INTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL COURT OF ARBITRATION
RULES OF ARBITRATION AND
RULES OF CONCILIATION
(ICC publication No. 581)
FOREWORD
During the last quarter of the twentieth century,
international commercial arbitration has gained 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 curriculum 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. There has been a substantial increase not only in the
number of cases, their complexity, the amounts in dispute and the
diversity of the parties, but also in the demands made on the
process by the parties.
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 some ten 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, in effect as of
1 January 1998, constitute the first major revision of the Rules
in more than 20 years, following an intensive, worldwide
consultation process. 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 several languages and with arbitrators of
some 60 different nationalities. The work of those arbitral
tribunals is monitored by the ICC Court, which meets at least
three (and often four) times a month all year round. Currently
composed of some 65 members from over 55 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
several 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 first prints of the 1998 ICC Rules (November 1997 & May
1998) contained certain typographical errors which have been
corrected for this reprint. Also, one correction was brought to
Article 8 (4) which resolves a discrepancy between the French and
English versions (which are both official). The words "by the
Court" at the end of the first sentence of Article 8 (4) have been
deleted in view of the fact that arbitrators may also be confirmed
by the Secretary General under Article 9 (2). The same correction
was brought to Article 2 (2) of Appendix II.
The ICC Rules of Optional Conciliation
The current ICC Rules of Conciliation came into force on
1 January 1988. Conciliation is a process independent of
arbitration. It remains entirely optional unless the parties have
otherwise agreed. The ICC Rules of Arbitration do not require the
parties to attempt conciliation prior to commencing an
arbitration. So, too, the Rules of Optional Conciliation permit
conciliation to be attempted without requiring that the dispute be
referred to arbitration thereafter if the conciliation effort is
unsuccessful.
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.
English
"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."
Russian
"Любые споры, возникающие из настоящего контракта или в связи
с ним, подлежат окончательному урегулированию в соответствии с
Арбитражным Регламентом Международной Торговой Палаты, одним или
несколькими арбитрами, назначенными в соответствии с этим
Регламентом".
RULES OF ARBITRATION
OF THE INTERNATIONAL CHAMBER OF COMMERCE
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 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 claims;
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
are 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 administrate 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 and the Rules of
Conciliation 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 Council upon
recommendation of the Executive Board of the ICC.
2. The ICC 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 Council on the
proposal of National Committees, one member for each Committee.
4. On the proposal of the Chairman of the Court, the 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 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 International Arbitration before
submission to the Executive Board and the 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 Council.
2. Furthermore, they must regard as confidential, vis-a-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 dollars 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
Article 30 (2) of the Rules comprises the fees of the arbitrator
or arbitrators (hereinafter referred to as "arbitrator"), any
arbitration-related expenses of the arbitrator and the
administrative expenses.
5. Each party shall pay in cash its share of the total advance
on costs. However, if its share exceeds an amount fixed from time
to time by the Court, a party may post a bank guarantee for this
additional amount.
6. A party that has already paid in full its share of the
advance on costs fixed by the Court may, in accordance with
Article 30 (3) of the Rules, pay the unpaid portion of the advance
owed by the defaulting party by posting a bank guarantee.
7. When the Court has fixed separate advances on costs
pursuant to Article 30 (2) of the Rules, the Secretariat shall
invite each party to pay the amount of the advance corresponding
to its respective claims.
8. When, as a result of the fixing of separate advances on
costs, the separate advance fixed for the claim of either party
exceeds one-half of such global advance as was previously fixed
(in respect of the same claims and counterclaims that are the
object of separate advances), a bank guarantee may be posted to
cover any such excess amount. In the event that the amount of the
separate advance is subsequently increased, at least one-half of
the increase shall be paid in cash.
9. The Secretariat shall establish the terms governing all
bank guarantees which the parties may post pursuant to the above
provisions.
10. As provided in Article 30 (2) of the Rules, the advance on
costs may be subject to readjustment at any time during the
arbitration, in particular to take into account fluctuations in
the amount in dispute, changes in the amount of the estimated
expenses of the arbitrator, or the evolving difficulty or
complexity of arbitration proceedings.
11. Before any expertise ordered by the Arbitral Tribunal can
be commenced, the parties, or one of them, shall pay an advance on
costs fixed by the Arbitral Tribunal sufficient to cover the
expected fees and expenses of the expert as determined by the
Arbitral Tribunal. The Arbitral Tribunal shall be responsible for
ensuring the payment by the parties of such fees and expenses.
