On 1 December 2020, the International Chamber of Commerce (ICC) published the latest version of its Arbitration Rules, which came into force on 1 January 2021. As Hong Kong is one of the world's leading centres for arbitration and many proceedings in Hong Kong are conducted under the ICC Rules, these innovations are of particular interest to Hong Kong.
The most important changes are about remote hearings, litigation funding and complex proceedings.
Disclosure Requirement for Litigation Funding
According to the new Article 11 (7), parties are now obliged to disclose litigation funding. This applies not only to the existence of such, but also to the disclosure of the identity of the financier. This rule goes beyond the rules of the Stockholm Arbitration Chamber, which only requires disclosure of financing, but does not go as far as the rule of the Hong Kong Arbitration Centre, which also requires disclosure of the agreement itself.
This is innovation brings the advantage that a possible conflict of interest between the parties, the financier and the arbitrators can thus be excluded from the outset. Accordingly, Article 17 (2) of the new rules then also provides that the arbitral tribunal may make any order to prevent a conflict of interest.
Remote Hearings, E-Filings Strengthened
In the course of the COVID-19 pandemic, it was practically impossible to omit changes in remote hearings. Whereas this issue was previously only rudimentarily regulated, Article 26 (1) now provides that the arbitral tribunal may, after hearing the parties, order hearings via video or telephone conferences, regardless of whether the parties agree to this or not.
At the same time, it has been regulated (Articles 4 (4)(b), 5(3)) that all motions, pleadings, etc. must be filed electronically, if a party does not request that its documents be filed in paper form. This is a clear departure from the previous rules, which assumed paper filing as the rule
Consolidation of Different Proceedings
There are further changes for complex proceedings involving multiple parties. According to Article 7(5), from now on, even after the arbitral tribunal has already constituted itself, new parties may be admitted to the proceedings. Furthermore, the arbitral tribunal may consolidate different proceedings provided the parties are the same, the subject matter of the proceedings is based on the same facts and the arbitral tribunal is of the opinion that consolidation is appropriate. Previously, consolidation was only possible if the claims arose from the same arbitration agreement.
New Rules Reflect Recent Social Developments
The new orders signal a positive advancement of ICC Rules, as they reflect the necessary changes that have resulted from the social developments of recent months. The ICC Rules, with these changes, will continue to be arbitration rules that can be applied in good conscience.
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