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FOREWORD
The
closing decades of the twentieth century saw international commercial
arbitration gain worldwide acceptance as the normal means of resolving
international commercial disputes. National laws on arbitration have
been modernized on all continents. International treaties on arbitration
have been signed or adhered to with impressive success. Arbitration has
become part of the curricula of large numbers of law schools. With the
gradual removal of political and trade barriers and the rapid
globalization of the world economy, new challenges have been created for
arbitration institutions in response to the growing demand of parties
for certainty and predictability, greater rapidity and flexibility as
well as neutrality and efficacy in the resolution of international
disputes.
Since the
International Court of Arbitration was established in 1923, ICC
arbitration has been constantly nourished by the experience gathered by
the ICC International Court of Arbitration in the course of
administering more than eleven thousand international arbitration cases,
now involving each year parties and arbitrators from over 100 countries
and from a diversity of legal, economic, cultural and linguistic
backgrounds.
The
present ICC Rules of Arbitration came into effect on 1 January 1998.
They are the result of an intensive, worldwide consultation process and
constitute the first major revision of the Rules in more than 20 years.
The changes made are designed to reduce delays and ambiguities and to
fill certain gaps, taking into account the evolution of arbitration
practice. The basic features of the ICC arbitration system have not been
altered, however, notably its universality and flexibility, as well as
the central role played by the ICC Court in the administration of
arbitral cases.
Every ICC
arbitration is conducted by an arbitral tribunal with responsibility for
examining the merits of the case and rendering a final award. Each year,
ICC arbitrations are held in some 40 countries, in most major languages
and with arbitrators of some 60 different nationalities. The work of
those arbitral tribunals is monitored by the ICC Court, which meets
weekly all year round. Currently composed of some 112 members from 73
countries, the Court organizes and supervises arbitrations held under
the ICC Rules of Arbitration. The Court must remain constantly alert to
changes in the law and the practice of arbitration in all parts of the
world and must adapt its working methods to the evolving needs of
parties and arbitrators. For the day-to-day management of cases in many
languages, the ICC Court is supported by a Secretariat based at the
headquarters of the International Chamber of Commerce, in Paris.
Although
the ICC Rules of Arbitration have been especially designed for
arbitrations in an international context, they may also be used for
non-international cases.
The
present publication contains only the 1998 ICC Rules of Arbitration. The
1988 ICC Rules of Optional Conciliation, with which they were previously
published, have been replaced, as from 1 July 2001, by the ICC ADR
Rules, which are published separately. This reedition of the 1998 Rules
of Arbitration has allowed a number of typographical, syntactical and
grammatical corrections to be made to the text as previously published.
In addition, for the sake of consistency with the French version of the
Rules, in the second sentence of Article 2(9) of Appendix III , the
words "are expected" have been replaced by "have a duty
".
August
2001
STANDARD ICC
ARBITRATION CLAUSE
The ICC
recommends that all parties wishing to make reference to ICC arbitration
in their contracts use the following standard clause.
Parties are reminded that it may be desirable for them to stipulate in
the arbitration clause itself the law governing the contract, the number
of arbitrators and the place and language of the arbitration. The
parties' free choice of the law governing the contract and of the place
and language of the arbitration is not limited by the ICC Rules of
Arbitration.
Attention is called to the fact that the laws of certain countries
require that parties to contracts expressly accept arbitration clauses,
sometimes in a precise and particular manner.
"All disputes arising out of or in connection with the present
contract 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."
RULES OF ARBITRATION OF THE
INTERNATIONAL CHAMBER OF COMMERCE
(in force as
from 1 January 1998)
INTRODUCTORY PROVISIONS
Article 1
International Court of Arbitration
1
The International Court of Arbitration (the "Court") of the
International Chamber of Commerce (the "ICC") is the
arbitration body attached to the ICC. The statutes of the Court are set
forth in Appendix I. Members of the Court are appointed by the World
Council of the ICC. The function of the Court is to provide for the
settlement by arbitration of business disputes of an international
character in accordance with the Rules of Arbitration of the
International Chamber of Commerce (the "Rules"). If so
empowered by an arbitration agreement, the Court shall also provide for
the settlement by arbitration in accordance with these Rules of business
disputes not of an international character.
2
The Court does not itself settle disputes. It has the function of
ensuring the application of these Rules. It draws up its own Internal
Rules (Appendix II).
3
The Chairman of the Court, or, in the Chairman's absence or otherwise at
his request, one of its Vice-Chairmen shall have the power to take
urgent decisions on behalf of the Court, provided that any such decision
is reported to the Court at its next session.
4
As provided for in its Internal Rules, the Court may delegate to one or
more committees composed of its members the power to take certain
decisions, provided that any such decision is reported to the Court at
its next session.
5
The Secretariat of the Court (the "Secretariat") under the
direction of its Secretary General (the "Secretary General")
shall have its seat at the headquarters of the ICC.
