Vous êtes sur la page 1sur 5

ICC Arbitration is a flexible and efficient dispute resolution procedure leading to binding and final decisions subject to enforcement

worldwide. Established in 1923 as ICCs arbitration body, the International Court of Arbitration pioneered international commercial arbitration as it is known today, initiatin and leadin the mo!ement that culminated in the

Procedural flexibility %he arbitration procedure is dri!en by :party autonomy>, that is choices made by the parties themsel!es about how they want the dispute to be dealt with$ %he first choice, of course, is whether or not to use arbitration in the first place$ %he parties can then choose which kind of arbitration .e$ $ administered by an institution or not and which institution/, select the seat or place of the arbitration, the lan ua e of the arbitration, the applicable law, the number of arbitrators, etc$ Importantly, the parties can also select the arbitrators or a ree on a method for their selection$ %here is also reat procedural fle&ibility within the conte&t of a i!en arbitration$ 2or e&ample, the parties can

adoption of the "ew #ork Con!ention, the most important multilateral treaty on international arbitration$ %he Court has also de!eloped resolution mechanisms specifically concei!ed for business disputes in an international conte&t$ 'uch disputes pose uni(ue challen es, usually because the parties will be of different nationalities, implyin !aried lin uistic, le al and cultural back rounds$ )ifficulties can be further compounded by distance,

and the percei!ed or actual ine(uality for one party to submit to the courts of another partys home round$ %he Court pro!ides parties with a fle&ible and neutral settin for dispute resolution$ It offers confidentiality and

choose to ha!e a slow and thorou h or a fast and economical arbitration$ 2or ob!ious reasons, speed, efficiency and costs are usually considered important$ *here appropriate procedures are put in place, arbitration can be faster and less e&pensi!e than liti ation, especially considerin international arbitral awards$ In the absence of party a reement on points of procedure, the parties !iews will nonetheless be considered carefully by the arbitral tribunal when it determines the procedure$ Neutrality Court liti ation in transnational matters enerally has to take place in the courts of one of the parties to a that there is enerally no appeal from

e&traordinary freedom for parties to choose the framework for how and where they want to resol!e their dispute$ *hile the dispute itself is resol!ed by independent arbitrators, the Court super!ises the process from be innin to end, increasin the (uality of the process and enforceability of the awards$ %here are no restrictions as to who can use ICC Arbitration or who can act as arbitrators$ %his is reflected in the increasin number of nationalities represented$ 'ince its inception, the Court has administered more than

19,+++ cases in!ol!in parties and arbitrators from some 1,+ countries$ Introduction to arbitration Arbitration is a fle&ible, consensual process for resol!in business disputes in a bindin , enforceable manner$ %he decision makers are called arbitrators, or collecti!ely the arbitral tribunal$ %he arbitral tribunal comprises one or more independent indi!iduals selected by the parties or appointed throu h a mechanism that the parties ha!e a reed upon$ An arbitral tribunals substanti!e decision is called an award$ Awards in international arbitrations are not sub-ect to any appeal .sa!e in a !ery limited number of -urisdictions/ and can be enforced under both domestic and international enforcement re imes includin , notably, the 190, "ew #ork Con!ention on the 1eco nition and Enforcement of 2orei n Arbitral Awards$ %he parties to an arbitration are free to a ree on whether to use the 1ules of the ICC International Court of Arbitration, the rules of another arbitral institution or no rules at all$ dispute$ %his also means that the -ud e.s/ will share one sides nationality, or at least le al education and trainin $ %he opposin party or parties may accordin ly feel estran ed or e!en discriminated a ainst$ At the

