International Court of Arbitration
Written Notifications or Communications; Time Limits
All pleadings and other written communications submitted by any party, as well as all documents annexed thereto, shall be supplied in a number of copies sufficient to provide one copy for each party, plus one for each arbitrator, and one for the Secretariat. A copy of any notification or communication from the arbitral tribunal to the parties shall be sent to the Secretariat.
Periods of time specified in or fixed under the Rules shall start to run on the day following the date a notification or communication is deemed to have been made in accordance with Article 3(3). When the day next following such date is an official holiday, or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall commence on the first following business day. Official holidays and non-business days are included in the calculation of the period of time. If the last day of the relevant period of time granted is an official holiday or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall expire at the end of the first following business day.
Request for Arbitration
In the event that the claimant fails to comply with either of these requirements, the Secretariat may fix a time limit within which the claimant must comply, failing which the file shall be closed without prejudice to the claimant’s right to submit the same claims at a later date in another Request.
Answer to the Request; Counterclaims
Effect of the Arbitration Agreement
where there are more than two parties to the arbitration, the arbitration shall proceed between those of the parties, including any additional parties joined pursuant to Article 7, with respect to which the Court is prima facie satisfied that an arbitration agreement under the Rules that binds them all may exist; and
where claims pursuant to Article 9 are made under more than one arbitration agreement, the arbitration shall proceed as to those claims with respect to which the Court is prima facie satisfied that the arbitration agreements under which those claims are made may be compatible, and that all parties to the arbitration may have agreed that those claims can be determined together in a single arbitration.
Where the parties are notified of the Court’s decision pursuant to Article 6(4) that the arbitration cannot proceed in respect of some or all of them, any party retains the right to ask any court having jurisdiction whether or not, and in respect of which of them, there is a binding arbitration agreement.
Joinder of Additional Parties
Claims Between Multiple Parties
In an arbitration with multiple parties, claims may be made by any party against any other party, subject to the provisions of Articles 6(3)-6(7) and 9 and provided that no new claims may be made after the Terms of Reference are signed or approved by the Court without the authorization of the arbitral tribunal pursuant to Article 23(4).
Before the Secretariat transmits the file to the arbitral tribunal in accordance with Article 16, the following provisions shall apply, mutatis mutandis, to any claim made: Article 4(4) subparagraph a); Article 4(5); Article 5(1) except for subparagraphs a), b), e) and f); Article 5(2); Article 5(3) and Article 5(4). Thereafter, the arbitral tribunal shall determine the procedure for making a claim.
Consolidation of Arbitrations
In deciding whether to consolidate, the Court may take into account any circumstances it considers to be relevant, including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations and, if so, whether the same or different persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties.
Constitution of the Arbitral Tribunal Number of Arbitrators
Appointment and Confirmation of the Arbitrators
Replacement of Arbitrators
An arbitrator shall also be replaced on the Court's own initiative when it decides that the arbitrator is prevented de jure or de facto from fulfilling the arbitrator's functions, or that the arbitrator is not fulfilling those functions in accordance with the Rules or within the prescribed time limits.
When, on the basis of information that has come to its attention, the Court considers applying Article 15(2), it shall decide on the matter after the arbitrator concerned, the parties and any other members of the arbitral tribunal have had an opportunity to comment in writing within a suitable period of time. Such comments shall be communicated to the parties and to the arbitrators.
Subsequent to the closing of the proceedings, instead of replacing an arbitrator who has died or been removed by the Court pursuant to Articles 15(1) or 15(2), the Court may decide, when it considers it appropriate, that the remaining arbitrators shall continue the arbitration. In making such determination, the Court shall take into account the views of the remaining arbitrators and of the parties and such other matters that it considers appropriate in the circumstances.
Rules Governing the Proceedings
The proceedings before the arbitral tribunal shall be governed by the Rules and, where the Rules are silent, by any rules which the parties or, failing them, the arbitral tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.
Terms of Reference
Establishing the Facts of the Case
Closing of the Proceedings and Date for Submission of Draft Awards
Award by Consent
Scrutiny of the Award by the Court
Before signing any award, the arbitral tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the award and, without affecting the arbitral tribunal's liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the arbitral tribunal until it has been approved by the Court as to its form.
