The twentieth century saw international dispute resolution move out of domestic courts and into the realm of final and binding arbitration. State public forums provide layers of appeal, published statutory rules and procedures to ensure fair and effective justice. Lawyers representing parties in national courts are trained, licensed to practice law and are knowledgeable in their own State's procedural rules and niceties. Once you leave your own State's jurisdiction, there are many uncertainties in submitting to a foreign court. Foreign language, culture, lawyers and local practices immediately arise. At least, however, you have the benefit of advice from the foreign lawyers you have selected to prepare and try your case.

In the international arbitration arena, there are also many issues that arise where good practical advice is hard to come by.

My paper dedicated to Robert Briner takes the view that there are a number of practical points to consider when choosing international arbitration procedures. Twelve of them and their relevance to ICC administration are discussed here.

1. Selecting an institution

The most common question that arises is which arbitral institution should you select for your contract or whether a service provider is needed at all. Is an arbitral institution a help or a hindrance? Is it worth the additional cost?

There are several schools of thought. Some believe that all arbitration institution rules are similar and it doesn't matter whether you provide for any named agency. Others believe that with the advent of ad hoc rules such as UNCITRAL, there is no longer a need for institutions. Yet another view is you can have the best of both worlds by using the UNCITRAL Arbitration Rules with a well-[Page18:]known institution named as the appointing authority. In my experience, there is no real consensus in the United States on this question. There are advocates for and against each of the three views.

With the dramatic growth in the use of international arbitration, there has also been a concomitant increase in the number of providers of arbitration services. There is probably at least one arbitration institution in every major trading country in the world. Some countries have multiple organizations. Many are part of a national chamber of commerce. Some belong to an arm of the government. Most are non-profit but of late there are some profit-making entities. Although the providers are usually based in a single country, they hold themselves out as international because they have foreign arbitrators, foreign board members and are capable of holding the arbitration in locales outside of their own country. A good rule of thumb in using an institution is to use the one located in the country of the seat of the arbitration hearing. Thus, for instance, in Sweden the SCC is preferable, in Japan the JCAA, in the United Kingdom the LCIA.

In countries such as the United States, where there is more competition than most, it is preferable to follow the advice of your local counsel. The AAA is the long-time acknowledged, best-known US institution. Newer organizations include CPR and JAMS.

Oftentimes, each party tends to suggest its own national institution. A good solution to break the deadlock is to suggest ICC as a logical alternative because it is non-national, has an eighty-three-year track record and is probably number one in name recognition in international arbitration.

2. Costs

Of late, courts and commentators have remarked on the high cost and delay of international arbitration. Indeed, it is reminiscent of the articles in the middle of the twentieth century that led to the wholesale abandonment of the courts in favor of arbitration in international contract disputes. Today's adherents of ad hoc arbitration emphasize the fact that there is no institution and, therefore, no costs to pay for administering the case. Proponents of institutional arbitration have lauded the growing amount of competition that compels institutions to keep their own administrative costs at a marginal level. In today's currency-conscious world it even makes a difference what currency is used by the institution. Those pegged to the euro today are chuckling over the weak US [Page19:]dollar that causes practical differences in the outlay of fees by parties. In my own view, none of the administrative charges of institutions are truly relevant in gauging the spiraling costs of international arbitration. The single largest portion of costs is attributable to legal costs and expenses; arbitrator fees trail far behind. The lowest costs are usually the administrative costs of the institution. My own back-of-the-envelope experience is that a typical international arbitration tends to fit into a costs pattern. For example, a twenty million dollar award that incurs two million in total costs might look as follows:

Thus, the single most overwhelming ingredient is legal fees and costs comprising approximately 82 per cent of the total. Those costs would remain the same under any set of arbitral procedures. The distinction between institutional and ad hoc arbitration when compared to legal fees and costs is insignificant.

Some comment should be addressed to the policy of advancing the costs upfront, as is done by some institutions, or paying advances on costs as the work is performed. It may be advantageous to some to pay in smaller increments. However, at the end of the day, the total costs remain the same.

ICC is in the cosmetically ugly position of requiring full advances on costs when the case is ready to submit to the newly formed arbitral tribunal. On the other hand, such a larger advance also provides a framework for the total costs and tends to guide arbitrators into keeping within that advanced cost framework. On balance, despite the inconvenience of the full advance, it is not more expensive than other procedures. Indeed, in ad hoc arbitration there is no check on the hourly charge that arbitrators may request other than party oversight.

