The view expressed in this article are those of the authors and do not, in any way, reflect the view of the ICC International Court of Arbitration.

Introduction

In this very journal, Serge Lazareff defined the language of arbitration as the ‘official language(s) of the procedure, in other words the language(s) used by the tribunal and the parties for communicating orally and in writing’.¹ Another author, the Greek fabulist Aesop, wrote ‘language is both the best and the worst of things’.² This maxim holds true when it comes to the language of arbitration in international arbitration procedures. It is the ‘best of things’ in so far as it is an essential aspect of international transactions and trades; a means for different legal actors from various legal traditions to interface; and has been instrumental in the development of international arbitration as a viable transnational dispute resolution mechanism. However, if neglected, language can be the source of substantial procedural concerns.

Indeed, from a procedural standpoint, the language of an arbitration may have a great impact on costs (e.g. through the recourse of sometimes expensive translation and interpretation services),³ and on the constitution of the arbitral tribunal (e.g. the language may impact the profile of the arbitrators,⁴ by limiting the pool of competent candidates that a party can select). Even more important, it can be the source of due process issues.⁵ As witnessed in several jurisdictions, a violation of the language of arbitration can even lead to the potential setting aside of arbitral awards on the ground that the arbitral tribunal breached due process, as well as potentially breaching the parties’ agreement, in not adequately ensuring that the language of arbitration was respected during the course of the proceedings. One may remember the widely commented Blow Pack decision rendered by the French Supreme Court in 2015 where it upheld the decision of the Paris Court of Appeal to partly set aside an ICC award after the president of the arbitral tribunal had proceeded on his own motion to translate documents submitted in German despite the fact that French was the language of arbitration.⁶ The Cour de Cassation confirmed the decision of the Paris Court of Appeal which had found that the arbitral tribunal had breached the ‘principe du contradictoire’ (i.e. the principle that arbitral proceedings should be adversarial, offering to each party an opportunity to present its case) and considered that one of the parties was not in a position to adequately discuss all documents on file as it was not Germanophone, and consequently set aside, in part, the award. This example, which can appear severe, underlines the fundamental importance of taking the necessary precautions when determining the language of arbitration.

This article does not aim to outline all the practical repercussions that the language of arbitration can have on arbitration proceedings, or to analyse those court decisions that have relied on language issues to set aside an award, as these have given rise to a significant amount of literature,⁷ but rather to provide a particular perspective on the issue of the language, from the standpoint of proceedings conducted under the ICC Rules. In the present article, we will examine whether the language of the arbitration remains a relevant issue in ICC Arbitrations in a time of increasing anglicization of procedures (I), and outline the manner in which the language is determined in ICC Arbitrations (II).

I. The language of arbitration: Still a key feature in ICC Arbitration proceedings

By way of a preliminary remark, one may wonder whether English has become the official language of international arbitration, and if the choice of language is still an issue. As predicted by some authors, English has taken a hegemonic position in international arbitration.⁸ This could mistakenly lead to the presumption that English is the language of international arbitrations and the recourse to a different language constitutes the exception. This trend toward an anglicization of international arbitration proceedings is reflected in the ICC’s caseload, where English is by far the most common language used. However, it is equally important to bear in mind that there is still a great variety of languages represented in ICC proceedings. Among the 851 cases registered in 2019, 14 different languages were used. English was the predominant language, with roughly 73% of cases being administered in that language (the percentage was 76% during the period 2006-2010), followed by Spanish now being the second language (6%), French (4%), Portuguese (3%) and then a series of other languages of which German has the highest percentage with 1% of cases. Thus, approximately one-fourth of the cases registered in 2019 were introduced in a language other than English, representing a far from negligible 232 cases.⁹

International arbitration draws its attractiveness in part from having benefitted from input coming from various jurisdictions and legal cultures. It permitted an international legal dialogue, and the fact that one language is predominant may simply reflect that a common means of communication is a necessity for a broad range of actors from different legal and geographical backgrounds to collaborate. Indeed, as Pierre Lalive pointed out, this type of English, that is now a common working language or ‘commercial language’,¹⁰ is almost a sui generis invention of its practitioners and more broadly of the actors of the international business world.¹¹ It was a necessity for international arbitration to play its role of point of contact of numerous legal traditions.

