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A comparison of the 1998 and 2012 ICC Rules of Arbitration*

*The 2011 ICC Rules of Arbitration come into force on 1 January 2012.
Element of Arbitration General The role of the ICC Court of Arbitration The ICC Court of Arbitration provides for settlement by arbitration of international business disputes in accordance with the ICC Rules. 1.2 The ICC Court of Arbitration administers the resolution of disputes in accordance with the ICC Rules of Arbitration, and is the only body authorised to do so. By agreeing to arbitration under the ICC Rules, the parties accept that the ICC Court will administer the arbitration. Modernisation No equivalent provision. N/A The Rules encourage the use of IT and expressly state that the Tribunal or Secretariat can deliver communications by email. Outdated references to telegrams and telex have been deleted. 1.2 1998 ICC Rules of Arbitration Rule 2012 ICC Rules of Arbitration Rule

6.2

3.2

Tribunals powers Proof of authority No equivalent provision. N/A At any time after the commencement of the arbitration, the arbitral tribunal or the Secretariat may require proof of the authority of any party representatives. The tribunal may adopt such procedural measures as it considers appropriate to ensure effective case management, and shall convene a case management conference to consult the parties on any such measures. Upon the request of any party, the Tribunal may make orders regarding the confidentiality of the proceedings and any other matters in connection with the arbitration, including taking measures to protect trade secrets and confidential information. The Tribunal will now decide the following issues previously determined by the Court: 17

Case management powers of the tribunal

No express powers exist pursuant to which the tribunal may adopt a pro-active approach to case management.

N/A

22.2, 24,1 and 24.3

Confidentiality of the proceedings

No express provision on the confidentiality of proceedings, although the tribunal may take measures to protect trade secrets and confidential information.

20.7

22.3

Challenges to Jurisdiction

If any party raises a concern about the existence, validity or scope of the arbitration agreement, the Court may decide that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist. In such a case, any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself.

6.2

6.3

the determination of jurisdiction in the event of a


party's failure to submit an answer; of the arbitration agreement; and,

any challenge to the existence, validity or scope the consolidation of multiple arbitrations.

Arbitrators Appointment of Arbitrators The Court could appoint the arbitrator / Chairman when the circumstances so demand or when a party has failed to nominate an arbitrator. 9 The Court may appoint an arbitrator when: 13.3 and 13.4

one or more of the parties is a state or claims to


be a state entity;

the Court considers that it would be appropriate


to appoint an arbitrator from a country or territory where there is no National Committee or Group; or

the President of the Court certifies that it is


necessary and appropriate to make a direct appointment.

Element of Arbitration Appointment of an emergency arbitrator

1998 ICC Rules of Arbitration

Rule

2012 ICC Rules of Arbitration

Rule

No equivalent provision.

N/A

An emergency arbitrator may be appointed and grant interim or conservatory relief before the tribunal is constituted. The emergency arbitrator provisions do not apply if the arbitration agreement was concluded before 1 January 2010. The parties may also opt-out of the provisions, or agree to another pre-arbitral procedure that provides for interim measures.

29 and Appen dix V

Independence and impartiality of arbitrators

Every arbitrator must be independent of the parties in the arbitration. Before appointment or confirmation, a prospective arbitrator must sign a statement of independence.

7.1

7.2

Arbitrators sign a declaration of impartiality and independence, and remain under a positive duty throughout the arbitration to inform the Secretariat of any matters affecting their independence or impartiality. Arbitrators must sign a Statement of Availability to avoid any conflict of obligations.

11.1 and 11.2

11.2

Additional and multiple parties Joinder of additional parties No equivalent provision. N/A Additional parties may be joined to the arbitration before the confirmation or appointment of any arbitrator. Any request after such time requires the consent of all parties. In arbitration with multiple parties, claims may be made by any party against any other party (subject to certain restrictions relating to when new claims arise). Claims arising out of, or in connection with, more than one contract may be made in a single arbitration. Where there are multiple parties that can be split into multiple claimants and / or multiple respondents, then each side shall nominate an arbitrator jointly. Additional parties shall make a nomination with the side that they join. In the absence of a joint nomination and where the parties are unable to agree on a method for the constitution of the Tribunal, the Court shall appoint a suitable Arbitral Tribunal. The ICC Court of Arbitration may consolidate two or more arbitrations at any point in the proceedings, but the inclusion of any new claims arising after the Terms of Reference have been signed or approved must be approved by the tribunal. 7

Claims between multiple parties

No equivalent provision (save for certain rules on the appointment of the tribunal where there are multiple parties).

10

Multiple contracts

No equivalent provision.

N/A

Multiple Parties Appointment of Tribunal

Where there are multiple parties that can be split into multiple claimants and / or multiple respondents, then each side shall nominate an arbitrator jointly. In the absence of a joint nomination, and where the parties are unable to agree on a method for the constitution of the Tribunal, the Court shall appoint a suitable Arbitral Tribunal.

10.1

12.6

12.7

10.2

12.8

Consolidation of arbitrations

The ICC Court of Arbitration may consolidate claims in connection with a legal relationship (in respect of which arbitration proceedings are pending between the same parties under the ICC Rules of Arbitration), at any time before the Terms of Reference have been signed or approved.

4.6 and 19

10 and 23.4

Costs Cost-effective and expeditious conduct of the arbitration Parties conduct as a factor in deciding costs No express requirement for the tribunal or the parties to conduct the arbitration in an expeditious or cost-effective manner. No equivalent provision. N/A Express requirement for the tribunal and the parties to conduct the arbitration in an expeditious and cost-effective manner. The tribunal is expressly authorised to take the parties conduct into account when making decisions about costs, including the extent to which they have conducted the arbitration expeditiously and cost-effectively. 22.1

N/A

37.5

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Arbitration contacts
Arbitration is the real alternative to domestic courts for resolving disputes with an international dimension. We act for a wide range of international clients in their business affairs and their disputes. Our international arbitration group is part of the commercial litigation and arbitration group of more than 60 lawyers based in London, New York, New Haven, Milan, Hong Kong and the British Virgin Islands with additional support from offices in Geneva and Greenwich.
Christopher Coffin Arbitration team Partner direct tel: +44 (0)20 7597 6101 e-mail: christopher.coffin@withersworldwide.com

Peter Wood Arbitration team Partner direct tel: +44 (0)20 7597 6106 e-mail: peter.wood@withersworldwide.com

Roberto Moruzzi Arbitration team Partner direct tel: +44 (0)20 7597 6120 e-mail: roberto.moruzzi@withersworldwide.com

Chris Katsivelis Arbitration team Solicitor direct tel: +44 (0)20 7597 6192 e-mail: chris.katsivelis@withersworldwide.com

London BVI Geneva Greenwich CT Hong Kong Milan New Haven New York Zurich www.withersworldwide.com

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