Introduction

2021 has brought hope and new changes. Such new changes also extend into the international arbitration world. At the start of the new year, the International Chamber of Commerce (“ICC”) implemented the 2021 Arbitration Rules (“2021 ICC Rules”), which applies to cases filed from 1 January 2021 onwards. The 2021 ICC Rules is a culmination of the ICC’s attempt to meet the current and future needs of the arbitration community. Some of the key amendments as reflected in the 2021 ICC Rules relate to the following areas:

a. Joinder of parties and consolidation of arbitration proceedings;
b. Expedited arbitration procedure;
c. Remote hearings;
d. Paperless filings;
e. Obligation to disclose funding arrangements; and
f. Limits on modifications to the counsel team after the tribunal has been constituted.

The revisions to the ICC Arbitration Rules are aimed at increasing the flexibility, efficiency and transparency of ICC arbitrations. The revisions also help to plug certain gaps in the 2017 ICC Rules.

Increase in efficiency    

Joinder of parties and consolidation of arbitration proceedings 

Pursuant to the 2017 ICC Rules, no additional party could be joined after the constitution of the arbitral tribunal has been completed, unless all parties (including the party being joined) agree to the joinder. The rules have since been amended to include a new Article 7(5), which allows any party to the arbitration to submit a Request for Joinder even after the arbitral tribunal has been constituted. It is not necessary for all other parties to agree to the Request for Joinder. The only caveat is that the party that is being joined to the arbitration must accept the constitution of the arbitral tribunal and agree to the Terms of Reference (where applicable).

In deciding whether to allow the Request for Joinder, the arbitral tribunal must consider “all relevant circumstances”. This would include (i) whether the arbitral tribunal has prima facie jurisdiction over the additional party, (ii) the timing of the request, (iii) possible conflicts of interests, and (iv) the impact of the joinder on the arbitration procedure. This new Article 7(5) increases the efficiency of ICC arbitrations as it will help to reduce the occurrence of parallel arbitration proceedings and the risk of conflicting decisions.

In relation to the consolidation of arbitration proceedings, Article 10(b) of the 2021 ICC Rules has been revised to clarify that consolidation of two or more arbitrations into a single arbitration may be permitted where all of the claims are made under the same arbitration agreement or agreements (emphasis added). This resolves the ambiguity as to whether claims arising out of different but related underlying transactional agreements containing identical arbitration agreements, can be consolidated.

In situations where the wording of the arbitration agreements are not identical, the revised Article 10(c ) of the 2021 ICC Rules makes it clear that two or more arbitrations can be consolidated when the claims in the arbitrations are not made under the same arbitration agreement or agreements, but (i) the arbitrations are between the same parties, (ii) the disputes in the arbitrations arise in connection with the same legal relationship, and (iii) the various arbitration agreements are found to be compatible. To ensure that parties do not abuse Article 10(c ) of the 2021 ICC Rules, it is important that the terms of the various arbitration agreements (e.g. the seat of the arbitration and procedure for constituting the arbitral tribunal) are scrutinized closely, so as to make sure that the arbitration agreements are indeed compatible. The amendments to both Articles 10(b) and 10(c ) of the 2021 ICC Rules increase the efficiency of arbitration proceedings as disputes arising out of related transactions can be dealt with in a single arbitration proceeding, instead of parties having to incur the time and cost of commencing multiple arbitration proceedings.