But the practical benefits of a common language must be counterweighed with the substantive shortcomings that may ensue. Having a unique language of command could likely decrease the quality of a legal analysis. Indeed, the use of a language in a legal context is the expression of a legal culture, which is an element that is necessary to fully comprehend a law applicable to the merits of a case.¹² Accordingly, a ‘common language’ system faces the risk of multiplying misunderstandings, imperfect translations, or overlooking the semantical subtilities present, in particular when the language of the procedure is different from the language of the applicable law.¹³

That is one of the reasons why an institution like ICC is composed of members with diverse legal traditions and linguistic skills, be it at the level of the International Court of Arbitration (the ‘Court’), with Vice-Presidents from a dozen countries and Court members from 124 different jurisdictions, or at the level of its Secretariat, where roughly 38 nationalities and 30 languages are represented.

This is also reflected in the work of the Court itself. The awards the Court approved pursuant to the ICC Rules of Arbitration in 2018 and 2019, which totalled 1185, included awards in 14 different languages.¹⁴ Approximately 79% of the awards were drafted in English, followed by French (7%), then Spanish (5%), Portuguese (4%) and German (1%). In addition, there were several bilingual awards rendered in both English and Romanian and English and Portuguese. In practice, when the language of arbitration is not English, Special Committees of the Court are often constituted of three court members who are fluent in the relevant language for the scrutiny of the draft awards. Special Committees have thus been held in French, Spanish, Portuguese, Italian, German, Greek, Arabic, Chinese and Russian with Court members from or knowledgeable about the relevant jurisdiction. The aim is to increase the quality of the scrutiny process which, as underlined above, often requires more than just comprehensive linguistic skills.

Having set out why the language remains a pertinent issue, it remains to be seen precisely how the language of arbitration is selected in the context of ICC Arbitrations.

II. The selection of the language in ICC Arbitrations

The following section will first explore the most common scenario, the situation where the language is fixed by agreement of the parties (A), before discussing the mechanism in place when no such agreement exists, the determination of the language of arbitration by the arbitral tribunal (B).

A. The principle under the ICC Rules: Choice of the parties

The role of ICC as an arbitral institution in relation to the language of arbitration is not limited to the scrutiny process of the draft awards. Indeed, from the very earliest stages of the procedure, the institution will ensure the process of selecting the language of the arbitration is set in motion, by acknowledging the parties’ agreement or by ensuring that the arbitral tribunal makes such determination. This dual source for establishing the language of arbitration finds its basis in the ICC Rules.¹⁵ Article 20 of the ICC Rules in force as of 1 March 2017 provides as follows:

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.

By adopting a formulation that makes the parties’ agreement the rule and the arbitral tribunal’s determination the exception, Article 20 reiterates once more the primacy of party autonomy. The agreement of the parties can become crystallized in the arbitration agreement itself or subsequently at any time in the course of the parties’ relationship and the arbitration proceedings. In practice, the language of the arbitration has often already been selected by the time an arbitration procedure commences and most often during the drafting of the arbitration agreement. Indeed, among the 851 cases registered in 2019 by the ICC, 74% contained an arbitration agreement specifying the language of the arbitration. This figure confirms the arbitration practitioners’ and users’ awareness that the language may have substantial practical, financial and legal repercussions, and demonstrates the desirability of discussing the language of arbitration at the outset when negotiating the contract containing the arbitration agreement. From 2012 to 2016, an average of 28% of cases involved arbitration agreements that did not specify the language of arbitration (with a peak of 34% in 2016). Among cases registered in 2017 and 2018, 20% did not include a language specification in the arbitration agreement; this proportion reached 25% in cases registered in 2019.

In cases where the language is provided for in the arbitration agreement, the Secretariat will take note of the language upon receipt of a request for arbitration. Unless the parties subsequently jointly agree on the application of a different language of arbitration, the one indicated in the arbitration agreement will govern the entire procedure. This means that all communications, submissions, orders and awards produced by the parties, tribunals, witnesses or experts, must be established and submitted in that language, unless otherwise agreed by the parties.

