First, Article 13, paragraph 6 of the ICC 2021 rules requires the appointment of arbitrators who do not have the same nationality as any party to arbitration if “the arbitration agreement on which the arbitration is based is a matter of contract.” In accordance with Article 7, paragraph 1 of the 2017 Internal Regulations, no additional party may be consulted “after the confirmation or appointment of an arbitrator, unless all parties, including the additional party, otherwise agree.” The new paragraph 5 of Article 7 of the ICC 2021 rules allows for a third-party application for membership, even after the confirmation or appointment of an arbitrator, when the arbitration tribunal makes a decision to that effect, taking into account “all relevant circumstances,” and the additional party accepts the tribunal`s constitution and accepts the warrant. , if any. Among the “relevant circumstances” to be considered by the Arbitral Tribunal in deciding whether membership is appropriate are the prima facie jurisdiction of the additional party, the date of the counter-response, potential conflicts of interest and the impact of the accession procedure on the arbitration process. “The provisions of the emergency arbitrator do not apply if: (a) the arbitration agreement was concluded before January 1, 2012 in accordance with the rules; (b) the parties agreed to rule on the basis of the provisions of the emergency arbitration; or (c) the arbitration agreement on which the application is based on a contract. (Added to the highlight) “Any Application for Joinder made after the confirmation or appointment of an arbitrator is tried by the Court of Arbitration after its constitution and is subject to the additional party that accepts the Constitution of the Court of Arbitration and, if applicable, approves the warrant. In deciding such a request by Joinder, the Arbitration Tribunal takes into account all relevant circumstances, including whether the Court of Arbitration has prima facie jurisdiction over the additional part, the date of Joinder`s application, potential conflicts of interest and the impact of the Joinder on arbitration. Any decision to join an additional party does not affect the decision of the Arbitral Tribunal as to its jurisdiction over that party. (Priorities added) It remains to be seen how, in practice, the ICC court will judge the “exceptional circumstances” indefinite to justify a derogation from the parties` agreement on the method of the Constitution of the Court of Arbitration, without revealing the obstacles to the opposability of the resulting arbitration award. In this regard, the ICC comments that the provision is intended to allow courts to “not comply with unser serious arbitration agreements that may constitute a danger to the validity of the arbitration award,” which protects the integrity of arbitration. This means that the accession of additional parties is now possible during the arbitration process, even if the parties to the arbitration do not agree, as long as the arbitral tribunal accepts the application for membership and the third party agrees to join the arbitration. It should be noted that the 2014 IBA Guidelines on Conflicts of Interest in International Arbitration Proceedings also address the issue of disclosure of third-party financing agreements in the context of the impartiality and independence of arbitrators, and place third-party funders and insurers on the same level as parties with “immediate economic interest in awarding.” The ICC 2021 rules come into effect on January 1, 2021 and apply to all ICC arbitration proceedings initiated on or after that date, regardless of the date on which the underlying arbitration agreement was concluded, unless “the parties have agreed to comply with the rules in force at the time of their arbitration agreement” (Article 6 , paragraph 1, ICC 2021 rules).
The previous version of the ICC arbitration rules, currently in force, is the 2017 Arbitration Regulations (“Rules 2017”), which remain registered by default for ICC arbitration proceedings before January 1, 2021.