As the International Chamber of Commerce unveiled its new governing rules, an eye was cast back to 2017 to see what steps have been taken in the consistent development and re-tooling a platform that forms the basis to a fundamental area of alternative dispute resolution (ADR).
An initial and primary goal was security and protection. Securing the trust and confidence of clients, as well as the legal profession, stood at the heart of the ICC’s goal, and as such tribunals face greater pressures to verify conflicts of interest and set aside arbitration agreements that threaten the integrity of an arbitrator’s award. As part of such integrity and protection was the shift in the ICC’s attitude towards the appointment of the tribunal themselves, as the parties involved are now free to collaborate in the selection of a tribunal.
The lawyers in Giambrone’s corporate and commercial litigation team regard the new rules as a considerable step forward in assisting with the resolution of complex cross-border disputes. It is essential that there is a perception of fair-mindedness by all parties and transparency is a vital factor and central to the issue.
Prior to any formal proceedings, however, lies the question of financing. In a commercial environment where parties are continuously cycling through sources of financing for their ventures it has long been an issue in circumstances where parties may have differing financial flexibility and backing, and as such parties must disclose whether any “non-party which has entered into an arrangement for the funding of claims or defences”. For prospective parties seeking to arbitrate it is important to note that such measures are meant to ensure that the arbitrator(s) are able to ascertain any conflicts of interest and ensuring that all parties are on the same platform as they each share a stake in the outcome of any award.
Extending beyond the principal changes made to the integrity and flexibility of the new regulations, stands the manner in which international disputes are handled. Namely, whilst neutrality is a question of morals and the integrity of the arbitrator, questions may arise over bias in background. To this end, in cases where a sole arbitrator or a president of an arbitral tribunal is appointed, background checks as to their nationality will be taken to ensure they are not of the same nationality as either of the parties. By doing so the ICC has highlighted and focused on a preliminary concern that many international parties have in arbitrating matters, which is whether the background of an arbitrator may unfairly shift their preference before an argument is put to them. Whilst many would rely on the integrity of the legal profession, the ICC has evidently taken an extra step to ensure the safety of its clients and the reliability of arbitration as a means for international disputes to be heard in a safe and open environment.
Commercial globalisation continues to accelerate with the inevitable consequence of the potential for international disputes in which the ICC has a fundamental role. Ensuring confidence in the impartiality of the process must be seen to be part of the ICC’s continuing role.
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