In at least one case analysed by the authors, an arbitral tribunal refused to allow documents to be submitted untranslated in a language other than the language of the arbitration, as one party had objected to this proposal and the arbitration agreement did not provide for any exceptions regarding the language of the arbitration. In the wake of certain domestic court decisions such as the Blow Pack case,¹⁶ the caution exercised by the arbitral tribunal appears justified. Accordingly, if parties are or become aware that they may require certain arrangements with respect to the language, for example to allow for legal authorities to be submitted untranslated when the applicable law is provided in a different language to the language of the arbitration, they should specify this in the arbitration agreement or as soon as practicable.

Consistent with the principle that the parties’ will is at the core of the construction of an arbitration procedure, it is always possible for them to later modify the arbitration agreement and change the language provided therein. If in practice this occurs rarely - an average of around 1% of cases in the past seven years - it is an important safeguard to allow flexibility to the parties to adapt to the circumstances as they exist at the time of the dispute, which may differ from what existed at the time the arbitration agreement was drafted.

A confusion often seen at the outset of an arbitration on the part of the parties or their counsel is between the language of a contract as specified in a language clause and the language of the arbitration proceeding. In accordance with the principle of separability, the fact that a contract specifies the language of the contract or of communications between the parties does not necessarily mean that it shall be the language of the arbitration proceeding. In some cases,¹⁷ the arbitration agreement provides for a language that is different from the language of the contract. Where a dispute arises between the parties as to which language should apply, the Secretariat will refer this issue to the arbitral tribunal once constituted (for a contractual interpretation and/or a thorough analysis of the relevant applicable law). Conversely, following the same approach, where the arbitration agreement is silent on the language of the arbitration and the underlying contract provides for a language to be employed, the Secretariat will consider that the language of arbitration is not determined. Then it will be for the parties to subsequently expressly agree on the language of arbitration or, absent such an agreement, it will be for the tribunal to determine the language of arbitration.

The language of the arbitration is, in the vast majority of ICC cases, expressly set out in the arbitration agreement binding the parties. In situations where it is not the case, the Secretariat will, in its very first letters notifying the request for arbitration, invite the parties’ comments on the language as an attempt to elicit an agreement between them. This has proven and proves to be very effective.¹⁸

Article 4(3)(h) of the ICC Rules expressly provides that the request for arbitration shall contain observations on the language of the arbitration.¹⁹ Thus, if the arbitration agreement is silent, the claimant has an opportunity to propose a language in order to initiate a discussion between the parties on the matter. If the claimant has not commented on the language, the Secretariat will prompt it to do so. It is in the claimant’s interest to provide clear and convincing observations in favour of a language of arbitration, as these arguments may in fact persuade the opposing party or the arbitral tribunal that its preferred language is actually warranted. When notifying the request, the respondent will be invited to submit its own observations on the language in its answer, and therefore have an opportunity to respond formally to claimant’s proposal by accepting it or, in case of objection, formulating its own proposal.²⁰

It is worth noting that not providing comments on the language will not be an obstacle per se to the pursuit of the arbitration and in particular to the constitution of the arbitral tribunal. The parties will indeed be given a further opportunity to provide comments once the tribunal is in place and seized of the file. Therefore, the Secretariat will not insist on receiving the parties’ positions on the language of the arbitration faced with recalcitrant parties.

In practice, if the language is not determined, the parties will often draft their submissions in the language that they consider most likely to be the language of the arbitration or consistent with their preferred choice of language. However, the Secretariat will communicate with the parties in the language in which the arbitration agreement was drafted, in order to remain as neutral as possible. This is without prejudice to the final determination of the language of the arbitration by the tribunal pursuant to Article 20. Consequently, there have been scenarios where each party drafts the first submissions in different languages, and the Secretariat communicates in yet another language (for example the language of the contract if not fixed in the arbitration agreement). This emphasizes the importance of an early determination of the language.

B. The fallback: Determination of the language by the arbitral tribunal

The following section will analyse the case in which the tribunal must determine the language of the arbitration and will highlight those factors most often taken into account by tribunals in their determinations.²¹ This will hopefully provide practitioners with some useful insight into what may result should no party agreement be reached.