!ery least, the procedure, and possibly also the lan ua e of the proceedin s, will be less familiar to one side than to the other, thus creatin a real or percei!ed ad!anta e for one side$ International arbitration is nationally neutral in the sense that there does not need to be a link between any partys place of incorporation or residence and the place of the arbitration$ %he parties can choose any place of arbitration, any applicable law, and any lan ua e for their arbitration$ All of these elements can be neutral with respect to the parties$ %he freedom to choose the arbitrators also ensures that the arbitrators will be neutral if that is what the parties desire$ Selection of arbitrators %he parties power to choose the arbitrators is a ma-or ad!anta e of arbitration o!er liti ation$ It inspires confidence in the indi!idual decision makers and thereby the process$ It also means that indi!iduals with the rele!ant technical or le al e&pertise, or other desired (ualities, will decide the dispute$ *here there is to be a sole arbitrator, the parties often try to a ree on the indi!idual, failin which he or she is

Arbitration is the only alternati!e to court liti ation for achie!in a final, bindin and enforceable resolution of a dispute$ )ue to its numerous ad!anta es o!er liti ation .e&plained below/, arbitration has become the preferred and most widely used mechanism for resol!in international commercial disputes$ Advantages of arbitration 3usinesses choose arbitration o!er liti ation because of its neutrality, finality, enforceability, procedural fle&ibility, and the ability to choose the arbitrators$ A sur!ey undertaken by 4ueen 5ary 6ni!ersity 7aw 'chool in 7ondon and first published in 2++8 concluded that, for the resolution of cross9border disputes, :;3< of respondents prefer to use international arbitration, either alone .29</ or in combination with Alternati!e )ispute 1esolution .A)1/ mechanisms in a multi9tiered dispute resolution process .==</>, and that :the top reasons for choosin international arbitration are fle&ibility of procedure, the enforceability of awards, the pri!acy afforded by the process and the ability of parties to select the arbitrators>$

appointed throu h an a reed process$ *here there are three arbitrators it is typical for each side to nominate a co9arbitrator and for the president to be appointed in the same way as a sole arbitrator is appointed$ Alternati!ely, the parties often empower the co9arbitrators to select the presidin arbitrator$ It is often said that an arbitration is only as ood as the arbitrators$ Indeed there is no doubt that the (uality

and e&perience of the arbitrators will si nificantly impact the (uality of the process and its outcome$ It can be important, or at least desirable, that arbitrators possess certain skills and?or e!en e&pertise, whether lin uistic, technical or le al$ %hey should also be able to dedicate sufficient time to the case and be a!ailable for hearin s and meetin s$ 2inally, all arbitrators must be, and remain, independent from the parties and impartial in

decidin

the case$ Appointin

the ri ht default arbitrators .where the parties are not able to a ree on the

%he le!el of ser!ice offered by an arbitral institution depends entirely on the institution and can ran e from simple appointment of a default arbitrator to full super!ision and monitorin from the be innin to the end of

arbitrators/ is a core function for any arbitral institution$ Time and costs As noted abo!e, arbitration can be faster and less e&pensi!e than liti ation in the courts$ E&perienced arbitrators ha!e de!eloped e&pertise in desi nin procedures that ma&imi@e time and costs efficiency and

the proceedin s$ %he ICC system of arbitration offers full super!ision and a ran e of important ser!ices includin , notably, the scrutiny of draft arbitral awards$ #in$ to Award and Award scrutiny page. %he cost of the ser!ices pro!ided and the manner in which they are calculated are important points of difference amon arbitral institutions$ Another important difference is the method used to calculate arbitrators fees$ *hile there is si nificant !ariation amon institutions, the cost must be assessed a ainst the e&tent and (uality of

thereby minimi@e the disruption to the ordinary business of parties in!ol!ed in arbitration proceedin s$ %hat said, a comple& international dispute can take a reat deal of time and money to resol!e, e!en by arbitration$

