ICC Arbitration in Practice

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1 ICC Arbitration in Practice Erik Schiifer Herman Verbist Christophe Imhoos KLUWERLAW NTERNATIONAL Staempfli Publishers Ltd. Berne

2 CONTENTS FOREWORD PREFACE THE AUTHORS ABBREVIATIONS xvii xix xxi xxiii CHARTER 1. INTRODUCTION 1 A. Arbitration as a Private Method of Settling Disputes 1 1. Arbitration as an Alternative to Court Proceedings 1 2. Arbitration as an Alternative to Court Proceedings in International Legai Relations 2 3. Relation between Arbitration and Other Methods of Settling Private Disputes Out of Court 2 B. Links between Arbitration and State Courts 3 C. Arbitration Procedure 6 1. Initiation of thè Arbitration and Constitution of thè Arbitrai Tribunal 6 2. Conduct of Arbitration Proceedings 7 D. Institutional Arbitration 10 E. ICC Arbitration 11 CHAPTER 2. THE INTERNATIONAL CHAMBER OF COMMERCE AND ITS COURT OF ARBITRATION 13 A. The International Chamber of Commerce as an Institution 13 B. The International Court of Arbitration and its Secretariat as an Independent Body within ICC 13 C. The Historical Background of thè Rules of Arbitration 13 D. The ICC International Court of Arbitration and its Secretariat The Structure of thè ICC International Court of Arbitration The Role of thè ICC International Court of Arbitration How thè ICC International Court of Arbitration Works The Settlement of Conflicts of Interest The Composition of thè Secretariat The Tasks of thè Secretariat 18 a) The Secretariat's Decision-Making Powers 18 b) The Secretariat's Focal Role in thè Arbitration Proceedings How thè Secretariat Works 19 vii

3 SchàferIVerbistlImhoos ICC Arbitration in Pradice CHARTER 3. ARBITRAL PROCEEDINGS UNDER THE ICC RULES OF ARBITRATION OF A. General Provisions Definitions (Art. 2) Written Notifications or Communications; Time Limits (Art. 3) 21 a) General Remarks 22 b) The Number of Copies to be Filed (Art. 3 (1)) 22 e) The Delivery of Documents (Art. 3 (2)) 23 d) The Date of Delivery and Time Limits (Art. 3 (3)-(4)) 26 B. Commencing thè Proceedings The Request for Arbitration (Art. 4) 26 a) General Remarks 27 b) The Request for Arbitration 28 (1) Submission of thè request for arbitration (Art. 4 (1)) 28 (2) Commencement of proceedings (Art. 4 (2)) 28 (3) Information to be included in thè Request for Arbitration (Art. 4 (3)) 29 (a) Full details of thè parties (Art. 4 (3) (a)) 29 (b) A description of thè nature and circumstances of thè dispute giving rise to thè claim(s) (Art. 4 (3) (b)) 29 (e) The relief sought and any amounts claimed (Art. 4 (3) (e)) 29 (d) The relevant agreements and, in particular, thè arbitration agreement (Art. 4 (3) (d)) 30 (e) Relevant particulars regarding thè number and choice of arbitrators (Art. 4 (3) (e)) 30 (i) The number of arbitrators 30 (ii) The nomination of arbitrators 30 (f) Comments as to thè piace of arbitration, thè applicable rules of law and thè language of thè arbitration (Art. 4 (3) (f)) 31 (i) The piace of arbitration 31 (ii) The applicable rules of law 31 (iii) The language of thè arbitration 31 (4) Number of copies of thè Request for Arbitration and thè Advance Payment on Administrative Expenses (Art. 4 (4)) 32 (5) Notification of thè Request for Arbitration (Art. 4 (5)) 33 (6) Joinder (or Consolidation) of Requests for Arbitration (Art. 4 (6)) The Answer to thè Request and Counterclaims (Art. 5) 35 a) General Remarks on thè Answer to thè Request 36 b) The Contents of thè Answer to thè Request (Art. 5 (1)) 36 (1) Full details of thè Parties (Art. 5 (1) (a)) 36 (2) Respondent's Position as to thè Nature and Circumstances of thè Dispute and thè Claims Submitted by thè Claimant (Art. 5 (1) (b) and (e)) 37 viu