As highlighted above, Article 20 submits the matter for determination by the arbitral tribunal should the parties not reach an agreement. The rationale for leaving this decision to the arbitral tribunal, in contrast for example with the determination of the place of arbitration (which, in the absence of the parties’ agreement, is fixed by the Court) is likely that the language of the arbitration is a decision of a procedural nature. It thus falls within the arbitral tribunal’s broad power under Article 22 to adopt those procedural measures it considers appropriate. In addition, the arbitral tribunal is often better suited than the Court to make such a determination, and it will conduct a thorough analysis of the whole file, interpret the relevant stipulations of the underlying contract and analyse the relevant applicable laws, be it the lex arbitri or the law applicable to the substance of the dispute.

1. The timing of the tribunal’s decision

In practice, the arbitral tribunal will be prompted by the Secretariat to determine the language by way of procedural order as the first task it undertakes after the transmission of the file and before the establishment of the Terms of Reference. This will allow the parties to ensure that adequate representation and sufficient safeguards are taken to ensure any linguistic difficulties are catered for from the start of the procedure. Also, it will ensure that the case management conference can take place in a particular language and the tribunal can communicate in one language without raising due process concerns.

No substantial difference exists in cases subject to the Expedited Procedure Provisions under Article 30 of the ICC Rules, where the establishment of Terms of Reference is not mandatory. The language would be most efficiently determined by the arbitral tribunal before or during the case management conference.

In all instances, the arbitral tribunal should issue a procedural order setting out the underlying reasons for its choice. Given the potentially far-reaching repercussions of such a determination, it is important that the parties be provided with a reasoned decision, to avoid any further objection in the parties’ submissions.

2. The criteria considered by tribunals to determine the language

Article 20 of the ICC Rules expressly sets out the standard to be adopted by an arbitral tribunal when the language of the arbitration needs to be determined: the tribunal shall have ‘due regard’ to all circumstances of the case that it considers ‘relevant’, ‘including the language of the contract’. The fact of referring to the tribunal’s appreciation in identifying those circumstances to be considered relevant highlights the discretionary nature of its power in making this determination. While one circumstance is singled out as requiring to be included in the tribunal’s assessment, the language of the contract (a), other factors have been considered in tribunal decisions (b).

a. The language of the contract

The institutional decision to single out the language of the contract as one circumstance requiring particular consideration by the arbitral tribunal likely reflects the fact that, in most instances the language of the contract will be the same as the language selected in the arbitration agreement.²² But maybe even more importantly, this reflects the historical evolution of the ICC Rules. Indeed, prior to the ICC Rules in force as of 1st January 1998,²³ the language of the contract was a circumstance to be taken into account ‘in particular’, which granted it a somewhat primary status. It has since been relegated to an expressly referred illustration of one of ‘all the relevant circumstances’ to be considered.²⁴

In most cases, the language of the contract will still be weighed heavily in any arbitral tribunal’s decision on the language of the arbitration. If the parties were content to adopt a particular language to formalise their agreement, it can often be inferred that they will be satisfied that such language continues to govern their relations and their dispute.²⁵ As the Secretariat’s Guide points out, while not decisive in itself, the language of the contract ‘should be considered highly relevant’ and ‘a highly persuasive indicator’.²⁶ In the majority of the decisions studied by the authors, the language of the contract was considered of substantial importance and finally adopted as the language of the arbitration.

Due consideration should however be taken as regards the type of contract binding the parties. The language of a contract that has resulted from heavily protracted negotiations will of course have a greater influence on the tribunal’s determination than the language of a standard form contract. In standard form contracts, it is likely that the agreement is drafted in the language most commonly used in the industry or by one of the parties, but this might not be the language best suited to a dispute, nor reflect the parties’ expectations, as at least one party will merely have accepted the contract in its standard form.

If the parties have concluded several contracts at different dates, the language of the last contract (especially if, for example, it concerns a settlement agreement concluded after the first disputes arose) may also prove an important element in determining what the parties’ reasonable expectation is with regard to the language to govern their dispute.