Article 2
Definitions
In these
Rules:
(i) "Arbitral Tribunal" includes one or more arbitrators.
(ii) "Claimant" includes one or more claimants and
"Respondent" includes one or more respondents.
(iii) "Award" includes, inter alia, an interim, partial
or final Award.
Article 3
Written Notifications or Communications; Time Limits
1
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
communication from the Arbitral Tribunal to the parties shall be sent to
the Secretariat.
2
All notifications or communications from the Secretariat and the
Arbitral Tribunal shall be made to the last address of the party or its
representative for whom the same are intended, as notified either by the
party in question or by the other party. Such notification or
communication may be made by delivery against receipt, registered post,
courier, facsimile transmission, telex, telegram or any other means of
telecommunication that provides a record of the sending thereof.
3
A notification or communication shall be deemed to have been made on the
day it was received by the party itself or by its representative, or
would have been received if made in accordance with the preceding
paragraph.
4
Periods of time specified in or fixed under the present Rules, shall
start to run on the day following the date a notification or
communication is deemed to have been made in accordance with the
preceding paragraph. 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.
COMMENCING THE ARBITRATION
Article 4
Request for Arbitration
1
A party wishing to have recourse to arbitration under these Rules shall
submit its Request for Arbitration (the "Request") to the
Secretariat, which shall notify the Claimant and Respondent of the
receipt of the Request and the date of such receipt.
2
The date on which the Request is received by the Secretariat shall, for
all purposes, be deemed to be the date of the commencement of the
arbitral proceedings.
3
The Request shall, inter alia, contain the following information:
a) the name in full, description and address of each of the parties;
b) a description of the nature and circumstances of the dispute giving
rise to the claim(s);
c) a statement of the relief sought, including, to the extent possible,
an indication of any amount(s) claimed;
d) the relevant agreements and, in particular, the arbitration
agreement;
e) all relevant particulars concerning the number of arbitrators and
their choice in accordance with the provisions of Articles 8, 9 and 10,
and any nomination of an arbitrator required thereby; and
f) any comments as to the place of arbitration, the applicable rules of
law and the language of the arbitration.
4
Together with the Request, the Claimant shall submit the number of
copies thereof required by Article 3(1) and shall make the advance
payment on administrative expenses required by Appendix III
("Arbitration Costs and Fees") in force on the date the
Request is submitted. 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 right of the Claimant to submit the same
claims at a later date in another Request.
5
The Secretariat shall send a copy of the Request and the documents
annexed thereto to the Respondent for its Answer to the Request once the
Secretariat has sufficient copies of the Request and the required
advance payment.
6
When a party submits a Request in connection with a legal relationship
in respect of which arbitration proceedings between the same parties are
already pending under these Rules, the Court may, at the request of a
party, decide to include the claims contained in the Request in the
pending proceedings provided that the Terms of Reference have not been
signed or approved by the Court. Once the Terms of Reference have been
signed or approved by the Court, claims may only be included in the
pending proceedings subject to the provisions of Article 19.
Article 5
Answer to the Request; Counterclaims
1
Within 30 days from the receipt of the Request from the Secretariat, the
Respondent shall file an Answer (the "Answer") which shall, inter
alia, contain the following information:
a) its name in full, description and address;
b) its comments as to the nature and circumstances of the dispute giving
rise to the claim(s);
c) its response to the relief sought;
d) any comments concerning the number of arbitrators and their choice in
light of the Claimant's proposals and in accordance with the provisions
of Articles 8, 9 and 10, and any nomination of an arbitrator required
thereby; and
e) any comments as to the place of arbitration, the applicable rules of
law and the language of the arbitration.
2
The Secretariat may grant the Respondent an extension of the time for
filing the Answer, provided the application for such an extension
contains the Respondent's comments concerning the number of arbitrators
and their choice and, where required by Articles 8, 9 and 10, the
nomination of an arbitrator. If the Respondent fails to do so, the Court
shall proceed in accordance with these Rules.
3
The Answer shall be supplied to the Secretariat in the number of copies
specified by Article 3(1).
4
A copy of the Answer and the documents annexed thereto shall be
communicated by the Secretariat to the Claimant.
5
Any counterclaim(s) made by the Respondent shall be filed with its
Answer and shall provide:
a) a description of the nature and circumstances of the dispute giving
rise to the counterclaim(s); and
b) a statement of the relief sought, including, to the extent possible,
an indication of any amount(s) counterclaimed.
6
The Claimant shall file a Reply to any counterclaim within 30 days from
the date of receipt of the counterclaim(s) communicated by the
Secretariat. The Secretariat may grant the Claimant an extension of time
for filing the Reply.
Article 6
Effect of the Arbitration Agreement
1
Where the parties have agreed to submit to arbitration under the Rules,
they shall be deemed to have submitted ipso facto to the Rules in
effect on the date of commencement of the arbitration proceedings,
unless they have agreed to submit to the Rules in effect on the date of
their arbitration agreement.
