ICC Report on Expedited Procedure Provisions

Key Take-Aways 

The Expedited Procedure Provisions (“EPP”) entered into force on 1 March 2017. According to Article 30 of the ICC arbitration rules, the EPP apply if (a) the amount in dispute does not exceed the limit set out in Article 1(2) of Appendix VI at the time of the communication referred to in Article 1(3) of that Appendix or (b) the parties agree so. 

At the time of its entry, the EPP applied by default to all disputes where the amount in dispute did not exceed US$2 million, provided that the arbitration agreement was signed on or after 1 March 2017. Following an amendment in 2021, this threshold was increased to US$3 million and applied where the arbitration agreement was signed on or after 1 January 2021.

From its introduction through 2024, a total of 865 cases were administered under the EPP, of which 461 resulted in a final award. Of the total cases administered, 127 were initiated pursuant to party agreement, which demonstrates the growing confidence of users in the efficacy of the EPP.

Of the cases that resulted in a final award, only 96 involved a document production phase, while the remaining 365 did not. Expert reports were submitted in only 26 cases. A hearing took place in 251 cases, lasting between one and four days, of which 159 were conducted remotely or in a hybrid format. Post-hearing briefs were submitted in only 139 of those 251 cases[2]. It is also important to note that, awards were delivered on time.

The Report also addresses scope and applicability of the EPP, arbitral tribunal appointed under EPP; procedural features, awards, costs and fees, and interim measures, each in a dedicated section.  This newsletter will set out a brief summary related to these topics:

Scope and Applicability

The framework governing the applicability of the EPP under the ICC Rules is set out above.

Since the introduction of the EPP, 16% of all expedited procedures were opt-in cases, while parties opted out in only 31 cases between 2017 and 2024[3]. Of the 26 cases referred to the ICC Court to determine whether the EPP should continue to apply, the ICC Court decided that the EPP should no longer apply in 17 cases (65%) and should continue to apply in nine cases (35%)[4]. Considering the safety mechanism enshrined in the EPP and the discretion granted to the ICC Court, the Report recommends that parties give serious consideration to opting into EPP, noting that there is no need to opt out unless there are compelling circumstances against an expedited process[5].

Arbitral Tribunal

At the time of the introduction of the EPP, a frequently raised question concerned the power of the ICC Court to appoint a sole arbitrator where the arbitration agreement provides for a three-member tribunal. However, there is a clear provision in the ICC Rules which foresees that the ICC Court may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator[6].

According to the Report, the ICC Court has appointed a sole arbitrator notwithstanding a provision in the arbitration agreement providing for a three-member tribunal in 61 cases, while a three-member tribunal was appointed in only 37 expedited procedures[7]. The Report notes that the time between submission of a request for arbitration and transmission of the file to the appointed tribunal may take up to three months[8]. Given the six-month time limit for rendering final awards, this period is long and the Report provides recommendations on how to shorten this timeframe[9].

Finally, as regards challenges against arbitrators, these have occurred infrequently, arising in only 12 instances (1.4% of cases)[10].

Procedural Features

Article 3 of Appendix VI of the ICC Rules grants the tribunal considerable discretion to adopt appropriate procedural measures for EPP, in consultation with the parties, and sets out specific procedural issues raised by expedited procedures[11].

Compared to non-expedited procedures, expedited procedures allow for a more proactive approach and greater control over the proceedings, which is generally accepted by the parties and counsel involved[12]. Key features include: the exclusion of Terms of Reference[13]; a higher threshold for authorising new claims compared to non-expedited proceedings[14]; a mandatory CMC within 15 days of transmission of the file, which triggers the six-month time limit[15]; the infrequent use of document production, which was absent in 79% of cases[16]; and hearings, which were held in 251 of 461 cases (54.4%), with the remaining 210 cases (46%) decided on documents alone[17].

Awards

According to Article 4 of Appendix VI of the ICC Rules, the EPP tribunal is required to render its award no later than six months after the CMC. Of the 461 final awards approved by the ICC Court, 63% were rendered on or around the stipulated deadline, and ICC Court scrutiny was completed on average within 15 days[18]. Moreover, delays in the issuance of an award were significant enough to warrant a reduction of the arbitrator’s fees in only 33 out of 461 cases, further underscoring the overall timeliness of the EPP[19].

Costs and Fees

Costs under the EPP are governed by the same framework as non-expedited proceedings, with one notable exception: arbitral tribunal fees are reduced by 20%[20]. A review of awards issued in 2022 demonstrated that in 87% of EPP cases, the tribunal adopted a “costs follow the event” approach as a starting point; while in 54% of cases, no reimbursement of costs was granted[21]. In the absence of a uniform approach to the allocation of costs, the Report recommends that parties and tribunals address their expectations regarding cost-allocation principles at an early stage of the proceedings, for example at the CMC[22].

Interim Measures

Article 28 of the ICC Rules grants arbitral tribunals the power to issue interim measures, including in expedited procedures; however, their use in EPP cases has to date been limited. Of the 74 cases administered under the EPP that resulted in a final award in 2022, only two involved interim measures. It remains unknown, however, whether the parties to those proceedings sought interim relief before national courts[23].

The Report underlines that interim measures ought to remain available in expedited procedures, as restricting them would likely push parties towards national courts, which is undesirable and contradicts with the simplification objective of the EPP. The Report further notes that an EPP tribunal may in fact be better placed to fashion appropriate relief tied to the six-month timeline. 

Conclusion

Given that the findings demonstrate the strong performance of EPP and high levels of user satisfaction, the Report recommends that parties give due consideration to opting into EPP, irrespective of the value of the dispute.