I. The appendixes in historical context

At their inception, the ICC arbitration rules did not have any appendixes. One reason for this was probably that the first arbitration rules approved in 1922 did not contemplate any remuneration for arbitrators,1 and only reasonable costs or expenses were reimbursed to the institution and the arbitrators. Accordingly, there was no need for special provisions or tables regarding the determination of administrative or arbitral fees or of an appendix dealing with such issues. At that early stage, other matters which are now considered in the appendixes, such as the division of labour between the Plenary and Committee sessions of the International Court of Arbitration of the International Chamber of Commerce (the 'Court'), were not an issue in view of the then relatively lighter caseload of the Court. Only in 1935 were provisions dealing in an organic way with the composition, functions, organization and powers of the Court incorporated as Part IV of the ICC conciliation and arbitration rules. Modified provisions on such aspects became Part II of the 1947 ICC conciliation and arbitration rules under the title 'Revised Statutes of the Court of Arbitration'. Such provisions, found in the main text of the rules, were exclusively aimed at dealing with certain procedural or organizational aspects relating to the internal functioning of the Court and its Secretariat and other matters of institutional relevance (relations between the Court and the ICC; appointment of Court members, procedures regarding the modification of the ICC conciliation and arbitration rules, etc.). They constitute one of the precedents that have led to the present appendixes to the ICC arbitration rules.

Also, as early as in 1923, on the basis of suggestions from the ICC Drafting Committee for the Rules on Conciliation and Arbitration, ICC headquarters issued public official commentaries on the ICC 1922 conciliation and arbitration rules. Such commentaries, which among other things clarified certain aspects of the Court's functions and complemented the 1922 conciliation and arbitration rules, served to a certain degree some of the purposes of the future appendixes to the arbitration rules. For instance, though the 1922 ICC conciliation and arbitration rules did not expressly mention that the ICC Court was to scrutinize ICC awards as to form, the official commentary clearly indicated that draft ICC awards had to go through such scrutiny before being signed and communicated to the parties. On the basis of such commentary, which embodied a Court practice, the Congress of the International Chamber of Commerce meeting in Stockholm in June 1927 approved the introduction of modifications to the 1922 conciliation and arbitration rules which included a new provision whereby all ICC draft awards had to be first approved as to form by the Court to become ICC awards. This was done on the basis of a recommendation of the Special Committee on Arbitration of the ICC to incorporate into the main body of the rules the existing explanatory commentaries.2 It was thus that a central and vital feature of the ICC arbitration system, substantially accounting for its success throughout its 75 years of existence, found its way into the ICC arbitration rules. [Page38:]

Like those early commentaries, which may also be considered as forerunners of the appendixes to the ICC conciliation and arbitration rules, such appendixes have historically contrived gradually to incorporate into the ICC conciliation and arbitration rules certain features responding to users' needs and to the evolution of business arbitration in the world which over the years have become characteristic of the ICC arbitration system. To a large extent, the appendixes to the ICC arbitration and conciliation rules have either reflected the perception of such needs-primarily by the Court with the assistance of its Secretariat on the basis of their experience-or permitted to advance innovative policies through the insertion of new provisions in the appendixes regarding the administration and the conduct of ICC arbitral proceedings and the financial and economic aspects of ICC arbitration. They soon became an unobtrusive but nevertheless important instrument for the rejuvenation, streamlining and updating of the ICC arbitration rules on the basis not of voluntaristic determinations but of the continuous observation of arbitral practice and the national and international context where it develops. Of course, the appendixes also contain the Statutes of the Court, which initially constituted a separate part within the main body of the rules and which define important aspects regarding the internal organization of the Court and the activities and functions of the Court and its Secretariat. As will be shown, the appendixes (hereinafter the '1998 Appendixes') to the 1998 ICC arbitration rules (hereinafter the '1998 Rules') continue to play the historic role traditionally fulfilled by their prior versions.

Actually, it is only together with the adoption of the amendments originating the 1955 version of the ICC conciliation and arbitration rules that the first appendixes were introduced. An Appendix I contained the Statutes of the Court whereas an Appendix II set forth the 'Schedule of Conciliation and Arbitration Costs'. For the first time, an appendix exclusively dealing with conciliation and arbitration cost advances, costs and fees and including tables for their determination came into existence. As from then, administrative expenses and arbitral fees have been based on the amount in dispute and calculated by applying scales laid out in appendixes to the arbitration rules. Their fixation is not left to the discretion of the arbitrators or to the application of remuneration criteria regarding the arbitral or the legal profession applied in any specific national jurisdiction. The major overhauling that gave birth to the 1975 Rules also brought about changes in the provisions and tables contained in these appendixes.

However, one had to wait until 1980 to witness the introduction of a new appendix containing 'Internal Rules' dealing with important issues relating to the day-to-day handling of ICC arbitration cases. Such appendix was added to the existing ones, which were renumbered. The statutes of the Court remained as Appendix I, while the Internal Rules and the Schedule on Conciliation and Arbitration Costs respectively became, Appendix II and Appendix III.

The incorporation in 1980 of a new Appendix II approved by the Court was not a minor innovation. Through it, the Court adopted provisions on a number of questions aimed at facilitating the application and administration of the ICC arbitration rules and the conduct of ICC arbitrations whenever the Court felt they should be complemented for better handling ICC arbitration cases or for advancing policies or introducing basic principles governing the conduct of ICC arbitrations. It implied a qualitative change regarding the questions treated in the appendixes, which so far had exclusively dealt with matters regarding the functioning of the Court or financial aspects related to ICC arbitrations, and served as an instrument permitting the Court gradually to introduce new Rules facilitating the performance of its functions and the administration of arbitral proceedings in tune with its own experience, its perception of ICC arbitration users' needs and the evolution of business arbitration in the world.

In fact, Appendix II of 1980 introduced for the first time provisions or regulations that concerned existing provisions relating to the function of the Court's Secretariat in case of a prima facie absence of an ICC arbitration clause, decisions of the Court regarding the nomination or confirmation of arbitrators, independence of sole arbitrators and chairmen and challenge of arbitrators, consolidation of arbitral proceedings as well as payment of cost advances regarding arbitral proceedings, guidelines for the scrutiny of awards as to form and criteria for fixing arbitral fees. Many of these provisions were later incorporated, once they had been tested by time, into the main body of the ICC arbitration rules themselves. Accordingly, the 1980 Appendix II provisions [Page39:] on nomination and confirmation of arbitrators and on arbitrators' independence, challenge and replacement, which were incorporated into the main text of the ICC arbitration rules as a result of the 1988 amendments,3 now indisputably constitute central elements of the ICC arbitration system.