2
If the Respondent does not file an Answer, as provided by Article 5, or
if any party raises one or more pleas concerning the existence, validity
or scope of the arbitration agreement, the Court may decide, without
prejudice to the admissibility or merits of the plea or pleas, that the
arbitration shall proceed if it is prima facie satisfied that an
arbitration agreement under the Rules may exist. In such a case, any
decision as to the jurisdiction of the Arbitral Tribunal shall be taken
by the Arbitral Tribunal itself. If the Court is not so satisfied, the
parties shall be notified that the arbitration cannot proceed. In such a
case, any party retains the right to ask any court having jurisdiction
whether or not there is a binding arbitration agreement.
3
If any of the parties refuses or fails to take part in the arbitration
or any stage thereof, the arbitration shall proceed notwithstanding such
refusal or failure.
4
Unless otherwise agreed, the Arbitral Tribunal shall not cease to have
jurisdiction by reason of any claim that the contract is null and void
or allegation that it is non-existent, provided that the Arbitral
Tribunal upholds the validity of the arbitration agreement. The Arbitral
Tribunal shall continue to have jurisdiction to determine the respective
rights of the parties and to adjudicate their claims and pleas even
though the contract itself may be non-existent or null and void.
THE ARBITRAL TRIBUNAL
Article 7
General Provisions
1
Every arbitrator must be and remain independent of the parties involved
in the arbitration.
2
Before appointment or confirmation, a prospective arbitrator shall sign
a statement of independence and disclose in writing to the Secretariat
any facts or circumstances which might be of such a nature as to call
into question the arbitrator's independence in the eyes of the parties.
The Secretariat shall provide such information to the parties in writing
and fix a time limit for any comments from them.
3
An arbitrator shall immediately disclose in writing to the Secretariat
and to the parties any facts or circumstances of a similar nature which
may arise during the arbitration.
4
The decisions of the Court as to the appointment, confirmation,
challenge or replacement of an arbitrator shall be final and the reasons
for such decisions shall not be communicated.
5
By accepting to serve, every arbitrator undertakes to carry out his
responsibilities in accordance with these Rules.
6
Insofar as the parties have not provided otherwise, the Arbitral
Tribunal shall be constituted in accordance with the provisions of
Articles 8, 9 and 10.
Article 8
Number of Arbitrators
1
The disputes shall be decided by a sole arbitrator or by three
arbitrators.
2
Where the parties have not agreed upon the number of arbitrators, the
Court shall appoint a sole arbitrator, save where it appears to the
Court that the dispute is such as to warrant the appointment of three
arbitrators. In such case, the Claimant shall nominate an arbitrator
within a period of 15 days from the receipt of the notification of the
decision of the Court, and the Respondent shall nominate an arbitrator
within a period of 15 days from the receipt of the notification of the
nomination made by the Claimant.
3
Where the parties have agreed that the dispute shall be settled by a
sole arbitrator, they may, by agreement, nominate the sole arbitrator
for confirmation. If the parties fail to nominate a sole arbitrator
within 30 days from the date when the Claimant's Request for Arbitration
has been received by the other party, or within such additional time as
may be allowed by the Secretariat, the sole arbitrator shall be
appointed by the Court.
4
Where the dispute is to be referred to three arbitrators, each party
shall nominate in the Request and the Answer, respectively, one
arbitrator for confirmation. If a party fails to nominate an arbitrator,
the appointment shall be made by the Court. The third arbitrator, who
will act as chairman of the Arbitral Tribunal, shall be appointed by the
Court, unless the parties have agreed upon another procedure for such
appointment, in which case the nomination will be subject to
confirmation pursuant to Article 9. Should such procedure not result in
a nomination within the time limit fixed by the parties or the Court,
the third arbitrator shall be appointed by the Court.
Article 9
Appointment and Confirmation of the Arbitrators
1
In confirming or appointing arbitrators, the Court shall consider the
prospective arbitrator's nationality, residence and other relationships
with the countries of which the parties or the other arbitrators are
nationals and the prospective arbitrator's availability and ability to
conduct the arbitration in accordance with these Rules. The same shall
apply where the Secretary General confirms arbitrators pursuant to
Article 9(2).
2
The Secretary General may confirm as co-arbitrators, sole arbitrators
and chairmen of Arbitral Tribunals persons nominated by the parties or
pursuant to their particular agreements, provided they have filed a
statement of independence without qualification or a qualified statement
of independence has not given rise to objections. Such confirmation
shall be reported to the Court at its next session. If the Secretary
General considers that a co-arbitrator, sole arbitrator or chairman of
an Arbitral Tribunal should not be confirmed, the matter shall be
submitted to the Court.
3
Where the Court is to appoint a sole arbitrator or the chairman of an
Arbitral Tribunal, it shall make the appointment upon a proposal of a
National Committee of the ICC that it considers to be appropriate. If
the Court does not accept the proposal made, or if the National
Committee fails to make the proposal requested within the time limit
fixed by the Court, the Court may repeat its request or may request a
proposal from another National Committee that it considers to be
appropriate.
