In force since 1990, the Rules established for a Pre-Arbitral Referee Procedure allow parties to apply to a "referee" for urgent provisional measures when difficulties arise in contractual relationships, prior to referral to arbitration.
The parties themselves may select the referee, who, failing that, is appointed by the President of the International Court of Arbitration. The measures ordered by the referee are binding until decided otherwise by the referee or a court or an arbitral tribunal. Application of the ICC pre-arbitral referee procedure requires written agreement between the parties, concluded either as part of the relevant contract or later.
Need for urgent measures prior to any decision on merits.
The Rules provide for the appointment of a person who is empowered to order provisional measures which are required by one or more parties to a contract.
The Pre-Arbitral Referee Procedure is especially designed to meet those emergency cases requiring at very short notice a provisional measure.
It should thus not be construed in any manner as a substitute either to arbitration or to state courts with respect to the substance of a dispute, but simply as a means of obtaining rapidly an urgently required interim measure. The "Referee" provided for in the Rules is invested with the power of ordering provisional conservatory measures before a court or arbitral tribunal is seized on the merits.
In any case, recourse to the Pre-Arbitral Referee Procedure must be based on a written agreement. In the absence of any written agreement, the urgent measures may be requested to a judicial court or to an emergency arbitrator pursuant to the ICC Rules of Arbitration.
A brief outline of the Procedure is given below. The procedure can be divided into four main parts: the request for Referee; the appointment of the Referee; the Proceedings; the Order.
Request for Referee
The request is made by any party or both parties and sent in two copies to the Secretariat of the ICC International Court of Arbitration. At the same time, the party requiring the appointment must itself notify the other party of the Request, by the quickest available method of delivery.
Appointment of the Referee
Upon receipt of the answer or within eight days from the time the other party has received the request (whichever is sooner) the Referee is appointed by the President of the ICC International Court of Arbitration.
Two hypotheses must here be considered:
- First, the parties have jointly nominated a Referee, in which case the person of their choice is appointed by the President of the ICC International Court of Arbitration.
- Second, no joint proposal has been made, in which case a Referee is directly appointed by the President.
In order for the Referee to have a clear picture of the issues as rapidly as possible, the Rules give him the possibility of conducting the proceedings in the manner which he considers appropriate, including the right of having access to all documents that he may consider necessary, or to any place for the purpose of an inquiry.
He may also convene the parties to appear before him within the shortest time limit possible. The results of his investigations and inquiries are communicated to the parties for comment. In any case he must be satisfied that the other party against which an order is sought has received or should have received the request for referee and has had the possibility of communicating an answer or comments.
Within 30 days from the date on which the file was transmitted to him the Referee makes and sends the Order to the Secretariat which then notifies the parties of the Order of the Referee. A wide-range of powers is conferred upon the Referee: for example, he can order conservatory measures, measures of restoration, or any measures necessary to preserve or establish evidence.
He can also order a party to make a payment which ought to be made or to sign or deliver a document. These powers which can be altered by express written agreement between the parties are listed under Article 2.1 of the Rules.