January 1st, 2008 was the tenth anniversary of the date on which the current Rules of Arbitration of the International Chamber of Commerce (hereinafter ICC) came into force. This event was celebrated on 23 April 2008 with a Study Day in Paris, the purpose of which was to enquire whether it was not time to reform those Rules.

This Study Day followed a decision by the Chairman of the ICC International Court of Arbitration (hereinafter the Court), the Chairman of the ICC Commission on International Arbitration (hereinafter the Commission) and the Secretary General of the Court to initiate a special procedure with a view to possible reform, whereby ICC national committees would be invited to make suggestions.

During recent years, there has been such growth in international commercial arbitration that it has become the customary method of resolving international disputes. National courts still have their place, of course, but parties to international contracts increasingly prefer arbitral tribunals, for a host of reasons that I will not discuss here. As for more recent methods of dispute resolution, of an alternative (or amicable) nature, although they have met with increasing success, they will never replace arbitration. Like it or not, arbitration is now central to international commercial relations, where it represents both an opportunity and a challenge.

The ICC Rules of Arbitration (hereinafter the Rules)1 have always played and will doubtless continue to play a highly important role in this development. The system established by the Rules is amongst the oldest, most comprehensive and most sophisticated of all. It can be considered as a paragon and has been taken as a model by so many other institutions. This explains why it is crucial for the Rules to remain at the forefront of progress, incorporating any developments that are necessary or simply opportune.

It is in this setting that the present article has been written. Space does not allow a fully exhaustive or original treatment of the subject, so the article will instead highlight certain recent developments, from a global rather than an analytical stance. Needless to say, the observations made in the course of the article are strictly personal and are independent of the position the author held as Chairman of the Court. Some attempt will however be made to report on the experience acquired in that capacity.

An assessment of the Rules over ten years will quite naturally begin with the origins of those Rules (A). This will be followed by a description of the distinctive features that have marked their subsequent development (B). The final part of the article will be devoted to possible avenues of reform (C). [Page34:]

A. Origins of the Rules

Too little has been said about the historical role played by the successive versions of the Rules as precursors of the Rules that are applicable today.

a) Former versions of the Rules

The 1998 Rules have a long history, which goes back to the Rules that in 1922 emerged from the work undertaken in the wake of ICC's creation in 1919 to provide the world of international trade with an effective system for resolving international disputes. At its meeting on 11 October 1920, ICC's Council decided to study the question of international commercial arbitration.2 A special committee was set up, chaired by Doyen Lyon-Caen, Permanent Secretary of the Académie des sciences morales et politiques. This committee entrusted Roberto Pozzi from Italy with the task of drawing up a special report. His recommendation was that rules of conciliation and arbitration be drawn up along the lines of those already existing in certain sectors such as the cotton trade. On 22 July 1922, the ICC Council adopted two drafts, one of which covered conciliation ('Rules of Procedure for the Conciliation and Good Offices') and the other arbitration ('Arbitration Rules').3 The implementation of these Rules was entrusted to a standing arbitration committee called the Court of Arbitration of the International Chamber of Commerce (Articles X/XXV and VI/XXVI).4 The distinctive features of the ICC arbitration system were already present, including Terms of Reference (Article XXXIV) and the scrutiny of draft awards by the Court (Articles XIV/XXXV).5 It may be noted, as a matter of interest, that the arbitrators generally gave their services free of charge.6 This disinterestedness was to be quickly abandoned at the time of the first revision of the Rules! The final text of the Rules was formally brought into force by the Court of Arbitration on 19 January 1923 ('Court of Arbitration Acceptance of Warrant').7

An important change was made to these initial texts as early as 1927.8 As a reflection of the different conceptions prevailing in member States, the 1923 Rules made a distinction according to whether parties were from States that did not recognize the validity of arbitral awards (Section B, Articles V to XXIV) or from States that provided legal sanction for the execution of arbitration awards (Section C, Articles XXV to XLV). The rapid progress subsequently achieved in State arbitration laws enabled this distinction to be abandoned and 'legal arbitration' alone to be retained. This was a very propitious period for the development of arbitration, and there is no doubt that the ICC Rules played a crucial role in the progress made. Arbitration progressively secured a [Page35:] place in national laws. At the instigation of the Commission, the League of Nations adopted two key instruments: the Geneva Protocol on Arbitration Clauses of 24 September 1923, then the Geneva Convention on the Execution of Foreign Arbitral Awards of 26 September 1927. With this, the ball was set rolling.

