Jason Fry, Simon Greenberg, Francesca Mazza
THE SECRETARIAT’s GUIDE TO ICC ARBITRATION
A Practical Commentary on the 2012 ICC Rules of Arbitration from the
Secretariat of the ICC International Court of Arbitration
With the assistance of Benjamin Moss
Contents
Foreword
Preface
Chapter 1: Introduction
Chapter 2: A Step-by-Step Overview of ICC Arbitration Procedure
Chapter 3: Commentary on the 2012 Rules
Article 1: International Court of Arbitration
Article 2: Definitions
Article 3: Introduction to written notifications and communications and time limits in ICC
arbitration
Article 3(1): Written notifications or communications from parties and arbitral tribunals
Article 3(2): Notifications or communications from the Secretariat or arbitral tribunals
Article 3(3): Date on which a notification or communication is deemed to be made
Article 3(4): Calculation of time limits
Article 4: Request for Arbitration
Article 5: Answer to the Request for Arbitration and the making of counterclaims
Article 6(1): Applicable version of the Rules
Article 6(2): Administration of all ICC arbitrations by the Court
Article 6(3): Screening by the Secretary General prior to the application of Article 6(4)
Article 6(4): Prima facie decisions by the Court on the existence of an arbitration
agreement
Article 6(5): Decisions on the jurisdiction of the arbitral tribunal
Article 6(6): Decisions by state courts on the existence of an arbitration agreement
following a negative Article 6(4) decision
Article 6(7): Reintroduction of claims in other proceedings
Article 6(8): Failure of a party to participate in an arbitration
Article 6(9): Separability of the arbitration agreement
Articles 7–10: Multiple parties, multiple contracts and consolidation
Article 7: Joinder of additional parties
Article 8: Claims between multiple parties
Article 9: Multiple contracts
Article 10: Consolidation of arbitrations
Articles 11–15: Defining terminology relevant to the constitution of the arbitral tribunal
and the replacement of arbitrators
Article 11(1): Impartiality and independence
Article 11(2): Statement of acceptance, availability, impartiality and independence
Article 11(3): Ongoing duty to disclose
Article 11(4): Finality and non-communication of reasons for decisions of the Court on the
constitution of the arbitral tribunal
Article 11(5): Arbitrators’ undertaking to respect the Rules
Article 11(6): Priority of party agreements on the constitution of the arbitral tribunal
Article 12: Overview of the constitution of the arbitral tribunal under the Rules
Article 12(1): Number of arbitrators
Article 12(2): Determining the number of arbitrators
Article 12(3): Sole arbitrator
Article 12(4): Selection of co-arbitrators for a three-member tribunal
Article 12(5): Selection of the president of the arbitral tribunal
Articles 12(6)–12(8): Three-member arbitral tribunals in multiparty arbitration
Article 12(6): Joint nomination of a co-arbitrator
Article 12(7): Participation of additional parties in the nomination of co-arbitrators
Article 12(8): Alternative method for constituting a three-member arbitral tribunal
Article 13(1): Factors to consider when confirming or appointing arbitrators
Article 13(2): Confirmation by the Secretary General
Article 13(3): Appointment of arbitrators
Article 13(4): Direct appointment of arbitrators
Article 13(5): Nationality of the president of the arbitral tribunal
Article 14(1): Challenges against arbitrators
Article 14(2): Thirty-day time limit for admissibility of challenges
Article 14(3): Comments on a challenge
Article 15(1): Circumstances leading to replacement
Article 15(2): Replacement on the Court’s initiative
Article 15(3): Right of parties and arbitrators to comment on the application of Article 15(2)
Article 15(4): Process for selecting the replacement arbitrator
Article 15(5): Truncated arbitral tribunals
Article 16: Transmission of the case file to the arbitral tribunal
Article 17: Proof of authority
Article 18(1): Place of the arbitration
Article 18(2): Location of hearings and meetings
Article 18(3): Location of deliberations
Article 19: Rules governing the proceedings
Article 20: Language of the arbitration
Articles 21(1)−21(3): Overview of the rules of law governing the merits
Article 21(1): Applicable rules of law
Article 21(2): Contractual provisions and trade usages
Article 21(3): Amiable compositeur, ex aequo et bono
Articles 22(1) and 22(2): Effective case management
Article 22(3): Orders and other measures relating to confidentiality
Article 22(4): Fair and impartial treatment
Article 22(5): Compliance with orders from the arbitral tribunal
Article 23(1): Terms of Reference
Article 23(2): Signing the Terms of Reference
Article 23(3): Court approval of the Terms of Reference
Article 23(4): New claims subsequent to the Terms of Reference
Article 24(1): Case management conference
Article 24(2): Procedural timetable
Article 24(3): Continued case management
Article 24(4): Conducting the case management conference
Article 25(1): Establishing the facts of the case
Article 25(2): Hearings
Article 25(3): Hearing witnesses and experts
