Part II Commentary on the International Expedited Rules, 43 Articles E-7 to E-9—The Proceedings Under the Expedited Procedures

This chapter looks at Articles E-7 through E-9 of the ICDR Rules, which set out some basic procedural guidance for an arbitration proceeding the Expedited Procedures once the case has been transferred to the sole arbitrator. These articles grant the arbitrator with discretion to set the procedure and timetable for the arbitration. Unlike the comparable provisions in the main ICDR Rules, however, this provisions presume certain limitations on the procedure to promote the efficiency goals of the Expedited Procedures. Perhaps most notable is the presumption that an expedited arbitration will be decided on documents only, without an oral hearing. Other limitations include time limits on certain procedural benchmarks, such as the issuance of a procedural order, completion of written submissions, and time for an oral hearing, where necessary.

Part II Commentary on the International Expedited Rules, 42 Article E-6—Appointment and Qualifications of the Arbitrator

This chapter focuses on Article E-6 of the ICDR Rules, which contains provisions for the appointment of a sole arbitrator for arbitrations that fall within the scope of the Expedited Procedures. The provisions of Article E-6 are more streamlined than those contained in the parallel provision in Article 12 of the main ICDR Rules, which expedites the time required for the appointment of the arbitrator. Moreover, the provision for one arbitrator, as opposed to three, furthers the ICDR’s goal of reducing the time and cost of an arbitration falling within the Expedited Procedures. However, Article E-6 does not address situations where the parties’ agreement conflicts with the provisions contained in the Article.

Part I Commentary on the ICDR International Rules, 39 Article 39—Interpretation of Rules

This chapter studies Article 39 of the ICDR Rules. Article 39 provides a bright-line rule that seeks to clarify when the arbitrators, as opposed to the institution, are responsible for interpreting and applying the ICDR Rules: to the extent that a rule impacts on the tribunal’s powers and duties, then the tribunal is charged with its application; in all other cases, this duty falls on the ICDR. Practically speaking, however, given the ICDR’s extensive experience with applying the rules, arbitrators typically will consult with the institution before making such an interpretation. Article 39 is substantially the same as its predecessor in Article 36 of the 2009 ICDR Rules. The only notable revision is that the provision now expressly provides that any emergency arbitrator or consolidation arbitrator will have the same authority as the arbitral tribunal to interpret and apply the Rules.

Part I Commentary on the ICDR International Rules, 30 Article 30—Time, Form, and Effect of the Award

This chapter explores Article 30 of the ICDR Rules, which prescribes the basic requirements for the time, form, and effect of any ICDR arbitral award. The Article does not provide a comprehensive list of requirements for a valid award; rather, it prescribes certain general minimum standards, while also giving some deference to the potential application of the parties’ agreement and the specific demands of the law at the place of arbitration or where enforcement is sought. The text of Article 30 received a number of revisions during the 2014 amendments to the ICDR Rules. Many of these revisions were aimed at streamlining and internationalizing the language, but others incorporated existing ICDR practices such as review of the draft award by the ICDR or expanded the previous provisions such as establishing a deadline by which the award must be rendered.

Part I Commentary on the ICDR International Rules, 10 Article 10—Notices

This chapter looks at Article 10 of the ICDR Rules. Both the arbitral tribunal and the parties to an arbitration must communicate in an effective and pre-agreed manner to ensure the smooth conduct of arbitral proceedings. Article 10(1) addresses the practicalities regarding notification of all communications between the parties. Notably, it addresses the variety of forms of modern communication, paying particular attention to forms of electronic communication. Likewise, Article 10(1) is drafted in sufficiently broad terminology that permits the parties and the tribunal to communicate in a variety of ways. Meanwhile, Article 10(2) provides the framework for calculating periods of time and time limits under the Rules. By specifically defining when notice periods begin to run, and anticipating holiday and other interruptions, Article 10(2) pre-empts possible dilatory tactics and sets the parties’ expectations for prompt notification, service of documents, and other communications that are essential to the timely and effective functioning of an arbitration.

