The winds of change blow on and on. Even as the United Kingdom completed its historic exit from one international body with the expiry of the Brexit transition period on New Year's Eve, so we were reminded – the very next day – that internationalism persists. As 2021 dawned upon us, the International Court of Arbitration of the International Chamber of Commerce ("ICC"), headquartered in Paris since 1923, marked the arrival of its new Rules of Arbitration ("2021 ICC Rules") on New Year's Day.

Billed as "another step towards even more efficient, flexible and transparent" ICC arbitrations, the 2021 ICC Rules follow hot on the heels of the new rules adopted by the London Court of International Arbitration in October last year.

Much like the new LCIA rules, the new ICC rules are largely an update, rather than a re-write, but there are nonetheless some important changes which will be of interest to users, or potential users of ICC arbitration.

"Virtual reality"

The 2021 ICC Rules reflect the rapid metamorphosis of dispute resolution practice from a traditional courtroom environment to a fully electronic platform. As we previously noted, although the ICC was ahead of the curve in responding to the challenges presented by the pandemic, issuing its guidance note on possible measures aimed at mitigating the effects of the COVID-19 pandemic in April last year, its 2017 Rules did not explicitly mention the prospect of an electronic or virtual hearing. The reference only to a hearing in the former rules (whilst not ruling out a virtual hearing), created fertile ground for due process challenges (and indeed one such challenge reached the Austrian Supreme Court). That challenge was rejected, echoing the reasoning of the English High Court in April 2020 in refusing a party's application to adjourn a trial and ordering instead that the parties explore ways to conduct the trial electronically.

The 2021 ICC Rules now put on a firm footing the availability of a virtual hearing remotely by videoconference, telephone, or other appropriate means of communication.

The new rules stop short of creating a presumption that hearings will be conducted remotely or virtually (as, for example, is now the case in Scotland's courts), and place the focus on consultation between the arbitral tribunal and the parties.

Paperless proceedings

In another modernising change, the new rules have abandoned the requirement for paper copies of arbitration documents and correspondence to be provided. This is a welcome change and reflects the ICC's existing post-pandemic practice.

Third Party Funding

For the first time, and reflecting the rise in third-party funding of claims in international arbitration, the new rules create a duty of disclosure that parties promptly inform the Secretariat, the arbitral tribunal and the other parties of the existence and identity of any non-party that has entered into an arrangement for the funding of claims and defences and under which that non-party has an economic interest in the outcome of the arbitration.

The purpose of this new rule, the ICC's Note to Parties and Arbitral Tribunals on the Conduct of Arbitration 2021 makes clear, is principally to assist arbitrators and prospective arbitrators in complying with their duty of disclosure. This narrow approach to disclosure of the existence and identity of third parties with an economic interest in the outcome of the arbitration, was deliberate and means that a party will not be required to disclose a copy of any funding agreement itself.

Other changes include an increase to the threshold for the automatic application of the ICC's Expedited Procedure Rules (first introduced in 2017 with the aim of facilitating swifter and cheaper ICC disputes for lower-value disputes) from $2 million to $3 million, reflecting the success of that procedure.

Full details of the ICC 2021 Rules are available here.


The ICC Rules 2021 are about subtle improvements rather than major change. They reflect a continuing trend towards increased efficiency and modernisation in international arbitration, which will be welcomed by users of ICC arbitration.


Peter Begbie