E!en in such cases, the limited scope for challen in arbitral awards, as compared with court -ud ments, offers a clear ad!anta e in terms of limitin time and costs$ %he finality of arbitration ensures that the parties should

ser!ice offered$ An essential consideration is whether the institution offers !alue for money by reference to the ser!ices offered$ T%e costs of ICC Arbitration are explained %ere. *hether parties wish to use an arbitral institution, and which one, are entirely a matter of party choice and discretion$ It is, howe!er, not possible to en a e the ser!ices of an arbitral institution unless all rele!ant parties ha!e a reed$ Ad hoc arbitration is when there is no institution in!ol!ed$ %he arbitrators and the parties administer the proceedin s themsel!es$ %his can work fine if all parties .and their lawyers/ are cooperati!e and really know what they are doin .or are ad!ised by lawyers who really know what they are doin /$ Cowe!er, by the time a

not be entan led in a prolon ed and costly series of appeals$ Confidentiality Arbitration proceedin s and hearin s are completely pri!ate$ Anly the arbitrators and the parties .includin their lawyers/ are permitted to attend, not the eneral public$ 'imilarly, only the same actors recei!e copies of

the documents, submissions, correspondence and awards that are produced durin the arbitration$ inal! binding decisions A final and enforceable outcome can enerally be achie!ed only by recourse to the courts or by arbitration$

dispute has reached the sta e of arbitration it often happens that at least one party no lon er wants to cooperate$ %here are numerous e&amples of dilatory tactics which can cause serious delays and unnecessary costs$ *ell9established arbitral institutions can deal (uickly and efficiently with many such tactics and?or assist the arbitral tribunal to do so$ 5oreo!er, ICC can efficiently deal with many procedural issues that mi ht otherwise ha!e to be resol!ed by a domestic court if ICC was not in!ol!ed$ A ood institution can also remo!e

'ofter dispute resolution mechanisms, like mediation and other procedures under the ICC Amicable )ispute 1esolution .A)1/ 1ules, ha!e !arious benefits for appropriate cases, but a successful outcome depends, ultimately, on the oodwill and cooperation of the parties$ Boodwill and cooperation are desirable in arbitration an a reement$

as well, but not necessary because the outcome does not depend on the parties reachin 1ather, the arbitral tribunal is empowered to make a final, bindin award$

any arbitrator who lacks independence or is otherwise not performin his or her functions properly$ 2or all of these reasons, it is not surprisin of in9house counsel at leadin in a 2++, study by 4ueen 5ary 6ni!ersity 7aw 'chool on the !iews

Court -ud ements in commercial cases can usually be appealed at least once, often more than once, to hi her courts$ %his is not true for arbitration$ %here is enerally no appeal at all permitted from an arbitral tribunals

multinational corporations found thatD :,8< of awards that were rendered o!er

award in an international arbitration$ %he result is absolutely final, sub-ect only to a re(uest to set aside the award due to procedural irre ularities such as an unfair procedure or arbitrator lack of independence$

the last 1+ years were under the rules of an arbitration institution, while 1=< were under ad hoc arbitrations>$ %his confirms anecdotal e!idence from arbitration practitioners and users that institutional arbitration is preferred o!er ad hoc arbitration$ %he 2+1+ !ersion of the same study showed that on a lobal le!el ICC is the

"ecognition and enforcement of awards Arbitral awards en-oy much simpler international reco nition than court -ud ments$ 'ome 1=0 countries ha!e si ned the 190, "ew #ork Con!ention on the 1eco nition and Enforcement of 2orei n Arbitral Awards$ %he Con!ention pro!ides for the enforcement of arbitration a reements and for the reco nition and enforcement of awards in all contractin states$ %here are se!eral other multilateral and bilateral arbitration con!entions that

preferred arbitral institution, with 0+< of participatin

corporations preferrin

ICC$ %he second most preferred

institution was chosen by 1=< of participants$ Ane !ery important point must be kept in mind in relation to arbitral institutionsD like many aspects of the arbitration procedure, an institution can only be utili@ed if the parties ha!e specifically chosen to use it$ It is not possible for an institution to administer an arbitration unless the parties ha!e a reed$ 'ince it is usually difficult for parties to a ree after a dispute has arisen, institutions are normally chosen in ad!ance, for e&ample in an arbitration clause contained in a contract$

may also facilitate enforcement$ %here are certain re(uirements for arbitration awards to be enforceable under the "ew #ork Con!ention$ An important part of ICCs role in administerin arbitrations is to impro!e the enforceability of ICC awards$ Advantages of using an arbitral institution to administer arbitration proceedings

