At the end of October, both, ICC and LCIA, introduced revised practice notes.
Aiming to increase efficiency of the proceedings the ICC amended its 30-page “Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration”. The ICC added a section “Expeditious Determination of Manifestly Unmeritorious Claims or Defenses”. The practice note is available on the ICC’s website (click here to view the practice note). The relevant part consists of paras 59.-64. The most noteworthy points are the following: Firstly, the practice note clarifies that under Article 22 ICC Rules a tribunal has the power to allow applications for an expeditious determination of manifestly unmeritorious claims or defenses. Article 22 ICC Rules states that a tribunal may adopt procedural steps it considers appropriate to ensure effective case management. Secondly, an application for an expeditious determination must be made as promptly as possible after the filing of the relevant claims or defenses (cf. para. 60). Thirdly, a tribunal can make the decision on the application by way of procedural order or arbitral award. If the tribunal renders an award, the ICC Court will scrutinize this award in principle within one week of receipt by the Secretariat (cf. para. 63 and 64).
The LCIA in its amended practice note reacted to the increased use of tribunal secretaries in international arbitration (click here to view the notes for arbitrators). Section eight of the note (paras. 68-82) deals with the tribunal secretaries’ role, the proposal of their use, the parties’ necessary acceptance and their removal/replacement. Three points on the use of tribunal secretaries from the LCIA practice note: Firstly, a tribunal may in no circumstances delegate its fundamental decision-making function to the secretary. Secondly, a tribunal who intends to use a secretary should make a respective proposal to the parties, including the exact tasks to be carried out by the secretary and including an hourly rate if the tribunal secretary is to be paid an hourly rate for their work. The LCIA considers an hourly rate in the range of GBP 50 to GBP 150 generally reasonable. Thirdly, both parties need to consent to the use of the tribunal secretary and to the individual person proposed.