Part II Commentary on the International Expedited Rules, 44 Article E-10—The Award Under the Expedited Procedures

This concluding chapter discusses Article E-10 of the ICDR Rules, which provides some basic requirements for an award made under the Expedited Procedures. Unlike its analogous counterpart in Article 30 of the main ICDR Rules, Article E-10’s direction is more limited. While Article 30 also provides instruction on the form, content, and confidentiality of the award, Article E-10 only provides specific direction that the award should be in writing, that it is final and binding on the parties, and that it must be rendered within a 30-day time period. Consequently, as with other provisions of the Expedited Procedures and as is provided for in Article E-1, arbitrators and the parties should refer to the provisions of the main ICDR Rules to supplement Article E-10.

Part I Commentary on the ICDR International Rules, 31 Article 31—Applicable Laws and Remedies

This chapter studies Article 31 of the ICDR Rules, which is an amalgam of various rules addressing the issue of laws applicable to the arbitration and certain matters relating to the remedies available to the tribunal. Its touchstone is ‘party autonomy’—that is, respecting the choice of the parties, as expressed in the arbitration agreement or in positions taken before the tribunal. Absent party agreement, the arbitrators enjoy a broad discretion. Nevertheless, the parties’ freedom and the tribunal’s discretion may be restricted by mandatory rules of law at the place of arbitration or of enforcement. This limitation is also reflected in Article 1(2), which provides that any applicable mandatory law takes precedence over the powers recognized in Article 31.

Part I Commentary on the ICDR International Rules, 27 Article 27—Closure of Hearing

This chapter looks at Article 27 of the ICDR Rules. The purpose of Article 27(1) is to provide a mechanism for closing the hearing stage of the arbitration. One ambiguity in Article 27 is whether the close of the ‘hearing’ is intended to cover only the oral hearing or also any additional post-hearing submissions and evidence tendered. Additionally, Article 27(2) gives the tribunal the discretion, of its own motion or upon application of one of the parties, to reopen the hearings at any time before the award is made. In any event, it is likely to be applied only rarely. Appropriate circumstances might arise, for example, where the tribunal’s deliberations have thrown up an issue not adequately covered in the hearing to date, where previously unavailable evidence has come to light, or where a post-hearing development has arisen that affects the issues in dispute.

Part I Commentary on the ICDR International Rules, 5 Article 5—Mediation

This chapter explores Article 5 on mediation of the 2014 ICDR Rules. Mediation is a very effective alternative dispute-resolution process, in which the mediator assists the parties to settle their disputes by a process of discussion and narrowing differences. The mediator does not have the power to render binding decisions, rather the parties aim to reach agreement amongst themselves with the mediator’s assistance. Under Article 5, the ICDR may invite the parties to mediate or the parties may agree to mediate in accordance with the ICDR’s International Mediation Rules at any time while the arbitration proceedings are pending. The mediation shall in principle proceed in parallel with arbitration to avoid any delay. Ultimately, the 2014 ICDR Rules reflect a desire to encourage the parties to consider the benefits of mediation, particularly early in the dispute resolution process, without forcing them to mediate.

Part I Commentary on the ICDR International Rules, 1 Article 1—Scope of These Rules

This chapter discusses the scope of application of the ICDR Rules. Within its four paragraphs, Article 1 of the ICDR Rules introduces the ICDR’s mandate; sets the boundaries for institutional jurisdiction and delegates authority to the Administrator; provides for the ICDR to be the exclusive administrator of all international arbitrations under the auspices of the AAA; prescribes the ICDR Rules’ scope of application; declares the ICDR Rules subject to any mandatory laws; and deems smaller disputes to be handled pursuant to the new International Expedited Procedures. Importantly, Article 1(1) provides that the ICDR Rules will be applied in either of two ways: (i) with an agreement to arbitrate ‘under these International Arbitration Rules’; or (ii) if the parties have provided ‘for arbitration of an international dispute by the [ICDR] or the [AAA] without designating particular rules’. In either scenario, the parties agreed to institutional as opposed to ad hoc arbitration.