Cutting to the chase: the ICC's Expedited Procedure

Disputes are an inevitable part of the business world. One of the challenges faced by parties to a dispute can be how to achieve a swift resolution. It is not unusual for litigation to drag on for many months, and even years. The effects of protracted litigation on a business can be costly: from diverting key resources from essential areas, to generating unwanted publicity and attention.

Those potential side effects are particularly undesirable where the value in dispute is lower, because they have the potential to become disproportionate to the benefit of a successful outcome more quickly – potentially resulting in a Pyrrhic victory.

Recognising the demand – and necessity – for an efficient and cost-effective solution for resolving disputes, and following in the stead of other major arbitral institutions, the International Chamber of Commerce ("ICC") introduced its Expedited Procedure in 2017. The Expedited Procedure was one of the main innovations of the arbitral institution's amendments to the ICC Arbitration Rules.

The ICC Expedited Procedure is a simplified and efficient method of resolving disputes. It offers a quicker and more cost-effective alternative to traditional litigation and, indeed, traditional arbitration (which is certainly not immune to unwanted delay and cost). It is applies to disputes with a value of no more than USD 3,000,000 for arbitration agreements concluded on or after 1 January 2021 or USD 2,000,000 for agreements concluded between 1 March 2017 and 31 December 2020. Significantly, the Expedited Rules will apply automatically to such disputes so long as the parties have agreed to refer disputes to ICC arbitration and unless the parties expressly agreed to opt out.

Parties can also agree to opt in to the Expedited Procedure, irrespective of the date of conclusion of the arbitration agreement or the amount in dispute.

The Expedited Rules provide a simplified framework for the conduct of the arbitration with a focus on minimising costs and time. The main elements of the framework are these:

1. Sole Arbitrator: irrespective of any contrary provision in the arbitration agreement, the default position is that the ICC Court will appoint a sole arbitrator. Sole-arbitrator arbitrations are often swifter and less costly.
2. Accelerated preliminary procedure: parties are not required to prepare and agree on terms of reference (as would otherwise be required under Article 23 of the ICC Rules) and the case management conference must take place within two weeks of the tribunal's appointment.
3. Limited procedure: the key feature of the Expedited Procedure is an express discretion for the tribunal to decide the case on the basis of documents only, rather than through hearing evidence and/or legal argument at a trial. Similarly, the arbitral tribunal may limit the number, length and scope of written submissions and written witness evidence and of any document recovery/disclosure process.
4. Speedy Resolution: the ICC Expedited Procedure aims to resolve disputes quickly. The entire process, from start to finish, typically takes around six months, compared to the lengthy timelines of traditional litigation/arbitration.

These benefits will be attractive to commercial parties who want a fast, cost-effective, and flexible method of resolving disputes.

Perhaps more significantly, the automatic application of the Expedited Procedure to certain disputes provides certainty that those disputes will be resolved swiftly. All too often, by the time parties reach the stage of arbitration (or going to court), cooperation has broken down and, just as often, it will be in one of the parties' interests to delay the proceedings as much as possible. The default application of the fast-track rules to certain disputes reduces the scope for such mischief and enables a swift resolution even between uncooperative parties.