International Chamber of Commerce Arbitration

by Craig, W. Laurence; Park, William W.; Paulsson, Jan

Edition: 3rd

ISBN13: 9780379213928

ISBN10: 0379213923

Format: Hardcover

Pub. Date: 2001-11-30

Publisher(s): Oceana TM

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Summary

Expert Commentary! This hands-on guide covers every aspect of ICC arbitration, the most prevalent form of institutional arbitration in the world. It analyzes ICC arbitrations step by step, with copious references to the experience of past cases & the lessons to be learned from them as a detailed anatomy of the workings of ICC arbitration. Ideal for anyone involved with International Arbitrations. The book provides a critical evaluation of the advantages & disadvantages of every step in the arbitral process. The analysis is exclusively practical -- facts, figures, pragmatic suggestions & warnings. As with the previous edition, the authors have avoided all purely academic & theoretical discussion. This book is essential to anyone -- arbitrator, counsel or other practitioner -- who may, or may expect to be, involved in an ICC arbitration, or who may have to consider the benefits or drawbacks of an ICC arbitration clause. Your Complete Guide to ICC Arbitration! This single volume covers: * The Institution of the ICC & the Structural Organization * The Agreement to Arbitrate & its Elements * ICC Arbitration in Practice, from the Request for Arbitration to the Enforcement of the Award * Hearings, Proof, & Ancillary Proceedings * The Impact of National Law on ICC Arbitration * Trends in International Commercial Arbitration & Additional ICC Dispute Resolving Mechanisms * Text of the ICC Rules, plus Statistics & General Information.

Introduction to the Third Edition

xiii

Abbreviations

PART I THE INSTITUTION

General Characteristics

(16)

Basic principles

(1)

Volume of cases

(1)

The stakes

(1)

Typical parties to ICC arbitrations

(2)

Typical subject matter of ICC cases

(1)

Delocalization

(2)

Trends in choosing venue and arbitrators

(4)

Length of proceedings

(1)

General conclusions

(3)

The Organizational Framework

(12)

Introduction

(1)

The ICC and its National Committees

(2)

The Court

(5)

The Secretariat

(2)

The Arbitrators

(3)

Costs

(8)

Principles of assessment

(1)

Is ICC arbitration too expensive?

(4)

The problem of advances on costs

(1)

Consequences of failure to contribute

(1)

Cost reforms

(2)

PART II THE AGREEMENT TO ARBITRATE

Types of Arbitration Agreements

(6)

Special submission (``compromis'')

(1)

Contractual clause

(1)

Ad hoc (non-administered) arbitration

(2)

Institutional arbitration

(1)

Supervised institutional arbitration

(2)

The Validity of The Arbitration Agreement

(42)

Introduction

(1)

Capacity of the parties

(2)

Authority to represent parties

(2)

Autonomy of the arbitration clause

(4)

Law applicable to the arbitration agreement

(2)

Form of the agreement to arbitrate

(6)

Arbitrability

(13)

Incorporation by reference

(1)

Related parties not having signed the arbitration agreement

(5)

Related agreements not containing the arbitration clause

(2)

Multi-party disputes

(4)

Indispensable Elements

(6)

Unambiguous reference to ICC arbitration

(1)

Scope of the dispute to be arbitrated

(2)

The ICC Model Clause

(3)

Generally Recommended Additional Elements

(14)

Number, nationality, and qualification of arbitrators

(2)

Place of arbitration

(3)

Language of arbitration

(1)

Law applicable to the merits of the dispute

(8)

Occasionally Useful Elements

105

(22)

Negotiation, conciliation, or mediation as precondition

105

(1)

Rules or law of procedure

106

(1)

Law governing the arbitration agreement

107

(1)

Rules of conflict of laws

108

(2)

Powers of amiable compositeur

110

(4)

Powers to adapt the contract

114

(2)

Powers and procedures for provisional relief

116

(1)

Procedural details

117

(1)

Use of discovery

118

(1)

Apportionment of costs

118

(1)

Entry-of-judgment stipulations

119

(2)

Waiver of appeal

121

(1)

Waiver of sovereign immunity

122

(3)

Accommodation for multi-party disputes

125

(2)

Pathological Elements

127

(10)

Introduction

127

(1)

Equivocation: the cardinal sin

128

(1)

The case of the missing authority

129

(3)

The case of the disastrous compromise

132

(1)

Overdoing the search for institutions

133

(1)

The illusory arbitration clause

134

(1)

Suffocating the process with specificity

135

(1)

Haste makes waste

135

(2)

PART III ICC ARBITRATION IN PRACTICE

Bringing Arbitration Under the Rules

137

(18)

Introduction

137

(1)

Business disputes of an international character

138

(4)

Which edition of the ICC Rules applies?

