The increasing demand for transparency in arbitration has led the ICC to issue measures on the grounds of procedural decisions concerning the objection and the subsequent replacement of arbitrators.
In accordance with the previous rule, the ICC Court took and served procedural decisions (including decisions on the challenge of arbitrators) without giving reasons to the parties, in accordance with the practice of most international arbitration institutions. Many international regulations, even today, say nothing about this and, therefore, without a precise obligation, the competent bodies do not prepare reasoned decisions.
The only exceptions were the introduction by the London Court of International Arbitration (LCIA) in 2014 of the obligation (and not only the option at the request of the parties) to accompany the decisions on the objection with justifications in support. The same rule already existed for the objections and substitutions decided by the Vienna International Arbitration Centre, while The Permanent Court of Arbitration (PCA) of The Hague was in an intermediate position, in fact comparable to the one currently employed by the ICC Court, allowing the parties to request the statement of reasons (the opt-in system).
Procedural aspects of the request for a statement of reasons
With regard to the grounds for the objection, the application shall be made by sending to the Secretariat a written application, subject to penalty of revocation, within 30 days of receipt of the notification of the appointment (or confirmation) or, if later, within 30 days of the date on which the applicant became aware of the facts and circumstances on which the objection was based. The principle of adversarial procedure whereby the ICC Court decides on the admissibility and, where appropriate, on the merits of the objection must be observed after the Secretariat has allowed all parties to submit written observations within a reasonable period of time.
From the procedural point of view, in the case of a request by the parties for a statement of reasons (necessarily before the decision), there will be a variant in the investigation phase and the decision is taken during the plenary sessions (with instructions to the Secretariat to notify the Parties and the arbitral tribunal of the decision.The decision to refuse to give a statement of reasons, which is a prerogative of the Court, will also have to be decided in plenary.
Any refusal to state reasons–a prerogative which, as noted, the ICC Court retains, on a wholly discretionary basis, despite the joint request of the parties– shall be decided by the ICC Court in plenary.
The opt-in system in view of a definitive motivation by default.
The possibility of obtaining reasoned procedural decisions is certainly to be welcomed and in this great merit must be given to the influence that the major arbitration organizations exercise on each other.
However, there is an opposite trend in the ICC Court and LCIA (both in saying (ie the most critical) the default position of the ICC Court is still to omit the justifications, preferring it the most prudent option of opt-outin, while the default LCIA position is to motivate all decisions.
One possible interpretation is that the choice of the ICC is not a final position but rather a first step towards future evolution in the light of past experience.
The transparency of the identity of arbitrators
This is a novelty that is part of the discussed relationship between the principle of confidentiality of the contract and the transparency of arbitration. From 1°January 2016, for each arbitrator appointed in the ICC proceedings, the Court shall publish on its website the name of the arbitrator, his nationality, whether he has been appointed by the Court or by one of the parties (without, of course, indicating the identity of the party) and which of the arbitrators holds the office of President of the College.
The solution is twofold: on the one hand, it remains without prejudice to the parties’ right not to adhere to this type of disclosure through an express agreement (opt-out mechanism)on the other hand, in order to preserve the confidentiality requirements of the proceedings, neither the names of the parties, nor the names of the lawyers assisting them, nor the protocol number (reference number) of the case are published.
The accessibility of precedents and motivations
Finally, an interesting profile concerns the formation of arbitration jurisprudence with accessibility to the international arbitration community and, in general, to third parties. Where, on the one hand, it is necessary to preserve the “internal“ transparency of the procedure by the existence of reasoned decisions communicated in confidence and exclusively to the parties, The accessibility of the same decisions by third parties could contribute to the increase in the predictability and consistency of decisions and, ultimately, the transparency of the procedure.
This would help the international arbitration community and could, inter alia, reduce the number of spurious appeals made for opportunistic purposes only.