Article 25(4): Experts appointed by the arbitral tribunal
Article 25(5): Summoning parties for additional evidence
Article 25(6): Proceedings without a hearing
Article 26(1): Summoning parties to a hearing
Article 26(2): Absence of a party at the hearing
Article 26(3): The arbitral tribunal’s control over the hearing
Article 26(4): Attendance at hearings of duly authorized representatives and advisers
Article 27: Closing of the proceedings and date for submission of draft awards
Article 28(1): Conservatory and interim measures ordered by the arbitral tribunal
Article 28(2): Conservatory and interim measures ordered by judicial authorities
Article 29: Introduction to emergency arbitrator proceedings
Article 29(1): Applying for Emergency Measures
Article 29(2): Form of emergency relief
Articles 29(3) and 29(4): Effect of the emergency arbitrator proceedings on the arbitral
tribunal’s powers
Articles 29(5) and 29(6): Scope of the Emergency Arbitrator Provisions
Article 29(7): Effect of emergency arbitrator proceedings on other methods of seeking
urgent interim or conservatory measures
Article 30(1): Time limit for rendering the final award
Article 30(2): Extension of the time limit for rendering the final award
Article 31(1): Making of the award
Article 31(2): Reasoning
Article 31(3): Date and place of the award
Article 32: Award by consent
Article 33: Scrutiny of the award by the Court
Article 34: Introduction to enforcement of ICC awards
Article 34(1): Notification of the award to the parties
Article 34(2): Certified copies of awards
Article 34(3): Parties’ waiver of any other form of notification of the award
Article 34(4): Archiving of originals of awards
Article 34(5): Assistance in having awards recognized and/or enforced
Article 34(6): Binding effect of the award on parties
Article 35(1): Correction on the arbitral tribunal’s initiative
Article 35(2): Application by a party for the correction or interpretation of an award
Article 35(3): Decisions on correction or interpretation
Article 35(4): Remission of an award
Articles 36 and 37: Introduction to the ICC’s costs system
Article 36(1): Provisional advance
Article 36(2): Advance on costs
Article 36(3): Separate advances on costs
Article 36(4): Advances on costs in multiparty arbitrations
Article 36(5): Readjustment of the advance on costs and substitution
Article 36(6): Deemed withdrawal of claims following failure to pay
Article 36(7): Set-offs in the calculation of advances on costs
Article 37(1): Costs of the arbitration
Articles 37(1) and 37(2): The Court’s decisions on costs
Articles 37(1) and 37(3)−37(5): The arbitral tribunal’s decisions on costs
Article 37(6): Decisions on costs upon the termination of the arbitration
Article 38(1): Modified time limits
Article 38(2): Extension of modified time limits
Article 39: Waiver
Article 40: Limitation of liability
Article 41: General rule
Chapter 4: Other ICC Dispute Resolution Services
Chapter 5: ICC Dispute Resolution Clauses
Chapter 6: Comparative Table, 1998/2012 Rules
Chapter 7: ICC Rules of Arbitration, in force as from 1 January 2012
Index of Tables
General Index
Foreword
The latest iteration of the ICC Rules of Arbitration—the 2012 Rules—is the result of
one of the most extensive, consultative exercises ever undertaken by the ICC. A
decision to review and revise the highly regarded 1998 Rules was taken by the ICC
Commission on Arbitration in October 2008. In the months that followed, members
of the Commission and of the Task Force set up by the Commission, together with
members of the international arbitration community at large, submitted a very
considerable number of comments and proposals for changes to the Drafting Sub-
Committee tasked with the production of a draft of the new Rules.
Commission Chairman Peter Wolrich, who, with Michael Bühler and Laurie Craig,
chaired the Drafting Sub-Committee, explains the genesis of the new Rules in some
detail in his preface to this book. It is right, however, that I, too, acknowledge the
contribution to the successful conclusion of this exercise of so many individuals,
including in-house counsel, whose views were widely canvassed, and the members
of the parallel Task Force considering the new Rules from the point of view of state
parties under the able chairmanship of Eduardo Silva Romero and Peter Goldsmith.
Such comprehensive consultations and the changes resulting from them reflected
in the new Rules demonstrate the extent to which the ICC has taken account of the
views of users of its Rules.
The 2012 Rules remain true to the drafting ethos of previous editions of the Rules.
Nothing has been changed for the sake of change. Such changes and innovations
as have been made reflect the dramatic evolution in the nature and scope of the
Court’s user base and practice in the fourteen years since the promulgation of the
1998 Rules, not least the explosion in the numbers of multiparty disputes
(particularly from Latin America), the all-pervasive use of electronic media and
means of communication, and increasing pressure on arbitrators and institutions
alike to ensure that time and cost constraints are respected.