3. Arbitrators

It is a common cliché that international arbitration is only as good as the panel of arbitrators that hears the dispute. Selecting arbitrators is therefore crucial. [Page20:]

Each institution has its own formula for helping parties. Some have published lists of arbitrators from which to select; others have non-public lists from which you may request some potential arbitrator names. ICC has no panels but rather solicits nominations from member national committees when the parties or the co-arbitrators cannot agree. Many favor only experienced legal professionals, while a few prefer no lawyer-arbitrators. Here again, there are strong views from practitioners on the background and qualifications of arbitrators. None of the systems is foolproof. Those institutions with published names rarely follow up to determine if the persons are still qualified, up-to-date or alert in all their faculties. Oftentimes, the panel lists create a monopoly on the same names. These individuals become overloaded with cases and lose the ability to provide efficient case management, while excellent newcomers with time available are prevented from becoming known. Fortunately today, with computers, e-mail and law firm dossiers on international arbitrators, it is much easier to find good candidates whether from published lists or not. Indeed, there are many sources that publish names of arbitrators and there is a deluge of names worldwide. It is only by checking references of others with prior direct experience that you can really get a grasp of the arbitrator's ability to function collegially in a tribunal of equally bright and first-rate lawyers.

ICC does not maintain a panel of arbitrators. It relies on its national committees for nominations of a chairman when the contract so provides or if the coarbitrators cannot agree. This procedure has the dual advantage of obtaining the best names national committees have to offer while allowing the ICC Court to review the names before confirming nominations.

4. Rules

Lawyers are used to following rules and none of the leading international sets of rules is either lengthy, cumbersome or complex. They are mercifully short (AAA: thirty-six articles; ICC: thirty-five articles; LCIA: thirty-two articles; SCC: forty-two articles; UNCITRAL: forty-one articles). There are, however, some significant and substantive differences in the rules-to the extent that there are publications today providing a guide to the differences.

One practical issue regarding the rules is who administers them. In each country today there is a so-called national arbitration body (or more than one) that administers arbitration. In the United States, for example, in addition to the famous AAA, you have CPR, JAMS, NAM and NASD, all vying for [Page21:]international disputes to resolve. It is necessary, therefore, to understand the various bureaucracies that do the daily administration of the cases. For some, there is too much administration that delays or disturbs the smooth administration of the case. For others, there is not enough. Some institutions prefer lawyers as administrators while others prefer lay persons.

The recent introduction of successful profit-making institutions (e.g. JAMS) into the arena has had a subtle but potentially significant impact on international arbitration. Various institutions cater to all parties, but some tend to prefer the large corporate entities with the potential for mega claims and higher fees. Just as law has moved from a service to a business, so too has international arbitration. Institutions can influence certain important decisions in your arbitration. They decide on prima facie agreements to arbitrate, fix places of arbitration, hear challenges to arbitrators, replace arbitrators and determine how to apportion advances on costs. These are practical decisions of far-reaching importance and should not be treated lightly. Institutions do not have the powers of arbitrators, but they do have important powers. Knowing the staff persons making those decisions cannot be underestimated.

At ICC, parties currently have the good fortune of having an experienced lawyer, arbitrator and administrator as Chairman of the Court. He sits in the heart of the European Union but is from Switzerland, a non-EU member, and chairs a Court of over 120 members, including ten Vice-Chairmen, from civil and common law countries. He presides over a Secretariat headed by a US/French Secretary General who is aided by a group of experienced lawyers with teams of assistants that can administer a case anywhere in any of the leading languages of commerce spoken in the world today. Indeed, the Secretariat has become a leading training ground for new international arbitrators. Many former ICC Court staff lawyers are now well-known advocates in leading international law firms and are sitting as arbitrators on cases being heard today.

5. Name recognition

There are some practical advantages to using a time-tested institution when there is the necessity of going to court to enforce an award. I have no doubt that it is easier to enforce an LCIA award in London than an ad hoc award from a third-world country. The LCIA has achieved a dignity and status that is appreciated by the bench and bar in that country. [Page22:]

Similarly, an award emanating from the SCC, with its background in East-West disputes and rules that fit 'hand in glove' with local law, will have easier sailing in Sweden than an award under foreign, less known rules. The AAA's awards and rules have achieved a certain recognition in the US after its eighty years of case administration in that country. The AAA has owned the arbitration platform in the US and continues to dominate in domestic cases but has also achieved a promising and even growing presence on international cases. On sheer numbers of cases alone, it is plainly in the top tier of arbitration administrators. US courts are generally favorable to AAA awards and the number of awards not enforced is de minimus.