142

(3)

The Request for Arbitration

145

(5)

Answer and Counterclaim

150

(1)

Failure or refusal to answer and other defaults: ex parte proceedings

151

(2)

Notifications and communications and calculation of periods of time

153

(2)

Arbitral Jurisdiction

155

(30)

The Court of Arbitration's preliminary prima facie determination of existence of agreement to arbitrate

155

(3)

Procedure for raising jurisdictional issues before the Court of Arbitration

158

(3)

Arbitrators' authority to determine their jurisdiction

161

(6)

Recognition by national courts of arbitrator's power to determine his own jurisdiction

167

(4)

Jurisdiction over parties who have not signed the arbitration agreement

171

(8)

Intervention, joinder and consolidation

179

(6)

Constituting the Arbitral Tribunal and Determining the Place of Arbitration

185

(18)

Place of arbitration

185

(4)

Number of arbitrators

189

(2)

Appointment of sole arbitrator or chairman

191

(3)

Party-nominated arbitrators

194

(3)

Failure of a party to nominate an arbitrator

197

(1)

Constituting the arbitral tribunal in multi-party arbitrations

198

(5)

Arbitrator Disqualification or Incapacity

203

(50)

Rejection of nomination, challenge, and disqualification

203

(4)

The Court's standards and their source

207

(2)

Independence required of arbitrator

209

(4)

Arbitrator's duty of disclosure

213

(10)

Grounds for challenge

223

(14)

Removal of an arbitrator by the Court

237

(3)

Standards of conduct for arbitrators during the proceedings

240

(2)

Replacement of arbitrators

242

(3)

Non-replacement of arbitrators: the ``truncated tribunal''

245

(4)

Time limits for challenge

249

(4)

Advance To Cover Costs

253

(20)

Determination of advances

253

(10)

Consequences of default by one party

263

(3)

The use of bank guarantees for the advance on costs

266

(1)

Other consequences of default by a party to pay advance on costs

267

(6)

Terms of Reference

273

(22)

Rationale

273

(3)

Contents

276

(8)

Default by party

284

(1)

Entry Into effect

285

(1)

Legal Effect

286

(9)

Rules Governing the Proceedings

295

(24)

Freedom of parties and arbitrators

295

(2)

Mandatory procedural requirements of national law

297

(2)

Effect of choice of an a-national procedure

299

(1)

Procedural rulings

300

(3)

Representation and Rights of Audience

303

(8)

Confidentiality

311

(8)

Choice of Substantive Law

319

(28)

Freedom of arbitrators to apply ``appropriate'' rules of law

319

(4)

Choice of law criteria most frequently used in ICC arbitration

323

(7)

Application of contractual terms, relevant trade usage, and ``lex mercatoria''

330

(8)

Influence of public law and international public policy

338

(9)

``Amiable Composition''

347

(8)

Definition

347

(4)

``Amiable Composition'' and deciding ``ex aequo et bono'' under the ICC Rules

351

(2)

Scrutiny and review of awards rendered by amiables compositeurs

353

(2)

Arbitral Awards

355

(20)

Time limits for awards

355

(3)

Awards by consent

358

(1)

Interim and partial awards

359

(5)

Form of award

364

(4)

Majority awards and awards rendered by the chairman

368

(3)

Dissenting opinions

371

(4)

The Court's Scrutiny of Awards

375

(10)

The Court's role

375

(2)

Review of procedural defects

377

(1)

Modification of the form of awards

378

(1)

Comments on points of substance

379

(1)

Court's scrutiny of awards as seen by national courts

380

(5)

Determination of Costs

385

(12)

General principles

385

(1)

ICC administrative costs

386

(1)

Arbitrators' fees

387

(4)

Arbitrators' allocation of costs between the parties

391

(6)

Entering Into Effect of the Award

397

(18)

Signature of the award by arbitrators

397

(2)

Payment of costs and notification of award to parties

399

(1)

Finality and enforceability of award

400

(4)

Deposit of award and assistance of Secretariat

404

(2)

Termination of arbitrators' powers

406

(4)

Exclusion of Liability

410

(5)

PART IV HEARINGS, PROOF, AND ANCILLARY PROCEEDINGS

ICC Arbitrators' Approach to Fact Finding

415

(12)

Arbitrators' power to establish facts ``by all appropriate means''

415

(3)

Civil-law procedures

418

(1)

Common-law procedures

419

(3)

Generally recognized procedural principles

422

(5)

Written Proof and Arguments

427

(8)

Emphasis on written submissions in ICC arbitration

427

(2)

Documents

429

(1)

Memorials and briefs

430

(1)

Timeliness of submissions

431

(1)

Written statements of witnesses

432

(3)

Hearings

435

(14)

Arbitrators' power of subpoena and to administer oath

435

(2)

Testimony

437

(5)

Party experts

442

(1)

Demonstrative evidence

443

(1)

Oral argument

444

(2)

Closing the proceedings

446

(3)

Fact Finding and Interlocutory Measures Ordered by Arbitrators

449

(22)

Production of documents

449

(8)

Depositions

457

(1)

Site visit

458

(1)

Experts appointed by the tribunal

458

(2)

Interim measures and other interlocutory relief ordered by arbitrators

460

(11)

