era will demand.
Having said the foregoing, I recall that in a prior article I stated that we transitioned our daily activities almost automatically, giving as examples that arbitration hearings are now being held via videoconference; and also construction-related hearings are using BIM Modeling technology as well as drones in order to know the status of the projects in real time.
In that regard, it is worth noting that the ICC is amending the arbitration rules accordingly by optimizing the use of technology in the written briefs as well as in the way to hold the hearings. Please note that the optimization of the use of technology is not the only amendment to the arbitration rules, but this article will address that change only.
With respect to the written briefs and communications, the new version of the ICC Arbitration Rules, in articles 4 and 5, provide that electronic transmission instead of hard copies is the default method of submitting documents. Even though this was already the general practice, the fact that it is incorporated in the ICC Arbitration Rules represents a good step toward the new reality.
Regarding the use of technology in hearings, article 26 (1) of the new version of the ICC Arbitration Rules, establishes that the Arbitral Tribunal has the authority to decide if the hearing will be held in person or remotely. Such decision will be taken, of course, after hearing the parties and taking into account the circumstances of every case.
Also, it is well known that paragraph (2) of article 25 of the 2017 ICC Arbitration Rules generated some controversy because its reference to “in person” left open to interpretation by some litigators that final arguments shall be in person only.
The new version of the ICC Arbitration Rules solved this issue by removing this paragraph, so there is no doubt that, interpreted jointly with article 26, the hearing can be held remotely.
The amendments addressed in this article are consistent with the nature of arbitration, i.e. a flexible arbitration that has to fit the requirements, not only of the parties, but also to the current reality, which demands increased use of technology as practical.
Litigation and academic topics apart, I wish to my readers and to everybody in the Construction Forum of the American Bar Association, a very good 2021.
I hope to keep in touch in the new year and wish you a 2021 full of good vibes.