II. The 1998 appendixes: general overview

The 1998 Rules maintain the existence of three appendixes respectively containing the Statutes of the Court, its Internal Rules, and Arbitration Costs and Fees. It should be noted that the 1998 Rules better reflect the separate identity of the ICC conciliation and arbitration services offered to the world's business community. This is shown in different ways. For instance, the new standard ICC arbitration clause refers only to ICC arbitration rules, while the former text referred jointly to the rules of conciliation and arbitration of the International Chamber of Commerce, thus leaving room for confusion as to the actual dispute settlement method the parties had in mind. The separation is also made obvious by the 1998 Appendix III which now exclusively deals with arbitration costs and fees and does not contain provisions on conciliation costs, which are now incorporated as a new and only Appendix to the ICC Rules of Conciliation. But for that aspect, the latter have not been modified.

As it has been the case since 1980, some of the provisions in the appendixes approved in 1988, whose usefulness has been tested by the Court's and its Secretariat's experience, now belong to the main text of the 1998 Rules. It was also thought that certain vital matters regarding the functions of the Court and affecting very closely the day-today conduct of arbitral proceedings should immediately become apparent to the users when going through the main body of the ICC arbitration rules. For those reasons, the 1998 Rules now include in their main text provisions on the powers of the Court to administer domestic business cases (Article 1 (1)), to consolidate ICC arbitration cases (Article 4 (6)) or regarding certain aspects of the determination of the advance on costs and arbitral fees and expenses (Articles 30 (3) & (5) and 31), formerly in old Appendix II, Articles 1, 13, 14, 16 and 18. In addition, Article 6 (2) of the 1998 Rules regarding the powers of the Court as to the prima facie determination of the existence of an ICC arbitration clause also provides, on the basis of a text originating in Article 12 of old Appendix II, that such determination is merely of an administrative nature and does not preclude any party from asking a court that has jurisdiction whether there is or not a binding arbitration clause.

Furthermore, the 1998 amendments of the appendixes have brought about a certain level of internal reorganization of the matters treated in each of them in order to group in a coherent way rules concerning the same or similar matters in each appendix so as to make consultation of the respective contents more user-friendly and facilitate access to the desired information in a more efficient way. For instance, all issues dealing with the costs and expenses of the arbitration as well as arbitral remuneration may now be found only in the 1998 Appendix III. As a result of that, the 1998 Appendix II no longer contains provisions on such matters. Specifically, Article 18 of old Appendix II establishing the criteria observed by the Court when fixing arbitral fees has now become, with its text slightly modified, Article 2 (2) of the 1998 Appendix III. The same may be said as to the internal re-allocation of matters respectively dealt with in the 1998 Appendixes I and II.

Since another concern when preparing the 1998 Appendixes was of course to bring them in line with the modifications introduced into the ICC business arbitration system through the 1998 Rules, which did not alter the fundamental features of such system, the 1998 Appendixes are also more of an evolutionary than a revolutionary nature.

Rendering different aspects of the administration of ICC arbitrations by the Court and its Secretariat more transparent to the users of ICC arbitration is certainly one of the basic principles informing the 1998 Appendixes. In line with such objective, the 1998 Appendixes for the first time incorporate in an organic way guidelines or practices-such as the satisfaction of the payment of part of the advance on costs through the posting of bank guarantees-that were otherwise dispersed in notes issued by the Secretariat not contained in a single body and mostly only published in various issues of this Bulletin. [Page40:]

After having tested the utility for, and acceptance by, the users of ICC arbitration through an extended period of time of guidelines and practices embodied in notes of the Secretariat, the Court came to the conclusion that it was appropriate to provide some of them with a higher level of permanence, stability and visibility by formally incorporating them into the appendixes to the Rules.

Thus, the 1998 amendments to the ICC arbitration rules and their appendixes confirm that among other things, the latter play the dual role, on the one hand, of serving as vehicle for the transition into the main text of the ICC arbitration rules of important provisions which, on the basis of the Court's experience and an ongoing dialogue with arbitration users, first found their way into the appendixes, and on the other, as a channel for codifying norms initially tested and legitimated through the daily experience of the Secretariat. From this perspective, far from just being explanatory addenda, the appendixes reveal themselves as an important instrument for permitting the continuous and invigorating change of the ICC arbitration system.

Article 6 (1) of the 1998 Rules provide that the parties will be deemed to have submitted ipso facto to ICC arbitration rules in effect on the date of commencement of the arbitration proceedings unless they have submitted to the arbitration rules in effect on the date of their arbitration agreement. Though the 1998 Rules are effective from 1 January 1998, the Court has decided that parties intending to initiate arbitrations before this date could also agree to have them governed by the 1998 Rules. The same principle will apply to pending arbitrations initiated before 1 January 1998, provided that the parties agree to have the 1998 Rules apply, normally when signing the Terms of Reference.4

Consequently, new provisions in the 1998 Appendixes relating to ICC arbitration costs and fees (i.e., Articles 1 and 2 of the 1998 Appendix III) will apply to arbitrations governed by the 1998 Rules. However, Article 1 (1) of the 1998 Appendix III fixing an advance payment of US$ 2500 on the administrative expenses will apply to all arbitrations commenced on or after 1 January 1998, whether under the 1998 Rules or not. Article 3 of the 1998 Appendix III fixing a registration fee not exceeding US$ 2500 payable in respect of each request to appoint an arbitrator for any arbitration not conducted under the ICC arbitration rules will apply to such requests filed on or after 1 January 1998. As will be later explained, the notes of the Court's Secretariat of 1 January and 1 June 1993 regarding arbitration costs shall not apply to arbitrations governed by the 1998 Rules.

In addition, according to Article 4 (1) of the 1998 Appendix III, the Scales of Administrative Expenses and Arbitrator's Fees set forth in Article 4 (2) (A) and (B), shall be effective as of 1 January 1998 in respect of all arbitrations initiated on or after such date irrespective of the version of the ICC arbitration rules applying to such arbitrations. The previous scales will apply to arbitrations commenced before 1 January 1998 including those which the parties have agreed to subject to the 1998 Rules.

