Redcliffe Partners and ICC discussed the 2021 ICC Rules of Arbitration with focus on energy, construction and infrastructure

21 December 2020

Redcliffe Partners and ICC Ukraine have recently hosted a webinar on "Changes to the ICC Rules of Arbitration as of 1 January 2021: what the business should know", which focused on construction, energy and infrastructure. During the event, speakers discussed key innovations of the Rules that embody current global trends in international arbitration and aim to increase the ICC’s efficiency, transparency and adaptability.

Daria Zabolotna, ICC Ukraine's General Secretary, made the welcoming speech, noting the progressive nature of the new Rules.

Sergiy Gryshko, Partner and Head of Dispute Resolution Practice at Redcliffe Partners, and Head of the ICC Ukraine Arbitration Commission, spoke on "ІСС Arbitration as the preferred method of dispute resolution in disputes related to construction and infrastructure". He gave a short review of the ICC's history, and explained why the ICC has for many years led the global rankings of institutions specialising in dispute resolution, in particular in the construction and engineering sectors.

Sergii Melnyk, Deputy Counsel at the ICC International Court of Arbitration, addressed the innovations in the ICC Arbitration Rules that will take effect from 1 January 2021. In particular, according to the new Rules, the arbitral tribunal may decide, after consulting the parties, that the hearing will be conducted remotely by videoconference, telephone or other appropriate means of communication. Also, the new Rules establish the obligation of all parties to promptly notify the existence of any non-party which has entered into a funding arrangement under which it has an interest in the outcome of the arbitration. Another notable innovation is the arbitral tribunal’s right to restrict the participation of new counsel of the parties to avoid potential conflicts of interest. Sergii Melnyk also drew particular attention to new rules for expedited proceedings, the appointment of all arbitrators in exceptional circumstances, joinder and consolidation, as well as to the new provision in the Rules on additional awards.

The event was concluded by Svitlana Teush, a Partner at Redcliffe Partners and Head of its Real Estate, Construction and Renewable Energy practices, and a member of the ICC Ukraine Commission on Environment and Energy. She discussed the issues relating to the arbitration clauses in power purchase agreements at the feed-in tariff and the auction price in renewable energy projects, and the possibilities of referring disputes for expert determination and international arbitration under concession agreements and other agreements within the PPP framework, as well in privatisation projects. She noted the proper arbitration clause as amongst the important criteria of bankability of projects, helping attract the international financing. With reference to the multi-tier claim management and dispute resolution mechanism under the FIDIC forms of contract, she emphasised the importance of pre-arbitration procedures resulting in provisionally binding decisions, including the use of the dispute adjudication boards. She urged to carefully allocate the risks in terms of cost, timing and responsibility; employ internationally recognised claim management and dispute avoidance mechanisms; and to use the standard arbitration clauses and other solutions developed by the ICC to effectively settle disputes and minimise their impact on projects.