4 Contents (3) Comments concerning thè Number and Choice of Arbitrators, thè Piace of Arbitration, thè Applicable Rules of Law and thè Language of thè Arbitration (Art. 5 (1) (d) and (e)) 38 e) The Time Limit for Filing thè Answer to thè Request for Arbitration (Art. 5 (1) and (2)) 39 d) Counterclaims (Art. 5 (5)) 40 e) Replies to Counterclaims (Art. 5 (6)) 41 f ) The Number of Copies to be Filed (Art. 5 (3)) 41 g) Notification (Art. 5 (4)) The Effect of thè Arbitration Agreement (Art. 6) 41 a) Referrai to ICC Arbitration (Art. 6 (1)) 42 b) Decision Regarding thè Continuation of thè Proceedings in thè Event of an Objection to ICC Arbitration (Art. 6 (2)) 43 e) The Autonomy or Separability of thè Arbitration Agreement (Art. 6 (4)) 44 C. The Arbitrai Tribunal General Provisions (Art. 7) 44 a) The Arbitrator's Independence 45 b) The Arbitrator's Duty to Act Correctly 48 e) Party Autonomy in Relation to thè Constitution of thè Arbitrai Tribunal The Number of Arbitrators (Art. 8) 49 a) General Remarks 49 b) No Agreement Between thè Parties on thè Number of Arbitrators 50 e) The Parties Agree on a Sole Arbitrator 50 d) The Parties Agree on a Three-Member Tribunal 50 e) The Time Limits for Appointing Arbitrators 51 (1) Sole arbitrators 51 (2) Three-member arbitrai tribunal Appointment and Confirmation of Arbitrators (Art. 9) 52 a) General Remarks 53 b) Circumstances to be Considered when Choosing Arbitrators 53 e) Confirmation of Arbitrators 54 d) Proposals by National Committees 54 e) The Procedure for Selecting Arbitrators through National Committees Multiple Parties (Art. 10) 60 a) Context 60 b) The Regulations Presently Applicable to thè Constitution of an Arbitrai Tribunal in Multi-Party Cases 61 e) Partial Regulations Challenge of Arbitrators (Art. 11) 62 a) The Powers of thè ICC International Court of Arbitration 62 b) The Possible Grounds for a Challenge 64 IX

5 Schàfer/Verbist/Imhoos - ICC Arbitration in Practice e) The Challenge Procedure 64 d) The Court's Decision on thè Challenge 65 e) The Resignation of an Arbitrator Following a Challenge Replacement of Arbitrators (Art. 12) 66 a) The Reasons for Replacement 67 (1) Replacement following a challenge 67 (2) Death of an arbitrator 67 (3) Resignation of an arbitrator 67 (4) Removal from office by thè parties 67 (5) Replacement on thè Court's own initiative 67 b) The Replacement Procedure 68 e) The Consequences of a Decision to Replace an Arbitrator 68 (1) Continuation of thè proceedings before thè arbitrai tribunal whose composition has changed 70 (2) The special case of an incomplete or 'truncated' arbitrai tribunal 70 D. The Arbitrai Proceedings Transmission of thè File to thè Arbitrai Tribunal (Art. 13) 71 a) First Condition: Formation of thè Arbitrai Tribunal 71 b) Second Condition: Payment of thè Advance Requested at this Stage of thè Proceedings Piace of thè Arbitration (Art. 14) 72 a) Choice of thè Piace of Arbitration 73 (1) The will of thè parties 73 (2) Fixed by thè ICC International Court of Arbitration 74 b) The Piace of thè Hearings 74 e) The Piace of thè Deliberations Rules Governing thè Proceedings (Art. 15) 75 a) Hierarchy of thè Applicable Procedural Rules 75 b) The Parties' Freedom to Determine thè Applicable Rules of Procedure 75 e) Determination of thè Rules of Procedure by thè Arbitrai Tribunal 76 d) Provisions of thè Rules from which thè Parties may not Derogate 76 e) Procedural Agreements Against thè Arbitrai Tribunal's Will 77 f) The Arbitrai Tribunal's Conduct Language of thè Arbitration (Art. 16) 79 a) The Nomination of Arbitrators 80 b) The Language of Correspondence with thè Secretariat and thè Language of thè Initial Pleadings 81 e) Translation of Submissions and Documents Produced as Evidence 81 d) The Hearing of Witnesses 81 e) The Language of thè Applicable Rules of Law 82 f ) The Linguistic Skills of thè Parties' Lawyers 82

