Legal Updates: ICC Court of Arbitration & FIDIC

Recent updates on the ICC Court of Arbitration

1. The ICC received a record-breaking number of requests to use its arbitration and alternative dispute resolution service in the year 2020:

• The ICC court of arbitration handled 946 cases in 2020, the most recorded since 2016, whilst the ICC International Centre for ADR handled 77 cases in 2020.
• The ICC’s success is due to its ability to quickly adapt to the lockdowns imposed in countries across the world.  This included improving the technology in its hearing centre and utilising online services to connect to its members and those who use the ICC.
• The incumbent president of the ICC Court, Alexis Mourre, commented that “Our arbitration results for 2020 are testament to the Court’s standing as the world’s leading and most preferred arbitral institution in a competitive environment. Our success in this context can be put down to close to a century of experience and an ability to support users with a range of services – particularly for large, complex, multi-party and multi-contracts cases – and the continuous increase of the time and costs efficiency of the Court, notably in cases where lower amounts in disputes are involved.”
• To find out more, please visit https://iccwbo.org/media-wall/news-speeches/icc-announces-record-2020-caseloads-in-arbitration-and-adr/

2. The ICC and Africa Investor are collaborating in order to launch a scheme that will enable the digitalisation of 5 million Small and Medium-sized Enterprises in Africa.

• The scheme will involve a range of companies, media organisations, chambers of commerce and other organisations providing the apparatus, training and access to the SMEs’ target market in order to facilitate the digitalisation of these businesses;
• The scheme will help these SMEs to contact and connect with business opportunities in other parts of the continent and provides a great opportunity for growth of these businesses;
• The ICC Secretary General, John W.H. Denton, who is leading the initiative alongside the chairman of Africa investor commented that “We are extremely proud to announce ICC’s partnership with Africa investor (Ai) to digitise five million SMEs in Africa. In the face of persisting the economic consequences of COVID-19, it’s critical that African governments, businesses, chambers of commerce, and regional organisations unite to maximise the benefits of the digital economy for all. From women- and youth-led businesses to local start-ups and entrepreneurs, this campaign will enable all SMEs in Africa to grow sustainably, reach new markets, and build back better from the pandemic.”
• To find out more, please visit https://iccwbo.org/media-wall/news-speeches/icc-and-africa-investor-launch-global-etrade-partnership-to-digitise-five-million-smes-in-africa/

3. The ICC Court launches its 5^th case management office aboard in Abu Dhabi, in the Abu Dhabi Global Market

• The centre will be used for a variety of activities, including arbitration hearings, dispute resolution services workshops, ICC Young Arbitrator Forum events, and others;
• The United Arab Emirates was deemed a highly viable candidate to open a case management centre in as it has been in the top 10 countries in terms of participants involved in ICC arbitration proceedings.  The wider Middle East and North Africa region in 2019 had 310 parties from its region involved in proceedings under the ICC Arbitration Rules;
• The ICC Court’s president, Alexis Mourre, commented that “The setting up of the ICC Court’s office in ADGM will create an extraordinary platform for the development of our offering in the region. The new case management office will contribute to the development of ADGM’s reputation by offering dispute resolution services of the highest standards to users in the region and beyond. I look forward to this new collaboration that will strengthen the ICC Court’s position as a preferred institution in the region.”
• To find out more, please visit https://iccwbo.org/media-wall/news-speeches/icc-court-to-open-5th-overseas-case-management-office-in-abu-dhabi-global-market/

4. The ICC Court has released updates to its Note in preparation for the release of the 2021 ICC Arbitration Rules:

• The Note incorporates the guidance issued by the ICC Court in April 2020 in respect of how to mitigate the effects of the COVID-19 pandemic and confirms that tribunals may, after deliberating on it with the parties, hold a hearing remotely;
• The note also details that the ICC’s administrative expenses will be subject to French Value Added Tax where appropriate;
• To find out more, please visit https://iccwbo.org/publication/note-parties-arbitral-tribunals-conduct-arbitration/

5. The ICC released its updated Rules of Arbitration on 1 January 2021:

• Updates to the rules in the new revision include allowing the joinder of other parties during the course of the proceedings (Article 7(5)); the requirement for a party to reveal any third-party funding arrangements (article 11(7)); ensuring that any proceedings that may relate to the public interest are deemed completely neutral by ensuring that no arbitrators hearing the matter are from the same country as the parties to the matter (Article 13(6)).
• This is the first revision of the rules since 2017.
• The President of the ICC Court, Alexis Moore, commented that “The amendments to the Rules … mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.”
• For more information, please visit https://iccwbo.org/media-wall/news-speeches/icc-unveils-revised-rules-of-arbitration/ and https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/

Recent updates on the Fédération Internationale Des Ingénieurs-Conseils (FIDIC)

