International Chamber of Commerce (ICC)

(Disclaimer: The author contributed to this note in her personal capacity. The views expressed are her own and do not necessarily represent the views of the Undersecretariat for International Economic Relations, the Ministry of Foreign Affairs, or the government of Chile.)

The International Chamber of Commerce (ICC) is a non-profit international organization that represents business interests in international affairs, with a network spanning 45 million companies in over 100 countries.¹ In 2016 ICC was granted Observer status by the General Assembly of the United Nations.² Its Secretariat is located in Paris.

The ICC was created in 1919 by member States with the purpose of promoting open trade and a free financial market. Its founding member States were Belgium, Denmark, France, Italy, the United Kingdom and the United States. In present times ICC’s National Committees exist in over 90 countries around the world.³

ICC has developed numerous global standards for the international conduct of business, including the International Commercial Terms (Incoterms®). The most recent version is Incoterms® 2020.

The ICC International Court of Arbitration (ICC Court) is the world’s leading arbitral institution. It was established in 1923 and its main function is to resolve commercial and business disputes to support trade and investment. The services of the ICC Court are often used by individuals, businesses and governments to solve their disputes.⁴ The Court mainly serves for commercial disputes and, to a lesser extent, investor-State disputes.⁵

The ICC Court does not make formal judgments on disputed matters.  Instead, the Court exercises judicial supervision of arbitration proceedings.⁶

The Court’s official working languages are English and French. However, it also administers cases in Arabic, Chinese, German, Italian, Portuguese, Russian and Spanish.⁷

The ICC 2017 Rules of Arbitration and the current 2021 Rules of Arbitration contain several unique features:

1. The Court does not render judgements or awards itself. Instead they provide for technical assistance and a list of arbitrators.⁸
2. The Court will provide the arbitrators unless agreed otherwise.⁹
3. The arbitral tribunal prepares a document named Terms of Reference.¹⁰
4. The arbitral award is subject to the Court’s scrutiny to verify formalities and that all relevant matters are covered by the award.¹¹
5. The ICC arbitration rules authorize the tribunal to make orders on the confidentiality of the proceedings if so requested by either party.¹²
6. The ICC arbitration rules provide for an expedited procedure for lower-value cases.¹³ However, considering the stakes involved in ISDS cases, this procedure might be considered as inappropriate by a party to the case and trigger the safeguard to prevent its application.¹⁴

The ICC 2021 Rules of Arbitration entered into force on 1 January 2021 and apply to ICC arbitrations registered on or after this date. These new rules consider specific provisions applicable to treaty-based arbitration:

1. Arbitrators shall not have the same nationality of any of the parties, unless agreed otherwise.¹⁵
2. The Emergency Arbitrator Provisions do not apply to treaty-based arbitration.¹⁶

Other relevant amendment includes the obligation of the parties to disclose Third-Party Funders.¹⁷

ICC is referred as a forum for investor-State disputes in several International Investment Agreements (IIAs).¹⁵

In 1996 the first investor-State case was filed with the ICC on the basis of a Bilateral Investment Treaty (BIT). Since then, at time of writing, 42 investor-State cases have been administered by the ICC. More specifically, at time of writing the host States involved in these proceedings belong to the following regions:¹⁶

• Central & Eastern Europe: 13 cases
• Latin American & Caribbean: 12 cases
• North Africa: 11 cases
• Sub-Saharan Africa: 3 cases
• Central & West Asia: 2 cases
• North & West Europe: 1 case

ICC administered cases also allow the parties to request confidentiality in relation to the proceedings. Therefore, as it is often requested, the outcome in most of the ICC investor-State disputes remain confidential.¹⁷