It should also be noted that according to guidelines approved by the Court in November 1997, the 1998 Appendix II will become effective on 1 January 1998 and shall apply both to all cases pending on 1 January 1998 and to all new cases. With regard to all cases pending on 1 January 1998 and to all cases which, in accordance with Article 6 (1) of the 1998 Rules, will be submitted to the ICC arbitration rules in effect on the date of the arbitration agreement, Articles 12 through 18 of Appendix II of the 1988 ICC arbitration rules will continue to apply or, possibly the relevant provisions of an earlier version of the ICC arbitration rules or appendixes.5

Finally, the 1998 Appendix I containing the Court's Statutes will come into effect on 1 January 1998.

III. Analysis of the provisions of the 1998 appendixes

A. The 1998 Appendix I

As indicated above, the 1998 Appendix I contains, like previous versions of this Appendix, the Statutes of the Court. It lays out the fundamental or basic institutional features of the Court, which is the [Page41:] pivotal organ of the ICC arbitration system. It should also be noted that while the 1998 Appendix I establishes general fundamental principles or rules regarding the structure, functions and operations of the Court and its Secretariat, the 1998 Appendix II contains specific regulations further specifying the scope of or certain concrete matters related to provisions of the 1998 Appendix I or constituting particular applications of more general principles or powers set out in such Appendix. The 1998 Appendix I has been approved by the Council of the International Chamber of Commerce, whereas the 1998 Appendix II, containing the Court's Internal Rules, has been prepared and adopted by the Court itself (Article 1 (2) of the 1998 Rules).

A new feature of the 1998 Appendix I, which is common to the other 1998 Appendixes, is that its provisions have been reorganized in a more logical sequence. For instance, the 1998 Appendix I now begins by setting forth the central function of the Court, i.e., to ensure the application of the ICC arbitration rules, whereas in the previous version this basic attribute of the Court's powers was enunciated in one of the last articles of this Appendix coming after those describing the procedure for appointing Court members and the composition of the Court.

For that reason, the 1998 Appendix I clearly spells out in one of its opening provisions the fundamental principle which always existed of the autonomy of the Court in respect of the International Chamber of Commerce and the latter's organs when the Court is carrying out its functions regarding the application of the ICC arbitration and the ICC conciliation rules. It also sets forth the independence of the Court members from the National Committees of the ICC (Articles 1 (1) & (2) of the 1998 Appendix I).

The Court's autonomy has always been one of its essential features, guaranteeing its neutrality and independence in the performance of its duties, and was implicit in Article 1 (1) of the current ICC arbitration rules providing that it is an 'arbitration body attached to the International Chamber of Commerce', a sentence which has been reproduced verbatim in Article 1 (1) of the 1998 Rules. The autonomy of Court members vis-à-vis ICC National Committees that have proposed them for appointment by the ICC Council was already provided for in the previous version of Appendix II (Article 7), and is also set forth in Article 3 (1) of the 1998 Appendix II. Article 1 (3) of the 1998 Appendix I also establishes that Court members are independent from all ICC National Committees and not just the one that has proposed them for that function. By organizing in a single and introductory article provisions regarding the autonomy of the Court and its members, the 1998 Appendix I now permits a faster and clearer perception of these basic concepts underlying the ICC arbitration and conciliation system and of their scope.

The new text of Appendix I does not introduce basic changes as to the composition of the Court. Article 2 of the 1998 Appendix I provides that the Court shall consist of a Chairman, Vice-Chairmen and its members. Article 3 (1) indicates that the Chairman is elected by the ICC Council upon recommendation of the Executive Board of the ICC. As in the past, the ICC Council appoints the Vice-Chairmen of the Court from among the members of the Court or otherwise and Court members are appointed by the ICC Council on the proposal of ICC National Committees, one member for each National Committee. The term of office of all members is three years (Articles 3 (2), (3) & (5) of the 1998 Appendix I).

The 1998 Appendix I maintains the division of Court sessions in Court's Plenary and Committee sessions in both of which the Court deliberates and takes decisions. Plenary sessions are presided over by the Court's Chairman or one of its Vice Chairmen designated by him. The Court deliberates in Plenary session when at least six members are present and adopts its decisions by majority vote. In case of a tie, the Chairman has the casting vote (Article 4 of the 1998 Appendix I).

Under Article 5 of the 1998 Appendix I the Court has general powers to establish Committees and determine their functions and organization. According to this provision, the Court may create any type of Committees, even when not embodying the Court's decision-making powers. For instance, it may set up a special study group to analyse specific matters affecting the works or activities of the Court.

Article 2 of the 1998 Appendix I refers to alternate members (i.e., persons proposed by the Chairman of the Court and approved by the ICC Council) [Page42:] who may replace a Court member of the same nationality for example when the latter is unable to attend a specific Court session. Article 3 (4) of the 1998 Appendix I also establishes that on the proposal of the Chairman of the Court, the ICC Council may appoint alternate members. Thus, the discretion to permit the appointment of alternates lies within the powers of the Court's Chairman and the ICC Council. This provision recognizes as precedents previous versions of the arbitration rules and their appendixes.6 Article 2 of the 1998 Appendix I also provides that the Court is assisted in its work by the Secretariat of the Court.

Article 6 of the 1998 Appendix I specifically sets forth the confidential nature of the work of the Court and the confidentiality obligations binding on everyone participating in such work in any capacity whatsoever. It also empowers the Court to lay down rules regarding the persons who can attend the Court's Plenary and Committee sessions or who can have access to materials submitted to the Court and its Secretariat. The previous text of this appendix did not harbour a similar provision. However, former Appendix II of the ICC arbitration rules had a provision (Article 2) dealing in general with such issues.

Consistently with the idea of grouping in the Statutes of the Court matters of institutional interest or provisions constituting the source of powers of the Court to regulate certain matters, Article 6 of the 1998 Appendix I lays out in general terms the confidentiality principles governing the Court's and its Secretariat's activities and the former's powers to protect the confidentiality of the Court's works. Accordingly, detailed regulations introduced by the Court to protect confidentiality through the exercise of such powers are found in the 1998 Appendix II, which will be considered next.

The 1998 Appendix I closes with a provision (Article 7) regarding the procedure for modifying the ICC arbitration or conciliation rules.

B. The 1998 Appendix II

This Appendix opens up with provisions regarding confidentiality and the internal division of work within the Court.