6 Contents 5. Applicable Rules of Law (Art. 17) 82 a) Choice of thè Applicable Rules of Law by thè Parties 83 (i) Choice of thè 'rules of law' by thè parties 83 (ii) Trade usages 83 b) Determination of thè Applicable Rules of Law by thè Arbitrai Tribunal 84 (i) Use of a given System of conflict-of-laws rules 84 (ii) Application of thè rules of conflict of more than one country connected with thè dispute subject to arbitration 85 (iii) Use of thè generai principles of private international law 85 (iv) The 'voie directe' or direct method 85 (v) Applications of rules other than those of a national law to thè merits of thè dispute 85 a. Trade usages 86 b. 'Lex mercatoria' and 'generai principles of law' 86 (vi) Practical conclusions 86 e) Mandatory Rules 87 d) Decisions Based on Amiable Composition and Equity Terms of Reference and Procedural Timetable (Art. 18) 89 a) Introduction 90 b) Drawing up thè Terms of Reference (Art. 18 (l)-(3)) 90 (1) The usuai procedure 90 (2) A party refuses to sign thè Terms of Reference 91 (3) The time allowed for signing thè Terms of Reference and submitting them to thè ICC International Court of Arbitration 92 e) The Procedural Timetable (Art. 18 (4)) 93 d) The Contents of thè Terms of Reference (Art. 18 (1) (a)-(g)) 93 (1) The full names and descriptions of thè parties (Art. 18(1) (a)) 93 (2) The addresses for notifications (Art. 18 (1) (b)) 94 (3) The summary of thè parties' respective claims and of thè relief sought by each party (Art. 18(1) (e)) 94 (4) The list of issues (Art. 18 (1) (d)) 94 (5) The full names, descriptions and addresses of thè arbitrators (Art. 18 (1) (e)) 95 (6) The piace of thè arbitration (Art. 18(1) (f)) 95 (7) The applicable procedural rules (Art. 18 (1) (g)) New Claims (Art. 19) 96 a) The Conditions for Bringing New Claims after thè Terms of Reference have been Drawn Up 96 (1) Admissibility of new claims by virtue of an explicit agreement between thè parties 96 (2) Authorization of new claims by thè arbitrai tribunal 97 b) Increased Flexibility as Compared with thè Former Rules 98 XI