1. FIDIC announces the winner of the FIDIC Contract Awards 2020:

• The winners of the awards included:
  • The British Normandy Memorial (winner of Project of the Year Award) – The memorial can be found at Ver-sur-Mer, Normandy, France and commemorates the soldiers from Britain and 38 other countries who fought during the Normandy campaign in the Second World War.
  • Taner Dedezade (winner of Trainer of the Year) – Mr Dedezade has provided FIDIC training all over the world for the last ten years and has provided training for government departments and large international contractors.
  • White & Case LLP (winner of Legal or Professional Services of the Year Award) – Mr Ellis Baker of the firm is one of the leading legal authorities on FIDIC and is the lead author of the book ‘FIDIC Contracts: Law and Practice’.
  • To find out more, please visit https://fidic.org/node/31012

2. FIDIC took part in marking the UN’s International Anti-Corruption Day by hosting a webinar on 9 December 2020 titled the “Recovery with integrity” webinar:

• Mr Bill Howard opened up the event by expressing his pleasure at how FIDIC have been able to continue and expand its programme of online webinars.
• Attendees included Hamid Sharif from the Asian Infrastructure Investment Bank in China, Julianna Fox from WSP Global Inc in Canada and Petter Matthews from CoST in the UK.
• Mr James Mwangi discussed how the use of technology will improve the fight against corruption and will highlight corruption because of the exposure it provides.
• Julianna Fox mentioned her concerns that countries may try to speed up their construction projects, probably as a result of stagnation due to the effects of COVID-19, and how this may mean corrupt practices may flourish in the future.
• Mr Nelson Ogunshakin commented that “Having a UN Anti-Corruption Day is a great initiative, but we also need to be ever vigilant and work tirelessly all year round to raise awareness of the scourge of corruption. Corruption has no place in the infrastructure sector or anywhere else and FIDIC is proud to be playing its part in rooting it out”.
• To find out more, please visit https://fidic.org/node/31093

For more updates on FIDIC in 2020, please review the handout we produced for the FIDIC webinar in November 2020.  This can be found at https://www.bartonlegal.com/site/webinars/notes-video-fidic

Recent updates on the New Engineering Contracts (NEC)

1. NEC publishes a second set of amendments to its NEC4 suite of contracts:

• Notably, the set of amendments included option Y(UK)2 on payments, which can be used when the Housing Grants, Construction and Regeneration Act 1996 applies to the project.
• The amendment was in response to the case of Rochford Construction Ltd v. Kilhan Construction Ltd [2020] EWHC 941 (TCC) which found that a sub-contractor’s payment provisions in its contract were not compliant with the Housing Grants, Construction and Regeneration Act 1996.
• The new secondary option Y(UK)2 is aimed at providing certainty in respect of payment provisions under a construction contract and means that the final date for payment will be 7 days after the due date.  It also means that a Pay Less Notice must be served on the due date for payment.
• To find out more, please visit https://www.neccontract.com/About-NEC/News-and-Media/Why-clause-Y-UK-2-was-changed-in-the-October-2020-amendments-to-NEC4

2. NEC contracted projects have done well at the British Construction Industry Awards 2020:

• NEC-procured projects won 3 of the 8 awards presented by the Awards ceremony in November 2020.
• The Climate Resilience Project of the Year award went to the Bacton to Walcott coastal management project.  This is a £20 million sandscaping project in Norfolk, England between the North Norfolk District Council, Shell and Perenco using the Engineering and Construction Contract (ECC) Option C.
• The Cultural and Leisure Project of the Year went to the Wave in Bristol, the England’s first artificial surfing lake.  The project used the ECC Option A.
• The award for Utility Project of the Year went to the Morecambe Catchment Strategy in Morecambe, England.  The £52 million project has helped reduce storm overflows in Morecambe Bay.
• To find out more, please visit https://www.neccontract.com/About-NEC/News-and-Media/NEC-projects-again-shine-at-2020-s-online-British-Construction-Industry-Awards

3. The NEC releases new NEC4 facilities management forms of contract:

• The NEC and Institute of Workplace and Facilities Management have collaborated to create the NEC4 Facilities Management Contract and NEC4 Facilities Management Subcontract.
• The release of the contracts was in response to concerns amongst the facilities management sector that the NEC4 Term Service Contract and its short and subcontract versions were not appropriate for the work they did.
• The suite is due to be launched on 26 January 2021, the launch will be accompanied by a joint webinar between the NEC and Workplace and Facilities Management to discuss the key provisions and procedures within the contracts and why they should be used by the Facilities Management industry.  The webinar will be at 1pm (GMT) on 26 January 2021.
• To find out more, please visit https://www.neccontract.com/About-NEC/News-and-Media/NEC-launches-new-NEC4-facilities-management-forms

4. NEC announces that the new, modern Wigan Bus Station was built using NEC3 ECC Option A:

• The project was completed two months early and was within the allocated budget between Transport for Greater Manchester (TGM) and Vinci.
• TGM commented that the use of the NEC3 ECC Option A allowed them to produce accurate cost and schedule forecasts and also encouraged a spirit of cooperation between the Client and Contractor.
• TGM also commented that the contract enabled improved communications and relationships, allowing decisions to made quickly and easily.
• The project is a testament to the ECC’s ability to ensure projects are done effectively and efficiently on important developments such as this.
• To find out more, please visit https://www.neccontract.com/About-NEC/News-and-Media/Transport-for-Greater-Manchester-procures-new-Wigan-bus-station-with-ECC-Option