What are the advantages of ICC arbitration over ad hoc arbitration?
In an institutional arbitration, an arbitral institution like the ICC International Court of Arbitration organizes and provides services in connection with arbitration proceedings, while in an ad hoc arbitration, the arbitrators and the parties administer the proceedings themselves. Details on institutional and ad hoc arbitration are available here.
10 good reaons to choose ICC Arbitration are listed here.
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What are the key aspects of ICC arbitration and guidance regarding the impact of the 2012 Rules
- ICC International Court of Arbitration (“Court”)
The Court is an administrative body which ensures that ICC arbitrations are conducted in accordance with the Rules. It does not itself resolve disputes (Article 1(2)).
The Court is the only body authorized to administer arbitrations under the Rules, including the scrutiny and approval of all awards rendered in accordance with the Rules (Article 1(2)).
The Court is assisted day-to-day by its Secretariat (Article 1(5)) which, under the direction of the Secretary General, acts as a neutral interface between the parties, their representatives and the Court. Should any questions arise relating to the Rules or ICC procedures, please contact the team in charge of your arbitration at your convenience.
Disputes are resolved by arbitral tribunals, the members of which will either be confirmed, in the case of arbitrators nominated by the parties or the co-arbitrators (Articles 13(1) and 13(2)) or appointed by the Court (Articles 13(3) and 13(4)).
The Court’s administration of arbitrations includes closely monitoring the progress of the proceedings.
- Where Requests for Arbitration can be Submitted
ICC arbitration is commenced upon the Secretariat’s receipt of a Request for Arbitration at any of its offices (Article 4(1) and Article 5(3) of Appendix II), including its Hong Kong office, which opened in 2008.
In order to expedite proceedings where any party:
(i) does not file an answer,
(ii) raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, or
(iii) questions whether all of the claims may be determined together in a single arbitration,
the arbitration will proceed and the arbitral tribunal shall decide such issue, unless the Secretary General refers the matter to the Court for a decision (Articles 6(3) and 6(4)).
If the Secretary General refers the case to the Court, it will then decide whether and to what extent the arbitration shall proceed. An arbitration will proceed if and to the extent that the Court is prima facie satisfied that an arbitration agreement under the Rules may exist (Article 6(4)).
- Joinder of Additional Parties, Claims between Multiple Parties and Multiple Contracts
For the first time, the Rules expressly provide for a transparent procedure in relation to (i) requests to join additional parties to an arbitration (Article 7); (ii) claims made in an arbitrations involving multiple parties (Article 8); and (iii) claims arising out of more than one contract in a single arbitration (Article 9).
Requests for joinder of a party are similar to Requests for Arbitration (Article 7). When a request for joinder is submitted, the additional party becomes a party to the arbitration and may raise pleas pursuant to Article 6(3) of the Rules. It is important to be aware of the timing for such joinder, as no additional party may be joined after the confirmation or appointment of an arbitrator, unless the parties and the additional party agree otherwise. Thus, a party to an arbitration wishing to join an additional party must file its Request for Joinder before any arbitrator is confirmed or appointed under the Rules.
- Consolidation of Arbitrations
The Court may consolidate two or more pending arbitrations at the request of a party, provided that any of the three situations set out in Article 10 of the Rules exist. Factors that the Court may take into account include whether any arbitrator has been confirmed or appointed in any of the arbitrations and if so, whether the same persons have been confirmed or appointed in the arbitrations.
The Court requires all potential arbitrators to complete and sign a Statement of Acceptance, Availability, Impartiality and Independence (Article 11(2) of the Rules). Recent additions to this Statement concern arbitrators’ availability and impartiality.
Since 2010, potential arbitrators must indicate the number of arbitrations in which they currently act, specifying whether they act as president, sole arbitrator, co-arbitrator or as parties’ counsel, as well as their availability over the next 12 to 18 months. This is intended to encourage prospective arbitrators to focus on their duty to conduct arbitrations in an expeditious and costs-effective manner (Article 22).
Furthermore, arbitrators are obliged to act at all times in an impartial and independent manner pursuant to Article 11of the Rules.