4
Where the Court considers that the circumstances so demand, it may
choose the sole arbitrator or the chairman of the Arbitral Tribunal from
a country where there is no National Committee, provided that neither of
the parties objects within the time limit fixed by the Court.
5
The sole arbitrator or the chairman of the Arbitral Tribunal shall be of
a nationality other than those of the parties. However, in suitable
circumstances and provided that neither of the parties objects within
the time limit fixed by the Court, the sole arbitrator or the chairman
of the Arbitral Tribunal may be chosen from a country of which any of
the parties is a national.
6
Where the Court is to appoint an arbitrator on behalf of a party which
has failed to nominate one, it shall make the appointment upon a
proposal of the National Committee of the country of which that party is
a national. If the Court does not accept the proposal made, or if the
National Committee fails to make the proposal requested within the time
limit fixed by the Court, or if the country of which the said party is a
national has no National Committee, the Court shall be at liberty to
choose any person whom it regards as suitable. The Secretariat shall
inform the National Committee, if one exists, of the country of which
such person is a national.
Article 10
Multiple Parties
1
Where there are multiple parties, whether as Claimant or as Respondent,
and where the dispute is to be referred to three arbitrators, the
multiple Claimants, jointly, and the multiple Respondents, jointly,
shall nominate an arbitrator for confirmation pursuant to Article 9.
2
In the absence of such a joint nomination and where all parties are
unable to agree to a method for the constitution of the Arbitral
Tribunal, the Court may appoint each member of the Arbitral Tribunal and
shall designate one of them to act as chairman. In such case, the Court
shall be at liberty to choose any person it regards as suitable to act
as arbitrator, applying Article 9 when it considers this appropriate.
Article 11
Challenge of Arbitrators
1
A challenge of an arbitrator, whether for an alleged lack of
independence or otherwise, shall be made by the submission to the
Secretariat of a written statement specifying the facts and
circumstances on which the challenge is based.
2
For a challenge to be admissible, it must be sent by a party either
within 30 days from receipt by that party of the notification of the
appointment or confirmation of the arbitrator, or within 30 days from
the date when the party making the challenge was informed of the facts
and circumstances on which the challenge is based if such date is
subsequent to the receipt of such notification.
3
The Court shall decide on the admissibility, and, at the same time, if
necessary, on the merits of a challenge after the Secretariat has
afforded an opportunity for the arbitrator concerned, the other party or
parties and any other members of the Arbitral Tribunal to comment in
writing within a suitable period of time. Such comments shall be
communicated to the parties and to the arbitrators.
Article 12
Replacement of Arbitrators
1
An arbitrator shall be replaced upon his death, upon the acceptance by
the Court of the arbitrator's resignation, upon acceptance by the Court
of a challenge or, upon the request of all the parties.
2
An arbitrator shall also be replaced on the Court's own initiative when
it decides that he is prevented de jure or de facto from
fulfilling his functions, or that he is not fulfilling his functions in
accordance with the Rules or within the prescribed time limits.
3
When, on the basis of information that has come to its attention, the
Court considers applying Article 12(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.
4
When an arbitrator is to be replaced, the Court has discretion to decide
whether or not to follow the original nominating process. Once
reconstituted, and after having invited the parties to comment, the
Arbitral Tribunal shall determine if and to what extent prior
proceedings shall be repeated before the reconstituted Arbitral
Tribunal.
5
Subsequent to the closing of the proceedings, instead of replacing an
arbitrator who has died or been removed by the Court pursuant to
Articles 12(1) and 12(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.
THE ARBITRAL PROCEEDINGS
Article 13
Transmission of the File to the Arbitral Tribunal
The
Secretariat shall transmit the file to the Arbitral Tribunal as soon as
it has been constituted, provided the advance on costs requested by the
Secretariat at this stage has been paid.
Article 14
Place of the Arbitration
1
The place of the arbitration shall be fixed by the Court unless agreed
upon by the parties.
2
The Arbitral Tribunal may, after consultation with the parties, conduct
hearings and meetings at any location it considers appropriate unless
otherwise agreed by the parties.
3
The Arbitral Tribunal may deliberate at any location it considers
appropriate.
Article 15
Rules Governing the Proceedings
1
The proceedings before the Arbitral Tribunal shall be governed by these
Rules, and, where these 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.
2
In all cases, the Arbitral Tribunal shall act fairly and impartially and
ensure that each party has a reasonable opportunity to present its case.
Article 16
Language of the Arbitration
In the
absence of an agreement by the parties, the Arbitral Tribunal shall
determine the language or languages of the arbitration, due regard being
given to all relevant circumstances, including the language of the
contract.