In several instances, the special circumstances of the case overrode the criteria of the language of the contract. In one of the studied decisions, the arbitral tribunal reasoned that the contract had been drafted in language X because one party to the contract in particular could not understand language Y. However, the contract was concluded between various parties, only two of which were parties to the relevant arbitration procedure. Given that those parties were from countries where Y is an official language, and taking into account other circumstances, the arbitral tribunal decided that Y would be the language of the arbitration for the sake of the efficiency of the proceedings.

There is also an array of different contractual scenarios where more than one language is at play. In situations where there are several versions of the contract in different languages, and the contract provides that a particular version will prevail in case of inconsistency, it could be assumed that this factor will weigh in favour of the drafting language of the prevailing version of the contract. In practice, this is not necessarily the case. In one instance where a version of the contract in language X was to prevail in case of inconsistency with the English version, the arbitral tribunal decided nonetheless to determine English as the language of the arbitration to preserve the equality of treatment between the parties and the efficiency of the procedure: English was used by the parties to conduct their business generally and in particular in their commercial relations. Consequently, it was considered that English better served the interest of both parties.

In another ICC case, the contract was drafted in English and language X, the latter being the prevailing one in case of discrepancy. Yet, the arbitral tribunal decided that English was to be the language of the arbitration as it was the common language of the parties and of the arbitral tribunal. It would thus be more neutral given that selecting language X could have meant that (i) the arbitral tribunal had to be reconstituted as not all members mastered language X, (ii) it was likely to affect one of the party’s involvement in the proceedings as it did not conduct business in language X, and (iii) it would increase the costs involved as more contractual documents and communications were drafted in English and these would therefore have required translation.

In yet another case, the tribunal went one step further. It reasoned that while the contract provided for a prevailing version, the fact that the contract was established in two languages clearly meant that the tribunal could decide between these two languages. If the parties had wished to settle on only one language, they would have specified this and only drawn up one single version of the contract in such language.

b. Other factors taken into account by arbitral tribunals

Asides from the language of the contract, Article 20 refers to the necessity for the arbitral tribunal to pay due regard to ‘all relevant circumstances’. Among the procedural orders studied, the authors have identified the following criteria as most often cited by tribunals in their decisions on the language of arbitration, namely: the language of communication between the parties, the language of the arbitration documents and exhibits submitted, the applicable law, place of arbitration, and place where the award is likely to be enforced (often discussed together), the principle of equal treatment between the parties, and finally considerations of efficiency and cost-effectiveness.

The language of communication between the parties

The language of communication can be an important indicator of what the parties’ real expectations are with respect to the language governing their relations. The research carried out by the authors has revealed that in most cases, the language of communication will be the same as the language of the contract. Indeed, logically, parties who have adopted a common drafting language for the contract will often communicate in that language, in particular when the relevant communications relate to negotiations in view of concluding the contract containing the arbitration agreement.

However, and importantly, where the language of communication and language of the contract are different, it has proven a substantial criterion for disregarding the language of the contract. In the example mentioned above of standard form contracts, the language of communication will be of particular importance. In one case involving a standard form contract drafted in English, the arbitral tribunal nonetheless fixed French as the language of the arbitration, finding that the language of communication immediately prior and after the signing of the contract had been French, and that the other circumstances weighed in favour of the French language.

In addition, the interest of the parties may be better served by taking into account the language of communication, if the circumstances surrounding the relationship of the parties have changed since the time the contract was drafted. A change of ‘linguistic' situation can be explained by a multitude of reasons, such as, among others: not all parties to a contract may be parties to the arbitration, the parties to a contract may have changed during the course of the contract, and the contract may be a part of a greater contractual and project framework including contracts potentially concluded in other languages and involving actors from other countries.

The language of the arbitration documents and exhibits submitted

Similarly, the authors observed that the language in which the arbitration documents (namely, the notice of dispute, request for arbitration and answer) and exhibits produced were drafted can be used to lend support to the conclusion that the language of the contract shall prevail as the language of the arbitration. If the parties have communicated spontaneously in a particular language during the arbitration procedure and failed to object to the use of that language, it is likely that the parties will be deemed to have accepted that language as the language of the arbitration.

In practice the claimant will often draft the request for arbitration in the language it proposes as the language of the arbitration and so will the respondent in its answer. Therefore, the language of a request (or an answer) will only be part of the broader analysis that the arbitral tribunal will have to carry out to determine the appropriate language.

