ICC International Court of Arbitration as Administered by the International Chamber of Commerces: A Primer on Case Initiation (2014)

Summary

The ICC International Court of Arbitration operates under its own rules of procedure which are known as the ICC Rules of Arbitration (the “Rules”) and these are found on the web site for the ICC. Each party appearing before the ICC must follow the rules in order to get the case positioned to be decided. These rules are not the same as those found in the courts of North American or European jurisdictions. However, the similarities are sufficient that most differences will not cause undue additional expense for the parties. The best contracts will be ones which are aware of the Rules and provide the parties with the easiest methods of invoking the ICC jurisdiction in the matter which is the subject to the dispute. The ICC stresses that it is not a “court” in the judicial sense but that it administers the arbitration panels which are the decision makers in the resolution of any dispute before the ICC. The first steps in the ICC arbitration process are referred to as “case initiation” and these are reviewed here to aid business in drafting an effective contract.

First Filing

The ICC will open a case file and assign a case number once two criteria are satisfied pursuant to the Rules Article 4.4: First, the party seeking the ICC jurisdiction must submit a “Request for Arbitration” pursuant to Article 4.1 of the Rules.  Second, the party must wire the required fee (as set forth on the ICC fee schedule).  The Request for Arbitration must contain sufficient information for the Secretariat to assign a caption and case number. The specific information is listed in the Rules Article 4.3 (a) – (h). In summary the petitioner must identify itself and its counsel, then identify the respondent. The documents which give the ICC authority to hear the case must be included, as must any clear and concise statement of the particulars of the dispute, and the relief the petitioner seeks from the ICC. The required fee is wired to the ICC contemporaneous with the filing of the Request for Arbitration.

The wiring instructions are found on the web site but for convenience as of this date the instructions are as follows:

Beneficiary (Account holder):

INTERNATIONAL CHAMBER OF COMMERCE

33-43 avenue du Président Wilson

75116 Paris, France

 

Bank of Beneficiary:

UBS SA

35, rue des Noirettes

P.O. Box 2600

1211 Geneva 2, Switzerland

Account no.:       240-224534.61R

IBAN:                 CH06 0024 0240 2245 3461 R

Swift Code (BIC): UBSWCHZH12A

Serving the Respondent

The Rules Article 3.1 require that all “pleadings and other written communications submitted by any party as well as any documents annexed thereto, shall be supplied in a number of copies sufficient to provide one copy for each party…”  which the Secretariat interprets to mean that the party filing must “serve” the Respondent with the documents.  The challenge arises from the nature of the agreement between the Petitioner and Respondent on the issue of how the Notices are “served” or delivered to the parties.

The ICC relies upon the agreement of the parties for the particulars of how documents are served. In all cases the ICC requires the party to demonstrate through documents how service was accomplished.  In the practical perspective a party should carefully look at the Notice provisions in the agreement to simplify the manner and method of service. Each participant should consider how to assure that it receives a Notice in sufficient time to respond and how to issue a Notice which is received with little opportunity for delay by the recipient. There are as many ways to avoid timely delivery of a Notice as there is imaginative people, so keep the Notice delivery provisions in the contract as simple as possible in light of the country in which the Notice must be received.  The parties should make sure that the contract includes a physical address if the parties are agreeing to the use of an overnight courier or hand delivery service. If the parties are agreeing to electronic mail or facsimile service, then the contract should anticipate the possibility that the email file will be too large or that the facsimile should be accompanied by a confirmation of successful transmission by the machine.

The Rules referred to here are those in effect on January 1, 2002 and the ICC reserved the right to change those rules at any time. No warranty is made herein to the accuracy and effectiveness of the writing, and independent counsel should be obtained before relying upon anything written here.

 

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