Article 17
Applicable Rules of Law
1
The parties shall be free to agree upon the rules of law to be applied
by the Arbitral Tribunal to the merits of the dispute. In the absence of
any such agreement, the Arbitral Tribunal shall apply the rules of law
which it determines to be appropriate.
2
In all cases the Arbitral Tribunal shall take account of the provisions
of the contract and the relevant trade usages.
3
The Arbitral Tribunal shall assume the powers of an amiable
compositeur or decide ex aequo et bono only if the parties
have agreed to give it such powers.
Article 18
Terms of Reference; Procedural Timetable
1
As soon as it has received the file from the Secretariat, the Arbitral
Tribunal shall draw up, on the basis of documents or in the presence of
the parties and in the light of their most recent submissions, a
document defining its Terms of Reference. This document shall include
the following particulars:
a) the full names and descriptions of the parties;
b) the addresses of the parties to which notifications and
communications arising in the course of the arbitration may be made;
c) a summary of the parties' respective claims and of the relief sought
by each party, with an indication to the extent possible of the amounts
claimed or counterclaimed;
d) unless the Arbitral Tribunal considers it inappropriate, a list of
issues to be determined;
e) the full names, descriptions and addresses of the arbitrators;
f) the place of the arbitration; and
g) particulars of the applicable procedural rules and, if such is the
case, reference to the power conferred upon the Arbitral Tribunal to act
as amiable compositeur or to decide ex aequo et bono.
2
The Terms of Reference shall be signed by the parties and the Arbitral
Tribunal. Within two months of the date on which the file has been
transmitted to it, the Arbitral Tribunal shall transmit to the Court the
Terms of Reference signed by it and by the parties. The Court may extend
this time limit pursuant to a reasoned request from the Arbitral
Tribunal or on its own initiative if it decides it is necessary to do
so.
3
If any of the parties refuses to take part in the drawing up of the
Terms of Reference or to sign the same, they shall be submitted to the
Court for approval. When the Terms of Reference have been signed in
accordance with Article 18(2) or approved by the Court, the
arbitration shall proceed.
4
When drawing up the Terms of Reference, or as soon as possible
thereafter, the Arbitral Tribunal, after having consulted the parties,
shall establish in a separate document a provisional timetable that it
intends to follow for the conduct of the arbitration and shall
communicate it to the Court and the parties. Any subsequent
modifications of the provisional timetable shall be communicated to the
Court and the parties.
Article 19
New Claims
After the
Terms of Reference have been signed or approved by the Court, no party
shall make new claims or counterclaims which fall outside the limits of
the Terms of Reference unless it has been authorized to do so by the
Arbitral Tribunal, which shall consider the nature of such new claims or
counterclaims, the stage of the arbitration and other relevant
circumstances.
Article 20
Establishing the Facts of the Case
1
The Arbitral Tribunal shall proceed within as short a time as possible
to establish the facts of the case by all appropriate means.
2
After studying the written submissions of the parties and all documents
relied upon, the Arbitral Tribunal shall hear the parties together in
person if any of them so requests or, failing such a request, it may of
its own motion decide to hear them.
3
The Arbitral Tribunal may decide to hear witnesses, experts appointed by
the parties or any other person, in the presence of the parties, or in
their absence provided they have been duly summoned.
4
The Arbitral Tribunal, after having consulted the parties, may appoint
one or more experts, define their terms of reference and receive their
reports. At the request of a party, the parties shall be given the
opportunity to question at a hearing any such expert appointed by the
Tribunal.
5
At any time during the proceedings, the Arbitral Tribunal may summon any
party to provide additional evidence.
6
The Arbitral Tribunal may decide the case solely on the documents
submitted by the parties unless any of the parties requests a hearing.
7
The Arbitral Tribunal may take measures for protecting trade secrets and
confidential information.
Article 21
Hearings
1
When a hearing is to be held, the Arbitral Tribunal, giving reasonable
notice, shall summon the parties to appear before it on the day and at
the place fixed by it.
2
If any of the parties, although duly summoned, fails to appear without
valid excuse, the Arbitral Tribunal shall have the power to proceed with
the hearing.
3
The Arbitral Tribunal shall be in full charge of the hearings, at which
all the parties shall be entitled to be present. Save with the approval
of the Arbitral Tribunal and the parties, persons not involved in the
proceedings shall not be admitted.
4
The parties may appear in person or through duly authorized
representatives. In addition, they may be assisted by advisers.
Article 22
Closing of the Proceedings
1
When it is satisfied that the parties have had a reasonable opportunity
to present their cases, the Arbitral Tribunal shall declare the
proceedings closed. Thereafter, no further submission or argument may be
made, or evidence produced, unless requested or authorized by the
Arbitral Tribunal.
2
When the Arbitral Tribunal has declared the proceedings closed, it shall
indicate to the Secretariat an approximate date by which the draft Award
will be submitted to the Court for approval pursuant to Article 27. Any
postponement of that date shall be communicated to the Secretariat by
the Arbitral Tribunal.