ICC "ules of Arbitration are used worldwide to resolve business disputes t%roug% arbitration. T%e An arbitral institution or ani@es and pro!ides ser!ices in connection with arbitration proceedin s$ Certain leadin institutions ha!e also assumed a role as industry re ulators, settin standards and practices and offerin trainin and conferences$ Arbitral institutions, in particular ICC, ha!e contributed si nificantly to the current "ules are in force as from & 'anuary ()&(.

rowth and success of international arbitration$

%hey define and re ulate the conduct of cases submitted to the International Court of Arbitration of ICC$ In choosin to follow these rules, parties in!ol!ed in international business transactions are assured of a neutral

In principle, parties should also always ensure that the arbitration a reement is in writing and carefully and clearly drafted$ Adaptation of t%e clauses to particular circumstances

framework for the resolution of cross9border disputes$ Commonly known as the ICC 1ules, the rules of arbitration from start to finish$ %hey re ulate the filin proceedin s, the renderin o!ern the conduct of ICC arbitration proceedin s

%he standard clause can be modified in order toD %ake account of the re(uirements of national laws and any other special re(uirements that the parties may ha!e$ In particular, parties should always check for any mandatory re(uirements at the place of arbitration and potential place.s/ of enforcement$ 2or e&ample, it is prudent for parties wishin to ha!e an ICC arbitration in 5ainland China to include in their

of claims, the constitution of arbitral tribunals, the conduct of security and

of decisions and the determination of costs$ *hile offerin

predictability, the ICC 1ules also accommodate any preferences parties in dispute mi ht ha!e with respect to certain aspects of the proceedin s, such as the choice of arbitrators, the place, and the lan ua e of arbitration$ In all matters that are not e&pressly pro!ided for in the ICC 1ules, the Court and Arbitral %ribunal act in the spirit of the 1ules and make e!ery effort to ha!e an enforceable Award$ 'uch balance between fle&ibility and control has led to the popularity of the ICC 1ules in the di!erse le al, economic, cultural and lin uistic settin s of some 1,+ countries$ %he ICC International Court of Arbitration is the only body authori@ed to administer arbitrations under the 1ules$

arbitration clause an e&plicit reference to the ICC International Court of Arbitration$ %he followin lan ua e is su ested for this purposeD

GAll disputes arisin

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 1ules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said 1ules$G 5ake special arran ements where the contract or transaction in!ol!es more than two parties Combine se!eral ICC dispute resolution ser!ices

T%e c%oice of ICC arbitration as t%e dispute resolution met%od s%ould ideally be made w%en

Combined and multi9tiered dispute resolution clauses may help to facilitate dispute mana ement and reduce time and costs$

businesses and governments negotiate t%eir contracts and treaties. Cowe!er, parties can enter into an arbitration a reement at any other time, such as after a dispute has arisen$ Standard arbitration clauses ICC pro!ides standard arbitration clauses, which may be used by parties without modification or modified as may be re(uired by any applicable law or accordin to the parties preferences$ Arbitration :All disputes arisin out of or in connection with the present contract shall be finally settled under the 1ules of

Arbitration can be combined withD Pre-arbitral referee procedure Amicable .ispute "esolution *A.", +xpertise .ispute /oards, and !irtually any other form of A)1$

Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said 1ules$> If the parties do not want the Emer ency Arbitrator Ero!isions of the 2+12 1ules *see t%e page explaining t%e +mergency Arbitrators Provisions, to apply, they must e&pressly opt out by usin clauseD Arbitration :All disputes arisin wit%out emergency arbitrator the followin arbitration