ICC, in my experience, is the best known by all foreign courts. It is probably the gold standard when you seek to enforce an ICC award. In over twenty years as an ICC arbitrator, I have been impressed by the number of court decisions that enforce ICC awards. Being the only truly non-national institution, albeit based in France, it does not suffer from the parochial identity of any of its competitors. In an AAA, LCIA or SCC arbitration, the odds are good that one or more of the arbitrators will be from the country of that institution. At ICC I have participated in many cases where none of the arbitrators were French. Other national arbitral institutions may have more cases (e.g. China, Russia), but none have the unbroken experience over three-quarters of a century of the ICC International Court of Arbitration.

6. Unique procedures

Most arbitral institutions laud their ability to provide a service to parties and not interfere with the smooth and efficient functioning of the case. The ICC Rules contain two highly criticized features that can potentially slow things down. They are (i) the Terms of Reference at the beginning of the case and (ii) the review of the award by the ICC Court at the end. Few, if any, arbitral institutions have the temerity to so intervene in the international arbitration regime. These twin procedures are not only the regular practice of ICC but to many they represent the hallmark of a successfully administered arbitration. It is hard to justify being correct when you are the only person on the wrong side of the road. But just as the British have been successfully driving on the wrong side of the road, so too has ICC been able to successfully navigate the twin rivers of Terms and review just as the salmon swims smoothly upstream. [Page23:]

My own view of the Terms of Reference has changed over the years. When I was an eager young lawyer I was always frustrated by the Terms procedure when representing a claimant. Now that I have reached the age of humility and my career is that of an arbitrator, my view is more approving. I like the Terms of Reference for five practical reasons: (i) It forces the parties to come to grips with the real issues in dispute. Very often the Request for Arbitration and the Answer are drafted in haste without the lawyers being fully aware of the full extent of their claims and defenses. (ii) It is the first time the parties meet the Tribunal. The Terms give all concerned a better understanding of the potential pitfalls down the road and permit the Tribunal to prepare a schedule that is meaningful and real. (iii) It allows the parties a brief respite to consider possible settlement. Several of my ICC cases have settled during or after the Terms are agreed. (iv) The Terms provide a helpful framework for the ICC staff and Court members to have available when reviewing the draft award. Very often omissions are spotted early that can be promptly corrected. (v) It provides comfort to an enforcing court that the parties truly participated in the process and makes award enforcement easier.

My view of the ICC scrutiny of award process is also more complimentary. Undoubtedly, there are arbitrators who are able to draft perfect awards and require little review by outsiders. I, however, take comfort in the fact that someone is correcting my typographical errors and misspelling of names, suggesting places where certain additional emphasis or a citation might be helpful, correcting certain translations that may not be clear, and suggesting changes that may make the award more easily enforceable in the country of enforcement. My experience is that this is time well spent. In urgent cases, ICC staff have been able to turn around the review of an award in a week. While speed is a desired goal of international arbitration, clarity and accuracy of the award may be preferable.

7. Incentives to finish

There are different methods of arbitrator remuneration in international arbitration. Some arbitrators prefer ad hoc cases because they can charge hourly rates and pay themselves monthly or quarterly or by any other convenient method. Some institutions also pay on an hourly rate and on a pay-as-you-work basis. Others, like ICC, prefer to hold back the fees until the award is rendered in the hope that the arbitrators will work more diligently to receive [Page24:]their remuneration. There may be some incentive toward finishing the award as soon as possible, but to the busy arbitrator the hold-back formula probably does not make any difference. Successful arbitrators have a blend of AAA, ICC, LCIA and UNCITRAL cases; and always have a cash flow or revenue stream that tends to de-incentivize the pay-at-the-end procedure.

8. Time availability

One of the frustrating situations in international arbitration is scheduling meetings and hearings. At a minimum there may be busy practitioners and arbitrators from five different countries (three arbitrators and two counsel). It is, therefore, of practical importance to select arbitrators with time available to meet the dates scheduled for conferences and consecutive days of hearings. This is not always easy to accomplish. At the time the arbitrator accepts appointment to the case, his schedule may be free. However, with the passage of time the arbitrator may become more fully booked, causing potential conflicts with the original schedule. There are certain factual occurrences that cannot be avoided. Death or illness of your arbitrator are obvious circumstances over which you have no control. On occasion your arbitrator may be appointed to some high-level government post or judicial office, either of which might force him to resign from the case.

