• Emergency measures of protection: Article 7(1) provides that a party may request an emergency arbitrator’s appointment to obtain emergency measures of protection prior to the constitution of the tribunal that will decide the dispute. Under the 2014 Rules, a party only had to show the nature of the relief sought, the reasons such relief was required on an emergency basis, and the reasons the party was entitled to such relief. The 2021 Rules add the requirement that the requesting party must also state the “injury or prejudice the party will suffer if relief is not provided.” (Article 7(1)(d)).
• Mediation: The 2021 Rules include a new Article M-9, which provides detailed guidance on how mediation is to be held. Notably, it mentions that the mediator shall conduct the proceedings with a view to expediting the resolution of the dispute. It also encourages the parties to exchange all documents and permits the mediator to request memorandums and to conduct ex parte meetings. Lastly, it suggests that the mediator and the parties should consider cybersecurity, privacy, and data protection to provide security to all. (Art. M-9).
• Publication of awards: The 2021 Rules provide more transparency as to awards. Specifically, Article 40 was expanded to state that the “ICDR may also publish selected awards, orders, decisions, and rulings that have been edited to conceal the names of the parties and other identifying details unless a party has objected in writing to publication within 6 months from the date of the award.” (Article 40(4)).
• Impartiality and independence of arbitrators. The 2014 Rules required that arbitrators be impartial and independent and that they follow the terms of the Notice of Appointment provided by the Administrator. The 2021 Rules now require arbitrators also to follow the 2014 Rules, along with the AAA-ICDR’s Code of Ethics for Arbitrators in Commercial Disputes. While the 2021 Rules seemingly expand the arbitrators’ ethical obligations, most (if not all) arbitrators overseeing an ICDR arbitration likely already subjected themselves to the Code of Ethics.
• Non-party interests. The 2021 Rules provide that the tribunal has the authority (either sua sponte or at the request of a party) to require a party to make certain disclosures about a non-party interest or involvement in an arbitration. First, the tribunal may require a party to disclose the existence and identity of a non-party that agreed to pay a party’s fees in the arbitration, as well as the nature of the agreement. Second, the tribunal may require a party to disclose the existence and identity of any non-party with an economic interest in the outcome of the arbitration, as well as the nature of the interest. The 2021 Rules do not provide the criteria the tribunal should use to determine whether a party should make such a disclosure.
• Dispositive motions. The 2021 Rules grant the tribunal the express authority to rule on dispositive motions before the final hearing on the merits. Article 23 of the 2021 Rules provide that the tribunal should allow a party to submit a dispositive motion if it determines that the motion: (1) has a reasonable possibility of success; (2) will dispose of, or narrow, one or more issues in the case; and (3) is likely to be more efficient or economical than leaving the issues to be determined at the hearing. The tribunal must provide a reasoned opinion for an award made in connection with a dispositive motion.

II. Comparison of changes by the ICDR to those by the ICC and LCIA

Some of the 2021 ICDR changes also reflect matters that the ICC and the LCIA addressed in their recent rule amendments. This section highlights and compares those changes.

• Early disposition: The 2021 ICDR Rules include a new Article 23 that expressly allows for the early disposition of claims before a hearing on the merits is held. Article 23, which is similar to Section R-33 of the AAA Commercial Arbitration Rules, requires parties to request leave to submit an application for early disposition before they may do so, and the requesting party must show that the proposed application “(a) has a reasonable possibility of succeeding, (b) will dispose of, or narrow, one or more issues in the case, and (c) that consideration of the application is likely to be more efficient or economical than leaving the issue to be determined with the merits.” (Article 23). Article 22(viii) of the new LCIA Rules similarly allows for the early determination of claims, but does not expressly require the same initial showing as Article 23 of the ICDR Rules.
• Consolidation and composite requests: Article 9 of the ICDR Rules expands the consolidation powers by allowing the ICDR to appoint a consolidation arbitrator on its own initiative, as well as by allowing the consolidation of arbitrations between “related” parties – rather than just the same parties. This change is consistent with the new ICC Rules (see Article 10), as well as the LCIA Rules (see Article 22.7). The ICC Rules allow for consolidation where “a) the parties have agreed to consolidation; or b) all of the claims in the arbitration are made under the same arbitration agreement or agreements; or c) the claims in the arbitrations are not made under the same arbitration agreement or agreements, but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.” (See Article 10). The LCIA Rules allow the Arbitral Tribunal to consolidate arbitrations “either between the same disputing parties or arising out of the same transaction or series of related transactions” (see Article 22.7(ii)).
• Joinder: The 2021 ICDR Rules address joinder in much the same way the new ICC Rules do. (See Article 8(1)). While a party to an arbitration may still join another party to an arbitration with the consent of all parties, the 2021 Rules provide that a party may join a new party to the arbitration without the consent of all the parties if: (a) the tribunal determines that the joinder of another party is appropriate; and (b) the new party consents to the joinder. (Article 8(1)). The 2021 Rules do not expand on the test the tribunal should use to determine whether joinder of another party is appropriate. Under the ICC, an additional party may be joined without unanimous consent if the additional party accepts the constitution of the arbitral tribunal and agrees to the Terms of Reference. (See Article 7(5)).
• Technology: The 2021 ICDR Rules also make numerous changes embracing technology. First, in the Introduction, the 2021 Rules reference “ClauseBuilder,” an online tool that can assist individuals and organizations in developing clear and effective arbitration and mediation agreements. Additionally, the 2021 Rules now allow for electronic signatures unless “(a) the applicable law requires a physical signature, (b) the parties agree otherwise, or (c) the arbitral tribunal or Administrator determines otherwise.” (Article 32(4)). Finally, the 2021 Rules expand Article 26 to allow for hearings held by “video, audio, or other electronic means.” (Article 26(2)). These changes are similar to those made in Article 26(1) of the ICC Rules and Article 19 of the LCIA Rules.
• Expedited procedures: The 2021 Rules have also expanded the expedited procedures to apply in “any case in which no disclosed claim or counterclaim exceeds $500,000 USD exclusive of interest and the costs of arbitration.” (See Article 1(4)). The previous cap under the 2014 Rules was $250,000. This change is consistent with the procedures in the ICC Rules (see Article 30(2)) and the LCIA Rules. (See Article 14). The ICC provides for expedited proceedings with amounts up to “US$2,000,000 if the arbitration agreement under the Rules was concluded on or after 1 March 2017 and before 1 January 2021 or US$3,000,000 if the arbitration agreement under the Rules was concluded on or after 1 January 2021.” (See Appendix VI, Article 1 (2)). The LCIA Rules allow arbitrators the discretion to order any of a non-exhaustive list of eight expedited procedural measures. (See Article 14(6)).

III. Key takeaways

The 2021 ICDR Rules provide more guidance for both the parties and the arbitrators/mediators with expanded rules and further detailed expectations. The update also makes arbitration through ICDR more accessible, efficient, and cost-effective.

First, accessibility, efficiency, and cost-effectiveness are improved by the inclusion of a higher threshold for expedited procedures – allowing more arbitrations to fall into such a category by default. Second, accessibility and efficiency are improved by the allowance of electronic signatures and the use of remote hearings. Finally, efficiency and cost-effectiveness are improved by the new early disposition provision, which has been very successful under the AAA Commercial Rules, and which provides an express means for disposing of unmeritorious claims before a final hearing.

The 2021 Rules also modernize the ICDR to reflect modern practices. For example, the 2021 Rules permit the use of electronic signatures; allow for hearings to be conducted by video, audio, or other electronic means; and provide new considerations for cybersecurity and data privacy.

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