Icc Revised 2017 Rules.ppt

INTERNATIONAL CHAMBER OF COMMERCE

INTERNATIONAL COURT OF ARBITRATION  ALTERNATIVE DISPUTE RESOLUTIONS ICC Arbitration Rules ICC Mediation Rules

Introduction  International Court of Arbitration is the independent arbitration body of the International Chamber of Commerce.  ICA administers the resolution of disputes by arbitral tribunal and does not itself resolve disputes.

 Its function is to ensure the application of the Rules of Arbitration. And such other Rules.

Common ADR Technique  Mediation - whereby a neutral helps the parties to settle their differences through negotiation;  Mini-trial - in which a panel comprising a neutral and a manager from each party proposes a solution or gives an opinion;  Neutral evaluation of a point of law or fact- Common to all these techniques is the fact that the decision reached by or in collaboration with the neutral is not binding upon the parties, unless they agree otherwise

Characteristics of ICC ADR  1. proceedings are flexible and party-controlled

 2. proceedings under the Rules are intended to be rapid and therefore relatively inexpensive.  3. proceedings allow the parties to choose whichever settlement technique is best suited to help them resolve their dispute.   4. ICC ADR proceedings are confidential.  5. the parties are free to agree in writing that they will comply with a recommendation or decision of the Neutral, even though it is itself unenforceable. In that case their agreement is binding upon them in accordance with the law applicable to that agreement.

ICC Arbitration Rules

The Arbitration Rules are those of 2012, as amended in 2017. They are effective as of 1 March 2017.

Request for Arbitration  A party wishing to have recourse to arbitration under the Rule shall submit its Request or Arbitration  The on which the request is received shall be deemed to be the date of the commencement of the arbitration.

 The request shall contain the following: Name, description, address and other contact details of each of the parties Contact details of any person representing the claimant Description of the nature and circumstances o the dispute Statement of the relief sought, together with the amount of qualified claims, to the extent possible an estimate of the monetary value of other claims

Answer to the Request  Within 30 days from the receipt of the request , the respondent shall submit an Answer, which shall contain the following: Name, address and other contact details including the contact details of any person representing the respondent in the arbitration. Comments as to the nature and circumstances of the dispute Response to the relief sought Observation or proposal concerning the number of arbitrators, place, applicable rules of law and language of arbitration.

Effect of the Arbitration Agreement  Parties shall be deemed to have:  submitted ipso facto to the Rules in effect on the date of commencement of the arbitration, unless they have agreed to submit to the Rules in effect on the date of their arbitration agreement. accepted that the arbitration shall be administered by the Court.

Multiple Parties, Multiple Contracts and Consolidation  Party wishing to join as additional party to the arbitration shall submit a request for arbitration (The Request for Joinder).  Arbitration with multiple parties, the claim may be made by any party against any other party provided that no new claims may be made after the Terms of Reference are signed and approved by the Court  Claims arising out of or in connection with more than one contract may be made in a single arbitration irrespective whether such claims are made under one or more than one arbitration agreement.  Two or more arbitration pending under the Rules can be consolidated into a single arbitration.

Arbitral Tribunal  Every arbitrator must be and remain impartial and independent of the parties involved in the arbitration  Prospective arbitrator shall disclose in writing any facts or circumstances which might be of such nature to a call into question of arbitrator’s independence in the eyes of parties.  The decision of the Court to the appointment, confirmation, challenge or replacement of an arbitrator shall be final.

Constitution of the Arbitral Tribunal  The dispute shall be decided by a sole arbitrator or by three arbitrator.  Where parties have not agreed upon the number of arbitrator the court shall appoint a sole arbitrator unless required otherwise to be three.  Sole arbitrator maybe made by agreement of the parties. If parties fail to nominate within 30 days from date of claimants request for arbitration, the sole arbitrator shall be appointed by the Court.  Parties shall nominate in the Request and Answer, respectively one arbitrator for confirmation. The third arbitrator shall be appointed by the Court

Place of Arbitration  The place of the arbitration shall be fixed by the court unless agreed upon by the parties.  The arbitral tribunal may deliberate at ay location it considers appropriate.

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 if none, 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.

Applicable Rules of Law  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.  The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.

 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.

Award  When the arbitral tribunal is composed of more than one arbitrator, an award is made by a majority decision. If there is no majority, the award shall be made by the president of the arbitral tribunal alone.  The award shall state the reasons upon which it is based.  The award shall be deemed to be made at the place of the arbitration and on the date stated therein.

Time Limit for the Final Award  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 by the parties of the Terms of Reference  The Court may extend the 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.