Article 23
Conservatory and Interim Measures
1
Unless the parties have otherwise agreed, as soon as the file has been
transmitted to it, the Arbitral Tribunal may, at the request of a party,
order any interim or conservatory measure it deems appropriate. The
Arbitral Tribunal may make the granting of any such measure subject to
appropriate security being furnished by the requesting party. Any such
measure shall take the form of an order, giving reasons, or of an Award,
as the Arbitral Tribunal considers appropriate.
2
Before the file is transmitted to the Arbitral Tribunal, and in
appropriate circumstances even thereafter, the parties may apply to any
competent judicial authority for interim or conservatory measures. The
application of a party to a judicial authority for such measures or for
the implementation of any such measures ordered by an Arbitral Tribunal
shall not be deemed to be an infringement or a waiver of the arbitration
agreement and shall not affect the relevant powers reserved to the
Arbitral Tribunal. Any such application and any measures taken by the
judicial authority must be notified without delay to the Secretariat.
The Secretariat shall inform the Arbitral Tribunal thereof.
AWARDS
Article 24
Time Limit for the Award
1
The time limit within which the Arbitral Tribunal must render its final
Award is six months. Such time limit shall start to run from the date of
the last signature by the Arbitral Tribunal or of the parties of the
Terms of Reference, or, in the case of application of Article 18(3), the
date of the notification to the Arbitral Tribunal by the Secretariat of
the approval of the Terms of Reference by the Court.
2
The Court may extend this time limit pursuant to a reasoned request from
the Arbitral Tribunal or on its own initiative if it decides it is
necessary to do so.
Article 25
Making of the Award
1
When the Arbitral Tribunal is composed of more than one arbitrator, an
Award is given by a majority decision. If there be no majority, the
Award shall be made by the chairman of the Arbitral Tribunal alone.
2
The Award shall state the reasons upon which it is based.
3
The Award shall be deemed to be made at the place of the arbitration and
on the date stated therein.
Article 26
Award by Consent
If the
parties reach a settlement after the file has been transmitted to the
Arbitral Tribunal in accordance with Article 13, the settlement shall be
recorded in the form of an Award made by consent of the parties if so
requested by the parties and if the Arbitral Tribunal agrees to do so.
Article 27
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.
Article 28
Notification, Deposit and Enforceability of the Award
1
Once an Award has been made, the Secretariat shall notify to the parties
the text signed by the Arbitral Tribunal, provided always that the costs
of the arbitration have been fully paid to the ICC by the parties or by
one of them.
2
Additional copies certified true by the Secretary General shall be made
available on request and at any time to the parties, but to no one else.
3
By virtue of the notification made in accordance with Paragraph 1 of
this Article, the parties waive any other form of notification or
deposit on the part of the Arbitral Tribunal.
4
An original of each Award made in accordance with the present Rules
shall be deposited with the Secretariat.
5
The Arbitral Tribunal and the Secretariat shall assist the parties in
complying with whatever further formalities may be necessary.
6
Every Award shall be binding on the parties. By submitting the dispute
to arbitration under these Rules, the parties undertake to carry out any
Award without delay and shall be deemed to have waived their right to
any form of recourse insofar as such waiver can validly be made.
Article 29
Correction and Interpretation of the Award
1
On its own initiative, the Arbitral Tribunal may correct a clerical,
computational or typographical error, or any errors of similar nature
contained in an Award, provided such correction is submitted for
approval to the Court within 30 days of the date of such Award.
2
Any application of a party for the correction of an error of the kind
referred to in Article 29(1), or for the interpretation of an Award,
must be made to the Secretariat within 30 days of the receipt of the
Award by such party, in a number of copies as stated in Article 3(1).
After transmittal of the application to the Arbitral Tribunal, it shall
grant the other party a short time limit, normally not exceeding 30
days, from the receipt of the application by that party to submit any
comments thereon. If the Arbitral Tribunal decides to correct or
interpret the Award, it shall submit its decision in draft form to the
Court not later than 30 days following the expiration of the time limit
for the receipt of any comments from the other party or within such
other period as the Court may decide.
3
The decision to correct or to interpret the Award shall take the form of
an addendum and shall constitute part of the Award. The provisions of
Articles 25, 27 and 28 shall apply mutatis mutandis.
COSTS
Article 30
Advance to Cover the Costs of the Arbitration
1
After receipt of the Request, the Secretary General may request the
Claimant to pay a provisional advance in an amount intended to cover the
costs of arbitration until the Terms of Reference have been drawn up.
2
As soon as practicable, the Court shall fix the advance on costs in an
amount likely to cover the fees and expenses of the arbitrators and the
ICC administrative costs for the claims and counterclaims which have
been referred to it by the parties. This amount may be subject to
readjustment at any time during the arbitration. Where, apart from the
claims, counterclaims are submitted, the Court may fix separate advances
on costs for the claims and the counterclaims.