Article 2
Costs and Fees
1. Subject to Article 31 (2) of the Rules, the Court shall fix
the fees of the arbitrator in accordance with the scale
hereinafter set out, or, where the sum in dispute is not stated,
at its discretion.
2. In setting the arbitrator's fees, the Court shall take into
consideration the diligence of the arbitrator, the time spent, the
rapidity of the proceedings, and the complexity of the dispute so
as to arrive at a figure within the limits specified, or, in
exceptional circumstances (Article 31 (2) of the Rules), at a
figure higher or lower than those limits.
3. When a case is submitted to more than one arbitrator, the
Court, at its discretion, shall have the right to increase the
total fees up to a maximum which shall normally not exceed three
times the fees of one arbitrator.
4. The arbitrator's fees and expenses shall be fixed
exclusively by the Court as required by the Rules. Separate fee
arrangements between the parties and the arbitrator are contrary
to the Rules.
5. The Court shall fix the administrative expenses of each
arbitration in accordance with the scale hereinafter set out, or,
where the sum in dispute is not stated, at its discretion. In
exceptional circumstances, the Court may fix the administrative
expenses at a lower or higher figure than that which would result
from the application of such scale, provided that such expenses
shall normally not exceed the maximum amount of the scale.
Further, the Court may require the payment of administrative
expenses in addition to those provided in the scale of
administrative expenses as a condition to holding an arbitration
in abeyance at the request of the parties or of one of them with
the acquiescence of the other.
6. If an arbitration terminates before the rendering of a
final Award, the Court shall fix the costs of the arbitration at
its discretion, taking into account the stage attained by the
arbitral proceedings and any other relevant circumstances.
7. In the case of an application under Article 29 (2) of the
Rules, the Court may fix an advance to cover additional fees and
expenses of the Arbitral Tribunal and may subordinate the
transmission of such application to the Arbitral Tribunal to the
prior cash payment in full to the ICC of such advance. The Court
shall fix at its discretion any possible fees of the arbitrator
when approving the decision of the Arbitral Tribunal.
8. When an arbitration is preceded by attempted conciliation,
one-half of the administrative expenses paid for such conciliation
shall be credited to the administrative expenses of the
arbitration.
9. Amounts paid to the arbitrator do not include any possible
value-added taxes (VAT) or other taxes or charges and imposts
applicable to the arbitrator's fees. Parties are expected to pay
any such taxes or charges; however, the recovery of any such
charges or taxes is a matter solely between the arbitrator and the
parties.
Article 3
Appointment of Arbitrators
1. A registration fee normally not exceeding US dollars 2500
is payable by the requesting party in respect of each request made
to the ICC to appoint an arbitrator for any arbitration not
conducted under the Rules. No request for appointment of an
arbitrator will be considered unless accompanied by the said fee,
which is not recoverable and becomes the property of the ICC.
2. The said fee shall cover any additional services rendered
by the ICC regarding the appointment, such as decisions on a
challenge of an arbitrator and the appointment of a substitute
arbitrator.
Article 4
Scales of Administrative Expenses
and Arbitrator's Fees
1. The Scales of Administrative Expenses and Arbitrator's Fees
set forth below shall be effective as of 1 January 1998 in respect
of all arbitrations commenced on or after such date, irrespective
of the version of the Rules applying to such arbitrations.
2. To calculate the administrative expenses and the
arbitrator's fees, the amounts calculated for each successive
slice of the sum in dispute must be added together, except that
where the sum in dispute is over US dollars 80 million, a flat
amount of US dollars 75800 shall constitute the entirety of the
administrative expenses.