ICC Arbitration is conducted under t%e ICC "ules of Arbitration in effect on t%e date of

commencement of t%e arbitration! unless t%e parties %ave agreed to submit to t%e "ules in effect on

t%e date of t%eir arbitration agreement *Article 0 *&,,. %he current !ersion of the ICC 1ules of Arbitration came into force on 1 Hanuary 2+12$ 6nlike many other institutions, the ICC International Court of Arbitration monitors the entire arbitral process, from the initial re(uest for arbitration to scrutiny of the draft final award$ %he Court can e!en assist parties in complyin with whate!er formalities may be necessary to enforce an ICC Award$

out of or in connection with the present contract shall be finally settled under the 1ules of

Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said 1ules$ %he Emer ency Arbitrator Ero!isions shall not apply$>

%he parties may also wish to stipulate in the arbitration clauseD the law o!ernin the contractF the number of arbitratorsF the place of arbitrationF and?or the lan ua e of the arbitration$

To commence ICC Arbitration you need to submit a 1"e2uest for Arbitration1 wit% t%e Secretariat of

t%e ICC International Court of Arbitration at eit%er of its offices 3 one located at t%e %ead2uarters of

t%e International C%amber of Commerce *ICC, in Paris and t%e second in 4ong 5ong.

After acknowled in

receipt of a G1e(uestG, the 'ecretariat will notify the respondent party or parties$ It will

Include Eroof of Eayment with the Application the Cost of an Emer ency Arbitrator Eroceedin is 6'J =+ +++ Eayment for this amount shall be made preferably, by wire transfer to thefollowing payment instructions$ %he ICC can also accept payment by ban$ c%e2ue .not a personal che(ue/ to the order of the International C%amber of Commerce$ Ensure the Application is written in the correct lan ua e the application must be submitted in the language of t%e arbitration, or, in the absence of an a reement on the lan ua e of arbitration then in the language of t%e arbitration agreement$ Ensure the Application contains the correct information, includin D the name in full, description, address and other contact details of each of the partiesF the name in full, address and other contact details of any person.s/ representin applicantF a description of the circumstances i!in rise to the Application and of the underlyin dispute referred or to be referred to arbitrationF a statement of the Emer ency 5easures sou htF the reasons why the applicant needs ur ent interim or conser!atory measures that cannot await the constitution of an arbitral tribunalF any rele!ant a reements and, in particular, the arbitration a reementF any a reement as to the place of the arbitration, the applicable rules of law or the lan ua e of the arbitrationF proof of payment of the amount referred to in Article ;.1/ of Appendi& LF and any 1e(uest for Arbitration and any other submissions in connection with the underlyin dispute, which ha!e been filed with the 'ecretariat by any of the parties to the emer ency arbitrator proceedin s prior to the makin of the Application$ the

also inform the claimant.s/ that it has done so, and indicate the date of receipt of the I1e(uest$ In order to maintain fle&ibility, ICC does not re(uire I1e(uests to be in any particular form$ %he ICC 1ules of Arbitration do, howe!er, contain certain re(uirements for I1e(uests as set out in Article =$ Importantly, the I1e(uest must be accompanied by a non9refundable ad!ance payment of 6'J 3,+++, to co!er administrati!e costs, and the re(uired number of copies of the I1e(uest$ Althou h I1e(uests must be filed with the 'ecretariat in Earis or Con Kon , ICC Arbitration can be held in any country or lan ua e$

T%e ()&( ICC "ules of Arbitration *6"ules7, offer a procedure for parties to see$ urgent interim

relief t%at cannot await t%e constitution of an arbitral tribunal. Any emer ency measure ranted takes the form of an order, which may be later re!isited by the arbitral

tribunal, once constituted$ %his pa e describes rele!ant pro!isions of the 1ules and e&plains how to commence an emer ency arbitrator procedure$ Scope of "ules *Article (8 and Appendix 9, Eursuant to Article (8 of the 1ules and Appendix 9 .:Emer ency Arbitrator Ero!isions>/, a party that needs ur ent interim measures .:Emer ency 5easures>/ that cannot await the constitution of an arbitral tribunal may make an application to the 'ecretariat of the ICC International Court of Arbitration .: Secretariat>/$ %he Emer ency Arbitrator Ero!isions apply only to parties that are signatoriesto the arbitration a reement that is relied upon for the application or successors to such si natories$