3
The advance on costs fixed by the Court shall be payable in equal shares
by the Claimant and the Respondent. Any provisional advance paid on the
basis of Article 30(1) will be considered as a partial payment thereof.
However, any party shall be free to pay the whole of the advance on
costs in respect of the principal claim or the counterclaim should the
other party fail to pay its share. When the Court has set separate
advances on costs in accordance with Article 30(2), each of the parties
shall pay the advance on costs corresponding to its claims.
4
When a request for an advance on costs has not been complied with, and
after consultation with the Arbitral Tribunal, the Secretary General may
direct the Arbitral Tribunal to suspend its work and set a time limit,
which must be not less than 15 days, on the expiry of which the relevant
claims, or counterclaims, shall be considered as withdrawn. Should the
party in question wish to object to this measure, it must make a request
within the aforementioned period for the matter to be decided by the
Court. Such party shall not be prevented, on the ground of such
withdrawal, from reintroducing the same claims or counterclaims at a
later date in another proceeding.
5
If one of the parties claims a right to a set-off with regard to either
claims or counterclaims, such set-off shall be taken into account in
determining the advance to cover the costs of arbitration in the same
way as a separate claim insofar as it may require the Arbitral Tribunal
to consider additional matters.
Article 31
Decision as to the Costs of the Arbitration
1
The costs of the arbitration shall include the fees and expenses of the
arbitrators and the ICC administrative expenses fixed by the Court, in
accordance with the scale in force at the time of the commencement of
the arbitral proceedings, as well as the fees and expenses of any
experts appointed by the Arbitral Tribunal and the reasonable legal and
other costs incurred by the parties for the arbitration.
2
The Court may fix the fees of the arbitrators at a figure higher or
lower than that which would result from the application of the relevant
scale should this be deemed necessary due to the exceptional
circumstances of the case. Decisions on costs other than those fixed by
the Court may be taken by the Arbitral Tribunal at any time during the
proceedings.
3
The final Award shall fix the costs of the arbitration and decide which
of the parties shall bear them or in what proportion they shall be borne
by the parties.
MISCELLANEOUS
Article 32
Modified Time Limits
1
The parties may agree to shorten the various time limits set out in
these Rules. Any such agreement entered into subsequent to the
constitution of an Arbitral Tribunal shall become effective only upon
the approval of the Arbitral Tribunal.
2
The Court, on its own initiative, may extend any time limit which has
been modified pursuant to Article 32(1) if it decides that it is
necessary to do so in order that the Arbitral Tribunal or the Court may
fulfil their responsibilities in accordance with these Rules.
Article 33
Waiver
A party
which proceeds with the arbitration without raising its objection to a
failure to comply with any provision of these 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 to the conduct of the
proceedings, shall be deemed to have waived its right to object.
Article 34
Exclusion of Liability
Neither
the arbitrators, nor the Court and its members, nor the ICC and its
employees, nor the ICC National Committees shall be liable to any person
for any act or omission in connection with the arbitration.
Article 35
General Rule
In all
matters not expressly provided for in these Rules, the Court and the
Arbitral Tribunal shall act in the spirit of these Rules and shall make
every effort to make sure that the Award is enforceable at law.
APPENDIX I
STATUTES OF THE INTERNATIONAL
COURT OF ARBITRATION OF THE ICC
Article 1
Function
1
The function of the International Court of Arbitration of the
International Chamber of Commerce (the "Court") is to ensure
the application of the Rules of Arbitration of the International Chamber
of Commerce, and it has all the necessary powers for that purpose.
2
As an autonomous body, it carries out these functions in complete
independence from the ICC and its organs.
3
Its members are independent from the ICC National Committees.
Article 2
Composition of the Court
The Court
shall consist of a Chairman, Vice-Chairmen, and members and alternate
members (collectively designated as members). In its work it is assisted
by its Secretariat (Secretariat of the Court).
Article 3
Appointment
1
The Chairman is elected by the ICC World Council upon the recommendation
of the Executive Board of the ICC.
2
The ICC World Council appoints the Vice-Chairmen of the Court from among
the members of the Court or otherwise.
3
Its members are appointed by the ICC World Council on the proposal of
National Committees, one member for each Committee.
4
On the proposal of the Chairman of the Court, the World Council may
appoint alternate members.
5
The term of office of all members is three years. If a member is no
longer in a position to exercise his functions, his successor is
appointed by the World Council for the remainder of the term.
Article 4
Plenary Session of the Court
The
Plenary Sessions of the Court are presided over by the Chairman or, in
his absence, by one of the Vice-Chairmen designated by him. The
deliberations shall be valid when at least six members are present.
Decisions are taken by a majority vote, the Chairman having a casting
vote in the event of a tie.
Article 5
Committees
The Court
may set up one or more Committees and establish the functions and
organization of such Committees.
Article 6
Confidentiality
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 the
materials submitted to the Court and its Secretariat.
Article 7
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 and
the World Council of the ICC for approval.
