The past two years have seen substantial updates to procedural rules governing the American Arbitration Association’s International Centre for Dispute Resolution (AAA-ICDR), as well as institutional efforts to increase efficiency, transparency and diversity.
ICDR amended its International Dispute Resolution Procedures which include International Mediation and International Arbitration Rules, effective as of March 1, 2021. As a reference point, ICDR previously revised its procedures in 2008 and in 2014. The American Arbitration Association (AAA), of which ICDR is an international division, also amended its Commercial Rules and Mediation Procedures. Those rules became effective as of September 1, 2022.
ICDR Makes Awards Accessible through Jus Mundi
In 2022, ICDR and Jus Mundi, a global legal information database, partnered to provide full and free public access to all publishable ICDR international arbitration awards and related documents. Jus Mundi has similar partnerships with the ICC Court of Arbitration and Juris Publishing.
This partnership was created pursuant to Article 40 (Confidentiality) of ICDR’s International Arbitration Rules. The 2021 amendment emphasized the need to balance confidentiality with transparency, allowing ICDR to make an award publicly available if all parties have consented (and there are no objections to publication of redacted awards within six months of the award) and the awards have otherwise become public in the course of enforcement.
In comparison, Article 37 of ICDR’s 2014 International Arbitration Rules had focused primarily on information protection. The provision allowing for public award disclosure still existed but had been set out in a separate Article.
AAA-ICDR Stress Diversity and Inclusion as Core Values
As stated in its 2021 Annual Report, in meeting what is described as a “core value” of the AAA-ICDR, 50% of those individuals recruited to join the Roster as arbitrators were female, racially diverse, and/or ethnically diverse. The Roster ended 2021 with a 29% diverse roster, continuing what is described as a steady increase over several years. The proportion of diverse panel appointments, which has also been moving steadily in an upward trend, rose to 32% in 2021.
In comparison, ICC statistics for 2021 showed women making up close to 40% of appointments by the ICC Court in 2021 – either upon proposal of an ICC national committee or group, or directly. Just 17.5% of the arbitrators nominated by parties were women and 26% of the arbitral tribunal chairs nominated by the co-arbitrators were women.
ICDR Rules Push for Mediation Concurrent with Arbitration
ICDR International Arbitration Rules now encourage parties to mediate their conflict in addition to arbitrate. When filing a notice of arbitration and answer, parties must state whether they are willing to mediate the dispute prior to or concurrently (Articles 2(3)(g)). Under previous ICDR International Arbitration Rules, parties had only been required to state whether they had an interest in mediating. This change may influence more parties to mediate, freeing up arbitration resources for parties that choose to mediate before, rather than concurrently with, arbitration.
Updated Procedure Allows for Consolidation, Joinder
Another stride toward efficiency involved the 2022 amendments to the AAA Commercial Arbitration Rules. The AAA’s new Rule R-8 explicitly allows a party to file a request to consolidate two or more existing arbitrations into a single proceeding or to request the joinder of additional parties to an ongoing arbitration. These updated procedures will help to cut down on the number of arbitrations already in process, allowing for other existing and new arbitrations to be held more efficiently.
2021 ICDR International Arbitration Rules further elaborate on joinder and consolidation in arbitration. Article 8(1) allows a new party to join if the arbitral tribunal deems it appropriate and the additional party consents. In comparison, the previous 2014 joinder article allowed joinder of a new party only if all parties to the dispute consented. Therefore, the tribunal has added authority to join a new party despite an existing party’s objection. Article 9 again shifts the balance of power away from the parties to a dispute, permitting a case administrator on their own initiative, to appoint a consolidation arbitrator to decide the issue. The previous 2014 consolidation article had explicitly provided for consolidation only at the request of a party.
Technology Use is Further Clarified and Permitted
2022 AAA Commercial Arbitration Rules also expanded the use of video, audio, or other electronic means to make the arbitration process more efficient. While previous Rules had been interpreted to allow the use of technology for hearing facilitation, they had never explicitly stated so. The new Rule R-22 now specifically allows for the use of video conference in a preliminary hearing. Rule R-25 and Expedited Procedure E-7 similarly allow the use of video, audio, or other electronic means for hearings when appropriate.
2021 ICDR International Arbitration Rules similarly highlight technology use, specifying video and audio means to increase efficiency and economy. In comparison, prior 2014 rules had referred only to electronic communications, leaving interpretation up to the parties for what specific electric means would be permitted.
The COVID-19 pandemic no doubt spurred AAA and ICDR to encourage more video and audio use in their proceedings, and this practice has become solidified through recent updates in procedural rules. While no longer an absolute necessity as it was during COVID-19 quarantine, video and audio technology remain an efficient and convenient means of communication in arbitration proceedings.
For further information, please contact:
Ian A. Laird, Partner, Crowell & Moring
ilaird@crowell.com
