In addition to the revisions on remote sensing technology, Article 26 – in particular Article 26(4) – contains another important revision related to the use of witness testimony under the CIDR rules. Article 26(4) now provides that `witness evidence in the form of testimony must be given …`, whereas the previous provision merely provided that witness evidence `may` be produced in the form of witness statements. 46 For practitioners of international arbitration, that appeal is undisputed, since it is extremely common for the parties to international arbitration to rely on testimony rather than direct oral testimony. 47 The appeal in cassation provided for in Article 26(4) thus brings the rules of the DIR into line with the practice of international arbitration. However, for American practitioners who are more comfortable and familiar with direct oral testimony, supporting the ICDR rules for the use of testimony is a change in the practical note. The three most frequently selected rules for ICDR cases are: 2 See e.B ICDR, ICDR 2018 ICDR Case Data Infographic, available at www.icdr.org/sites/default/files/document_repository/2018_ICDR_Case_Data.pdf?_ga=2.10242102.222755826.1615226284-2095386157.1611007004 showing that the construction sector was the second largest segment of the ICRC`s FALLLAST; 2018 was the last year in which the ICDR officially published statistics on the number of cases in the industry, recovered out of 20. March 2021; see also ICC, ICC Dispute Resolution 2019 Statistics available at iccwbo.org/publication/icc-dispute-resolution-statistics, “Disputes within the sectors of construction/engineering (211 cases) and energy (140 cases) generated the most number of ICC Arbitration cases […]", accessed March 20, 2021. Prior to the icDR rules being updated in 2021, expedited procedures applied by default to claims that did not exceed $250,000. 54 The ICDR rules for 2021 have now doubled that amount to $500,000. 55 The appeal is relevant to civil arbitrations in that it provides the parties with a faster and more cost-effective method of resolving more low-value disputes in arbitration.
However, given that the increase in the threshold at issue will now lead to the application of expedited procedures to a greater number of potential disputes, it is also more likely that the parties will act in a number of proceedings that they deem undesirable. For example, expedited procedures require the parties to complete the proceedings within a shorter period of time. While expedited procedures can be a cost-effective way to resolve low-value claims in arbitration, practitioners need to be clear about when these procedures will be applied and how they will affect the presentation of their case. Most importantly, the consolidation rules updated in Section 9 allow a consolidation arbitrator to consolidate arbitrations pending under the ICDR or AAA involving “related parties." 21 More specifically, under the ICDR Rules of 2014, arbitration proceedings may be consolidated only if: (1) the parties agree to the consolidation (Article 8(1)(a)); (2) all claims/counterclaims arising from the same arbitration agreement (Art. 8 para. 1 lit.b); or (3) in the event that the arbitration results from different arbitration agreements involving the same parties, the dispute arises from the same legal relationship and the consolidation arbitrator considers the arbitration agreements to be compatible. 22 The ICDR Rules of 2021 amend the final reason for consolidation in order to clarify that the contested arbitration procedure may be consolidated if it concerns `the same or related parties`. 23 The phrase “or related parties" is an addition that extends the power of the consolidation arbitrator to consolidate proceedings involving different but related parties. In this way, icDR rules streamline the ability of parties to rely on arbitration to resolve complex multi-party disputes without having to go to court and risk potentially inconsistent decisions. The revised ICDR Rules for 2021 include an entirely new Article 5 that defines the role of the ICDR International Administrative Review Board (IARC).
