Setting up the arbitral tribunal, fixing the advance on costs

Following receipt of the “Answer(s)” to the “Request” (or the expiration of the time-limit for its receipt), and the “Answer(s)” filed by any additional parties joined under Article 7, the Secretary General and/or the Court may need to take certain decisions to set up the arbitral tribunal.

For example, the Rules require that all arbitrators nominated by parties be confirmed by the Court or Secretary General (Articles 13 (1) and 13 (2)).

Furthermore, the Court may be required to appoint a tribunal president or sole arbitrator, or a co-arbitrator on behalf of a party that has failed to nominate one (Articles 13 (3) and 13 (4)). The Court may also need to fix the place of arbitration if the parties have not agreed on it (Article 18).

In some cases the Secretary General may decide under Article 6 (3) of the Rules to refer a prima facie jurisdictional question to the Court, for it to consider whether an arbitration agreement under the Rules may exist, and between which parties (Article 6 (4)).

Advance on costs

Usually before transmitting the case file to the arbitral tribunal, the Court fixes the advance on costs in an amount likely to cover the fees and expenses of the arbitrators and the ICC administrative expenses. The Secretariat transmits the file to the Arbitral Tribunal provided the advance on costs requested at this stage (i.e. the provisional advance, mentioned above) has been paid. The Secretariat will usually invite the parties to pay the full advance on costs when it transmits the case file to the arbitral tribunal.

Link to Costs and payment of costs page

General role of the Secretariat and Court

During this early phase of the arbitration, the Secretariat closely monitors the case. It is always available to assist the parties with a range of preliminary issues that may come up. Sometimes the resolution of such issues will require input in the form of a decision from the Court. Sometimes the Secretariat is able to deal with the issue itself.

While maintaining strict neutrality, the Secretariat can always be contacted for any questions concerning the progress of a case, for example as to the status of setting up the arbitral tribunal.

Link to ICC International Court of Arbitration pages