A series of amendments were made to the Rules of Conciliation and Arbitration during the years that followed. They came in close succession to begin with and then slowed down during the subsequent decades. It is not the purpose of this article to describe them in detail, even though each reveals the progressive establishment of the institution: 1931,9 1933,10 1935,11 1939,12 1947,13 1955,14 197515 and 1988.

b) Preparation and adoption of the 1998 Rules

The initiative for the 1998 reform was taken by the Court and its Chairman, Alain Plantey.16 The main aim was to correct certain shortcomings and fill certain gaps. In accordance with ICC procedures, the Commission, under its then Chairman, Paul-A. Gélinas, was given the task of preparing a draft. A working party was set up for this purpose, chaired by Yves Derains, former Secretary General of the Court. The ensuing proposals were the subject of intense discussion within the Commission and the Court.

The text of the new Rules was finally approved by the ICC Council on 7 April 1997, at its meeting in Shanghai. The new text did not alter the essence of ICC arbitration, but improved its efficiency-especially through the operation of the Court (Committee powers increased) and the fixing of costs-and filled certain gaps. One of the important measures taken was to develop the appendices to the Rules, which are easier to amend. The new text 'came into force'17 on 1 January 1998.

A few years earlier, ICC had created another set of rules establishing the Pre-Arbitral Referee Procedure. Those rules entered into force on 1 January 1990.

c) Other ICC dispute resolution rules

Despite its brevity, this introduction would be incomplete if no mention were made of the other rules that complete the array of dispute resolution procedures proposed by ICC, namely:

• ADR Rules, in force from 1 July 2001 [Page36:]

• Rules for Expertise, current version in force from 1 January 2003

• Dispute Board Rules, in force from 1 September 2004.

B. Notable developments

It is not my intention to recapitulate within the space of a few pages the main developments that have taken place since 1998. The following discussion will be limited to some general remarks concerning facts (a), structures and functions (b), and the application of the Rules (c).

a) Facts

The Secretariat of the Court has for many years kept detailed statistics on ICC arbitration and ICC's other dispute resolution activities. They appear in an annual Statistical Report published in the ICC International Court of Arbitration Bulletin.18 The figures published in these Reports have been used to compile the ten-year overview annexed to the present article.

The details given below concern arbitration only. This is not to imply that the other methods of dispute resolution do not deserve equal treatment. During recent years, much effort has gone into promoting and developing those other methods, which have expanded ICC's complete offer. The reason for concentrating on arbitration is the prominence it has enjoyed during the period under consideration.

On the basis of the figures available, three major trends can be identified.

1. Growth in caseload

Over the last ten years the number of cases has risen continuously.

• The total number of cases filed with the ICC Court since its creation rose from 10,292 on 31 December 1998 to 15,375 on 31 December 2007. The 5,083 cases filed between the two dates represent virtually a third of all cases filed since 1923.

• The number of ongoing arbitrations rose from 926 at the end of 1998 to 1,285 at the end of 2007, which represents an increase of almost 40%.

• The number of new cases filed in a year rose from 466 in 1998 to 599 in 2007, which represents an increase of almost 30%.

• The number of parties involved in the cases filed rose from 1,151 in 1998 to 1,611 in 2007. A comparison with the number of cases filed points to a sharp rise in the number of multiparty cases.

These figures are all the more noteworthy as the number of institutions has at the same time continued to increase and competition has become fiercer. The fact remains that ICC arbitration has maintained and strengthened the position and the role that it rightly occupies. [Page37:]

2. Internationalization of cases

For a long time, the chief users of arbitration were so-called Western countries. During recent years, however, the use of arbitration has become much more widespread. The trend has been less pronounced in ICC arbitration, which has always been open to all parts of the world.

• The parties in the case filed during the year came from 106 different countries in 1998, compared with 126 in 2007.

• It is not so much the number of cases that is striking but their geographical diversity. No one country is predominant, as would appear to be the case with most other institutions. It may also be noted that the Court receives a large number of domestic arbitrations (19% of the cases filed in 2007 were between parties of the same nationality).

