ICC does not favour any one of these three types of Dispute Board over the others.
While ICC recommends the use of the standard clauses, the parties should verify their enforceability under applicable law. Furthermore, if parties do not want the Emergency Arbitrator Provisions to apply in the arbitration proceedings, they must expressly exclude them in the clause.
Dispute Review Board ("DRB")
The DRB issues ‘Recommendations’ with respect to any dispute referred to it and constitutes a relatively consensual approach to dispute resolution. If no party expresses dissatisfaction with a Recommendation within a stated time period, the parties contractually agree to comply with the Recommendation. If a party does express dissatisfaction with the Recommendation within such time period, that party may refer the dispute to arbitration, if the parties have so agreed, or the courts. Pending a ruling by the arbitral tribunal or to the court, the parties may voluntarily comply with the Recommendation but are not bound to do so.
The standard clause:
ICC Dispute Review Board followed by ICC Arbitration if required The Parties hereby agree to establish a Dispute Review Board (‘DRB’) in accordance with the Dispute Board Rules of the International Chamber of Commerce (the ‘Rules’), which are incorporated herein by reference. The DRB shall have [one/three] member[s] appointed in this Contract or appointed pursuant to the Rules.
All disputes arising out of or in connection with the present Contract shall be submitted, in the first instance, to the DRB in accordance with the Rules. For any given dispute, the DRB shall issue a Recommendation in accordance with the Rules.
If any Party fails to comply with a Recommendation when required to do so pursuant to the Rules, the other Party may refer the failure itself to Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
If any Party sends a written notice to the other Party and the DRB expressing its dissatisfaction with a Recommendation, as provided in the Rules, or if the DRB does not issue the Recommendation within the time limit provided in the Rules, or if the DRB is disbanded pursuant to the Rules, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
[If the parties do not want the Emergency Arbitrator Provisions to apply in the arbitration proceedings, they must expressly opt out.]
Dispute Adjudication Board ("DAB")
The DAB issues ‘Decisions’ with respect to any dispute referred to it and constitutes a less consensual approach to dispute resolution. By contractual agreement, the parties must comply with a Decision without delay as soon as they receive it. If a party expresses dissatisfaction with a Decision within a stated time period, it may refer the dispute to Arbitration, if the parties have so agreed, or to the courts, but the parties meanwhile remain contractually bound to comply with the Decision unless and until the Arbitral Tribunal or the Court rules otherwise. If no party expresses dissatisfaction with a Decision within the stated time period, the parties contractually agree to remain bound by it.
The standard clause:
ICC Dispute Adjudication Board followed by ICC Arbitration if required
The Parties hereby agree to establish a Dispute Adjudication Board (‘DAB’) in accordance with the Dispute Board Rules of the International Chamber of Commerce (the ’Rules’), which are incorporated herein by reference. The DAB shall have [one/three] member[s] appointed in this Contract or appointed pursuant to the Rules.
All disputes arising out of or in connection with the present Contract shall be submitted, in the first instance, to the DAB in accordance with the Rules. For any given dispute, the DAB shall issue a Decision in accordance with the Rules. *
If any Party fails to comply with a Decision when required to do so pursuant to the Rules, the other Party may refer the failure itself to Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
If any Party sends a written notice to the other Party and the DAB expressing its dissatisfaction with a Decision, as provided in the Rules, or if the DAB does not issue the Decision within the time limit provided for in the Rules, or if the DAB is disbanded pursuant to the Rules, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
[If the parties do not want the Emergency Arbitrator Provisions to apply in the arbitration proceedings, they must expressly opt out.]
[* Parties may, if they wish, provide for review by ICC of a DAB’s Decisions by inserting the following text in place of the asterisk above: The DAB shall submit each Decision to ICC for review in accordance with Article 21 of the Rules.]
Combined Dispute Board ("CDB")
The CDB normally issues Recommendations with respect to any dispute referred to it but may issue a Decision if a party so requests and no other party objects. In the event of an objection, the CDB will decide whether to issue a Recommendation or a Decision on the basis of the criteria set forth in the Rules. The CDB thus offers an intermediate approach between the DRB and the DAB.
The essential difference between a Decision and a Recommendation is that the parties are required to comply with the former without delay as soon as they receive it, whereas a Recommendation must be complied with only if no party expresses dissatisfaction within a stated time limit. If a party is dissatisfied with a DB’s determination of a given dispute, whether in the form of a Decision or a Recommendation, it may refer the dispute to Arbitration, if the parties have so agreed, or to the courts. The DB’s determination is admissible in any such further proceedings.
The standard clause:
ICC combined Dispute Board followed by ICC arbitration if required
The Parties hereby agree to establish a Combined Dispute Board (‘CDB’) in accordance with the Dispute Board Rules of the International Chamber of Commerce (the ‘Rules’), which are incorporated herein by reference. The CDB shall have [one/three] member[s] appointed in this Contract or appointed pursuant to the Rules.
All disputes arising out of or in connection with the present Contract shall be submitted, in the first instance, to the CDB in accordance with the Rules. For any given dispute, the CDB shall issue a Recommendation unless the Parties agree that it shall render a Decision or it decides to do so upon the request of a Party and in accordance with the Rules*.
If any Party fails to comply with a Recommendation or a Decision when required to do so pursuant to the Rules, the other Party may refer the failure itself to Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
If any Party sends a written notice to the other Party and the CDB expressing its dissatisfaction with a Recommendation or a Decision as provided for in the Rules, or if the CDB does not issue the Recommendation or Decision within the time limit provided for in the Rules, or if the CDB is disbanded pursuant to the Rules, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.
[If the parties do not want the Emergency Arbitrator Provisions to apply in the arbitration proceedings, they must expressly opt out.]
[* Parties may, if they wish, provide for review by ICC of a CDB’s Decisions by inserting the following text in place of the asterisk above: The CDB shall submit each Decision to ICC for review in accordance with Article 21 of the Rules.]