November 18, 2019

November 18, 2019

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The ICC’s Expedited Procedure- How can Latin America Benefit?

The ICC’s Expedited Procedure found under Article 30 and Appendix VI of the ICC Rules of Arbitration generally applies to arbitration agreements concluded after March 1, 2017; where the amount in dispute does not exceed US $ 2 million; and where the parties have not formally opted-out. However, parties are also allowed to opt-in, regardless of the date of the agreement or the amount in dispute. It is on that opt-in basis that many parties last year started requesting the “Expedited Procedure.”

While Latin American parties were not the first to take advantage of the Expedited Procedure1, they can benefit from some of the changes. Accordingly, we will discuss the new provisions and their potential appeal to Latin American parties:

  1. Sole Arbitrator: Under Article 2 of Appendix VI, the Court may appoint a sole arbitrator. While this change might be a little difficult for some Latin American parties accustomed to the three-arbitrator tribunals to take in, the costs of having three arbitrators in these lower value disputes is generally not worth the perceived added benefits. Since the goal is to be able to effectively resolve these relatively small disputes in a time and cost-efficient manner, embracing this provision is key to the success of the new Expedited Procedure.
  2. No Document Production: Article 3(4) of Appendix VI encourages the Tribunal to deny the requests for document production when it considers them inappropriate or unnecessary to resolving the dispute. This provision should be very attractive to Latin American parties since they are not generally attached or keen on document production, discovery or other disclosure related procedures inherited from common law jurisdictions.
  3. No Hearing or Informal hearing: Under Article 3(5) of Appendix VI, the arbitral tribunal can decline to hold a hearing or reduce the formalities such as by allowing the hearing to take place by videoconference. Given that the importance placed on hearings also comes from common law, parties from Latin America should find this provision, and the reduced costs that come with it, very appealing.
  4. Six-month Proceedings: Under the new provisions, the case management conference must take place within two weeks; the draft award must be submitted to the ICC Court within five months; and the final award must be rendered within six months from the date of the case management conference. This is a tight procedural timetable by any standards. Moreover, in certain countries in Latin America, like Brazil, parties and arbitrators are not used to establishing a procedural timetable at the beginning of the case. Sometimes the lack of timeline leads to unnecessary delays. So, these particular time provisions may actually help users in this particular market to think differently about efficient dispute resolution.

It is worth pointing out that Latin America is no stranger to complex ICC proceedings in short time frames. For example, Latin American parties currently make up to 40% of the parties requesting emergency arbitrator proceedings. Seehttps://iccwbo.org/media-wall/news-speeches/guest-blog-emergency-arbitration-gaining-ground-in-latin-america/. Emergency arbitrator proceedings are an example of often very complex, and very complete proceedings (various rounds of submissions, hearings, and very high quality decisions issued, often 30-40 pages orders), being finalized in as short as 17 days. Therefore, one can say that the emergency arbitrator experience in Latin America is probably a good indicator for the application of the Expedited Procedure in the region.


[1] Currently the ICC had accepted 12 cases (i.e., confirmed as on-going cases). In these cases, the parties are from North America, Europe, Asia, Africa and Australia.

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About this Author

Beatriz Jaramillo, Squire Patton Boggs Law Firm, Commercial Litigation Attorney
Associate

Beatriz Jaramillo’s practice focuses primarily on complex commercial litigation and products liability defense. She has experience litigating high-stakes products liability matters, as well as handling property and contract disputes. She also maintains an active appellate and pro bono practice.

Beatriz served as a judicial intern to The Honorable Judge Adalberto Jordan in the Southern District Court of Florida. She is a member of the American Bar Association, the Dade-County Bar Association and the Colombian American Bar Association....

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Jose Feris Attorney SPB International Dispute Resolution
Partner

José is a partner in the International Dispute Resolution Practice Group of the firm based in our Paris office. He represents private and public entities in commercial and investment arbitration proceedings. He also sits as arbitrator in commercial ad-hoc and institutional arbitration proceedings.

Before joining the firm, José served at the ICC International Court of Arbitration, where he held a number of positions including Deputy Counsel, Counsel and Managing Counsel before he was appointed Deputy Secretary General in 2011. He also served as Secretary of the ICC Latin American Arbitration Group, Co-Chair of the ICC Young Arbitrators Forum and Acting Secretary General.

José has unique experience and insight gained from his career at the ICC Court and has a specialist profile within the sector. During the course of his career, he has supervised thousands of arbitration cases and reviewed an equal number of arbitral awards in a wide range of jurisdictions, languages and applicable laws. José also played an important role in key strategic initiatives at the ICC such as the 2012 and 2017 revision of the ICC Rules of Arbitration, the gold standard in terms of institutional arbitration, and the drafting of the revised 2017 Rules of ICC as Appointing Authority. He was also instrumental in designing and implementing the ICC Court’s new policies to increase efficiency, transparency and diversity in international arbitration. José assisted in the establishment of the ICC Court case management offices in New York City and Sao Paulo, the ICC Arab Arbitration Group, and the opening of an ICC Court representative office in Shanghai.

Jose’s experience and work within the field of international arbitration has earned him the recognition of the international arbitration market. He features in the Who’s Who of International Arbitration where he has been identified as a “meticulous operator.” He is on the list of arbitrators of the Câmara Brasileira de Arbitragem na Administração Publica and a member of the Arbitrators Council at the Atlanta Centre for International Arbitration and Mediation. He coordinates the first ICC Advanced International Arbitration Academy for Latin America, teaches international arbitration at Sciences Po in Paris and at the Universidad Francisco Marroquin in Guatemala City and is a regular speaker on international arbitration in conferences around the globe. He was also ranked in the top 5 in Revista Mercado’s 2016 “40 under 40.”

Previously in his career, Jose served as law clerk to Judges Kooijmans and Rezek at the International Court of Justice in the Hague and worked for the Legal Advisor to the President of the Dominican Republic.

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