Notification, Deposit and Enforceability of the Award
Correction and Interpretation of the Award; Remission of Awards
Where a court remits an award to the arbitral tribunal, the provisions of Articles 31, 33, 34 and this Article 35 shall apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission. The Court may take any steps as may be necessary to enable the arbitral tribunal to comply with the terms of such remission and may fix an advance to cover any additional fees and expenses of the arbitral tribunal and any additional ICC administrative expenses.
Advance to Cover the Costs of the Arbitration
Where claims are made under Article 7 or 8, the Court shall fix one or more advances on costs that shall be payable by the parties as decided by the Court. Where the Court has previously fixed any advance on costs pursuant to this Article 36, any such advance shall be replaced by the advance(s) fixed pursuant to this Article 36(4), and the amount of any advance previously paid by any party will be considered as a partial payment by such party of its share of the advance(s) on costs as fixed by the Court pursuant to this Article 36(4).
Decision as to the Costs of the Arbitration
In the event of the withdrawal of all claims or the termination of the arbitration before the rendering of a final award, the Court shall fix the fees and expenses of the arbitrators and the ICC administrative expenses. If the parties have not agreed upon the allocation of the costs of the arbitration or other relevant issues with respect to costs, such matters shall be decided by the arbitral tribunal. If the arbitral tribunal has not been constituted at the time of such withdrawal or termination, any party may request the Court to proceed with the constitution of the arbitral tribunal in accordance with the Rules so that the arbitral tribunal may make decisions as to costs.
Modified Time Limits
A party which proceeds with the arbitration without raising its objection to a failure to comply with any provision of the Rules, or of any other rules applicable to the proceedings, any direction given by the arbitral tribunal, or any requirement under the arbitration agreement relating to the constitution of the arbitral tribunal or the conduct of the proceedings, shall be deemed to have waived its right to object.
Limitation of Liability
The arbitrators, any person appointed by the arbitral tribunal, the emergency arbitrator, the Court and its members, the ICC and its employees, and the ICC National Committees and Groups and their employees and representatives shall not be liable to any person for any act or omission in connection with the arbitration, except to the extent such limitation of liability is prohibited by applicable law.
Composition of the Court
Referred to as “Chairman of the International Court of Arbitration” in the Constitution of the International Chamber of Commerce.
Referred to as “Vice-Chairmen of the International Court of Arbitration” in the Constitution of the International Chamber of Commerce.
The term of office of all members, including, for the purposes of this paragraph, the President and Vice-Presidents, is three years. If a member is no longer in a position to exercise the member's functions, a successor is appointed by the World Council for the remainder of the term. Upon the recommendation of the Executive Board, the duration of the term of office of any member may be extended beyond three years if the World Council so decides.
Plenary Session of the Court
The Plenary Sessions of the Court are presided over by the President or, in the President's absence, by one of the Vice-Presidents designated by the President. The deliberations shall be valid when at least six members are present. Decisions are taken by a majority vote, the President or Vice-President, as the case may be, having a casting vote in the event of a tie.
The work of the Court is of a confidential nature which must be respected by everyone who participates in that work in whatever capacity. The Court lays down the rules regarding the persons who can attend the meetings of the Court and its Committees and who are entitled to have access to materials related to the work of the Court and its Secretariat.
Modification of the Rules of Arbitration
Any proposal of the Court for a modification of the Rules is laid before the Commission on Arbitration before submission to the Executive Board of the ICC for approval, provided, however, that the Court, in order to take account of developments in information technology, may propose to modify or supplement the provisions of Article 3 of the Rules or any related provisions in the Rules without laying any such proposal before the Commission.
Confidential Character of the Work of the International Court of Arbitration
The President or the Secretary General of the Court may authorize researchers undertaking work of an academic nature to acquaint themselves with awards and other documents of general interest, with the exception of memoranda, notes, statements and documents remitted by the parties within the framework of arbitration proceedings.
Such authorization shall not be given unless the beneficiary has undertaken to respect the confidential character of the documents made available and to refrain from publishing anything based upon information contained therein without having previously submitted the text for approval to the Secretary General of the Court.
Any documents, communications or correspondence submitted by the parties or the arbitrators may be destroyed unless a party or an arbitrator requests in writing within a period fixed by the Secretariat the return of such documents, communications or correspondence. All related costs and expenses for the return of those documents shall be paid by such party or arbitrator.
