How to Commence an ICC Arbitration

Your company could not find a way to resolve a dispute it has with its business partner, and its agreement contains an ICC arbitration clause? Then, it may be time to commence an ICC arbitration. Commencing an ICC arbitration is not hard to do.

Arbitration Clause to Commence an ICC Arbitration

In order to commence an ICC arbitration, the parties first have to agree to use this dispute resolution mechanism. They could have agreed to it when negotiating their agreement by referring to ICC arbitration, which is the most common scenario.

The ICC provides an example of a standard ICC Arbitration Clause that is reproduced below:[1]

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.

Parties are free to adapt this clause to their particular needs by, for example, stipulating the number of arbitrators, which will have an impact on the cost of arbitration. The most crucial factor is to avoid any ambiguity when modifying the terms of the clause so as not to create unnecessary jurisdictional or admissibility issues, which are frequent in practice.

While the parties can also agree to use ICC arbitration as a dispute resolution mechanism after a dispute has arisen by entering into a submission agreement, by this point in time it is often too late to reach any agreement.

Filing a Request for Arbitration

Next, to commence an ICC arbitration, the requesting party needs to file a Request for Arbitration with the ICC. In theory, a lawyer does not need to draft this, although using lawyers with prior ICC arbitration experience is generally advisable.

Under Article 4 of the ICC Rules (the current version of the ICC Rules are in force since 1 January 2021), the Request for Arbitration must set forth certain mandatory information. Article 4(3) of the ICC Rules lists the mandatory information to be included in the Request for Arbitration:[2]

The Request shall contain the following information:
a) the name in full, description, address and other contact details of each of the parties;
b) the name in full, address and other contact details of any person(s) representing the claimant in the arbitration;
c) a description of the nature and circumstances of the dispute giving rise to the claims and of the basis upon which the claims are made;
d) a statement of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims;
e) any relevant agreements and, in particular, the arbitration agreement(s);
f) where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made;
g) all relevant particulars and any observations or proposals concerning the number of arbitrators and their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby; and
h) all relevant particulars and any observations or proposals as to the place of the arbitration, the applicable rules of law and the language of the arbitration.
The claimant may submit such other documents or information with the Request as it considers appropriate or as may contribute to the efficient resolution of the dispute.

Except for including the above information, the Request for Arbitration does not require the use of a model form. Requests for Arbitration need not contain all supporting documentation either, although they should include proof of the arbitration agreement in question.

Once the Request for Arbitration complies with the requirements, it must be submitted to the ICC Secretariat to commence an ICC arbitration.

Parties can either (1) use the ICC’s online service “ICC Case Connect” (available since October 2022; a video on using Case Connect is available here) to submit the Request for Arbitration, or (2) send it via email to rfa@iccwbo.org, or (3) send it to the ICC Secretariat’s offices in hard copies.

The mailing address of the ICC’s Headquarters in Paris, to which hard copies of the Request for Arbitration may be sent, is:

Secretariat of the International Court of Arbitration of the International Chamber of Commerce
33-43 Avenue du Président Wilson
75116 Paris
France

Today, filing a Request for Arbitration via ICC Case Connect is recommended by the ICC to commence an ICC arbitration.

The date on which the ICC Secretariat receives the Request for Arbitration is considered to be the commencement date of the ICC arbitration (Article 4(2) of the ICC Rules). This may be relevant for issues such as the statute of limitations, although this does not trigger the 30-day time limit for the respondent or respondents to submit their Answer to the Request for Arbitration. This 30-day period is triggered by receipt of the Request for Arbitration from the ICC Secretariat (Article 5(1) of the ICC Rules), rather than from the claimant.

The different ways that exist to submit a Request for Arbitration do not impact the commencement date of the arbitration. However, a party will have more control over the date on which ICC arbitration is commenced if the Request for Arbitration is submitted electronically rather than via hard copies. This also wastes less paper.

Costs to Commence an ICC Arbitration

In accordance with Appendix III, Article 1(1) of the ICC Rules [3], a non-refundable filing fee of USD 5,000 must be paid with the Request for Arbitration. However, when VAT is applicable, the non-refundable filing fee amounts to USD 6,000, as the standard VAT rate in France is 20%. Please note that this is not the entire cost of ICC arbitration. Two or more advances on costs will subsequently be requested to be paid. ICC arbitration costs (excluding party costs such as legal fees and expert fees) may be determined using the ICC’s cost calculator.

VAT is applicable when the company filing the Request for Arbitration is established in France. It also applies when the claimant (or the first claimant in the case of multiple claimants) is a private individual involved with the case due to personal matters or a public body not subjected to VAT.[4]

Please also note that the ICC will not accept payment in US dollars if any party to the arbitration:[5]

is subject to OFAC sanctions; and/or
is located in a country or territory subject to a US embargo; and/or
is organized under the laws of a country subject to a US embargo; and/or
hold the citizenship of a country subject to a US embargo.

In such circumstances, the claimant may be requested to pay the filing fee in Euros.

In conclusion, commencing an ICC arbitration is straightforward and comprises a few key steps, including drafting and submitting a Request for Arbitration, which is subject to certain mandatory stipulations as per Article 4 of the ICC Rules. This can be submitted via the ICC’s online service, email, or traditional mail. A non-refundable filing fee is required, with additional costs pending during the process. While it is not obligatory to engage legal counsel for the drafting of the request, it is advisable to have lawyers experienced with ICC arbitration involved. Ultimately, this procedure can provide a structured, controlled, and fairly efficient resolution to business disputes, particularly when conventional negotiations have reached a deadlock.