ICC arbitration can be said to have abided by and consolidated its original purpose, which was to offer a means of dispute resolution that was applicable to the international community as a whole. Although it may have its seat in France, it is just as much American, Asian and African as it is European.

3. Growing complexity of cases

The breakdown of cases according to the amount in dispute has not changed significantly. What has changed, however, is the nature of the cases and the proceedings.

• Contractual relations have become increasingly complex, which has a direct impact on the nature of the cases and the problems they raise in the event of disputes. Although most cases continue to be between two parties and to be based on a single contract, the number of cases between more than two parties in various configurations (multiparty arbitrations) and based on several contracts (multicontract arbitrations) has been growing continuously. The proportion of multiparty cases has risen from 21.3% of all cases filed in 1998 to 31.1% of all cases filed in 2007. There has also been a symptomatic increase in the number of cases involving States and parastatal entities, which has climbed from 10.1% of all cases filed in 1998 to 11.4% of cases filed in 2007. The chief reasons for this rise are globalization and privatization.

• Arbitration proceedings seem likewise to have become more complex. Although the original purpose of arbitration was to secure a simple, quick and economic solution to a dispute, the methods employed in some cases have become increasingly sophisticated, with an inevitable effect on the length and cost of the proceedings. This development is partly explained by the influence of Anglo-American procedures, but no doubt also by an increasing resemblance to State court proceedings.19

Although these developments are not peculiar to ICC arbitration, they have special importance in the case of ICC, due to the extent of the supporting measures and decisions taken by its administering bodies. [Page38:]

b) Structures and functions

What is special about ICC arbitration is that it does not just offer a set of rules, but is based on a structure and organization that make it a full-blown 'system'. Of course, the conduct of the proceedings and the rendering of awards remain the preserve of the arbitral tribunals,20 but the Court and its Secretariat are empowered to take most of the decisions that would otherwise be left to the courts and to oversee the progress of proceedings and the quality of the services. This is an essential feature, and it means that no proceedings based on the ICC Rules can be conducted outside the structures on which those Rules rely.

Over the years there has been a marked development, not so much in the Rules but in the practices of the three principal bodies found in the Rules.

1. Court

The ICC arbitration system is dominated by the Court, whose function is to make all decisions of importance. It does so in complete independence, as its members have no direct contact with ICC once they have been appointed.21 Despite the name it bears, the Court does not hold real jurisdictional powers, but is rather an administrative body, with which the parties and the arbitrators establish contractual relations so as to give it the decision-making powers defined in the Rules.

The Court is characterized by the size of its membership. Each ICC national committee is entitled to propose at least one member, and the Chairman can allow some national committees to have alternate members, too.22 Since the current Rules came into force in 1998, the total number of Court members has risen from 77 in 1998 to 126 in 2007, and the number of countries and territories represented from 57 in 1998 to 88 in 2007. This is clearly a huge expansion, which has brought with it some organizational problems.

In addition, since the current Rules came into force, there has been a shift of certain powers from the Plenary Sessions of the Court to its Committees and even to the Chairman of the Court.

• Once a month, the Court holds Plenary Sessions, which are usually attended by 30-40 members. The powers exercised by the Court at its Plenary Sessions are limited to decisions of particular importance, i.e. the challenge and replacement of arbitrators and the approval of draft awards that can be considered important or sensitive, notably due to the large amount in dispute, the nature of the parties, or a lack of unanimity amongst the members of the arbitral tribunal.

• All ordinary decisions are made by Committees comprising three Court members (the Chairman or a Vice-Chairman and two other members),23 which meet once a week.24 In order to increase their representativity, Committee sessions have recently [Page39:] been held with the participation of Court members by videoconference. It is abundantly clear from a comparison with the situation prior to 1998 that the Committee's powers have expanded. These include taking measures to cover inadequate arbitration clauses pursuant to Articles 8 (number of arbitrators) and 14 (place of the arbitration), making prima facie decisions on arbitration agreements pursuant to Article 6(2), appointing arbitrators in the event of difficulties pursuant to Article 9, fixing advances on costs and the costs of the arbitration pursuant to Articles 30 and 31, extending time limits pursuant to Article 24 and, above all, finally approving all awards that are not scrutinized at Plenary Sessions. The Court nonetheless has an eye over the Committee, as it is required to approve the composition of the Committee, is informed of the decisions made, and decides in the very rare event of differences of opinion between Committee members. Recourse to Committees has taken a burden off the Court and allowed the speed with which decisions are made to be maintained and even increased, without however compromising the quality of the services rendered and the consistency of the positions adopted.

