The ICC’s Expedited Procedure found under Article 30 and Appendix VI of the ICC Rules of Arbitration generally applies to arbitration agreements concluded after March 1, 2017; where the amount in dispute does not exceed US $ 2 million; and where the parties have not formally opted-out. However, parties are also allowed to opt-in, regardless of the date of the agreement or the amount in dispute. It is on that opt-in basis that many parties last year started requesting the “Expedited Procedure.”
While Latin American parties were not the first to take advantage of the Expedited Procedure,[1] they can benefit from some of the changes. Accordingly, we will discuss the new provisions and their potential appeal to Latin American parties:
- Sole Arbitrator: Under Article 2 of Appendix VI, the Court may appoint a sole arbitrator. While this change might be a little difficult for some Latin American parties accustomed to the three-arbitrator tribunals to take in, the costs of having three arbitrators in these lower value disputes is generally not worth the perceived added benefits. Since the goal is to be able to effectively resolve these relatively small disputes in a time and cost-efficient manner, embracing this provision is key to the success of the new Expedited Procedure.
- No Document Production: Article 3(4) of Appendix VI encourages the Tribunal to deny the requests for document production when it considers them inappropriate or unnecessary to resolving the dispute. This provision should be very attractive to Latin American parties since they are not generally attached or keen on document production, discovery or other disclosure related procedures inherited from common law jurisdictions.
- No Hearing or Informal hearing: Under Article 3(5) of Appendix VI, the arbitral tribunal can decline to hold a hearing or reduce the formalities such as by allowing the hearing to take place by videoconference. Given that the importance placed on hearings also comes from common law, parties from Latin America should find this provision, and the reduced costs that come with it, very appealing.
- Six-month Proceedings: Under the new provisions, the case management conference must take place within two weeks; the draft award must be submitted to the ICC Court within five months; and the final award must be rendered within six months from the date of the case management conference. This is a tight procedural timetable by any standards. Moreover, in certain countries in Latin America, like Brazil, parties and arbitrators are not used to establishing a procedural timetable at the beginning of the case. Sometimes the lack of timeline leads to unnecessary delays. So, these particular time provisions may actually help users in this particular market to think differently about efficient dispute resolution.
It is worth pointing out that Latin America is no stranger to complex ICC proceedings in short time frames. For example, Latin American parties currently make up to 40% of the parties requesting emergency arbitrator proceedings. See https://iccwbo.org/media-wall/news-speeches/guest-blog-emergency-arbitration-gaining-ground-in-latin-america/. Emergency arbitrator proceedings are an example of often very complex, and very complete proceedings (various rounds of submissions, hearings, and very high quality decisions issued, often 30-40 pages orders), being finalized in as short as 17 days. Therefore, one can say that the emergency arbitrator experience in Latin America is probably a good indicator for the application of the Expedited Procedure in the region.
[1] Currently the ICC had accepted 12 cases (i.e., confirmed as on-going cases). In these cases, the parties are from North America, Europe, Asia, Africa and Australia.