7 Schàfer/Verbist/Imhoos - ICC Arbitration in Pradice 8. Establishing thè Facts of thè Case (Art. 20) 98 a) General Remarks 99 b) Establishing thè Facts by Ali Appropriate Means (Art. 20 (1)) 99 e) Preparatory Submissions (Art. 20 (2)) 100 d) A Decision Without Orai Discussions or Production of Evidence 101 (1) Document-based decision with thè parties' consent 101 (2) Document-based decision where one of thè parties is absent 101 e) A Decision Based on Orai Discussions and/or Production of Evidence 102 (1) Hearing of witnesses, experts and other persons (Art. 20 (3)) 102 (2) Experts (Art. 20 (4)) 105 a. Party-appointed experts 105 b. Experts appointed by thè arbitrai tribunal 105 e. Decision not to use a tribunal-appointed expert 106 f ) Protection of Trade Secrets and Confidential Information (Art. 20 (7)) Hearings (Art. 21) 108 a) Due Summoning by thè Arbitrai Tribunal (Art. 21 (1) and (2)) 108 b) A Party's Failure to Appear Despite Due Summoning (Art. 21 (2)) 109 e) Party Representation (Art. 21 (4)) 110 d) The Conduct of thè Hearing 111 (1) The proceedings 111 (2) The record of thè hearing 111 (3) An assistant to thè arbitrai tribunal ('administrative secretary') 111 (4) Witnesses 112 (5) Due process Closing of thè Proceedings (Art. 22) 112 a) The Significance of thè Closing of thè Proceedings 113 b) The Date on which thè Award is Expected to be Rendered Conservatory and Interini Measures (Art. 23) 114 a) The Arbitral's Jurisdiction to Order Conservatory and Interini Measures 114 b) The Form of thè Arbitrai Tribunal's Interini Decision 115 e) An Application to a Judicial Authority does not Infringe thè Arbitration Agreement 116 E. Arbitrai Awards Time Limit for thè Award (Art. 24) 117 a) Six Months for Rendering thè Award 117 b) Extension of thè Time Limit Awards (Art. 25) 119 a) The Difference Between an Award and an Order 119 b) Rules Applicable to thè Making of an ICC Award 120 e) Dissenting Opinions 120 d) When and Where is thè Award Deemed to have been Made? Awards by Consent (Art. 26) 121 xn

8 Contents 4. Scrutiny of Awards by thè Court 123 a) Scrutiny as to Form 123 b) The Right to Raise Points of Substance without Affecting thè Arbitrai Tribunal's Liberty of Decision 124 e) How is thè Draft Award Scrutinized? Notification, Deposit, Enforceability of Awards (Art. 27) 125 a) Notification of thè Award (Art. 28 (1)) 126 b) Issuing of Copies Certified as Trae (Art. 28 (2)) 126 e) Deposit with ICC and Waiver of any Other Deposit (Art. 28 (3)-(4)) 127 d) Assistance in Complying with any Other Necessary Formalities (Art. 28 (5)) 127 e) Compulsory Nature of thè Award and Waiver of any Form of Recourse (Art. 28 (6)) Correction and Interpretation of Awards (Art. 29) 128 a) General Remarks 129 b) Formai Conditions 130 e) Correction of thè Award 130 d) Interpretation of thè Award 131 e) Dismissal of an Application under Artide 29 of thè Rules 131 F. Costs and Advances Advance to Cover thè Costs of thè Arbitration (Art. 30) 132 a) General Remarks 134 b) Provisionai Advance on Costs 135 e) Advance on Costs 136 (1) When is it fixed? 136 (2) How is it fixed? 136 (3) Reconsideration of thè advance 137 d) Obligation to Pay thè Advance on Costs in Equal Shares 138 e) Separate Advances 139 f ) Bank Guarantees 140 g) Non-Payment of thè Advance on Costs 141 h) Consequences of Non-Payment of thè Advances 141 i) Claim for Set-Off 143 j) Advances for Expertise Costs Decision as to thè Costs of thè Arbitration (Art. 31) Costs and Fees (Appendix III, Art. 2) 148 a) Definition of thè Arbitration Costs 150 (1) The arbitrators' fees 150 (2) The arbitrators' expenses 151 (3) The administrative expenses 151 (4) The fees and expenses of experts appointed by thè arbitrai tribunal 152 (5) The costs incurred by thè parties for thè arbitration 152 b) How thè Costs of thè Proceedings are Fixed 152 e) The Division of thè Costs Between thè Parties 153 xui