• The Chairman has chief responsibility for the Court's activities. He devotes most of his time to this purpose. Although he acts pursuant to a mandate with ICC, he does so in complete independence. He is assisted by Vice-Chairmen,25 whom he proposes for appointment by the ICC World Council.26 The functions exercised by the Chairman are varied. He chairs Court sessions, keeps himself regularly informed by the Secretary General on the progress of cases, and takes urgent decisions (Article 1(3) of the Rules). His duties are not limited to arbitration but cover the other methods of dispute resolution proposed by ICC, too. He is the prime representative for these different services. The Chairman's role has expanded considerably under the current Rules.

2. Secretariat

Without effective assistance, the Court would be unable to fulfil its role. That assistance is provided by the Secretariat, which acts as a driving force in proceedings, by monitoring cases and preparing the decisions made by the Court. It has a special status insofar as its function is to serve the Court and the Chairman of the Court, but it is at the same time an integral part of ICC's administrative headquarters (Article 1(5) of the Rules). Although it manages its caseload in complete independence, its operational autonomy is limited.

• Subject to the above, the management of the Secretariat is entrusted to a Secretary General, who is assisted by a Deputy Secretary General and a General Counsel (Article 5 of Appendix II of the Rules). The shift in responsibilities noted above can be seen here, too, as the Secretary General exercises ever-widening powers and is required to make an increasing number of decisions. These concern above all the confirmation of arbitrators, the certification of copies of awards, and the fixing of provisional advances on arbitration costs (see especially Articles 9(2), 28(2) and 30(1) of the Rules). [Page40:]

• The staff of the Secretariat has also undergone change, in keeping with the changes in the cases described above. To begin with, the Secretariat has increased in size to deal with a constantly growing caseload. The number of staff members has doubled in ten years, rising from 35 to 70, including 35 lawyers. Secondly, the origins of the staff have broadened, reflecting the increasing internationalization of the cases. Today, more than 25 countries are represented amongst Secretariat staff, who are able to monitor cases in more than 20 different languages. Thirdly, skills have grown with the increasing complexity of the cases. The overall quality of the Counsel and Assistant Counsel is and remains exceptional.27

• The functioning of the Secretariat is undergoing considerable change, as it is necessary to adapt working methods to practical requirements. Several new services have recently been developed, the most important of which is undoubtedly NetCase, offering a means of conducting procedures with the aid of IT.28 Also, the Secretariat will now accept deposits to cover taxes (such as VAT) that may be due on arbitrators' fees, if the arbitrators so wish.29

3. National committees

National committees remain the backbone of ICC, through which they find expression.30 This includes in relation to dispute resolution and ICC arbitration in particular, where they have a dual function.

• In the procedure for appointing arbitrators, national committees are authorized to make proposals at the Court's request, when the Court is required to appoint a sole arbitrator or the chairman of an arbitral tribunal (cf. Article 9(3) of the Rules), or even a co-arbitrator (cf. Article 9(6) of the Rules). This is an excellent idea in itself. Instead of being entirely on its own in its choice, the Court can take advantage of the extraordinary network of ICC national committees. It may well be that local representatives are better placed to make a judicious proposal suited to the particular circumstances of the case. It offers an ideal means of integrating promising young arbitrators into the arbitration community and provides a perfect opportunity for regional officers to open the allegedly closed circle of international arbitrators and promote arbitration in their countries. The system works well with many national committees.