Thus, Article 1 of the 1998 Appendix II establishes in different paragraphs that (1) Plenary and Committee sessions of the Court are open only to its members and the Secretariat of the Court; (2) in exceptional circumstances, the Chairman of the Court may invite other persons to attend who must respect the confidential nature of the work of the Court (3) documents submitted to the Court or drawn up in the course of Court proceedings are communicated only to Court members, the Secretariat and persons authorized by the Chairman to attend Court sessions; in addition, the Chairman of the Court 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 notes, memoranda, statements and documents remitted by the parties within the framework of arbitral proceedings, provided that such authorization shall not be given unless the beneficiary has undertaken to respect the confidential character of the documents made available to him and to refrain from any publication in their respect without having previously submitted the text for approval to the Secretary General of the Court. In addition, Article 3 of the 1998 Appendix II provides that members of the Court must keep confidential vis-à-vis the National Committees that have proposed them for appointment by the ICC Council, any information concerning individual cases they have become acquainted with 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 of the 1998 Appendix II in general terms follows the previous text of this appendix when it comes to defining the composition of Committees of the Court. As in the past, the Chairman of the Court shall act as Chairman of the Committee. The other two members of a Court's Committee shall be appointed by the Court among its Vice Chairmen or the other Court members. Court's Committee sessions, attended only by the Court's Chairman or one of his Vice-Chairmen, two Court [Page43:] members and members of the Secretariat, may take decisions within the scope of the Court's powers except for those reserved for Court Plenary sessions.

On one hand, Article 4 of the 1998 Appendix II on Committees of the Court constitutes a specific application of the general authority conferred upon the Court under Article 1 (4) of the 1998 Rules to organize Court Committees for the taking of certain Court decisions and, on the other, it embodies a concrete application of the more general powers of the Court to create Committees under Article 5 of the 1998 Appendix I. For that reason, in order properly to identify the source of the powers whereby such Committees of the Court have been established, Article 4 (1) of the 1998 Appendix II refers to both Article 1 (4) of the 1998 Rules and Article 5 of the 1998 Appendix I. Considerations immediately following only concern 'Committees of the Court' or 'Court's Committees' falling at the same time under Article 1 (4) of the 1998 Rules and Article 4 of the 1998 Appendix II.

Committee sessions will take place as often as convened by the Court's Chairman. Two members constitute a quorum (Article 4 (4) of the 1998 Appendix II). As before, Court's Committee decisions shall be taken unanimously (Articles 4 (2), (3) & 5 (b) of the 1998 Appendix.

While previous Appendix II identified certain matters which could not be decided in Court's Committee sessions (challenges of arbitrators, removal of arbitrators alleged not to be fulfilling their functions and approval of draft awards other than those made with the consent of parties), the 1998 Appendix II provides that '...the Court shall determine the decisions that may be taken by a Committee' (Article 4 (5) a) 1998 Appendix II).7

In that respect, in September 1997, the Court issued guidelines whereby Court Committees may decide on any issue falling under the jurisdiction of the Court, including final approval of certain awards, except for (i) matters regarding the status of the arbitrator comprising, without limitation, challenge of arbitrators (Article 11 (3) of the 1998 Rules) and removal of arbitrators under Article 12 (2) of the Rules; (ii) decisions not to replace an arbitrator subsequently to the closing of the proceedings under Article 12 (5) of the 1998 Rules; and (iii) approval of awards raising particular problems or difficulties.8 Decisions approving awards in a Court's Committee session are reported to the Court's next Plenary session. If a decision cannot be reached in a Court's Committee session or a Court's Committee decides to abstain the final determination of the matter together with any suggestions of the Court's Committee in that respect are referred to the Court's next Plenary session (Article 4 (5) c) & d)).9

In addition to the provisions on confidentiality and on independence of Court members from National Committees and on Committee sessions of the Court already considered, the 1998 Appendix II also regulates the participation of Court members in ICC arbitrations (Article 2), certain questions regarding the activities of the Court's Secretariat (Article 5), and the scrutiny of ICC arbitral awards (Article 6).

The basic principle that the Chairman and members of the Secretariat may not act as arbitrators or as counsel in cases submitted to ICC arbitration is maintained (Article 2 (1) of the 1998 Appendix II). As before, Court members may become arbitrators nominated by the parties to ICC arbitrations, but may not be directly appointed by the Court as party arbitrators (e.g., if a party fails to nominate its party arbitrator), as sole arbitrator or as chairman of an arbitral tribunal (e.g., if there is no agreement of the parties on such nomination (Article 2 (2)). Also as before, they may act as counsel in ICC arbitrations. Vice-Chairmen of the Court are now assimilated to the Court's members when considered for appointment as ICC arbitrators or as counsel in an ICC arbitration. Though they may not be directly appointed by the Court as ICC arbitrators, they may be nominated by a party or become sole arbitrators or chairmen with the consent of the parties or through the application of any appointment procedure agreed upon by the parties, and may also act as counsel in ICC arbitrations.

However, in all cases where a Chairman, any Vice Chairman, Court member or member of the Secretariat is involved in any capacity whatsoever [Page44:] in arbitral proceedings before the Court, he must inform the Secretary General of the Court upon becoming aware of such involvement. Such person shall not participate in the discussions and decisions of the Court concerning the relevant proceedings, shall be absent from the courtroom, and will not receive any material documentation or information submitted to the Court pertaining to such proceedings (Article 2 (3) & (4), of the 1998 Appendix II).

The 1998 Appendix II incorporates a new provision on the Court's Secretariat. In order to ensure that no disruptions in the carrying out of functions entrusted to the Secretary General of the Court shall occur during his absence, Article 5 (1) permits him to delegate certain of his powers under the 1998 Rules to the Court's General Counsel and Deputy Secretary General.

Article 5 (2) of the 1998 Appendix II authorizes, with the approval of the Court, the issuance of notes by the Secretariat to the parties and arbitrators informing them about different aspects of proceedings under the ICC arbitration or conciliation rules or the proper conduct of ICC arbitral proceedings. As indicated before, such notes have helped gradually to introduce guidelines or rules primarily aimed at satisfying the needs of ICC arbitration users which later found their way into the appendixes to the ICC arbitration rules.

The 1998 Appendix II also contains new provisions reflecting and rendering more transparent the practices of the Secretariat of the Court as to archiving and destruction of documents concerning ICC arbitration cases. Article 1 (6) of the 1998 Appendix II provides that the Court's Secretariat will only retain in the archives all awards, Terms of Reference, decisions of the Court and copies of the pertinent correspondence of the Court's Secretariat. Any documents, correspondence or communications submitted by the parties or the arbitrators may be destroyed by the Secretariat of the Court unless the party or the arbitrator that have submitted them requests in writing the return of such documents, at his cost and expense, within a period fixed by the Court's Secretariat (Article 1 (7) of the 1998 Appendix II).

