Functioning and scope of arbitration under the International Chamber of Chomerce

1. International Commercial
Arbitration under the ICC Rules-
a critical approach

2. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

3. Structure of the Arbitration under the
ICC Rules
• Based on the New York Convention (1958)
• The arbitration can only be administered by the
International Court of Arbitration
• Assisted by the Secretariat, entity that becomes
all documents
• No official restrictions in who can use this
service of arbitration and who can be arbitratior

4. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

5. Arbitration Request
Submission
of Request
• Date of the begining of the arbitration
• Submitted to the Secretariat by the claimant
Information
in the
Request
• Basis of the claim
• Relief sought
• Proposal of the place, language and number of arbitrators
Answer and
Counterclaim
• Answer has to have a comment on every administrative
point proposed in the Request
• It can include a Counterclaim, which has to have the same format as a Request
Approval of the
arbitration
request
• Made by Court
• Also if a party doesn’t accept the arbitration or
arises a plea an arbitration can take place
AFTER 30 DAYS:

6. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

7. Appointment or designation of an
arbitrator
In case of designation:
• Proposal of a National Comitee or Group of the ICC
• If no request made, the Court decides between another
• NC or a direct appointment
The Court has the Final Decision in confirming or
designing an arbitration and doesn’t have to give reasons
for its decision
• Agreement between parties: nomination and confirmation
• No agreement: designation by the Court

8. The Arbitrator and the Tribunal
Arbitrator Disclose reasons or circumstances that question impartiality or
independence
Should not be from the same nationality than the parties
Can be challenged or replaced
Tribunal Composed by 1 or 3 arbitrators (1 is the president)
Decides where to conduct the meetings, hearings and deliberations
The language of the arbitration, decisions over confidentiality, rules
of law applicable are decided by the tribunal if no previous
agreement

9. Arbitral Proceeding
Handing the Terms of Reference
Goal:
to set an award
Decision making
• Documents
• Hearing of experts and/or
witnesses
• With/without phisycal
presence of parties or
representative
Declaration of proceedings
closed

10. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

11. Awards and Costs
Awards
• Enforceable binding contract
• Decision made by a majority in
the tribunal
• Given to the Court for revision
and approval (draft Award)
• The content of the award is
disclosed when all payments are
made
• After the award is made, there is
no possiblity of appelation
Costs
• Advance payment when handing
the Request
• Amount of costs of
administration and arbitration
fees determined by the Court
• Costs are calculated as a
percentage of the amount in
dispute
• Further costs can be set by the
Tribunal
• Final amount set in the award

12. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

13. Response to new challenges in
international arbitration
The ICC Rules were revised in order to adress the
following issues:
• Costs and time
• Arbitration with multiple parties and joinder of
additional parties
• Good faith and impartiality
• Confidentiality and transparency

14. Multiple parties and multiple contracts
30% of the caseload of the ICC is related with multi-
parties or multi-contracts.
• Additional parties: “Request for Joinder”, arbitration
against a new party
• Multi-contract arbitration: claims coming from more
than one contract can be made in a single arbitration
• Consolidation: possible at request when a) the
parties agree, b) claims made under same arbitration
agreement, c) more than one arbitration agreement
but same parties, same legal relationship and
compatibility.

15. Emergency arbitrator rules
• Interim before the arbitral tribunal is conformed
• Decision: order. Can be afterwards modified,
terminated or annulated by the arbitral tribunal
• Only applies to parties that have signed an
arbitration agreement.
• Arbitration agreements made before 2012 are
not subject to this provision unless all parties
agree.

16. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

17. The UNCITRAL arbitration Rules
• Rules for ad-hoc arbitrations
• Last (and first) revision: 2010
• Detailed listing of the requirements for an
interim meassure
• Tribunal has to make a proposition of the
arbitration fees

18. The London Court of International
Arbitration
• Last revision: 1998
• No review of a draft award, nor terms of reference
• Costs fixed
• Arbitrators selected from a database maintained by the
Court
• Can function as appointment authority or administrator
in an ad hoc arbitration

19. The American Arbitration Association‘s
International Center for Disputes Resolution
• Simliar to UNCITRAL Rules
• Caseload of 913 cases (2011)
• Actualized in 2013
• ICDR accepts other Rules
• No need of a request, nor terms of reference
• Less experts on international arbitration than the
ICC

20. Outline
1. Structure of the arbitration under the ICC Rules
1.1 Arbitration Request and Approval of the
Arbitration Process
1.2 Arbitral Tribunal and Arbitral Proceedings
1.3 Awards and Costs
2. Response to new challenges in international commercial
arbitration
3. Comparison with other leading arbitrational institutions
4. Conclusion

21. Conclusion
• During the research for this paper, became evident that the quantity of articles and
investigation made from the ICC about international arbitration is huge in comparison with
the investigation other institutions. This can lead to a bias in the information and explain
some of the popularity of the ICC Rules. Still, after analyzing in detail the Rules of
International Arbitration of the ICC and comparing them with other set of rules for
international commercial arbitration; it is possible to see the advantages of having a very
strong institution administering the arbitral process. The process in the ICC gives more
structure and support to the arbitration than the other international arbitral institutions
here analyzed. It is also important to highlight the effort that the ICC Court of Arbitration
does in order to maintain its rules according to the new challenges in the international
arbitration arena. The last revision has added some important provisions without
overloading the Rules. But this process of improvement is not exclusive of the ICC, it is
more an effort of all institutions related with international commercial arbitration.
• The comparison of the ICC with the other institutions shows that the international
commercial arbitration rules are very similar and the differences that exist can be taken as
advantages or disadvantages, according to the necessities of the parties. This fact makes it
very important to look after the own necessities and expectations of a company before
choosing one institution or the ad-hoc arbitration as a dispute resolution mechanism. The
most important aspects that a company has to look after inside are the experience in
international arbitrage, the budget, the time-effectivity trade-off and the required
flexibility.