User demands included assurances as to the availability of arbitrators; early
clarification of the nature and basis of claims; the ability to call upon an emergency
arbitrator procedure; and more certainty as to when an award might be expected
after the conclusion of a hearing and the filing of post-hearing briefs. In large part,
these demands have been met in the new Articles 4(3), subparagraphs (c) and (d);
11(2); 29; and 27, subparagraph (b). Multi-party disputes are the subject of
Articles 7–10 of the 2012 Rules, a group of provisions that constitute one of the
principal innovations of the new Rules.
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Traditionally the ICC has laid, and continues to lay, great store upon the ability of
the parties to ICC arbitration to agree upon substantial elements of the procedure
applicable to “their” arbitration and their expectation that such agreements will be
respected. In turn, it is to be hoped that parties will take full advantage of the
opportunity to play an active part in the shaping of the arbitral procedure as
Article 24 and, specifically, Article 24(4), of the new Rules invites them to do.
The importance of this element of direct party involvement cannot be overstated.
The Guide, which takes the reader through the 2012 Rules from start to finish, will
be an indispensable work of reference for all involved in ICC arbitration, whether
they come new to such proceedings or are “old hands”, and whether they do so as
a party, counsel or arbitrator. While the 2012 Rules have already been the subject
of numerous commentaries, none could be as authoritative a Guide as that which
Jason Fry, Simon Greenberg and Francesca Mazza have compiled.
Not only were all three authors intimately involved in the drafting of the new Rules,
but as three of the then most senior members of the Secretariat, their knowledge
of the practices of the Court and Secretariat is unrivalled. All three authors have
also overseen the revision of all of the Secretariat’s standard form letters and other
administrative documentation to ensure their compatibility with the provisions of
the new Rules—a daunting task in itself. There is simply no one better qualified to
provide a detailed overview of the new Rules and their operation. At the time of
publication, all three of the authors will have taken up new posts outside the ICC or
be on the point of doing so. This final contribution on their part to the work of the
Court and Secretariat is consistent with the qualities of excellence and commitment
that have been the hallmark of their work while at the ICC and for which, on behalf
of the ICC Court, I offer my thanks and sincere appreciation.
John Beechey
President
ICC International Court of Arbitration
Preface
The Guide you have before you is designed to provide you with an in-depth
presentation and analysis of the new ICC Rules of Arbitration in force as of 1 January
2012. This Guide has the great advantage of providing insights into the Rules from
the perspective of the Secretariat of the ICC International Court of Arbitration, and
its authors were active participants in the preparation of the new Rules. By way of
introduction to this invaluable resource, I would like to give you, from my own
perspective as Chairman of the ICC Commission on Arbitration and as one of the
principal draftsmen of the new Rules, an inside view into exactly how the Commission
went about revising the Rules and what the goals of the revision process were.
In accordance with the Constitution of the ICC, ICC technical documents with
regard to dispute resolution, including ICC Rules, are normally prepared by the ICC
Commission on Arbitration. Our Commission was thus entrusted with the task of
proposing revisions to the ICC Rules of Arbitration to the ICC governing bodies.
The previous revision of the Rules dated from 1998, and while the Rules were
functioning effectively and there was no urgent reason for change, it was felt that
after so many years it would be useful to take a fresh look at them in order to bring
them up-to-date and ensure that they will continue to be useful to arbitration users
worldwide for many years to come.
The revision of the Rules was accomplished in accordance with a step-by-step
process. First, we held three consultations to ensure that we would benefit from a
wide range of ideas and suggestions concerning desirable changes or additions to
the Rules. The first consultation took the form of a conference that we organized
for the arbitration community at large to solicit and discuss ideas. Next, we
consulted and obtained a large number of suggestions and proposals from the ICC
National Committees. Suggestions and proposals were also provided by the ICC
International Court of Arbitration and its Secretariat. Finally, we consulted the ICC
Commission Task Force on Arbitration Involving States or State Entities. That Task
Force, which included representatives of states and persons with significant
experience working with states, provided us with useful suggestions for making the
Rules more obviously applicable to arbitrations involving states.
With this input in hand, we set up an organizational structure to carry out the actual
work of revising the Rules. A Task Force on the Revision of the ICC Rules of
Arbitration was created, and I was asked to serve as Chairman of this Task Force
along with two Co-Chairs, Michael Bühler and Laurie Craig. Francesca Mazza, the
Secretary of the Commission, was asked to serve as Secretary to the Task Force.
ix
In order to have a wide input into the process of reviewing and revising the Rules,
it was decided not to limit the number of members of the Task Force. The Task
Force was then constituted with over 180 members. This guaranteed a thorough
review of the Rules. However, given that number, it was necessary to set up a much
smaller Drafting Sub-Committee, which we referred to as the DSC. The role of the
DSC was to go through the Rules article by article and draft proposals for
amendments or new provisions to be submitted to the Task Force.