The 1998 Appendix II closes with a provision regulating the scrutiny by the Court of ICC arbitral awards as to their form and points of substance (Article 6). The 1998 Rules have not introduced any modifications into the existing procedure for the scrutiny of ICC awards nor in the scope of such scrutiny, which now also applies to draft addenda correcting or interpreting awards (Articles 27, 29 (3) of the 1998 Rules). Under the 1998 Rules, as was the case before, the Court (and ICC arbitral tribunals) must make every effort to make sure that the award is enforceable at law (Article 35).

Since the depth of the scrutiny of ICC awards by the Court and its efforts to ensure that ICC awards are enforceable at law under Articles 27 and 35 of the 1998 Rules are neither infinite nor unlimited, Article 6 of the 1998 Appendix II indicates that when scrutinizing draft awards in accordance with Article 27 of the 1998 Rules, the Court shall consider, to the extent practicable, the requirements of mandatory laws at the place of arbitration.

As a result of the 1998 amendments, Appendix II has been shortened from 18 to 6 Articles. As important as considering its new text is, then, to point out what has been excluded from it. Some of the excluded provisions or their substance have been transferred to the main body of the 1998 Rules. Since the reasons for such transfer have been already accounted for above, no more will be said in that respect.

In certain cases, however, the exclusion of certain provisions from the text of the 1998 Appendix II reveals significant changes introduced into the ICC arbitration rules and for that reason deserve specific consideration.

For instance, Article 12 of former Appendix II vested the Secretariat of the Court with the power to draw the attention of Claimant to the prima facie absence of an arbitral agreement referring to ICC arbitration. If such power is exercised, the arbitral agreement is considered inexistent and the Claimant is forced either to abandon or to withdraw (without prejudice) his claims unless he does not accept the determination of the Court's Secretariat and requires such matter to be settled by the Court.

Under the 1998 Rules (Article 6 (2)) the Court decides whether or not it is prima facie satisfied that an ICC arbitration clause exists and for that reason any determination of such issue by the Court's Secretariat is excluded. Such matter together with the parties' related comments will [Page45:] be directly submitted by the Court's Secretariat to the decision of the Court. Therefore, the 1998 Appendix II does not include an equivalent to old Article 12.

Also, Article 15 of former Appendix II or an equivalent provision enabling the Secretariat to set a time-limit of not less than 30 days for the payment of any pending amounts corresponding to an advance on costs fixed by the Court is absent from the 1998 Appendix II. Under former Appendix II, if such payment is not made within such period, the relevant claim or counterclaim is to be considered as withdrawn.

Nevertheless, the 1998 Rules have incorporated a provision (Article 30 (4)) fulfilling similar functions, albeit within the new general context introduced by Article 30 of the 1998 Rules regarding advances on arbitral costs and the consequences ensuing from the lack of payment of a cost advance. To understand the situations in which Article 30 (4) of the 1998 Rules will be applied and the consequences derived from its application, a prior comparison of the conditions under which Terms of Reference come into effect under the old and the 1998 Rules becomes necessary.

Under the old Rules (Article 9 (4)), the Terms of Reference only became 'operative' once the full advance on costs had been paid to the ICC. Under the 1998 Rules, the effectiveness of Terms of Reference is totally detached from the payment of cost advances: the Terms of Reference come into effect once signed by the parties and the arbitrators, or should one of the parties fail to sign them, once approved by the Court. After the Terms of Reference have been signed, or approved by the Court, and the provisional timetable for conducting the arbitration required by Article 18 (4) of the 1998 Rules has been established, the arbitrators can-and indeed must-take all appropriate measures (for instance, provide for the exchange of briefs, summon the parties and witnesses, organize and participate in hearings, receive evidence, issue orders, provide for expert and other forms of evidence) for setting in motion the post-terms of reference stage of the procedure (see Article 1 (3) of the 1998 Appendix III). Under a literal interpretation of the old Rules, post-terms of reference proceedings could not get under way unless payment to the ICC of the full advance on costs had been satisfied.

However, Article 30 (4) of the 1998 Rules provides that when a request for any advance on costs has not been satisfied, the Secretary General of the Court, after having consulted with the Arbitral Tribunal, may direct it to suspend its work and set a time-limit of not less than 15 days on the expiry of which, if such payment has not been made to the ICC, the relevant claims and counterclaims shall be considered as withdrawn. It should be noted that Article 15 of former Appendix II did not contemplate the powers now vested in the Secretary General of the Court under Article 30 (4) of the 1998 Rules to direct the arbitrators to suspend their work when payment of a cost advance fixed by the Court has not been made. Of course, if so directed by the Secretary General of the Court the Arbitral Tribunal shall not proceed in respect of those claims or counterclaims for which the corresponding cost advance payment has not been made (Article 1 (3) of the 1998 Appendix III).

As in the old text of Article 15 of Appendix II, Article 30 (4) of the 1998 Rules provides that the decision of the Secretary General of the Court considering the claim as withdrawn may be objected to by a party, in which case it may be revised by the Court, and that claims considered as withdrawn may be reintroduced at a later date in a different proceeding.

C. The 1998 Appendix III

The 1998 Appendix III also underwent radical changes as a result of the 1998 amendments to the ICC arbitration rules. One reason for that is the fact that the 1998 Rules have substantially modified the system for the payment of cost advances, a circumstance which has inevitably led to important changes in this appendix. Article 1 (3) of the 1998 Appendix III considered in the previous section is an illustrative example.

Certain cost issues dealt with in the Note of the Secretariat of the Court of 1 January 1993 on 'Information concerning the application of the Schedule of Conciliation and Arbitration Costs,' and its Addendum resulting from another Note of the Secretariat dated 1 June 1993 concerning the 'Application of the Schedule of Conciliation and Arbitration Costs', are now part of the 1998 Appendix III. In any case, both notes have been superseded by the 1998 Appendix III and are no longer in force in respect of arbitrations governed by the 1998 Rules. [Page46:]

Consequently, matters dealt with in such notes, such as the staggering of the advance on costs, a first half to be satisfied prior to transmitting the file to the arbitrators and a second half to be satisfied as a precondition for the Terms of Reference to become operative shall not apply to arbitrations governed by the 1998 Rules.

