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Standard ICC arbitration clause Drafting the arbitration agreement ICC arbitration is possible only if there is an agreement between the parties providing for it. ICC recommends that all parties wishing to have recourse to ICC arbitration include the following standard clause in their contracts: "All disputes arising out of or in connection with the present contract 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."You can download the full text of the model clause in any one of the following languages (registered in either .txt file or Microsoft Word file, depending on the language) - It may also be desirable for the parties to stipulate in the arbitration clause itself: - the law governing the contract;
- the number of arbitrators;
- the place of arbitration;and
- the language of the arbitration.
- In principle, parties should also always ensure that the arbitration agreement is: - in writing - The effectiveness of an arbitration clause first of all depends on proof of its existence. It should therefore generally be in writing. The 1958 New York Convention specifically states (Art. II) that Contracting States shall recognize arbitration agreements "in writing".
- carefully drafted - Time and again, the Court receives requests for arbitration based on ambiguous arbitration clauses. Badly worded clauses, at the very least, cause delay. At worst, they may impede the arbitration process.
- Parties should also consider the possible need for special provisions in the event that arbitration is contemplated among more than two parties. - Where parties wish to have recourse to the ICC pre-arbitral referee procedure as well as to ICC arbitration, specific reference should be made to both procedures. ICC proposes a standard clause for this purpose. - In addition, the law in some countries may lay down certain requirements in respect of arbitration clauses. Standard ICC arbitration clause for arbitration in Mainland China It would be prudent for parties wishing to have an ICC arbitration in Mainland China to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration, so as to avoid the risk of having the standard ICC clause declared null and void for lack of a sufficiently explicit reference to the arbitration institution of their choice. It is therefore suggested that such parties adapt the wording of the standard ICC arbitration clause as follows: "All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and 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." Existence and validity of the arbitration agreement Issues concerning the existence and validity of the agreement to arbitrate are dealt with in the following way: If the Respondent does not file an Answer or if any party raises a plea concerning the existence, validity or scope of the arbitration agreement, the Court may decide, without prejudice to the admissibility or merits of the plea, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist. In such a case, any decision as to the Arbitral Tribunal's jurisdiction is then taken by the Arbitral Tribunal itself. If the Court decides that the arbitration cannot proceed, the parties retain the right to ask any court having jurisdiction whether or not they are bound by an ICC arbitration agreement.
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