By Rouein Momen*
The International Court of Arbitration, a branch of the International Chamber of Commerce (‘ICC’), has updated its ‘Note to Parties and Arbitral Tribunals on the Conduct of Arbitration’. This revision came into force on 1 January 2019. The amendments are aimed at improving the transparency and efficiency of the conduct of arbitration and to encourage the ICC rules of arbitration to compete with the ICSID (International Centre for Settlement of Investment Disputes) rules.
For arbitrations registered on and after 1 July 2019, the new rules require the ICC court to disclose firstly, the industrial sector in which the parties are involved, and secondly, the identity of counsel who are representing the parties. In the case of confidential proceedings, the disclosure requirement will be subject to parties’ consent.
The amended notes include a clarification regarding the nature of the independence and impartiality of disclosures. According to the notes, disclosures by arbitrators should cover the parties to arbitrations, their affiliates and any non-parties that may have an interest in the final outcome. Clearly, in making these clarifications and adjustments, the ICC is attempting to provide mechanisms to ensure that the arbitration process under the ICC rules become more transparent.
The role of the secretariat in the running of the arbitration has also been expanded. Under the new amendments, parties or co-arbitrators can seek help from the secretariat in appointing the third sole-arbitrator. The secretariat can either make suggestions regarding suitable appointees or carry out the requested research into the experience, availability, or possible conflict of interests with the suggested appointees. It is anticipated that these amendments will increase the efficiency of the arbitration process as a whole.
*Rouein Momen is an ADC intern currently studying Arts/Law at UNSW. Taking a year off from his Law studies in 2019, Rouein is writing his Arts Honours’ thesis on Marxist Critical Theory.