A. ADMINISTRATIVE EXPENSES
-----------------------------------------------------------------¬
¦Sum in dispute (in US Dollars) Administrative expenses <*>¦
+----------------------------------------------------------------+
¦up to 50000 2500 USD ¦
+----------------------------------------------------------------+
¦from 50001 to 100000 3.50% ¦
+----------------------------------------------------------------+
¦from 100001 to 500000 1.70% ¦
+----------------------------------------------------------------+
¦from 500001 to 1000000 1.15% ¦
+----------------------------------------------------------------+
¦from 1000001 to 2000000 0.60% ¦
+----------------------------------------------------------------+
¦from 2000001 to 5000000 0.20% ¦
+----------------------------------------------------------------+
¦from 5000001 to 10000000 0.10% ¦
+----------------------------------------------------------------+
¦from 10000001 to 50000000 0.06% ¦
+----------------------------------------------------------------+
¦from 50000001 to 80000000 0.06% ¦
+----------------------------------------------------------------+
¦over 80000000 75800 USD ¦
L-----------------------------------------------------------------
B. ARBITRATOR'S FEES
-----------------------------------------------------------------¬
¦Sum in dispute (in US Dollars) Fees <**>¦
¦ minimum maximum¦
+----------------------------------------------------------------+
¦up to 50000 2500 USD 17.00% ¦
+----------------------------------------------------------------+
¦from 50001 to 100000 2.00% 11.00% ¦
+----------------------------------------------------------------+
¦from 100001 to 500000 1.00% 5.50% ¦
+----------------------------------------------------------------+
¦from 500001 to 1000000 0.75% 3.50% ¦
+----------------------------------------------------------------+
¦from 1000001 to 2000000 0.50% 2.50% ¦
+----------------------------------------------------------------+
¦from 2000001 to 5000000 0.25% 1.00% ¦
+----------------------------------------------------------------+
¦from 5000001 to 10000000 0.10% 0.55% ¦
+----------------------------------------------------------------+
¦from 10000001 to 50000000 0.05% 0.17% ¦
+----------------------------------------------------------------+
¦from 50000001 to 80000000 0.03% 0.12% ¦
+----------------------------------------------------------------+
¦from 80000001 to 100000000 0.02% 0.10% ¦
+----------------------------------------------------------------+
¦over 100000000 0.01% 0.05% ¦
L-----------------------------------------------------------------
SUM IN DISPUTE A. ADMINISTRATIVE EXPENSES <*> B. ARBITRATOR'S FEES <**>
(in US Dollars) (in US Dollars) (in US Dollars)
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
Minimum Maximum
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
up to 50000 2500 2500 17.00% of amount in dispute
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 50001 to 100000 2500 + 3.50% of amt. over 50000 2500 + 2.00% of amt. over 50000 8500 + 11.00% of amt. over 50000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 100001 to 500000 4250 + 1.70% of amt. over 100000 3500 + 1.00% of amt. over 100000 14000 + 5.50% of amt. over 100000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 500001 to 1000000 11050 + 1.15% of amt. over 500000 7500 + 0.75% of amt. over 500000 36000 + 3.50% of amt. over 500000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 1000001 to 2000000 16800 + 0.60% of amt. over 1000000 11250 + 0.50% of amt. over 1000000 53500 + 2.50% of amt. over 1000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 2000001 to 5000000 22800 + 0.20% of amt. over 2000000 16250 + 0.25% of amt. over 2000000 78500 + 1.00% of amt. over 2000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 5000001 to 10000000 28800 + 0.10% of amt. over 5000000 23750 + 0.10% of amt. over 5000000 108500 + 0.55% of amt. over 5000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 10000001 to 50000000 33800 + 0.06% of amt. over 10000000 28750 + 0.05% of amt. over 10000000 136000 + 0.17% of amt. over 10000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 50000001 to 80000000 57800 + 0.06% of amt. over 50000000 48750 + 0.03% of amt. over 50000000 204000 + 0.12% of amt. over 50000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
from 80000001 to 100000000 75800 57750 + 0.02% of amt. over 80000000 240000 + 0.10% of amt. over 80000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
over 100000000 75800 61750 + 0.01% of amt. over 100000000 260000 + 0.05% of amt. over 100000000
---------------------------- ------------------------------------- -----------------------------------------------------------------------------
--------------------------------
<*> For illustrative purposes only, the table on the following
page indicates the resulting administrative expenses in US dollars
when the proper calculations have been made.
<**> For illustrative purposes only, the table on the
following page indicates the resulting range of fees when the
proper calculations have been made.
ICC RULES OF OPTIONAL CONCILIATION
Preamble
Settlement is a desirable solution for business disputes of an
international character. The International Chamber of Commerce
therefore sets out these Rules of Optional Conciliation in order
to facilitate the amicable settlement of such disputes.
Article 1
All business disputes of an international character may be
submitted to conciliation by a sole conciliator appointed by the
International Chamber of Commerce.
Article 2
The party requesting conciliation shall apply to the
Secretariat of the International Court of Arbitration of the
International Chamber of Commerce setting out succinctly the
purpose of the request and accompanying it with the fee required
to open the file, as set out in the Appendix hereto.
Article 3
The Secretariat of the International Court of Arbitration
shall, as soon as possible, inform the other party of the request
for conciliation. That party will be given a period of 15 days to
inform the Secretariat whether it agrees or declines to
participate in the attempt to conciliate.
If the other party agrees to participate in the attempt to
conciliate it shall so inform the Secretariat within such period.
