Financial Incentive for Arbitrators to Make Timely Decisions
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A party’s selection of arbitrator is a critical, strategic decision in international arbitration. Presumably, this new policy will allow parties to know which arbitrators on the ICC panel are actively handling cases. Going forward, it will be interesting to see whether parties choose to include this disclosure, disclose more about their cases or maintain privacy. Decision to opt out of disclosures will be case sensitive. But, disclosures should make gathering intelligence on potential arbitrators easier.
The second policy announced is fantastic news in my mind. The cost and time associated with international arbitration is always a consideration for in-house counsel. And, while international arbitration has many benefits, timely decisions are not always one of them.
Consequently, the ICC announced that it will reduce the fees paid to arbitral tribunals that fail to submit a draft award within three months of the last substantive hearing or the last substantive post-hearing submission (two months in the case of a sole arbitrator). These reductions will not, however, be rigidly enforced. The Court will look at the complexity and circumstance of the case in making reduction decisions. And, importantly, expeditious decision drafting can be rewarded with an increase in arbitrator fees.
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