Also, as already indicated, conciliation cost matters have been transferred to a new and only appendix to the ICC Rules of Conciliation. Furthermore, the introduction of a new provision-Article 29-into the 1998 Rules on the correction and interpretation of awards made it necessary to deal in the 1998 Appendix III with issues concerning the advance on costs and fixation of arbitral fees and reimbursable costs related to the additional activity involved in the rectification or interpretation of the award. Finally, the passing of time made it necessary to revise the amount of the advance payment on the administrative expenses to be made when initiating an ICC arbitration, the registration fee payable for the services of the ICC when requested to act solely as appointing authority and the scales permitting the determination of administrative and arbitrators' fees in ICC arbitration, which had not been the subject of adjustment since 1993. Because of all these changes, the 1998 Appendix III differs significantly from the previous text.

The first article of the 1998 Appendix III exclusively deals with the advance on costs payable to the ICC to defray arbitral fees and expenses. It starts (Article 1 (1)) by indicating that each request for arbitration pursuant to the ICC arbitration rules shall be accompanied by an advance payment of US$ 2500 on the administrative expenses, which though non-refundable, shall be credited to the Claimant's portion of the advance on costs. The new amount for this advance payment-its former amount under the old Appendix III was US$ 2000-will apply to all arbitrations commenced on or after 1 January 1998, whether under the 1998 Rules or not (Article 4 (1) of the 1998 Appendix III).

Article 3 of the 1998 Appendix III refers to those cases in which the Court, its Chairman, the Secretary General of the Court or the President of the International Chamber of Commerce is requested to act as appointing authority in connection with disputes not subject to the ICC arbitration rules. This provision follows almost textually Article 4 of former Appendix III, except that the fee to be paid for any such request to be considered has been changed from US$ 2000 to an amount not exceeding US$ 2500. This fee, which applies to each appointment request introduced on or after 1 January 1998, also covers any additional services rendered by the ICC regarding such appointments, such as decisions on a challenge of an arbitrator and the appointment of a substitute arbitrator.

In view of the intimate relationship and interaction between the 1998 Rules and the 1998 Appendix III in respect of the new system of cost advances introduced by them, provisions on that matter in the 1998 Rules and Article 1 of the 1998 Appendix III cannot be analysed in isolation and will be considered together.

Under Article 30 (1) of the 1998 Rules, after receipt of the arbitration request, the Secretary General of the Court may request the Claimant to pay a provisional advance in an amount intended to cover the costs of the arbitration until the Terms of Reference have been drawn up. He may do so normally without having to wait for the answer to the claim, the introduction of a counterclaim or the expiry of the period for the filing of any of those. As soon as such provisional advance has been paid to the ICC and the Arbitral Tribunal has been constituted, the file will be transmitted to the arbitrators for them to start performing their duties. The Secretary General of the Court has discretion in fixing the time-limit within which the provisional advance is to be paid to the ICC by the Claimant.

Article 30 (2) & (3) of the 1998 Rules provides that as soon as practicable, i.e., when there are sufficient elements available to evaluate the amount in dispute because, for example, the amount of counterclaims is known, the Court shall fix the advance on costs for the entire arbitration, which is to be paid by the parties in equal shares. Save exceptional cases, the Court will be in such position before the Terms of Reference are transmitted to the Court according to Article 18 (2) of the 1998 Rules. Consequently, normally at an early stage of the procedure, the Court will be able to fix a global advance on costs which, subject to possible readjustments, will determine in a more conclusive and comprehensive way than under the provisional advance fixed by the Secretary General of the Court, the economic contributions from the parties for the conduct of the arbitration. [Page47:]

Such costs comprise the fees of the arbitrators, any arbitration-related expenses of the arbitrators and the administrative expenses (Article 30 (2) of the 1998 Rules; Article 1(4) of the 1998 Appendix III). They do not include the reasonable legal and other costs incurred by the parties for the arbitration nor the fees and expenses of any experts appointed by the Arbitral Tribunal (Article 31 (1) of the 1998 Rules). The provisional advance fixed by the Secretary General of the Court paid by Claimant shall be credited towards the payment of the Claimant's share in the global advance. Cost advances are subject to readjustment at any time during the arbitration (Article 30 (2) of the 1998 Rules). The 1998 Appendix III (Article 1 (10)) introduces criteria based on the experience of the Court for fixing such readjustment, which include, but are not limited to, 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.

When counterclaims are also submitted, the Court may fix separate advances on costs for the claims and the counterclaims. In such case, the Secretariat of the Court shall invite each party to pay the amount of the advance corresponding to its respective claims and counterclaims (Article 1 (7) of the 1998 Appendix III) within a period fixed by the Court's Secretariat.

The 1998 Appendix III regulates the powers of the Secretary General of the Court to fix the provisional cost advance contemplated in Article 30 (1) of the 1998 Rules. Article 1 (2) of the New Appendix III establishes that such advance shall 'normally' not exceed the amount obtained by adding together (i) the administrative expenses calculated by applying the scale for administrative fees under Article 4 (2) (A) of such appendix to the amount of the claim; (ii) the arbitral fees calculated by applying the minimum under the scale of arbitrator's fees under Article 4 (2) (B) of the 1998 Appendix III to the amount of the claim; and (iii) the reimbursable expenses of the Arbitral Tribunal expected to be incurred in connection with the drafting of the Terms of Reference.

Article 4 (2) of the 1998 Appendix III also applies to that purpose: i.e., (a) the fee amounts calculated for each successive slice of the sum in dispute on the basis of the respective percentages contemplated in the applicable scale shall be added together, bearing in mind that for calculating the portion of the provisional advance corresponding to arbitral fees, normally only the lower percentage corresponding to each applicable slice in the scale set forth in Article 4 (2) (B) of the 1998 Appendix II shall be taken into account; and (b) since total administrative expenses for sums in dispute over US$ 80 000 000 may not be superior to the flat amount of US$ 75 800, the portion of a provisional advance for claims in excess of US$ 80 000 000 may not exceed such flat amount.

When fixing a provisional advance on costs, the Secretary General of the Court will take into account Article 2 (3) of the 1998 Appendix III if a panel of more than one arbitrator is envisaged. In other words, in such case the Secretary General of the Court will fix an amount to cover the part of the provisional advance corresponding to arbitrators' fees normally not exceeding three times the part of such advance for arbitral fees as calculated for a sole arbitrator under the criteria fixed in Article 1 (2) of the 1998 Appendix III. The Secretary General of the Court may apply an analogous approach for determining the expected reimbursable expenses of a panel of more than one arbitrator. If the amount of the claim is not quantified, the provisional advance shall be fixed at the discretion of the Secretary General of the Court.