It would be hypocritical, however, not to say that the system does not always work as it should. Some national committees are slow in responding and, when they do so, they propose candidates who do not satisfy the requirements of quality, independence and openness laid down by the Court, which remains ultimately responsible for the choice of arbitrator. This has given rise to some tension. In an attempt to clarify the situation, the Chairman of the Court recently circulated a note on the subject to national committees.31 The reputation of ICC arbitration and, to some extent, even its future are dependent on this system working well. [Page41:]

• For the promotion of ICC arbitration, ICC national committees are (or should be) its best ambassadors. Some of them fulfil this role admirably. We cannot hide the fact, however, that there have been a number of difficulties, especially with national committees more concerned about promoting their own institutions. Discussions have often enabled such situations to be redressed.

c) Application of the Rules

During the life of the current Rules, no changes have been made to the texts governing ICC arbitration.32 The Secretariat has issued explanatory guidelines in the form of notes. The most important of these, as far as the operation of ICC arbitration is concerned, relates to the application of Article 29 on the correction and interpretation of awards. At the same time, a rich and abundant corpus of writings has analysed and elucidated the system.33

There has, on the other hand, been some change in the way certain provisions are applied by the Court in its endeavour to remain faithful to the spirit of the Rules. This has given rise to what can truly be described as Court practice. True though it may be that the Court does not give reasons for or publish its decisions, as expressly confirmed in Article 7(4) of the Rules, (although too narrowly, for this provision concerns decisions on arbitrators), all decisions made by the Court are based on detailed reports, the most sensitive are the subject of intense discussion, and they thereby create what could be described as case law, which is regularly exposed in the ICC International Court of Arbitration Bulletin.

To simplify, three aspects of Court practice can be distinguished, concerning respectively the agreement underlying the arbitration, the monitoring of arbitrators and the approval of awards.

1. Underlying arbitration agreement

The principal difference between arbitration and State justice is that the procedure is based entirely on the will of the parties. We know from experience that such a basis is often beset by uncertainty, even to the point of undermining the entire proceedings, including the validity of the award itself. ICC arbitration gives the Court key powers so as to save the parties from having to turn to the State courts whenever they need to be dug out of difficulties. This is a major advantage of the ICC system. Pursuant to the mandate which the parties and the arbitrators implicitly give to the Court when they adopt the ICC Rules, the Court may intervene at any stage to help the proceedings progress. It has a particularly important role at the beginning, above all in the following two respects. [Page42:]

• The Court has the power to make prima facie decisions pursuant to Article 6(2) of the Rules. It is a straightforward idea: while the power to decide on the validity of an agreement to arbitrate lies with the arbitral tribunal (in keeping with the principle of Kompetenz-Kompetenz), the Court has a contractual undertaking to carry out an initial examination whenever a party raises objections in this regard or declines to participate in the proceedings. On the basis of this examination, the Court will either consider that the requirements for ICC arbitral proceedings have been met and will transmit the case to the arbitral tribunal for it to rule in full cognizance of the facts (a positive 6(2) decision), or it will consider that the requirements have not been met and will refuse to transmit the case to the arbitral tribunal (negative 6(2) decision), leaving the objecting party with the possibility of applying to the relevant State court for a ruling on the matter.34 This key function is in the parties' interest and has great practical importance, as it allows manifestly untenable requests to be nipped in the bud.

A 6(2) decision is generally taken by the Court, in Committee form, after a summary examination, without any special investigations and solely on the basis of the documents at its disposal.35 In other words, the provision is generally applied with great caution. In pratice, the Court does not simply look at whether an arbitration clause exists and, if so, whether that clause truly provides for recourse to ICC arbitration. Given that an arbitration clause can only be meaningful if and to the extent that it binds two or more persons, the Court also looks at the parties to the arbitration. Hence, it may decide that an arbitration should go ahead, as there is a valid arbitration clause, but it may exclude one or more parties from the proceedings if it considers that they appear at first sight not to be bound by the clause (this is referred to as a partially negative 6(2) decision).36

• The most difficult decisions in this regard are undoubtedly those concerning multicontract and multiparty arbitrations. The Court's practice in this field has already been described in the ICC International Court of Arbitration Bulletin37 and will not be repeated here. Instead, I will confine myself to the following brief remarks.

