ICC Adopts 2021 Rules of Arbitration
The 2021 ICC Rules, which will enter into force on January 1, 2021, include a new requirement for disclosure of third-party funding arrangements.
On October 8, 2020, the International Chamber of Commerce ("ICC") announced that its Executive Board had adopted the 2021 ICC Rules of Arbitration, which will enter into force January 1, 2021, with text subject to editorial corrections until that time.
In addition to revisions that enhance the flexibility and integrity of ICC arbitrations (such as a new Article 7(5) allowing the joinder of additional parties after the constitution of a tribunal and a new Article 12(9) empowering the ICC Court to appoint each member of the tribunal to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award, notwithstanding any agreement by the parties on the method of constitution), the 2021 ICC Rules also include a new Article 11(7) that requires each party to "promptly inform the Secretariat, the arbitral tribunal and the other parties, of the existence and identity of any non-party which has entered into an arrangement for the funding of claims or defences and under which it has an economic interest in the outcome of the arbitration."
The new Article 11(7) enhances the transparency of third-party funding arrangements in ICC arbitrations and allows any potential conflicts of interests arising from third-party funding to be identified early in the proceedings.
The new Article 11(7) brings the ICC Rules in line with the IBA Guidelines on Conflicts of Interest in International Arbitration, which consider third-party funders as parties with a "direct economic interest in the award," and thus require disclosure of third-party funding arrangements in the context of arbitrators’ impartiality and independence. Another set of institutional rules that requires disclosure of third-party funding arrangements is the 2018 Hong Kong International Arbitration Centre ("HKIAC") Rules. The 2018 HKIAC Rules also provide that the tribunal may take into account any third-party funding arrangement in determining all or part of the costs of arbitration.
It remains to be seen whether other major arbitral institutes will follow ICC’s and HKIAC’s lead in incorporating rules to require disclosure of third-party funding arrangements. Notably, the International Centre for Settlement of Investment Disputes ("ICSID") is also considering a proposed revision to the ICSID Rules to require disclosure of third-party funding arrangements, with the view of providing the identity of third-party funders to potential arbitrators prior to appointment to avoid inadvertent conflicts of interest (Rule 14 of Proposals for Amendment of the ICSID Rules, February 2020).