Participation of Members of the International Court of Arbitration in ICC Arbitration
Relations between the Members of the Court and the ICC National Committees and Groups
Furthermore, they must regard as confidential, vis-à-vis the said National Committees and Groups, any information concerning individual cases with which they have become acquainted in their capacity as members of the Court, except when they have been requested by the President of the Court, by a Vice-President of the Court authorized by the President of the Court, or by the Court's Secretary General to communicate specific information to their respective National Committees or Groups.
Committee of the Court
The members of the Committee consist of a president and at least two other members. The President of the Court acts as the president of the Committee. In the President's absence or otherwise at the President's request, a Vice-President of the Court or, in exceptional circumstances, another member of the Court may act as president of the Committee.
In the Secretary General’s absence or otherwise at the Secretary General’s request, the Deputy Secretary General and/or the General Counsel shall have the authority to refer matters to the Court, confirm arbitrators, certify true copies of awards and request the payment of a provisional advance, respectively provided for in Articles 6(3), 13(2), 34(2) and 36(1) of the Rules.
Offices of the Secretariat may be established outside the headquarters of the ICC. The Secretariat shall keep a list of offices designated by the Secretary General. Requests for Arbitration may be submitted to the Secretariat at any of its offices, and the Secretariat’s functions under the Rules may be carried out from any of its offices, as instructed by the Secretary General, Deputy Secretary General or General Counsel.
Advance on Costs
The provisional advance fixed by the Secretary General according to Article 36(1) of the Rules shall normally not exceed the amount obtained by adding together the ICC administrative expenses, the minimum of the fees (as set out in the scale hereinafter) based upon the amount of the claim and the expected reimbursable expenses of the arbitral tribunal incurred with respect to the drafting of the Terms of Reference. If such amount is not quantified, the provisional advance shall be fixed at the discretion of the Secretary General. Payment by the claimant shall be credited to its share of the advance on costs fixed by the Court.
In general, after the Terms of Reference have been signed or approved by the Court and the procedural timetable has been established, the arbitral tribunal shall, in accordance with Article 36(6) of the Rules, proceed only with respect to those claims or counterclaims in regard to which the whole of the advance on costs has been paid.
Each party shall pay its share of the total advance on costs in cash. However, if a party’s share of the advance on costs is greater than US$ 500,000 (the “Threshold Amount”), such party may post a bank guarantee for any amount above the Threshold Amount. The Court may modify the Threshold Amount at any time at its discretion.
When, as a result of the fixing of separate advances on costs, the separate advance fixed for the claim of either party exceeds one half of such global advance as was previously fixed (in respect of the same claims and counterclaims that are the subject of separate advances), a bank guarantee may be posted to cover any such excess amount. In the event that the amount of the separate advance is subsequently increased, at least one half of the increase shall be paid in cash.
As provided in Article 36(5) of the Rules, the advance on costs may be subject to readjustment at any time during the arbitration, in particular to take into account fluctuations in the amount in dispute, changes in the amount of the estimated expenses of the arbitrator, or the evolving difficulty or complexity of arbitration proceedings.
Before any expertise ordered by the arbitral tribunal can be commenced, the parties, or one of them, shall pay an advance on costs fixed by the arbitral tribunal sufficient to cover the expected fees and expenses of the expert as determined by the arbitral tribunal. The arbitral tribunal shall be responsible for ensuring the payment by the parties of such fees and expenses.
Costs and Fees
In setting the arbitrator's fees, the Court shall take into consideration the diligence and efficiency of the arbitrator, the time spent, the rapidity of the proceedings, the complexity of the dispute and the timeliness of the submission of the draft award, so as to arrive at a figure within the limits specified or, in exceptional circumstances (Article 37(2) of the Rules), at a figure higher or lower than those limits.
The Court shall fix the ICC administrative expenses of each arbitration in accordance with the scale hereinafter set out or, where the amount in dispute is not stated, at its discretion. In exceptional circumstances, the Court may fix the ICC administrative expenses at a lower or higher figure than that which would result from the application of such scale, provided that such expenses shall normally not exceed the maximum amount of the scale.
