ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration
No. 861-2 ENG
ISBN : 978-92-842-0159-4
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Help CentreCosts incurred by the parties constitute the largest part of the total cost of international arbitration proceedings. It follows that if the overall cost of the arbitral proceedings is to be reduced, special emphasis needs to be placed on steps aimed at lowering the costs connected with the parties’ presentation of their cases. Such costs are often caused by unnecessarily long and complicated proceedings with unfocused requests for disclosure of documents and unnecessary witness and expert evidence. Costs can also be unnecessarily increased when counsel from different legal backgrounds use procedures familiar to them in a manner that leads to needless duplication.
The increasing and, on occasion, unnecessary complication of the proceedings seems to be the main explanation for the long duration and high cost of many international arbitrations. The longer the proceedings, the more expensive they will be. The 2012 ICC Rules of Arbitration (the “Rules”) have expressly addressed these concerns.1
These Techniques for Controlling Time and Costs in Arbitration (the “Techniques”) are designed to assist arbitral tribunals, parties and their counsel in devising tailor-made procedures for individual arbitrations pursuant to Articles 22−24 of the Rules.
In particular, the Techniques may be of benefit to the parties and the tribunal when preparing the case management conference and seeking agreement on procedures suitable for their case. If the parties cannot reach agreement, the Techniques may also assist the arbitral tribunal in adopting procedures that it considers appropriate, taking into account its obligation to conduct the arbitration in an expeditious and cost-effective manner. The Techniques are freely accessible online on the ICC’s website and in the ICC Digital Library. They are in no way prescriptive. Rather, they provide suggestions that may assist in arriving at procedures that are efficient and will reduce both cost and time. Certain procedures will be appropriate for one arbitration, but inappropriate for another. There may be other procedures not mentioned here that are well suited to a particular case. In all instances, it is for the parties and the arbitral tribunal to select the procedures that are best suited for the case. The table of contents to this document can serve as a checklist of points to consider.
While the main focus of the Techniques is to provide guidance on the procedure during the arbitration, the first two sections give suggestions on the drafting of arbitration agreements and the initiation of arbitral proceedings.
| Code ISBN : | 978-92-842-0159-4 |
| Number of pages : | 20 |
| Publishing date : | 2018-03-01 |
| Language : | English |
PREFACE TO THE SECOND EDITION
PREFACE TO THE FIRST EDITION
INTRODUCTION
ARBITRATION AGREEMENT
1 Keeping clauses simple
2 Use of the ICC model clause
3 Selection and appointment of arbitrators
4 Fast-track procedures
5 Time limits for rendering the final award
6 More detailed arbitration agreement after the dispute has arisen
INITIATION OF PROCEEDINGS
Selection of counsel
7 Counsel with experience
8 Counsel with time
Selection of arbitrators
9 Use of a sole arbitrator
10 Arbitrators with time
11 Selection and appointment by the ICC
12 Avoiding objections
13 Selecting arbitrators with strong case management skills
Request for Arbitration and Answer
14 Complying with the Rules
15 Setting out a detailed statement of case
16 Submitting additional information
Language of the arbitration
17 Determination of the language by the arbitral tribunal
18 Proceedings involving two or more languages
ESTABLISHING THE FRAMEWORK OF THE ARBITRAL PROCEEDINGS
Terms of Reference
19 Summaries of claims and relief sought
20 Empowering the president of the arbitral tribunal on procedural issues
21 Administrative secretary to the arbitral tribunal
22 Need for a physical meeting
23 Counterparts
24 Compliance with Article 23(3)
Case management conferences
25 Timing 9 26 Preparation
27 Use of the Techniques
28 Providing information in advance of the conference
29 Scope
30 Client attendance
31 Need for a physical meeting
32 Use of discretion in apportionment of costs
33 Further case management conferences
Procedural timetable
34 Compliance with the procedural timetable
35 Need for a hearing
36 Fixing the hearing date
37 Pre-hearing conference
38 Short and realistic time periods
39 Bifurcation and partial awards
40 Briefing everyone involved in the case
Settlement
41 Arbitral tribunal’s role in promoting settlement
42 Settlement initiatives taken with the parties’ agreement
SUBSEQUENT PROCEDURE FOR THE ARBITRATION
Written submissions
43 Setting out the case in full early in the proceedings
44 Avoiding repetition
45 Sequential or simultaneous delivery
46 Specifying form and content
47 Limiting the length of submissions
48 Limiting the number of submissions
Documentary evidence
49 Organization of documents
50 Producing documents on which the parties rely
51 Establishing procedure for requests for production
52 Managing requests for production efficiently
53 Avoiding duplication
54 Selection of documents to be provided to the arbitral tribunal
55 Keeping hard copies to a minimum
56 Translations
57 Authenticity of documents
Correspondence
58 Correspondence between counsel
59 Sending correspondence to the arbitral tribunal
Witness statements
60 Limiting the number of witnesses
61 Minimizing the number of rounds of witness statements
Expert evidence
62 Presumption that expert evidence not required
63 ICC expert services
64 Clarity regarding the subject matter and scope of reports
65 Number of experts
66 Number of reports
67 Meetings of experts
68 Use of single expert
Hearings
69 Minimizing the length and number of hearings
70 Choosing the best location for hearings
71 Telephone and video conferencing
72 Providing submissions in good time
73 Cut-off date for evidence
74 Identifying core documents
75 Agenda and timetable
76 Avoiding repetition
77 Need for witnesses to appear
78 Use of written statements as direct evidence
79 Witness conferencing
80 Limiting cross-examination
81 Closing submissions
Costs
82 Using allocation of costs to encourage efficient conduct of the proceedings
Deliberations and awards
83 Anticipating the time required
84 Prompt completion of the award
SPECIAL CONSIDERATIONS
Multiparty and multicontract arbitrations
85 Conditions imposed by Articles 7−9 of the Rules
86 Adapting procedures to multiparty and multicontract cases
Consolidation
87 Consider consolidating related cases
Emergency arbitrator proceedings
88 Issues to consider before initiating emergency arbitrator proceedings
Prepared by the ICC Commission on Arbitration and ADR.