However, the choice of arbitrators with the odds of fewer rather than more future engagements can be anticipated. For example, there are many full-time professional international arbitrators. Some of them are so successful and busy that they may not be able to give you the choice of early dates for conferences or hearings. Arbitrators who are fully booked for the next year may not be suitable selections if you need prompt adjudication. A common source of arbitrators are senior lawyers or litigation partners of famous international law firms. While they might make splendid arbitrators, it is equally likely that a sudden new case in their office may make it difficult to provide the time and hearing dates the case warrants. Similarly, senior executives of major corporations, while anxious to serve as neutrals because of their business or other expertise, may not be able to divide their time when a major corporate issue arises for their employer. Consecutive hearing days, for example, may be out of the question. Retired lawyers, former judges and academics are usually better able to control their time and schedules and make for good choices-although they, too, can gravitate toward being too busy from time to time. [Page25:]

The best one can and should do is inquire before naming your arbitrator of his or her time availability not only for the next month or two, but over the likely life of your case. ICC requires nominated arbitrators to state that they have the time availability to hear the case. There are many excellent arbitrators around the world with time to spare. They should not be overlooked.

9. Transparency

There are a number of important decisions made by arbitral institutions, particularly where the arbitration clause is silent or vague or contains optional choice provisions. A few of the more important issues include: (i) whether there is a prima facie agreement to arbitrate, (ii) choosing or replacing an arbitrator, (iii) hearing challenges to arbitrators, (iv) fixing the seat of the arbitration, (v) fixing certain costs, and (vi) other quasi-administrative/legal functions.

Despite a plethora of seminars on drafting arbitration clauses and despite the fact that each arbitral institution has its own standard or recommended arbitration clause, there is still an abundance of pathological or nearly pathological clauses. Misquoted names of institutions abound. There is, however, a dearth of information on when and whether an institution will accept administration of a case where its name has not been plainly stated in the contract. The institutions, including the ICC Court, tend to hide behind the finality of their administrative rulings and do not provide the bases for these decisions. Some clarification might be helpful.

Challenges to arbitrators seem to be on the rise today, perhaps because of the large number of cases coupled with the ever increasing published rules and codes of ethics and conduct for independent arbitrators. The new IBA Guidelines on Conflicts of Interest in International Arbitration are certain to make it easier to challenge international arbitrators. By the same token, the IBA Guidelines should make it easier to give reasons as to why the challenge was granted or denied. Clear guidelines are given when disqualifying conflicts exist (the Red List); less clear grounds are contained where circumstances may make a difference (the Orange List); and circumstances where disqualifications do not pertain are given (the Green List). Still, there will always be factual situations when arbitrators and attorneys would benefit from knowing the reasons as to why the challenge was granted or denied. [Page26:]

Unlike international arbitrators who routinely give reasons for their decisions, arbitral institutions rarely give reasons for their actions. Thus, when one party seeks to place the locale of arbitration in country A and the other party requests country B, the institution may place the locale in country C. Presumably the decision is based on practical consideration of geography, applicable law, number of good arbitrators, ease of transportation and appropriate facilities. But one is never sure.

All institutions, including ICC, would benefit from providing the reasons for their important administrative rulings on these and other disputed issues.

10. Awarding of costs

International arbitration is a boon to winning parties. Unlike the US rule that parties normally are responsible for their own legal costs, the legal costs of the winning party are recoverable. Most rules of arbitral institutions recognize the concept of awarding the prevailing party its reasonable legal costs. Since legal fees and costs are the largest single portion of the total costs of an arbitration, the tribunal's power to award them to the prevailing party is of significant practical importance.

The practical problem that I have encountered concerns the timing of when legal fees are provided to the tribunal. Some arbitrators prefer to issue a partial final award ruling on everything but costs. They prefer this approach because then only the winning party need submit its costs and it is relatively easy to award the prevailing party costs without seeing the losing party's costs. My own preference is to have both parties simultaneously submit their costs before the final award is rendered. It provides the tribunal with a gauge of whether the prevailing party's costs are reasonable by comparing both sets of legal costs, and it avoids piecemeal rendering of awards.