In the absence of any reply within such period or in the case
of a negative reply the request for conciliation shall be deemed
to have been declined. The Secretariat shall, as soon as possible,
so inform the party which had requested conciliation.
Article 4
Upon receipt of an agreement to attempt conciliation, the
Secretary General of the International Court of Arbitration shall
appoint a conciliator as soon as possible. The conciliator shall
inform the parties of his appointment and set a time limit for the
parties to present their respective arguments to him.
Article 5
The conciliator shall conduct the conciliation process as he
thinks fit, guided by the principles of impartiality, equity and
justice.
With the agreement of the parties, the conciliator shall fix
the place for conciliation.
The conciliator may at any time during the conciliation
process request a party to submit to him such additional
information as he deems necessary.
The parties may, if they so wish, be assisted by counsel of
their choice.
Article 6
The confidential nature of the conciliation process shall be
respected by every person who is involved in it in whatever
capacity.
Article 7
The conciliation process shall come to an end:
a) Upon the parties signing an agreement. The parties shall be
bound by such agreement. The agreement shall remain confidential
unless and to the extent that its execution or application require
disclosure.
b) Upon the production by the conciliator of a report
recording that the attempt to conciliate has not been successful.
Such report shall not contain reasons.
c) Upon notification to the conciliator by one or more parties
at any time during the conciliation process of an intention no
longer to pursue the conciliation process.
Article 8
Upon termination of the conciliation, the conciliator shall
provide the Secretariat of the International Court of Arbitration
with the settlement agreement signed by the parties or with his
report of lack of success or with a notice from one or more
parties of the intention no longer to pursue the conciliation
process.
Article 9
Upon the file being opened, the Secretariat of the
International Court of Arbitration shall fix the sum required to
permit the process to proceed, taking into consideration the
nature and importance of the dispute. Such sum shall be paid in
equal shares by the parties.
This sum shall cover the estimated fees of the conciliator,
expenses of the conciliation, and the administrative expenses as
set out in the Appendix hereto.
In any case where, in the course of the conciliation process,
the Secretariat of the Court shall decide that the sum originally
paid is insufficient to cover the likely costs of the
conciliation, the Secretariat shall require the provision of an
additional amount which shall be paid in equal shares by the
parties.
Upon termination of the conciliation, the Secretariat shall
settle the total costs of the process and advise the parties in
writing.
All above costs shall be borne in equal shares by the parties
except and insofar as a settlement agreement provides otherwise.
A party's other expenditures shall remain the responsibility
of that party.
Article 10
Unless the parties agree otherwise, a conciliator shall not
act in any judicial or arbitration proceeding relating to the
dispute which has been the subject of the conciliation process
whether as an arbitrator, representative or counsel of a party.
The parties mutually undertake not to call the conciliator as
a witness in any such proceedings, unless otherwise agreed between
them.
Article 11
The parties agree not to introduce in any judicial or
arbitration proceeding as evidence or in any manner whatsoever:
a) any views expressed or suggestions made by any party with
regard to the possible settlement of the dispute;
b) any proposals put forward by the conciliator;
c) the fact that a party had indicated that it was ready to
accept some proposal for a settlement put forward by the
conciliator.
Appendix
SCHEDULE OF CONCILIATION COSTS
a) Each party to a dispute submitted to conciliation under
the ICC Rules of Optional Conciliation is required to make an
advance payment of US dollars 500 on the administrative expenses.
No request for conciliation shall be entertained unless
accompanied by the appropriate payment. This payment is not
recoverable and becomes the property of the ICC. Such payment by a
party shall be credited to the portion of the administrative
expenses for the conciliation of such party.
b) The administrative expenses for a conciliation procedure
shall be fixed at one-quarter of the amount calculated in
accordance with the scale of administrative expenses as set out in
Appendix III of the ICC Rules of Arbitration. Where the sum in
dispute in a conciliation procedure is not stated, the Secretary
General of the International Court of Arbitration (the "Court")
shall fix the administrative expenses at his discretion.
c) The fee of the conciliator to be paid by the parties shall
be fixed by the Secretary General of the Court. Such fee shall be
reasonable in amount, taking into consideration the time spent,
the complexity of the dispute and any other relevant
circumstances.
d) Amounts paid to the conciliator do not include any possible
value-added taxes (VAT) or other taxes or charges and imposts
applicable to the conciliator's fees. Parties are expected to pay
any such taxes or charges; however, the recovery of any such
charges or taxes is a matter solely between the conciliator and
the parties.
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