The applicable law, place of arbitration, and place where the award is likely to be enforced

The parties’ choice of the applicable law and the place of arbitration may inform the arbitral tribunal on the parties’ mindset at the time of negotiating the contract. Nevertheless, these are features of international arbitration that alter the legal framework of the dispute and it is one of the particularities of international arbitration to grant the parties full autonomy in deciding which law should be applied and where the arbitration should be seated. Thus, the choice of the applicable law and the place of arbitration will usually not be taken as the determinant indicia of the parties’ intention to select a particular language.

In line with this analysis, the authors’ research shows that these criteria, while regularly discussed and referred to in procedural orders in determining the language, are rarely decisive in arbitral tribunals’ decisions. Indeed, they appear to be secondary factors taken into account by tribunals to support or comfort decisions on the language taken on the ground of other factors. In fact, it is not rare that the language determined by a tribunal is different from the language of the place of arbitration or the language of the country of the applicable law. Several arbitral tribunals have explicitly reasoned that the language of the country of the applicable law or place of arbitration is not an obstacle to determining a different language of the arbitration. For example, on one occasion where the language of the country of the applicable law was different from the language of the contract and the language of communications between the parties, the tribunal found that the latter criteria were more decisive.

The criterion of the likely places of enforcement of a future award is less often argued by parties and mentioned in decisions on the language, even though, when it was relied upon, it was raised in a similar fashion as the applicable law and the place of arbitration, i.e. as a secondary factor. One explanation for the relative paucity of examples of decisions lending weight to such a consideration could be that the places of enforcement of a future award may not been known to the parties at the stage of the determination of the language, as it occurs early on in the procedure.

The principle of equal treatment between the parties

The principle of equal treatment or neutrality between the parties is a concept that is similar to the French legal notion of ‘égalité des armes’ in the context of the language of the procedure. It reflects the idea that a decision on the language of the arbitration should not unduly benefit one party at the expense of another. Accordingly, arbitral tribunals engage in a balancing exercise to try and level the playing field as much as possible and grant the parties an equal opportunity to present their case.

In the context of an assessment of equal treatment of the parties, the authors have identified that arbitral tribunals will look at the following factors : the languages spoken by the parties (i.e. the official languages of the country where a party is registered or originates) and in particular whether they share a common language; the languages which the representatives of the parties fully command (which will usually involve looking at the counsel’s location as well as the individual members of counsel’s team); and (iii) the languages the party-appointed arbitrators feel most comfortable with, so as to ensure that the members of the arbitral tribunal have an equal opportunity to participate in the deliberations and drafting of the decisions.

The above-mentioned ‘equal treatment’ assessment can provide indicia as to what the parties might expect the language to be. If both parties hire Japanese counsel when the language of the contract is French, it is likely because there are other circumstances present in the case that warrant the language of the arbitration being Japanese (for example, the applicable law being Japanese law, or a Japanese city being the place of arbitration). However, at least one tribunal felt it was necessary to specify that the choice of counsel should not dictate the choice of the language of the arbitration, as the parties are free to select their counsel; and otherwise a party could influence the determination of the language by a strategic choice of its counsel.

The research undertaken has shown that, while the principle of equal treatment has in some circumstances been the decisive factor in determining the language of the arbitration, it often acts as a safety net, to ensure that the language which the other circumstances seem to favour does not unduly prejudice any given party. Accordingly, it can be considered a counterweight against the idea of following the more traditional criteria such as the language of the contract.

Efficiency and cost-effectiveness

The principle of efficiency and cost-effectiveness, one of the driving forces of international commercial arbitration as enshrined in Article 22(1) of the ICC Rules²⁷ also figures heavily in the decisions analysed by the authors. The principle requires that the arbitral tribunal conduct the arbitration in the least costly and most efficient manner possible.