9 SchàferIVerbistlImhoos - ICC Arbitration in Pradice d) Value Added Tax (VAT) 154 e) How to Calculate thè Administrative Expenses and Fees on thè Basis of thè Amount in Dispute 155 (1) Which version of thè scales should be used? 155 (2) The method of calculation 155 a. ICC administrative expenses 155 b. Arbitrators' fees 155 f ) Costs for thè Appointment of Arbitrators in Non-ICC Arbitrations 158 G. Miscellaneous Provisions Modified Time Limits (Art. 32) 158 a) The Parties' Decision to Shorten thè Time Limits: 'Fast-Track Arbitration' (Art. 32 (1)) 158 b) The Shortening of Time Limits with Respect to thè Arbitrai Tribunal Waiver (Art. 33) Exclusion of Liability (Art. 34) General Rule Aimed at Filling Gaps (Art. 35) 161 CHAPTER 4. THE STANDARD ICC ARBITRATION CLAUSE 163 A. Arbitration Clauses in General 163 B. Rules of Law Applicable to thè Arbitration Agreement 164 C. Questions Concerning Specific Supplementary Provisions in thè Arbitration Agreement The Requirement to Attempt Amicable Dispute Resolution First and Other Prior Conditions Arbitrai Tribunals Composed of Two or an Even Number of Members Nomination of Arbitrators by Third Parties Possibility of Deviating from Certain Provisions of thè ICC Rules Items Worth Including in an Arbitration Agreement 167 CHAPTER 5. OVERVIEW OF THE TIME LIMITS LAID DOWN IN THE ICC RULES OF ARBITRATION 169 CHAPTER 6. OTHER METHODS OF DISPUTE RESOLUTION UNDER ICC RULES 175 A. General Remarks 175 B. ICC ADR Rules Amicable Dispute Resolution Suggested ICC ADR Clauses Commencement of ADR Proceedings Neutral Conduct of thè ADR Proceedings Termination Confidentiality Costs 182 xiv

10 Contents C. ICC Rules for Expertise Proposai of Experts Appointment of Experts Administration of Expertise Proceedings Suggested ICC Expertise Clauses 186 D. ICC Rules for a Pre-Arbitral Referee Procedure Suggested ICC Pre-Arbitral Referee Clause Characteristics Powers of thè Referee Costs 189 E. ICC DOCDEX Rules Conduct of DOCDEX Proceedings DOCDEX Decision 191 F. ICC Rules for Dispute Boards 191 CHAPTER 7. STATISTICAL INFORMATION ON ICC ARBITRATION 193 Table 1. Generalities 193 Table 2. Geographical origins of parties by region 194 Table 3. Amounts in dispute 194 Table 4. Geographical origins of parties 195 Table 5. Geographical origins of arbitrators 202 Table 6. Piace of arbitration 206 CHAPTER 8. BIBLIOGRAPHY ON ICC ARBITRATION 209 A. ICC Arbitrai Awards 209 B. Books on ICC Arbitration 210 C. Selected Articles 210 D. Web Sites Containing Material and Information on International Arbitration 211 APPENDIX 1. ICC RULES OF ARBITRATION 215 APPENDIX 2. MODEL CURRICULUM VITAE FOR ICC ARBITRATORS 243 APPENDIX 3. ICC NOTICE ON PERSONAL AND ARBITRAL TRIBUNAL EXPENSES 247 APPENDIX 4. ICC NOTE ON CORRECTION AND INTERPRETATION OF ARBITRAL AWARDS 251 APPENDIX 5. SMALL CLAIMS GUIDELINES 255 APPENDIX 6. RULES OF ICC AS APPOINTING AUTHORITY 261 xv

11 SchàferIVerbistlImhoos - ICC Arbitration in Practice APPENDIX 7. ICC RULES FOR A PRE-ARBITRAL REFEREE PROCEDURE 267 APPENDIX 8. ICC ADR RULES AND GUIDE TO ICC ADR 275 APPENDIX 9. ICC RULES FOR EXPERTISE 293 APPENDIX 10. ICC DOCDEX RULES 307 APPENDIX 11. UNITED NATIONS CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS (New York, 10 June 1958) 317 APPENDIX 12. COMPARATIVE CHART OF REFERENCES TO NATIONAL ARBITRATION LAWS 323 APPENDIX 13. ICC DISPUTE BOARD RULES 329 INDEXES AND TABLES 347 A. Alphabetical Index 347 B. Table of References to Articles of thè ICC Rules of Arbitration and other ICC Dispute Resolution Rules 367 C. Table of References to Provisions of National Laws and International Legai Instruments 375 D. Table of Figures 379 xvi

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