APPENDIX II
INTERNAL RULES OF THE INTERNATIONAL
COURT OF ARBITRATION OF THE ICC
Article 1
Confidential Character of the Work of the International Court of
Arbitration
1
The sessions of the Court, whether plenary or those of a Committee of
the Court, are open only to its members and to the Secretariat.
2
However, in exceptional circumstances, the Chairman of the Court may
invite other persons to attend. Such persons must respect the
confidential nature of the work of the Court.
3
The documents submitted to the Court, or drawn up by it in the course of
its proceedings, are communicated only to the members of the Court and
to the Secretariat and to persons authorized by the Chairman to attend
Court sessions.
4
The Chairman or the Secretary General of the Court may authorize
researchers undertaking work of a scientific nature on international
trade law 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.
5
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 any publication in their respect without
having previously submitted the text for approval to the Secretary
General of the Court.
6
The Secretariat will in each case submitted to arbitration under the
Rules retain in the archives of the Court all Awards, Terms of
Reference, and decisions of the Court, as well as copies of the
pertinent correspondence of the Secretariat.
7
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. All related costs and expenses for the return of
those documents shall be paid by such party or arbitrator.
Article 2
Participation of Members of the International Court of Arbitration in
ICC Arbitration
1
The Chairman and the members of the Secretariat of the Court may not act
as arbitrators or as counsel in cases submitted to ICC arbitration.
2
The Court shall not appoint Vice-Chairmen or members of the Court as
arbitrators. They may, however, be proposed for such duties by one or
more of the parties, or,pursuant to any other procedure agreed upon by
the parties, subject to confirmation.
3
When the Chairman, a Vice-Chairman or a member of the Court or of the
Secretariat is involved in any capacity whatsoever in proceedings
pending before the Court, such person must inform the Secretary General
of the Court upon becoming aware of such involvement.
4
Such person must refrain from participating in the discussions or in the
decisions of the Court concerning the proceedings and must be absent
from the courtroom whenever the matter is considered.
5
Such person will not receive any material documentation or information
pertaining to such proceedings.
Article 3
Relations between the Members of the Court and the ICC National
Committees
1
By virtue of their capacity, the members of the Court are independent of
the ICC National Committees which proposed them for appointment by the
ICC World Council.
2
Furthermore, they must regard as confidential, vis-à-vis the said
National Committees, 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 Chairman of the Court
or by its Secretary General to communicate specific information to their
respective National Committee.
Article 4
Committee of the Court
1
In accordance with the provisions of Article 1 (4) of the Rules and
Article 5 of its Statutes (Appendix I), the Court hereby establishes a
Committee of the Court.
2
The members of the Committee consist of a Chairman and at least two
other members. The Chairman of the Court acts as the Chairman of the
Committee. If absent, the Chairman may designate a Vice-Chairman of the
Court or, in exceptional circumstances, another member of the Court as
Chairman of the Committee.
3
The other two members of the Committee are appointed by the Court from
among the Vice-Chairmen or the other members of the Court. At each
Plenary Session the Court appoints the members who are to attend the
meetings of the Committee to be held before the next Plenary Session.
4
The Committee meets when convened by its Chairman. Two members
constitute a quorum.
5
(a) The Court shall determine the decisions that may be taken by the
Committee.
(b) The decisions of the Committee are taken unanimously.
(c) When the Committee cannot reach a decision or deems it preferable to
abstain, it transfers the case to the next Plenary Session, making any
suggestions it deems appropriate.
(d) The Committee's decisions are brought to the notice of the Court at
its next Plenary Session.
Article 5
Court Secretariat
1
In case of absence, the Secretary General may delegate to the General
Counsel and Deputy Secretary General the authority to confirm
arbitrators, to certify true copies of Awards and to request the payment
of a provisional advance, respectively provided for in Articles 9(2),
28(2) and 30(1) of the Rules.
2
The Secretariat may, with the approval of the Court, issue notes and
other documents for the information of the parties and the arbitrators,
or as necessary for the proper conduct of the arbitral proceedings.
Article 6
Scrutiny of Arbitral Awards
When the
Court scrutinizes draft Awards in accordance with Article 27 of the
Rules, it considers, to the extent practicable, the requirements of
mandatory law at the place of arbitration.
APPENDIX III
ARBITRATION COSTS AND FEES
Article 1
Advance on Costs
1
Each request to commence an arbitration pursuant to the Rules must be
accompanied by an advance payment of US$ 2500 on the administrative
expenses. Such payment is nonrefundable, and shall be credited to the
Claimant's portion of the advance on costs.
2
The provisional advance fixed by the Secretary General according to
Article 30(1) of the Rules shall normally not exceed the amount
obtained by adding together the 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.
3
In general, after the Terms of Reference have been signed or approved by
the Court and the provisional timetable has been established, the
Arbitral Tribunal shall, in accordance with Article 30(4) 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.
4
The advance on costs fixed by the Court according to | 