In the case of an application under Article 35(2) of the Rules or of a remission pursuant to Article 35(4) of the Rules, the Court may fix an advance to cover additional fees and expenses of the arbitral tribunal and additional ICC administrative expenses and may make the transmission of such application to the arbitral tribunal subject to the prior cash payment in full to the ICC of such advance. The Court shall fix at its discretion the costs of the procedure following an application or a remission, which shall include any possible fees of the arbitrator and ICC administrative expenses, when approving the decision of the arbitral tribunal.
Amounts paid to the arbitrator do not include any possible value added tax (VAT) or other taxes or charges and imposts applicable to the arbitrator’s fees. Parties have a duty to pay any such taxes or charges; however, the recovery of any such charges or taxes is a matter solely between the arbitrator and the parties.
ICC as Appointing Authority
Any request received for an authority of the ICC to act as appointing authority will be treated in accordance with the Rules of ICC as Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings and shall be accompanied by a non-refundable filing fee of US$ 3,000. No request shall be processed unless accompanied by the said filing fee. For additional services, ICC may at its discretion fix ICC administrative expenses, which shall be commensurate with the services provided and shall normally not exceed the maximum amount of US$ 10,000.
Scales of Administrative Expenses and Arbitrator’s Fees
For illustrative purposes only, the table on page 55 indicates the resulting administrative expenses in US$ when the proper calculations have been made.
To calculate the ICC administrative expenses and the arbitrator's fees, the amounts calculated for each successive tranche of the amount in dispute must be added together, except that where the amount in dispute is over US$ 500 million, a flat amount of US$ 113,215 shall constitute the entirety of the ICC administrative expenses.
For illustrative purposes only, the table on page 56 indicates the resulting range of fees in US$ when the proper calculations have been made.
All amounts fixed by the Court or pursuant to any of the appendices to the Rules are payable in US$ except where prohibited by law, in which case the ICC may apply a different scale and fee arrangement in another currency.
|A Administrative Expenses|
|Amount in dispute (in US Dollars)||Administrative expenses1|
|up to 50,000||$3,000|
|from 50,001 to 100,000||4.73%|
|from 100,001 to 200,000||2.53%|
|from 200,001 to 500,000||2.09%|
|from 500,001 to 1,000,000||1.51%|
|from 1,000,001 to 2,000,000||0.95%|
|from 2,000,001 to 5,000,000||0.46%|
|from 5,000,001 to 10,000,000||0.25%|
|from 10,000,001 to 30,000,000||0.10%|
|from 30,000,001 to 50,000,000||0.09%|
|from 50,000,001 to 80,000,000||0.01%|
|from 80,000,001 to 500,000,000||0.0035%|
|B Arbitrator’s Fees|
|Amount in dispute (in US Dollars)||Fees2|
|up to 50,000||$3,000||18.0200%|
|from 50,001 to 100,000||2.6500%||13.5680%|
|from 100,001 to 200,000||1.4310%||7.6850%|
|from 200,001 to 500,000||1.3670%||6.8370%|
|from 500,001 to 1,000,000||0.9540%||4.0280%|
|from 1,000,001 to 2,000,000||0.6890%||3.6040%|
|from 2,000,001 to 5,000,000||0.3750%||1.3910%|
|from 5,000,001 to 10,000,000||0.1280%||0.9100%|
|from 10,000,001 to 30,000,000||0.0640%||0.2410%|
|from 30,000,001 to 50,000,000||0.0590%||0.2280%|
|from 50,000,001 to 80,000,000||0.0330%||0.1570%|
|from 80,000,001 to 100,000,000||0.0210%||0.1150%|
|from 100,000,001 to 500,000,000||0.0110%||0.0580%|
|Amount in Dispute||A Administrative Expenses1|
|(in US Dollars)||(in US Dollars)|
|up to 50,000||3,000|
|from 50,001 to 100,000||3,000 + 4.73% of amt. over 50,000|
|from 100,001 to 200,000||5,365 +2.53% of amt. over 100,000|
|from 200,001 to 500,000||7,895 + 2.09% of amt. over 200,000|