One of the most striking innovations introduced in the 1998 Rules was the right given to the Court to appoint all the members of the arbitral tribunal in a multiparty case in the event of disagreement between the parties (cf. Article 10 of the Rules).38 There have been times when it has been required to exercise this right. No set practice has been established, however, as the Court was more concerned to find the right solution for each case. Sometimes, it appointed all the members of the tribunal, and at other times opted to confirm an arbitrator nominated by one of the parties, as it is entitled to do. It was an interesting move to give the Court the power to constitute the entire tribunal itself.39[Page43:]

The Court has sometimes been criticized for being too conservative and ill-attuned to developments in business and legal relations. This, however, is to overlook one of its core requirements, which is to embody a system that is recognized universally. Whilst people in certain quarters may be prepared for ground-breaking solutions, it would be premature, and even dangerous for the recognition of awards, if such solutions were to be forced upon the unprepared. What is important is that parties and counsel should have the acumen to prevent difficulties though appropriately worded arbitration clauses.

• In order for the scope of the proceedings to be clearly delimited from the outset, regardless of the amounts involved, arbitrators and parties are required to draw up and sign Terms of Reference, the content of which is described in general terms in Article 18 of the Rules. It is worth recalling that if one of the parties (or even an arbitrator) refuses, the Court is empowered to accept the draft submitted to it (which it does at Committee sessions). This is a formative decision, as it replaces the agreement that is lacking. In such instances, the Terms of Reference must not include any obligation that goes beyond the scope of the arbitration clause and the initial submissions.40

2. Monitoring of arbitrators

It is commonplace to assert that the quality of an arbitration depends on the quality of the arbitrators conducting it. Rather than resorting to a pre-existing and regulated State body, parties submit to individuals whom they choose on account of the trust they place in them. ICC arbitration is distinguished here by the fact that the Court and its Secretariat play an important auxiliary role, which has been well described in a recent Special Supplement to the ICC International Court of Arbitration Bulletin.41 For this reason, I can be even briefer in the comments I make below.

• The first stage at which the Court intervenes is when an arbitrator is appointed. When agreeing to service, arbitrators must complete a form on which they confirm their independence (cf. Article 7(2) of the Rules), either without any reservations (unqualified statement of independence) or with an indication of the facts and circumstances that might be of such a nature as to call into question their independence 'in the eyes of the parties' (qualified statement of independence). If a party objects to the arbitrator put forward,42 the Court will be required to decide on the matter (at a Committee session). When doing so, the Court does not act arbitrarily, but on the basis of objective criteria. Likewise, the Court will closely check the suitability of candidates proposed by ICC national committees.43

• Next, the Court may be required to intervene (this time at a Plenary Session) to rule on a challenge raised against a member of an arbitral tribunal or, as occasionally happens, against all members of the tribunal (cf. Article 11 of the Rules). It does so when a party opposes the confirmation or the appointment of an arbitrator by the Court (in Committee session) despite the objections raised by that party,44 or when the party [Page44:] subsequently alleges that there are other circumstances of such a nature as to call into question the arbitrator's independence or other reasons for replacing him or her. The number of challenges is not great, especially when compared with the growth in the number of cases.

A difficult question is raised by the thirty-day deadline set in the Rules and, in particular, the moment at which this period of time commences. The Court has consolidated its position here in some recent decisions. If a time limit is set, then it needs to be complied with and it is up to the party making the challenge to prove that this has been the case, especially as regards the moment at which it became informed of the facts on which its challenge is based.

• The Court's power does not stop at ruling on challenges; it may also replace arbitrators (cf. Article 12 of the Rules). This will clearly be necessary if an arbitrator is prevented from carrying out his mandate. However, the Rules go further by authorizing the Court to replace an arbitrator if it finds that 'he is not fulfilling his functions in accordance with the Rules or within the prescribed time limits'. Such action is perfectly justified. It was recently decided that greater use should be made of this initiative, as experience has shown that the mere threat of such action or its commencement are sufficient to restore order, through the arbitrator either taking whatever measures are necessary to repair the faults or taking it upon himself to resign.

3. Approval of awards

Of all the characteristics of the ICC arbitration system, this is perhaps the most distinctive. No award, of whatever kind, can be rendered unless it has first been approved by the Court at either a Plenary or a Committee Session (cf. Article 27 of the Rules). Although initially criticized, this rule has since been followed by other institutions and has an important role to play in practice.