The research carried out by the authors shows that this principle is most often drawn on in order to weigh the desirability of fixing more than one language of the arbitration. In situations where (i) the contract is drafted in several languages, (ii) the arbitration agreement provides for alternatives for the language of the arbitration, or (iii) one party proposes two languages of arbitration, experience shows that arbitral tribunals generally decide in favour of one single language of the arbitration. Where necessary to reconcile the parties’ views, the tribunal will adopt alternative measures such as permitting documents, exhibits or legal authorities drafted in a second language to be produced untranslated, or witness testimonies to be heard with interpreters in the alternative language. Importantly, in such circumstances, arbitral tribunals should clarify whether untranslated versions of the abovementioned documents or testimonies can be cited without the need for translation in the award, as this may raise issues at the enforcement stage.²⁸ The arbitral tribunal’s scope of power in this regard is broad and derives once more from its discretionary authority as far as the language of the arbitration is concerned in the absence of party agreement (and even more broadly from its authority with regard to the conduct of the procedure under Article 22(2) of the Rules).²⁹

In an ICC case in which the contract was drafted in two different language versions, the arbitral tribunal opined that selecting two languages should be limited to cases where there is a compelling and genuine necessity to burden the procedure with two languages. The arbitral tribunal pointed out that it would increase the costs and delays and could create inconsistencies between the different versions of documents. Accordingly, the arbitral tribunal decided against fixing two languages of the arbitration.

By contrast, in another instance, the arbitral tribunal permitted that the arbitration be conducted in two languages but established clear guidelines on when and how the two languages could be used and when translations/interpretations were necessary (e.g. by indicating which type of documents should be translated and to what extent). The arbitral tribunal further decided that it would use only one of those languages in its communications, decisions and orders to the parties, to facilitate all communications and save costs. This demonstrates the importance arbitral tribunals attach to the right for the parties to be able to operate in their language of preference even if this right may come into conflict with the idea of efficiency and cost-effectiveness.

In the authors’ experience, a procedure carried out entirely in two languages (including the drafting of the award) often creates unnecessary delay and complications and should be avoided where possible. On an institutional level, it also complicates the scrutiny process of the Court, as the different versions of the draft final award must be compared by the Secretariat and the Court in order to avoid potential inconsistencies or contradictions.

The principle of cost-effectiveness and efficiency will also act as an overriding element when there are arguments in favour of two languages. It is often alluded to in concluding remarks of procedural orders deciding on the language, once all the other criteria have been assessed, to solidify the arbitral tribunal’s decision. Efficiency and cost-effectiveness are crucial elements in international arbitration, and tribunals have an obligation under the ICC Rules to ensure that the proceedings are led accordingly. However, the principle of efficiency and cost-effectiveness would not, on its own, justify selecting a certain language, in particular where other criteria are present. It will often be balanced by arbitral tribunals against the principle of equal treatment referred to above in order to ensure that the decision on the language will not be made to the substantial detriment of one party.

Other relevant criteria

It is worth noting a number of other criteria which assist tribunals in arriving at their decision.

The ‘operating’ language in the sector. As an example, one arbitral tribunal took into account that in the construction industry the lingua franca is English; therefore, one could infer that the parties’ reasonable expectations might be that a construction dispute be settled in the English language. While the arbitral tribunal pointed out that this was not to be considered a presumption, in the particular circumstances of the case where the parties also communicated in English, it tended to confirm their expectation.

The tacit agreement of a party. Many arbitral tribunals found that if a party has not objected to a language proposed by the other party and failed to propose an alternative language, it can be understood that the said party may have ‘tacitly’ agreed to that language. Arbitral tribunals will, however, be wise to avoid such an assumption in situations where a party is not participating in the proceedings, which is not uncommon in cases where arbitrators have to determine the language.

The overall procedural environment of a particular dispute. For example, where the request is based on several contracts and arbitration agreements, the arbitral tribunal’s decision on the language of the arbitration may be influenced by the desire or necessity to solve any potential risks of incompatibility between the arbitration agreements. In a multiple arbitration agreements scenario where one arbitration clause provides for English as the language of arbitration and the other clause is silent with regard to the language, the arbitral tribunal may need to consider fixing English as the language to cure the potential incompatibility of the arbitration agreements. The arbitral tribunal may also take into account the language of past and parallel procedures in relation to the dispute at stake. In a recent ICC case, an arbitral tribunal decided to take into consideration the fact that the parties agreed on a language in a prior related arbitration, based on the same arbitration agreement. It determined that this same language would be the language of the arbitration in the subsequent case despite an objection from one of the parties.