|from 500,001 to 1,000,000||14,165 +1.51% of amt. over 500,000|
|from 1,000,001 to 2,000,000||21,715 + 0.95% of amt. over 1,000,000|
|from 2,000,001 to 5,000,000||31,215 + 0.46% of amt. over 2,000,000|
|from 5,000,001 to 10,000,000||45,015 + 0.25% of amt. over 5,000,000|
|from 10,000,001 to 30,000,000||57,515 + 0.10% of amt. over 10,000,000|
|from 30,000,001 to 50,000,000||77,515 + 0.09% of amt. over 30,000,000|
|from 50,000,001 to 80,000,000||95,515 + 0.01% of amt. over 50,000,000|
|from 80,000,001 to 100,000,000||98,515 + 0.0035% of amt. over 80,000,000|
|from 100,000,001 to 500,000,000||99,215 + 0.0035% of amt. over 100,000,000|
|Amount in Dispute||B Arbitrator’s Fees2|
|(in US Dollars)||(in US Dollars)|
|up to 50,000||3,000||18.0200% of amount in dispute|
|from 50,001 to 100,000||3,000 + 2.6500% of amt. over 50,000||9,010 +13.5680% of amt. over 50,000|
|from 100,001 to 200,000||4,325 + 1.4310% of amt. over 100,000||15,794 + 7.6850% of amt. over 100,000|
|from 200,001 to 500,000||5,756 +1.3670% of amt. over 200,000||23,479 + 6.8370% of amt. over 200,000|
|from 500,001 to 1,000,000||9,857 + 0.9540% of amt. over 500,000||43,990 +4.0280% of amt. over 500,000|
|from 1,000,001 to 2,000,000||14,627 + 0.6890% of amt. over 1,000,000||64,130 + 3.6040% of amt. over 1,000,000|
|from 2,000,001 to 5,000,000||21,517 + 0.3750% of amt. over 2,000,000||100,170 +1.3910% of amt. over 2,000,000|
|from 5,000,001 to 10,000,000||32,767 + 0.1280% of amt. over 5,000,000||141,900 + 0.9100% of amt. over 5,000,000|
|from 10,000,001 to 30,000,000||39,167 + 0.0640% of amt. over 10,000,000||187,400 + 0.2410% of amt. over 10,000,000|
|from 30,000,001 to 50,000,000||51,967 + 0.0590% of amt. over 30,000,000||235,600 + 0.2280% of amt. over 30,000,000|
|from 50,000,001 to 80,000,000||63,767 + 0.0330% of amt. over 50,000,000||281,200 + 0.1570% of amt. over 50,000,000|
|from 80,000,001 to 100,000,000||73,667 + 0.0210% of amt. over 80,000,000||328,300 + 0.1150% of amt. over 80,000,000|
|from 100,000,001 to 500,000,000||77,867 + 0.0110% of amt. over 100,000,000||351,300 + 0.0580% of amt.over 100,000,000|
|over 500,000,000||121,867 + 0.0100% of amt. over 500,000,000||583,300 + 0.0400% of amt. over 500,000,000|
See page 54.
See page 54.
CASE MANAGEMENT TECHNIQUES
The following are examples of case management techniques that can be used by the arbitral tribunal and the parties for controlling time and cost. Appropriate control of time and cost is important in all cases. In cases of low complexity and low value, it is particularly important to ensure that time and costs are proportionate to what is at stake in the dispute.
Application for Emergency Measures
A party wishing to have recourse to an emergency arbitrator pursuant to Article 29 of the Rules of Arbitration of the ICC (the “Rules") shall submit its Application for Emergency Measures (the “Application") to the Secretariat at any of the offices specified in the Internal Rules of the Court in Appendix II to the Rules.
If and to the extent that the President of the Court (the “President") considers, on the basis of the information contained in the Application, that the Emergency Arbitrator Provisions apply with reference to Article 29(5) and Article 29(6) of the Rules, the Secretariat shall transmit a copy of the Application and the documents annexed thereto to the responding party. If and to the extent that the President considers otherwise, the Secretariat shall inform the parties that the emergency arbitrator proceedings shall not take place with respect to some or all of the parties and shall transmit a copy of the Application to them for information.
The President shall terminate the emergency arbitrator proceedings if a Request for Arbitration has not been received by the Secretariat from the applicant within 10 days of the Secretariat’s receipt of the Application, unless the emergency arbitrator determines that a longer period of time is necessary.