Correction and Interpretation of the Award; Remission of Awards  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.  A decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award.

 Where a court remits an award to the arbitral tribunal, the provisions on awards apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission.

ICC Mediation Rules

Introduction  These Rules can also be used for conducting other procedures or in combination with other procedures, such as conciliation or neutral evaluation.

Governing Body  The Mediation Rules of the International Chamber of Commerce are administered by the ICC International Centre for ADR which is a separate administrative body within the ICC

Requirement before Mediation  Where there is an agreement between the parties to refer their dispute to the Rules, any party or parties wishing to commence mediation pursuant to the Rules shall file a written Request for Mediation (the “Request”) with the Centre.

 The party or parties filing the Request shall simultaneously send a copy of the Request to all other parties, unless the Request has been filed jointly by all parties.

Commencement where there is an Agreement to Refer  Where there is an agreement to refer to the Rules, the date on which the Request is received by the Centre shall, for all purposes, be deemed to be the date of the commencement of the Proceedings.

Commencement Where there is No Prior Agreement to Refer  In the absence of an agreement of the parties to refer their dispute to the Rules, any party that wishes to propose referring the dispute to the Rules to another party may do so by sending a written Request to the Centre. Upon receipt of such Request, the Centre will inform all other parties of the proposal and may assist the parties in considering the proposal.  Where the parties reach an agreement to refer their dispute to the Rules, the Proceedings shall commence on the date on which the Centre sends written confirmation to the parties that such an agreement has been reached.

Selection of the Mediator  The parties may jointly nominate a mediator for confirmation by the Centre.  In the absence of a joint nomination of a Mediator by the parties, the Centre shall, after consulting the parties, either appoint a Mediator or propose a list of Mediators to the parties. All of the parties may jointly nominate a Mediator from the said list for confirmation by the Centre, failing which the Centre shall appoint a Mediator.

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Pre-requisite  Before ICC ADR proceedings can take place, the parties must agree to submit their dispute to the Rules. Such agreement can occur: In a prior agreement of the parties to submit their disputes to the Rules, either in their underlying contract or in a later agreement; or Through a Request for ADR submitted by one party to ICC and accepted by the other party.

Introduction Scope: Apply only to business dispute Pre-requisites Selection of Neutral The success of ICC ADR proceedings depends in large part upon the abilities of the Neutral. The parties should seek to ensure that the Neutral: • 1. has the professional capabilities and experience needed to understand the various aspects of the dispute between the parties; • 2. has the human qualities needed to create an atmosphere of trust between the parties and encourage constructive discussions.

ADR Procedure  Discussion:  (i) to seek an agreement on the settlement technique to be used for the resolution of the dispute; and  (ii) to define the specific procedure to be followed.

 The ADR settlement techniques:  1)  2)  3)  4)  5)

mediation; neutral evaluation; mini-trial; any other settlement technique; or a combination of settlement techniques.

The above list is, by its very nature, neither limiting nor exhaustive. It is important, however, that the parties have the same approach to the settlement technique to be used.

Mediation  is the settlement technique in which the Neutral acts as a facilitator to help the parties try to arrive at a negotiated settlement of their dispute.  The Neutral is not requested to provide any opinion as to the merits of the dispute.  Neutral generally holds joint meetings with all of the parties present and may also hold separate meetings, often called caucuses, with each of the parties alone.  Permit the Neutral to create an atmosphere appropriate for negotiations, obtain useful information, identify the interests of each party and help the parties find common ground for the resolution of their dispute.

Neutral Evaluation  Parties can ask the Neutral to provide a non-binding opinion or evaluation concerning one or more matters, such as: an issue of fact; a technical issue of any kind; an issue of law; an issue concerning the application of the law to the facts; an issue concerning the interpretation of a contractual provision; an issue concerning the modification of a contract.

Mini-trial  Is the settlement technique in which a panel is constituted comprising the Neutral, as a facilitator, and a manager of each of the parties to the dispute.  Each manager should in principle have the authority to bind the party which selected him or her and should not have been directly involved in the dispute.  Each party presents its position to the panel in a concise and brief manner, after which, depending upon the situation, the panel seeks a solution acceptable to all of the parties or expresses an opinion on the positions of each side.

Initiatory Discussion  The parties should also seek to agree upon the most appropriate procedure to be followed. The specific procedure can include any of the following elements: procedural calendar; exchange of documents; production of memoranda; identification of persons taking part in the proceedings; meetings between the parties and the Neutral; other means to ensure the smooth execution of the procedure.