C. The language of arbitration in emergency arbitrator proceedings

Emergency arbitrator (‘EA’) proceedings are governed by Article 29 and Appendix V of the ICC Rules. Article 1(4) of Appendix V of the Rules on EA proceedings provides for a different approach as to the determination of the language:

The Application shall be drawn up in the language of the arbitration if agreed upon by the parties or, in the absence of any such agreement, in the language of the arbitration agreement.

As a consequence, in EA proceedings, the parties (applicants at the very least) do not even have the choice of disregarding the language of the arbitration agreement. If the language of the arbitration is not determined, the ICC Rules impose that the application be drafted in that language. The rationale for having an express direction in the ICC Rules for cases in which the arbitration agreement is silent on the language is to avoid any dispute on the language that may cause delays in an emergency procedure where time is by definition of the essence.

In practice, the study led by the ICC Commission on the first eighty ICC EA proceedings concluded that the language of the proceedings had never been a controversial issue.³⁰ In some rare cases where the arbitration agreement did not provide for the language of arbitration (only six out of 80 instances), it was subsequently agreed upon between the parties. This may be explained by the strong and clear wording of Article 1(4) of Appendix V and by the urgent nature of the procedure where parties and counsel are more likely to focus on the emergency measures requested and their applicability rather than on the language. In the hypothetical case where there would be a dispute on the language, the emergency arbitrator would have to be in a position to decide on the issue in the very first few days following his/her appointment by the President of the Court.

Anticipating a potential future dispute on the language, one may wonder whether the language of the arbitration under the EA proceedings could also be used as a circumstance – among others – to be considered by an arbitral tribunal later on, when invited to decide on the language under Article 20 of the ICC Rules. If little can be drawn from Article 1(4) of Appendix V of the ICC Rules in the context of a determination of the language under Article 20 of the Rules, it solidifies the idea that the language used to draft the arbitration agreement is still to date a paramount factor in the determination of the language in ICC Arbitrations.

Conclusion

The study of ICC cases provides some insight into the method applied by arbitral tribunals to determine the language of the arbitration. It shows that one can distinguish two broad approaches adopted by arbitral tribunals.

The first consists in attempting to interpret the parties’ intention at the time of concluding the arbitration agreement to ascertain what they might have expected the language of the arbitration to be. The arbitral tribunals will draw from objective circumstances (e.g. the language of the contract, place of arbitration, applicable law) in order to determine the parties’ expectation. In those cases, the language of the contract will be considered highly relevant and, in most instances, will be followed by arbitral tribunals in determining the language of the arbitration.

The second consists in resorting to overarching general principles, namely equal treatment, neutrality, efficiency, cost-effectiveness, coupled with other relevant factors present at the time of the dispute, in order to balance those objective circumstances against circumstances more subjective to the parties and the arbitral tribunal. In this second approach, the principles at play can override the presumption that the objective criteria decided at the time of the conclusion of the contract will dictate the arbitral tribunal’s choice for the language of the arbitration. Parties should be well aware that tribunals are becoming increasingly receptive to this second standard, which is to be welcomed as a facet of international arbitrations’ ability to be tailored to the specific circumstances of a contractual dispute at a given moment. In so doing, it reflects the reality that contractual environments and relationships are liable to change over time. Furthermore, in times where English is becoming the default drafting language for contracts, this flexible approach may provide an important safeguard for determining more diverse languages, and in particular those languages closest to the heart of the dispute.

Accordingly, if predictability is sought, as it appears to be the case in practice, the age-old solution of a party agreement on the language is recommended given the ‘all relevant circumstances’ criteria under the ICC Rules and arbitration practices trend towards less objectively predictable outcomes on language. However, if greater flexibility is desired which will derive from not selecting a language at the time of drafting the arbitration agreement, there are several mechanisms in the ICC Rules that will ensure that the language is determined swiftly at the outset of the arbitration taking into account ‘all relevant circumstances’ of any given case. The language of arbitration is a symbol of the essence of modern institutional arbitration: primacy will be given to an agreement of the parties while absent said agreement, mechanisms will ensure that the language determined will be equal, neutral, efficient, cost-effective and maybe even diverse.

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