Ancillary Proceedings Before National Courts

471

(24)

Article 23(2) of the Rules: interim or conservatory measures

471

(2)

Injunction, expertise, and other urgent measures

473

(7)

Other interlocutory relief

480

(2)

Attachments

482

(4)

Court ordered discovery and production of evidence

486

(9)

PART V THE IMPACT OF NATIONAL LAW

National Constraints on ICC Arbitration

495

(24)

Private Consent and Public Power

495

(1)

Matters Affected by National Arbitration Law

496

(1)

The Arbitral Situs

497

(3)

Award Annulment: Why and to What Effect

500

(7)

Multiple Procedural Norms

507

(3)

Keeping National Law in Perspective

510

(2)

Courts and Arbitral Jurisdiction

512

(4)

The Special Status of International Arbitration

516

(3)

The Uncitral Model Law

519

(12)

Statutory Framework

519

(4)

The Agreement to Arbitrate

523

(3)

Interlocutory matters

526

(2)

Review of awards

528

(3)

English Law

531

(18)

Statutory Framework

531

(6)

The Agreement to Arbitrate

537

(2)

Interlocutory Matters

539

(3)

Review of Awards

542

(7)

French Law

549

(14)

Statutory framework

549

(2)

The Agreement to Arbitrate

551

(4)

Interlocutory Matters

555

(2)

Review of Awards

557

(6)

Hong Kong Law

563

(12)

Statutory Framework

563

(4)

The Agreement to Arbitrate

567

(2)

Interlocutory Matters

569

(1)

Review of Awards

570

(5)

Swiss Law

575

(16)

Statutory Framework

575

(2)

The Agreement to Arbitrate

577

(2)

Interlocutory Matters

579

(3)

Review of Awards

582

(9)

United States Law

591

(32)

Statutory Framework

591

(5)

The Agreement to Arbitrate

596

(11)

Interlocutory Matters

607

(3)

Review of Awards

610

(13)

PART VI TRENDS IN INTERNATIONAL COMMERCIAL ARBITRATION

Lex Mercatoria

623

(38)

Three concepts of lex mercatoria

623

(16)

ICC awards as precedents

639

(12)

An illustration of the emergence of transnational norms: the issue of force majeure

651

(6)

Toward a concept of arbitral justice

657

(4)

State Contracts

661

(18)

International arbitration as a perceived menace to sovereignty

661

(2)

Arbitration without privity

663

(7)

Sovereign immunity and acts of State

670

(6)

The ability of developing countries to deal with transnational disputes

676

(3)

ICC Arbitration and the New York Convention

679

(18)

Background

679

(1)

Framework

680

(1)

Scope

681

(3)

Defenses to Recognition and Enforcement

684

(2)

Interaction with Other Treaties

686

(11)

Additional ICC Dispute Resolving Mechanisms

697

Conciliation

697

Expertise

701

Pre-arbitral Referee

706

Adaptation of contracts

709

Maritime and aviation arbitration

712

Specialized commissions

713

Appointing authority

714

Supervising arbitration applying non-ICC rules

715

Documentary Credit Disputes

715

APPENDICES

Appendix I: Statistics and General Information

Table 1 Composition of ICC Commissions and Working Groups

721

Table 2 Composition of the Court of Arbitration

724

Table 3 Nationalities of Arbitrators

727

Table 4 Nationalities of Arbitrators Selected in 1989-1999 (11 Years)

728

Table 5 Nationalities of Parties to Arbitration Field in 1989-1999 (11 Years)

732

Table 6 Regional Leaders

737

Table 7 Places of Arbitration Established in 1989-1999 (11 Years)

738

Table 8 Amounts In Dispute

743

Table 9A Calculating ICC Administrative Expenses and Fees of Arbitrators According to the ICC Schedule

744

Table 9B Estimating Costs and the Advance on Costs

745

Table 10 Signatories to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

748

Appendix II:

Rules of Optional Conciliation

753

Rules of Arbitration of the International Chamber of Commerce

756

Statutes of the International Court of Arbitration of the ICC

771

Internal Rules of the International Court of Arbitration of the ICC

773

Arbitration Costs and Fees

776

Destination table: From 1975 Arbitration Rules to 1998 Arbitration Rules

781

Derivative table: From 1998 Arbitration Rules to 1975 Arbitration Rules

784

Appendix III:

ICC Rules for Expertise

789

ICC Rules for Documentary Credit Dispute Resolution Expertise DOCDEX Rules

793

Appendix to the ICC DOCDEX Rules

798

ICC/CMI Rules for International Maritime Arbitration

800

ICC Rules for a Pre-Arbitral Referee Procedure

808

Appendix: Costs and Payment for the ICC Pre-arbitral Referee Procedure

813

TABLES

Table of Cases

815

Table of Arbitral Awards

859

Table of Authorities

873

Table of Articles of the 1998 ICC Arbitration Rules

911

INDEX

Subject Index

919

International Chamber of Commerce Arbitration

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