- Case Management Techniques
In 2007, the ICC Commission on Arbitration produced a Report on the Techniques for Controlling Time and Costs in Arbitration (“Report”), which has been widely acknowledged as a compilation of useful suggestions to effectively control time and costs in a manner proportionate with the value and/or complexity of an arbitration.
Articles 22 and 24 of the Rules and Appendix V thereto include provisions to encourage the effective management of the arbitration. The parties must comply with directions issued by arbitral tribunals.
Arbitral tribunals may make decisions as to costs, except for those to be fixed by the Court, and order payment thereof at any time during the proceedings (Article 37(3)).
In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in expeditious and cost effective manner (Article 37(5)).
Should the parties withdraw their claims or the arbitration terminates before the rendering of a final award, the Court shall fix the fees and expenses of the arbitrators and the ICC administrative expenses. If the parties have not agreed upon the allocation of the costs of the arbitration or other relevant issues with respect to costs, such matters shall be decided by the arbitral tribunal (Article 37(6)). In case the arbitral tribunal is not yet constituted at the time of the withdrawal, any party may request the Court to proceed with the constitution of the arbitral tribunal so that it may make decisions as to costs.
- Closing of the Proceedings and Scrutiny of Awards
An arbitral tribunal should declare the proceedings closed as soon as possible after the last hearing or the last authorized submission filed in relation to matters to be decided in an award, whether final or otherwise (Article 27). Upon doing so, the arbitral tribunal must inform the Secretariat and the parties of the date by which it expects to submit the draft award for the Court’s scrutiny (Article 33).
The scrutiny process carried out by the Court with the assistance of its Secretariat is a unique and thorough procedure designed to ensure that all awards are of the best possible quality and are more likely to be more enforced by state courts. All draft awards undergo a three-step review process, starting with the counsel of the team in charge of the arbitration that has followed the proceedings since the inception of the arbitration, followed by review by the Secretary General, the Deputy Secretary General, the General Counsel, or the Managing Counsel, before being submitted for the Court’s scrutiny. For certain arbitrations, generally those involving state parties or dissenting opinions, a Court member will draft a report with recommendations on the draft award.
If the parties foresee being represented by counsel, they must inform the Secretariat of the name and address of such counsel.
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Is the recourse to ICC arbitration limited to specific disputes or disputes in a certain field?
No, the ICC Rules of Arbitration have been designed to be used in all sectors and for all types of disputes.
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Is ICC arbitration confidential?
The Court respects your privacy. In contrast with ordinary courtroom proceedings under public and media gaze, ICC does not divulge details of an arbitration case and keeps the identities of the parties completely confidential. So your business remains nobody else's business. Sometimes, of course, parties will publicize an award – but ICC's lips are always sealed. If you wish, you may also enter into a confidentiality agreement with the opposing party as an additional safeguard.
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Are parties required to be ICC members to commence an ICC arbitration?
No it is not necessary to be an ICC member or to have any other affiliation with ICC. The only requirement is that the parties to a contract, treaty, or separate arbitration agreement have agreed on ICC Arbitration.
Anyone can use ICC Arbitration, whether a company, state, state entity, international organization or individual.
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Is there a standard ICC arbitration clause?
Yes, the standard ICC arbitration clauses in different languages are available here.
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How do I submit a Request for Arbitration?
A Request for arbitration should not be sent to the ICC National Committee in your country or in the country where the seat of arbitration is located. Click here to know how to file a Request for arbitration.
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Are there model forms of a Request for Arbitration?
No. Parties are free to present their request as they wish, provided they comply with the provisions of the ICC Rules of Arbitration. See more here.
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In which language shall the Request for Arbitration be drawn up?
The language can be agreed upon by the parties in their original contract. Unless otherwise agreed by the parties or required by the applicable law, requests for arbitration can be submitted in any language.
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Can I choose my arbitrator?
You can pick your arbitrator for his or her nationality, language or expertise - someone who understands your culture or line of business. The Court checks all arbitrators for their statement of acceptance, availability, impartiality and independence. It will step in to appoint a chair or a sole arbitrator if there is no agreement, or even choose the arbitrators if that is the parties' preference.
When required, the Court is able to cast its net wide by calling on ICC's national committees and groups, with their extensive contacts in their own countries.
Articles 11 to 15 of ICC Rules of Arbitration deal with the Arbitral Tribunal.