The DSC was constituted with twenty members who represented diverse
geographical locations and diverse legal systems. DSC members came from five
different continents and fourteen different countries. In addition, they represented
all categories of players in ICC arbitration. Some DSC members were mainly
counsel, others were mainly arbitrators. The Court was represented by Andrew
Foyle and the Secretariat was represented by Jason Fry. John Beechey, the
President of the Court, and the Vice-Chairs of the Commission were ex-officio
members.
Most importantly, it was decided to have two representatives from the user
community as DSC members. These were Anke Sessler from a major German
company and John Sander from a major US company. We considered this to be an
extremely important step because, of course, the Rules exist to serve the
international user community, and we felt it to be very important to ensure that
their views were taken into account in the revision process. In fact, the user
representatives consulted with a much larger group of users worldwide and were
able to provide us with key insights into the needs and concerns of the user
community.
With the above organizational structure in place, this is how we proceeded. The
first DSC meeting was held in March 2009. Over the next two years, the DSC met
once a month in one or two-day sessions. It went through the existing Rules article
by article and drafted proposed amendments or new articles. Its proposals were
then presented in groups to the Task Force which debated and approved them
during a number of plenary Task Force meetings held over the two-year period.
All of the proposals that were approved by the Task Force were then submitted to
ICC National Committees and Groups and to the Commission as a whole. The
proposals were then fully debated and discussed by the Commission which also
approved the amended articles by groups during four plenary Commission
meetings.
This process illustrates the extent to which the Rules revision benefited from the
hard work and careful consideration of a large number of very talented people,
and, while it is not possible to name them all, I wish to take this opportunity to
thank them most sincerely for their excellent cooperation and work.
x THE SECRETARIAT’S GUIDE TO ICC ARBITRATION
With respect to the substance of the Rules revision process, we decided to adopt a
few basic guiding principles to focus the choices to be made in revising the Rules.
The first guiding principle was that only changes that are genuinely useful or
genuinely necessary should be made. This follows from the old adage that “if it isn’t
broken, don’t fix it”. The existing Rules have worked well, and we considered that
making too many minor “clean-up” improvements could actually result in more
confusion than benefit. We often reminded ourselves of this principle when we
were tempted to make language improvements.
The second guiding principle was to retain, to the greatest extent possible, the key
and distinguishing features of ICC arbitration, such as the Request, the Answer, the
Terms of Reference and the scrutiny of the award by the Court.
A third basic guiding principle was to be economical in the drafting, to avoid being
overly prescriptive and to retain the universality and flexibility of ICC arbitration.
This told us not to over-legislate in the Rules but rather to continue to draft in terms
of basic principles rather than trying to spell everything out. This allowed us to
retain the cross-cultural character of the Rules as well as their flexibility and
openness to party autonomy.
While following these guiding principles, we also brought a number of innovations
into the Rules. These new features were inspired by the desire to provide additional
transparency with respect to practices of the Court and the Secretariat, the desire
to develop explicit provisions for improving the time and cost efficiency of
arbitration, and the desire to respond to requests from the user community. In
particular, we included three entirely new sets of provisions in the Rules, which are
discussed in great detail in this Guide. These provisions concern efficient case
management, multiparty disputes and emergency arbitrator proceedings.
The case management provisions set forth means to establish a tailor-made
procedure for the arbitration that is time and cost effective. Under the new
provisions, as enunciated in Articles 22–24 and Appendix IV, the tailor-making
process has now become a formal requirement. Various other changes, also
discussed in this Guide, improve the time and cost efficiency of ICC arbitration.
The new section on multiparty and multicontract arbitration deals with the joinder
of an additional party, cross-claims between claimants or between respondents,
claims arising out of more than one contract, and the consolidation of separate
arbitrations pending under the Rules. These provisions, as set forth in Articles 7–10,
are entirely new and make explicit various aspects of multiparty disputes that were
not previously dealt with in the Rules.
PREFACE xi
Finally, the emergency arbitrator provisions provide the parties with an opportunity,
under certain conditions, to obtain urgent interim or conservatory measures from
an emergency arbitrator when those measures cannot await the constitution of an
arbitral tribunal.
In conclusion, I have no doubt that this Guide will provide you with valuable
explanations and inside information regarding the 2012 ICC Rules of Arbitration. On
behalf of all of the members of the ICC Commission on Arbitration, I would like to
express the sincere hope that the new Rules will serve you well for many years to
come.
Peter Wolrich
Chairman
ICC Commission on Arbitration
This ends the publicly-available content. The book may be purchased from the ICC here.