11 IARC is an internal administrative body within the ICDR/AAA composed of a group of current and former AAA-ICDR executives with extensive experience in arbitration and case management. 12 As Article 5 observes, the IARC acts as an administrative decision-making body capable of settling rapid procedural disputes between the parties, . B including, for example, challenges to the appointment or continued employment of an arbitrator, decisions on the number of arbitrators to be appointed, decisions on whether a party has complied with administrative requirements to initiate or file arbitration. and questions about the place of arbitration. 13 As many construction dispute resolution professionals will admit, over the past decade, the construction industry has increasingly favoured arbitration over other forms of dispute resolution. This is especially true for international construction projects, where, given the different jurisdictions and nationalities, international arbitration is practically necessary to ensure effective and enforceable dispute resolution. Therefore, to the extent that the parties meet one or more of the above requirements, the AAA/ICDR may consider the dispute to be international and, therefore, apply the ICDR rules unless other rules have been established. On March 1, 2021, the International Centre for Dispute Resolution (ICDR), the International Division of the American Arbitration Association (AAA) and one of the leading providers of business dispute resolution services for cross-border transactions released the 2021 update to its International Arbitration and Mediation Rules (the “ICDR Rules 2021″). 1 The 2021 update is the first time icDR Arbitration and Mediation Rules have been revised since 2014 and 2008 respectively, and is of particular importance to the construction industry in the United States and elsewhere. First, under the previous accession provision of the ICDR Rules (2014 ICDR Rules), a party to the arbitration could only join a new party if all parties to the dispute (e.g..B claimant and respondent) and the additional party agreed to the link. 15 The updated ICDR Rules for 2021 now provide an additional basis for joining a new party in the ongoing arbitration.
In particular, Article 8, paragraph 1, provides that a new party may be joined in the proceedings if “the arbitral tribunal constituted once finds that the accession of another party is appropriate and that the additional party consents to such accession". 16 In other words, even if a party (that is to say, plaintiff or defendant) opposes the accession of a new party, the Court may nevertheless order the accession of another party, provided that this serves the interests of the judiciary and that the additional party agrees to join it. 17 In line with the more general trends of various other international arbitration rules, the ICRC`s 2021 Rules contain a new Article 14(7) aimed at clarifying issues relating to third-party financing agreements. 25 In particular, given the need for arbitrators to make independent and impartial decisions, the increase in third-party funding agreements has raised concerns about potential conflicts between third-party funding bodies and arbitrators. While the thoughtful wording of arbitration clauses should generally allow parties to avoid confusion as to which sentence of the ICDR/AAA rules should apply, ICDR`s clarification of the term “international" clarifies what the parties should expect. According to the introduction of the 2021 CIDR Rules, the CIDR relies on the DEFINITION OF INTERNATIONAL ARBITRATION BY THE UNCITRAL Model Law to determine whether a dispute is “international" in nature. 6 Using this definition, the ICDR may consider arbitration to be “international" if the parties to the arbitration agreement have the following: The 2021 ICRC Rules update the membership and consolidation rules of Articles 8 and 9 (formerly Articles 7 and 8). 14 As explained below, those updates streamline interconnection and consolidation procedures under the ICDR rules and are of particular importance for construction disputes, which often involve several owner/employer, designer, contractor and subcontractor/supplier relationships. Click below to see the forms they need to initiate or respond to a request for arbitration or mediation. In accordance with Article 22(2) of the ICDR Rules, the Tribunal is required to hold an initial procedural hearing at the beginning of arbitration proceedings in order to discuss various organisational, scheduling and other logistical matters. 34 Art. 22 para.
However, 2 has been revised to clarify that “the court and the parties may consider how technology, including video, audio or other electronic means, could be used to increase the efficiency and cost-effectiveness of the proceedings". 35 Although many practitioners may aspire to the days of the face-to-face hearing, the gentle reminder of Article 22(2) reflects ICDR`s belief that remote or hybrid arbitration can lead to significant cost savings and efficiency gains in the right circumstances. The updated Article 21(1) of the 2021 ICDR Rules, which is largely the product of the individual precedent set by the U.S. Supreme Court, illustrates the arbitral tribunal`s ability to rule on its own jurisdiction “without the need to first go to court." 28 While many other major arbitral tribunals address the issue of jurisdiction by giving trial arbitrators the right to decide questions of jurisdiction, the standard approach in the United States is the opposite ….