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Should the arbitrators acting in ICC arbitration proceedings be lawyers?
No, there is no requirement under the ICC Rules of Arbitration that the coarbitrators, the chairman of an arbitral tribunal or a sole arbitrator be a lawyer. The parties or the coarbitrators empowered by the parties to appoint the chairman of an ICC arbitral tribunal are free to designate the person of their choice.
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How can I become an arbitrator in ICC arbitration proceedings?
Individuals interested in serving as arbitrators in ICC arbitration proceedings should contact the ICC national committee in the country from which they are a national or the relevant ICC group.
When requested to appoint an arbitrator, the ICC International Court of Arbitration will generally call upon a national committee or group to make a proposal.
National committees may be contacted directly by the parties seeking to appoint an arbitrator from the country and territory in which the National committee or a group is located.
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What should be the language of the arbitration proceedings?
ICC Arbitrations can be conducted in any language. Parties may agree on the language in their original contract or when the case goes to arbitration. In the absence of an agreement by the parties, the arbitral tribunal will determine the language or languages of the arbitration
Article 20 of the ICC Rules of Arbitration deals with Language of the Arbitration.
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What are the rules of law governing the arbitration?
You and the other party can agree on the rules of law under which your case will be dealt with. For example, they could be the laws of your own country, of the other party's country, of another country entirely, or what the legal profession calls "general principles of law".
Article 21 of the ICC Rules of Arbitrationdeals with Applicable Rules of Law.
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Where are ICC arbitration proceedings conducted?
ICC arbitrations can be held anywhere in the world. The seat of the arbitration as well as the place for the hearing can be located in any country. The annual statistical report shows the international nature of ICC arbitrations. Key statistics are available here.
The arbitral tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, unless otherwise agreed by the parties.
Where Paris in France or Toronto in Canada is agreed as place of arbitration, ICC Hearing Centre and Arbitration Place are respectively recommended for hearings and meetings because of their state-of-the-art hearing facilities and all-encompassing service.
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How much time does it take to get a final award?
Arbitral tribunals usually take less time than national courts to reach a final decision.
The Court monitors deadlines from start to finish.The Court has the power to step in and replace arbitrators on the rare occasions that they fail to fulfill their obligations. If the parties agree on a fast-track arbitration, cases can be decided within a few months.
National courts are often congested. They may need between three and five years to resolve a dispute, sometimes even longer.
Article 30 of the ICC Rules of Arbitration deals with Time Limit for the Final Award.
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Are the parties obliged to comply with an award?
Article 34 (6) of the ICC Rules of Arbitration provides that "Every award shall be binding on the parties. By submitting the dispute to arbitration under the Rules, the parties undertake to carry ou any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made."
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Where can I find ICC awards?
ICC awards are confidential. However, The Documentation & Research Centre of the ICC International Court of Arbitration keeps a catalogue of ICC arbitral awards that have published in accordance with confidentiality requirements. The Centre can been reach by phone at + 33 1 49 53 29 05 or by email arb@iccwbo.org
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May I request interim or conservatory measures?
The 2012 ICC Rules of Arbitration offer a procedure for the parties to seek urgent interim relief that cannot await the constitution of the arbitral tribunal. See the conditions to an Emergency Arbitrator.
See also Article 28 of ICC Rules of Arbitration which deals with Conservatory and Interim Measures ordered by the arbitral tribunal.
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How are the costs of arbitration fixed?
Arbitration is cost effective because the relative speed of arbitration compared with litigation keeps lawyers' costs down. Parties generally pay less in the long run for arbitration than if they take their case to national courts.
If you are worried about arbitrators dragging out proceedings to pad their fees, forget it. The Court sets ICC fees according to a fixed scale, primarily based on the amount in dispute. Wasting time is not in the arbitrators' financial interest.
You can get a rough idea of what you will have to spend by using the cost calculatoron the Court website. Simply enter the amount in dispute to receive an estimate of administrative and arbitrator fees, which are set by the Court.
Factors like the place of arbitration and the number of arbitrators influence expenses and may affect the final bill. So your own choices can also keep costs down.
See Articles 36 and 37 and Appendix III of the ICC Rules of Arbitration.
Click here to use cost calculator
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