Under ICC procedures, the Court sets the costs of arbitrator fees and administrative expenses. The ICC procedure of submitting a draft final award for scrutiny tends to encourage ICC arbitrators to submit one full final award, with costs. Accordingly, while the approach of ICC arbitrators may vary on this point, the concept of a single final award containing all costs, including legal fees, seems preferable. [Page27:]

11. Substantive rules

Traditionally, arbitral institutions were careful to limit their roles to that of administration of arbitration and assiduously avoided interference with party autonomy. This was accomplished by providing only for procedural rules and avoiding any attempts at substantive legal positions. There appears to be a slight but growing change from that procedural bent. Some institutions now limit the power of arbitrators to award certain kinds of relief. For example, CIETAC places a limitation on the arbitrators' ability to order interim relief: Article 23 provides only for the granting of provisional remedies by courts. The AAA rules prohibit the arbitrators from granting 'punitive, exemplary or similar damages', unless the parties agree otherwise or a statute requires such relief to be granted. Article 28(5) of the AAA International Arbitration Rules is a potentially far-reaching intrusion into the substantive area of contract law and not a mere administrative or procedural aid to parties.

Confidentiality is important in international arbitration. In an effort to preserve the confidential nature of arbitration, Article 27(4) of the AAA International Arbitration Rules states: 'An award may be made public only with the consent of all parties or as required by law.' The LCIA Rules likewise contain a specific provision (Article 30) that the parties 'undertake as a general principle to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain . . .' It is difficult, however, to know what sanctions, if any, are available against a party who unilaterally makes public an award. Recent court decisions have not fully favored the confidentiality regime sought in international arbitration. Perhaps a more pragmatic approach is taken by ICC. Article 20(7) is a far cry from declaring substantively that arbitration proceedings are confidential. It rather permits the arbitrators to take measures for the protection of trade secrets and confidential information. The latter rule seems to allow the issue of confidentiality to be addressed by the arbitrators on a case-by-case basis and leaves the ultimate decision to the parties in their arbitration agreement.

Tinkering with the powers of arbitrators in procedural rules does not, in general,

augur well for the future of institutions. It may be important to increase an

institution's market share by advertising that awards will be more reasonable

if punitive damages are disallowed or that confidentiality is mandated. However, [Page28:]it is not likely that the institutions can or should assure parties that such substantive provisions will always be enforced. The conservative approach taken by ICC on preserving the procedural nature of administered arbitration rules may be more reassuring to parties and their counsel in considering which rules to choose.

12. Aids to enforcement

One of the desired goals of international arbitration is to obtain prompt and ready enforcement of the award. Some institutions do little, if anything, to aid in enforcement after the final award is rendered. A few, such as ICC, have been more helpful in post-award proceedings. There are two specific ICC Rules, Articles 28(5) and 28(6), that have been helpful to prevailing parties.

Article 28(5) states:

The Arbitral Tribunal and the Secretariat shall assist the parties in complying with whatever further formalities may be necessary.

And Article 28(6) reads:

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.

These provisions have permitted the Secretariat to provide parties with additional assistance in enforcement proceedings on various occasions. For example, the ICC Court has:

(i) furnished certified copies of Terms of Reference and awards both in English and in the foreign language of the place of enforcement.

(ii) furnished certified copies of other documents with translations, if needed.

(iii) written to parties to remind them that the Rules provide that the ICC award is binding on the parties.

(iv) allowed arbitrators to issue clarification of awards when requested by local courts.

(v) responded to national courts in their own language.

(vi) certified the accuracy of its Rules and the applicable time frames. [Page29:]

Since most of these post-award administrative efforts are not of a partisan nature, it is good to know that they are available.

13. Conclusion

Robert Briner has presided over the ICC International Court of Arbitration for a period of nine years, during which some 5,000 ICC filings were received. Throughout his tenure, his pragmatic skills at overseeing the myriad of administrative tasks have been a credit to him and the fine staff of the Secretariat. As a recent former Vice-Chairman of the ICC Court, I can attest to the precise and efficient administration of meetings of the Court and its Committees. Only a Swiss Chairman could run Court meetings that started and ended precisely when the clock demanded it. The changes made in the 1998 Rules promulgated during his tenure (the ninth version in ICC's history) provide more flexibility in today's field of international arbitration and other methods of alternative dispute resolution. In every listing of arbitral institutions, ICC has consistently been the leader or among the leaders. In the ever-widening world of competitive international arbitral institutions, the practical experience of ICC remains a beacon for the future of alternative dispute resolution.

Bon voyage, Monsieur le Président!