One of the most intriguing innovations of the ICC Rules in recent times, Article 12(9) of the 2021 ICC Rules empowers the ICC International Court of Arbitration (ICC Court) to appoint each member of an arbitral tribunal and to override the parties' agreement on the constitution of the arbitral tribunal in the process if the ICC Court is satisfied that there are ‘exceptional circumstances' that make such appointment(s) necessary in order ‘to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award'.
This represents the first major expansion of the ICC Court's express powers in relation to constitution of Arbitral Tribunals in over two decades. What is more, for the first time in its history, the ICC Court is explicitly tasked with applying vague but highly-charged concepts— equality and fairness—in constituting arbitral tribunals, and to do so even if that is contrary to what the parties expressly provided for in their arbitration agreement. The revised Note to Parties and Arbitral Tribunals simply recites the text of Article 12(9) of the 2021 ICC Rules and gives one only example of its potential application in circumstances where the ‘arbitration agreement provides that one of the parties will have the right to constitute the arbitral tribunal unilaterally, and such unilateral right is not admitted by the law at the place of the arbitration'.
This essay seeks to put Article 12(9)in its historical, philosophical and comparative context in order to understand the direction in which the ICC Court may be heading when it contemplates the exercise of this new power. Our analysis proceeds in three steps. First, we take a brief look at the terms of
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