When exercising his powers under Article 30 (1) of the 1998 Rules on the basis of the criteria set forth in Article 1 (2) of the 1998 Appendix II, the Secretary General of the Court will take into account together with the quantified or estimated amount of the claim, other circumstances, like the place of arbitration as evidenced by the arbitration clause and the residence, or domicile, of the parties and other particulars found from the arbitration request, such as the nature and circumstances of the dispute, the language of the arbitration or the applicable law. Even if certain of such particulars, like the place of the arbitration or the number of arbitrators, were not determined in the arbitration clause, the Secretary General of the Court may be able to fix the provisional advance based on the circumstances of the case.

Another matter relating to the payment of cost advances in an ICC arbitration now dealt with in the 1998 Appendix III is the posting of bank guarantees covering part of the cost advance. It will be incumbent upon the Secretariat of the Court, in consultation with the appropriate bodies of the [Page48:] ICC, to establish the terms governing bank guarantees posted under such Appendix's provisions (Article 1 (9) of the 1998 Appendix III).

Article 1 (5) of the 1998 Appendix III provides that in the case that a party's share of the global advance would exceed an amount from time to time fixed by the Court, such party may post a bank guarantee for the additional amount. According to the practice reflected in the notes of the Secretariat of 1 January 1993 superseded by the 1998 Appendix III, in respect of arbitrations governed by the 1998 Rules, such amount was US$ 300 000. For example, if the share in the global advance to be paid by a party was US$ 500 000, such party may pay US$ 300 000 in cash and cover the remainder by posting a bank guarantee amounting to US$ 200 000. It will be for the Court to decide whether the US$ 300 000 amount shall be maintained or not in respect of arbitrations under the 1998 Rules.

Article 1 (6) of the 1998 Appendix III permits a party having paid in cash its share of the global cost advance (or, should that share exceed US$ 300 000),10 having paid such amount in cash and covered the remainder by posting a bank guarantee) and wishing to have the arbitral proceedings continue by paying the other party's unpaid portion of such advance, to pay such portion by posting a bank guarantee.

Article 1 (8) covers the more complex situations, regarding the posting of bank guarantees, when the Court has decided to split the originally global cost advance into separate cost advances respectively fixed for claims and counterclaims as authorized in Article 30 (2) of the 1998 Rules. Such split really entails a separate calculation, primarily by applying the tables set out in Article 4 (2) of the 1998 Appendix III, of the cost advance respectively corresponding to the claim and the counterclaim. Since the scales contained in these tables are degressive, the lower the amount in dispute, the higher will be the percentage or percentages applicable under each scale and the greater will then be the cost advance to be paid. Consequently, as a result of the separation of cost advances, each party may have to pay a higher amount to cover arbitration fees and expenses than such party's share in the global advance originally fixed, a circumstance that will be drawn to the attention of the parties by the Court's Secretariat when the fixation of separate advances is considered as a possibility.

If as a result of such split any party has to pay a separate cost advance in respect of, as the case may be, its claim or counterclaim, which would be greater than fifty percent of the global cost advance otherwise applicable in respect of the same claims and counterclaims, such party may post a bank guarantee to cover the portion of its separate cost advance exceeding such fifty percent. In case of subsequent increases, at least one half of such increase will be paid in cash. Therefore, if a party's share in the global advance is US$ 100 000 and as a result of the split in separate advances, the advance on costs such party has to pay amounts to US$ 170 000, such separate advance may be satisfied by paying US$ 100 000 in cash and posting a bank guarantee amounting to US$ 70 000. As indicated above, the Secretariat of the Court informs the parties about the financial consequences that may derive from the fixation by the Court of separate cost advances requested by any of them.

Article 1 of the 1998 Appendix III closes with a provision on the advance on costs intended to cover the fees and expenses related to any expertise ordered by the Arbitral Tribunal (paragraph 11). Unlike the cost advance to cover arbitral fees and expenses-which is payable to the ICC, remains under the control of the Court and is fixed either by the Secretary General of the Court in the case of a provisional advance and by the Court itself in the case of the global advance-cost advances related to an expertise ordered by the arbitrators are fixed by the Arbitral Tribunal and are payable to an account not necessarily held with the ICC and that in any case remains under the control of the Arbitral Tribunal's instructions. The Arbitral Tribunal, which shall also determine the final amount of such expenses and fix the expert's fees, shall be responsible for ensuring that such fees and expenses are actually paid to the expert.

Article 2 of the 1998 Appendix III essentially refers to the determination by the Court of the administrative and arbitral fees payable by parties to an ICC arbitration.

Article 2 (1) and (5) of the 1998 Appendix III, respectively dealing with the fees of the arbitrators and the administrative fee payable to the ICC to [Page49:] cover expenses for administering an ICC arbitration, restate the general principle already present in former Appendix III that arbitral and administrative fees are fixed by the Court in agreement with the tables set forth in Article 4 (2) (A) & (B) and, where the sum in dispute is not stated, at the Court's discretion. Article 2 (5) also provides that in exceptional circumstances, the Court may fix administrative expenses at a lower or higher figure than that which would result from the application of the scale set forth in Article 4 (2) (B), provided, however, that such fee normally will not exceed the maximum amount of such scale, i.e., US$ 75 800. This power, already present in former Appendix III, is aimed at providing the Court with sufficient flexibility to fix an administrative fee properly adapted to the real time, cost and effort involved by the handling of a specific arbitration by the Court even when to do so would exceptionally imply not applying the scale. Finally, Article 2 (5) establishes (as Article 2 (c) of former Appendix III did) that the Court may require the payment of administrative expenses in addition to those provided in the scale in Article 4 (2) (A) of the 1998 Appendix III for holding an arbitration in abeyance if the parties so agree.

Article 31 (2) of the 1998 Rules and Article 2 (2) of the 1998 Appendix III also provide that in exceptional circumstances the Court enjoys similar discretion for fixing the arbitral fees at a figure higher or lower than the maximum and minimum corresponding to each slice of the table set out in Article 4 (2) (B), i.e. when otherwise the actual work and effort devoted by the arbitrators to the conduct of the arbitration would not be properly reflected in their remuneration. Article 2 (2) of the 1998 Appendix III also spells out the criteria observed by the Court when fixing the arbitral fees within such maximum and minimum: diligence of the arbitrator, the time spent, the rapidity of the proceedings and the complexity of the dispute. This provision follows practically verbatim the text of former Article 18 of Appendix II to the ICC arbitration rules, except that a reference to arbitral diligence has been added. Thus, the efficiency of the arbitrator in conducting the case may also be taken into account when fixing his fees.11

Article 2 (3) of the 1998 Appendix III provides -as did former Appendix III-that when a case is submitted to more than one arbitrator, the Court has discretion to increase total arbitral fees up to a maximum normally not exceeding three times the fees of one arbitrator. Also, Article 2 (8) of the 1998 Appendix III reproduces verbatim Article 2 (f) of former Appendix III providing that when an arbitration is preceded by attempted conciliation, one-half of the administrative expenses paid for such conciliation shall be credited to similar expenses of the arbitration.