T%ere are t%ree aspects to t%e payment of t%e ICC costs deposit! or 6advance on costs7 as it is called

2urthermore, the Emer ency Arbitrator Ero!isions s%all not apply ifD the arbitration a reement under the 1ules was concluded before & 'anuary ()&(F the parties ha!e opted out of the Emer ency Arbitrator Ero!isions .see the 'tandard ICC Arbitration Clauses/F or the parties ha!e a reed to anot%er pre-arbitral procedure that pro!ides for the conser!atory, interim or similar measures$ rantin of

under t%e "ules of Arbitration; A non-refundable filing fee of 6'J 3,+++, paid by the claimant when it files a G1e(uest for ArbitrationG as a condition to the 'ecretariat notifyin the G1e(uestG to the respondent.s/$ A 6'J 3,+++ non9 refundable fee is also due from any party that files a re(uest to -oin an additional party under Article ;$ A provisional advance , fi&ed by the 'ecretary Beneral upon or soon after receipt of the G1e(uestG, to be paid by claimant$ %he pro!isional ad!ance is intended to co!er the costs of arbitration until the G%erms of 1eferenceG are completed$ %he Court and 'ecretariat normally will wait for this pro!isional ad!ance to be paid before takin si nificant steps towards the constitution of the arbitral tribunal$ T%e advance on costs fi&ed by the Court$ 6sually this is fi&ed soon after the GAnswerG or any counterclaims are filed, that is as soon as the Court has sufficient information to fi& it$ %he parties are normally re(uested to pay the ad!ance on costs in e(ual shares at the time the 'ecretariat transfers the case9file to the arbitral tribunal$ "ote that the payments already made by the claimant .i$e$ the non9refundable filin fee and the pro!isional ad!ance/ are credited towards claimants share of the ad!ance on costs$ In arbitrations with more than two parties, the Court has discretion to re(uire that the payment of the ad!ance on costs is allocated appropriately$ %he Court will fi& the actual costs of the arbitration .i$e$ the ICC administrati!e e&penses and the arbitrators fees/ at the end of the case$ %hose costs, as well as the arbitrators reimbursable e&penses, will then be paid from the ad!ance on costs$ If there is any money left o!er it will be reimbursed to the parties$ t%e ICC case ICCs administrati!e costs and the arbitrators fees are fi&ed accordin to a scale of costs based on the

2inally, parties may a ree that the Emer ency Arbitrator Ero!isions apply to arbitration a reements concluded before 1 Hanuary 2+12$ 4ow to Apply for +mergency :easures *6Application7,; Practical Considerations

o o

2amiliarise yourself with the Emer ency Arbitrator Ero!isions .article 29 of the 1ules and Appendi& L M Emer ency Arbitrators 1ules/ Inform the 'ecretariat as soon as possible and preferably before submittin the Application If the Application for Emer ency 5easures precedes the 1e(uest for Arbitration, pleaseD Call <== & >8 ?= (@ A@ .Earis office/ or <@?( =0)A ?0)& .Con office/F or 'end an email toD emergencyarbitratorBiccwbo.org If the Application is related to an on oin management team to which the arbitration has been assi ned$ arbitration contact Kon

monetary !alue of the claims$ %his system offers predictability for the parties, who can estimate the ran e of costs as soon as the !alue of the claims is known$ A costs calculator is pro!ided on the website for this purpose$

'ubmit the Application preferably by email toD emergencyarbitratorBiccwbo.org

*here necessary, the Court has discretion to fi& the costs at an amount hi her or lower than that which is enerated by the costs scales$ At the end of an arbitration, parties may make costs claims in respect of the costs to be paid out of the ad!ance on costs .i$e$ the arbitrators fees and e&penses and ICC administrati!e e&penses/ and in respect of reasonable other costs they may ha!e incurred .e$ $ le al costs and e&pert costs/$ %he arbitral tribunal can then award costs in fa!our of or a ainst one or more parties$