Appointment of the Emergency Arbitrator; Transmission of the File
Once the emergency arbitrator has been appointed, the Secretariat shall so notify the parties and shall transmit the file to the emergency arbitrator. Thereafter, all written communications from the parties shall be submitted directly to the emergency arbitrator with a copy to the other party and the Secretariat. A copy of any written communications from the emergency arbitrator to the parties shall be submitted to the Secretariat.
Challenge of an Emergency Arbitrator
A challenge against the emergency arbitrator must be made within three days from receipt by the party making the challenge of the notification of the appointment or from the date when that party was informed of the facts and circumstances on which the challenge is based if such date is subsequent to the receipt of such notification.
Place of the Emergency Arbitrator Proceedings
If the parties have agreed upon the place of the arbitration, such place shall be the place of the emergency arbitrator proceedings. In the absence of such agreement, the President shall fix the place of the emergency arbitrator proceedings, without prejudice to the determination of the place of the arbitration pursuant to Article 18(1) of the Rules.
The emergency arbitrator shall conduct the proceedings in the manner which the emergency arbitrator considers to be appropriate, taking into account the nature and the urgency of the Application. In all cases, the emergency arbitrator shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.
The Order shall be made no later than 15 days from the date on which the file was transmitted to the emergency arbitrator pursuant to Article 2(3) of this Appendix. The President may extend the time limit pursuant to a reasoned request from the emergency arbitrator or on the President’s own initiative if the President decides it is necessary to do so.
Within the time limit established pursuant to Article 6(4) of this Appendix, the emergency arbitrator shall send the Order to the parties, with a copy to the Secretariat, by any of the means of communication permitted by Article 3(2) of the Rules that the emergency arbitrator considers will ensure prompt receipt.
Costs of the Emergency Arbitrator Proceedings
The applicant must pay an amount of US$ 40,000, consisting of US$ 10,000 for ICC administrative expenses and US$ 30,000 for the emergency arbitrator’s fees and expenses. Notwithstanding Article 1(5) of this Appendix, the Application shall not be notified until the payment of US$ 40,000 is received by the Secretariat.
The President may, at any time during the emergency arbitrator proceedings, decide to increase the emergency arbitrator’s fees or the ICC administrative expenses taking into account, inter alia, the nature of the case and the nature and amount of work performed by the emergency arbitrator, the Court, the President and the Secretariat. If the party which submitted the Application fails to pay the increased costs within the time limit fixed by the Secretariat, the Application shall be considered as withdrawn.
In the event that the emergency arbitrator proceedings do not take place pursuant to Article 1(5) of this Appendix or are otherwise terminated prior to the making of an Order, the President shall determine the amount to be reimbursed to the applicant, if any. An amount of US$ 5,000 for ICC administrative expenses is non-refundable in all cases.
In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, the parties shall have no further obligations under this paragraph.
In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute 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 of Arbitration.
Parties wishing to use ICC arbitration and/or ICC ADR should choose one of the above clauses, which cover different situations and needs.
If the parties do not want the Emergency Arbitrator Provisions to apply, they must expressly opt out by using the second of the two arbitration clauses.
Parties are free to adapt the chosen clause to their particular circumstances. For instance, when providing for arbitration, they may wish to stipulate the number of arbitrators, given that the Rules of Arbitration contain a presumption in favour of a sole arbitrator. They may also wish to stipulate the language and place of the arbitration and the law applicable to the merits. When providing for ADR, they may wish to specify the settlement technique to be applied, failing which mediation, the default mechanism, will be used.
The last clause above is a two-tiered clause providing for ADR followed by arbitration. Other combinations of services are also possible. Combined and multi-tiered dispute resolution clauses may help to facilitate dispute management. However, it is also possible for parties to file requests under the ICC ADR Rules or the ICC Rules for Expertise at any time, even after a dispute has arisen or in the course of other dispute resolution proceedings.
At all times, care must be taken to avoid any risk of ambiguity in the drafting of the clause. Unclear wording causes uncertainty and delay and can hinder or even compromise the dispute resolution process.
When incorporating any of the above clauses in their contracts, parties are advised to take account of any factors that may affect their enforceability under applicable law. For instance, they should have regard to any mandatory requirements at the place of arbitration and the place of enforcement.
Translations of the above clauses and clauses providing for other procedures and combinations of procedures can be found at www.iccarbitration.org.
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