New Article 2 (3) restates a fundamental principle of the cost system in ICC arbitration, namely that by agreeing to ICC arbitration, the parties accept that arbitral fees and expenses shall be fixed exclusively by the Court and, accordingly, that separate fee arrangements between the parties and the arbitrators are contrary to the ICC arbitration rules.

As a matter of fact, Article 31 (1) of the 1998 Rules provides, as clearly as did Article 20 (2) of the former ICC arbitration rules, that the fixation of arbitral fees, reimbursable expenses of the arbitrators and administrative expenses of the arbitration is a duty entrusted only to the Court. One of the advantages of the ICC arbitration system is that neither the parties nor the arbitrators are burdened with negotiating and agreeing on the fees and expenses to be advanced or paid in connection with the arbitration. To permit otherwise would deprive the ICC arbitration system of one of its basic features and may give rise to animosities and delays detrimental to the proper conduct of the arbitration.

According to Article 2 (6), if the arbitration terminates before the rendering of an award, the Court will fix the costs of the arbitration at its discretion, taking into account the stage attained by the arbitral proceedings and any other circumstances. This provision reflects the fact that the tables contained in Article 4 (2) (A) & (B) in principle apply to fix the administrative fee and the remuneration of the arbitrators in proceedings that culminate in a final award deciding on all disputed issues. If arbitral proceedings come to an end before a final award is made, for instance when an arbitration is withdrawn prior to the final award, the Court shall use its discretion to fix such fees on the basis of the general guidelines set forth in Article 2 (6). For example, circumstances such as the role played by the arbitrators in helping the [Page50:] parties to settle the dispute that thus ended before full completion of the arbitral proceedings will be taken into account when the Court will exercise its discretion under Article 2 (6) of the 1998 Appendix III.12

Article 29 of the 1998 Rules on the interpretation or rectification of an arbitral award does not consider the cost and fee issues which may arise as a result of the additional arbitral activity, including additional travelling expenses of the arbitrators, involved in the exercise of interpreting or correcting an award. In many cases, such activity is so insignificant, that it should be considered as covered by the fees and expenses already fixed by the Court and set out in the award subject to correction or interpretation. In other cases, however, the situation may be different. For this reason, Article 2 (7) of the 1998 Appendix III leaves to the discretion of the Court the fixation of an advance to cover additional fees and expenses of the arbitrators and to make the transmission of the application to correct or interpret the award dependent on the prior payment in full of such advance. The Court shall also fix at its discretion any possible fees of the arbitrators when approving the draft addendum containing the correction or the interpretation of the award.

In addition to stating that all sums paid to the arbitrator by the ICC do not include any VAT or other imposts or charges applicable to the arbitrator's fees, Article 2 (9) of the 1998 Appendix III also provides that parties are expected to pay any such taxes or charges, but that their recovery is a matter solely for the arbitrator and the parties.

The 1998 Appendix III closes with Article 4 (2) A) & B) setting forth the tables for the calculation of administrative expenses and arbitral fees. The tables have been revised in view of the fact that they had not been adjusted since 1993.

IV. Conclusions

The 1998 Appendixes cover in a comprehensive way vital aspects regarding the organization and functions of the Court and its Secretariat as well as other important matters concerning the conduct and administration of arbitrations under the ICC arbitration rules, including financial and remuneration matters involved in ICC arbitration. Such questions, many of which were only dealt with in notes of the Secretariat of the Court, are now set forth in a more orderly and consistent way, a fact that should render the consultation of the 1998 Appendixes easier and more user-friendly than was the case with their prior version.

The 1998 Appendixes serve, of course, the main purpose of complementing the new provisions introduced through the 1998 Rules on a significant number of institutional and other matters, and in this sense they reflect the evolutionary nature of the new arbitration rules themselves. However, they have also incorporated new provisions aimed at making the administration and conduct of ICC arbitrations more transparent and efficient and more adapted to the needs of users. Also in that sense, the 1998 Appendixes go hand in hand with the philosophy inspiring the 1998 Rules and with the invigorating functions traditionally fulfilled by the appendixes to the ICC arbitration rules.

1
See Article XIX-XL, paragraph e) of the 1922 ICC conciliation and arbitration rules. This article however provides that the Court may in its discretion allow arbitral fees to be included in the costs of the arbitration in respect of such countries or industries where it would be customary to remunerate arbitrators, in which case such fees would be fixed '... at rates customary to such countries or industries'.

2
See Note on the 1927 Revision of the Arbitration Rules in the Supplement to the Arbitration Report, 3-5 (June 1927).

3
See J. J. Arnaldez & E. Jakande, 'Les Amendements apportés au Règlement d'arbitrage de la Chambre de commerce internationale (CCI)' in 1988 Revue de l'Arbitrage, 67

4
See in this issue of the Bulletin the article of Robert Briner, Chairman of the ICC International Court of Arbitration, explaining in greater detail the criteria approved by the Court for determining when the 1998 Rules, including the fee scales in the 1998 Appendix III, will apply.

5
See Briner's paper in this issue of the Bulletin

6
See, for example, Article 2 of Appendix I of the 1955 ICC Rules of Conciliation and Arbitration which provides that when a member of the Court does not reside in the city where ICC headquarters are located, the ICC Council may appoint an alternate member. The origin of this provision may be traced back to Article 2 of Part IV of the 1935 ICC conciliation and arbitration rules.

7
In this respect, see Robert Briner's article, supra.

8
Further clarifications on the allocation of labour between Court's Plenary and Committee sessions may be found in Robert Briner's article, supra.

9
Idem.

10
The Court is to confirm whether this amount will apply to arbitrations under the 1998 Rules.

11
Several members of the Working Party of the Court examining the ICC system and practices for fixing fees had expressed a hope that the manner and efficiency in which arbitrators conduct the arbitration would be taken into account when fixing their fees though the Working Party did not issue any recommendation in this sense (Working Party report of September 1990, at p. 44).

12
See E. Schwartz, 'The Costs of ICC Arbitration', 4 The ICC International Court of Arbitration Bulletin, Vol. 4/No 1 (1993), p. 8, at 14, 16.