• The scrutiny system is subtle and balanced. If well used by all involved, it allows a useful dialogue to take place between the arbitral tribunal and the ICC administering bodies. An intelligent review of a draft award by a neutral third party not involved in case can reveal mistakes and also-and above all-bring up questions, objections and suggestions that will help to improve the award and increase the likelihood of its withstanding any appeals against it and overcoming the hurdle of recognition. One has only to attend a few Court sessions to be convinced of the invaluable role played by scrutiny. It is indeed inconceivable that certain draft awards could be notified to the parties in the form in which they were submitted to the Court.

• Contrary to what is sometimes said, every draft award undergoes in-depth examination. It is first examined within the Secretariat by a Counsel or an Assistant Counsel. They often make initial contact with the arbitral tribunal. The draft is then submitted to the Secretary General, or a member of staff deputizing for him, and discussed at an internal staff meeting. It is then submitted to the Court, accompanied by a detailed report. If the draft is considered at a Committee session, each Court member present will read the text and make comments. If it is considered at a Plenary Session, a Court member is, in addition, commissioned to draw up a written report, which is circulated to all members and included in the discussions. This process creates considerable added value.

• One of the most sensitive aspects of scrutiny is its scope. The Rules distinguish between matters of form, with respect to which the Court may order corrections, and other, substantive matters, to which it can do no more than draw the arbitrators' attention. The terminology used leaves the distinction unclear, for it would be [Page45:] unreasonable to limit the meaning of form to pure drafting or extend it to anything that could endanger the validity or recognition of the award. In practice, this difficulty is generally resolved through the dialogue that is opened between the arbitrators and the ICC administering bodies. If there have been difficulties in the past, this was above all due to communication problems. There may have been some toing and froing of awards in a few exceptional cases, but there is no other real control.45

The problem may arise when the draft award has been made by only a majority of the arbitral tribunal (cf. Article 25(1) of the Rules), especially if the minority arbitrator has drawn up a dissenting opinion. The Court considers these awards at a Plenary Session, so as to be in a better position to understand the differences of opinion. However, it cannot and should not decide between the two positions advanced. It could admittedly be the case that the position expressed in the dissenting opinion appears more convincing. However, it is but an (alternative) opinion, which as such can simply be noted when the majority award is approved. If the majority position is tenable, the award will be approved and notified. The dissenting opinion is not formally approved, but will be notified with the award, unless it makes statements that clearly violate fundamental principles, putting the enforceability of the award in jeopardy.

C. Pointers for the future

It would be presumptuous to attempt, in a few lines, to make serious proposals as to how ICC arbitration might or should develop. The author's experience during recent months leaves him in no doubt about the qualities attributed to ICC arbitration. This was also the general conclusion that emerged from the Study Day referred to at the beginning of the article. The Rules render the services that may be expected of them, and there is no aspect which at this stage necessitates urgent change. More important is the need to stabilize practices.

This having been said, and in view of the use of the ICC Rules as a role model, it is worthwhile considering the areas in which improvements could be made. It is my view that these improvements should concern not so much the ICC Rules themselves but the context in which they operate. Hence, we shall touch on dispute resolution (a), ICC structures (b), and procedures (c).

a) Dispute resolution

As already mentioned, when ICC was established in 1919, it set itself the task of providing the international community with the means to resolve disputes. This was a task in itself, separate from but complementary to ICC's other noble aims, and requiring the full support of ICC's governing bodies. That task was not, first and foremost, a commercial activity, but an honourable service that needed simply to be able to cover its own financial needs.46[Page46:]

I believe that the above has important implications for arbitration, ICC's other dispute resolution services and how they are combined.

1. Arbitration is without doubt one of ICC's jewels and should remain so. As already pointed out, international arbitration has a key role to play in the functioning of the world economy. The services that ICC arbitration delivers to the international community are irreplaceable. No other institution, no matter how accomplished it may be-and there are certainly several excellent institutions around-can take its place. ICC arbitration is alone in being truly international, not accountable (whether directly or indirectly) to any State, government or region, and completely open to everyone and based on the active participation of all.

The idea of ICC's founders ('merchants of peace') was both generous and inspired. They were initially concerned about helping to maintain peace. Their declaration of faith, to which the present author fully subscribes, is even more necessary now than in the past. The exercise of justice remains the final resort in any democracy. If it deviates from its purpose, the consequences can be catastrophic. Despite the advantages it offers, arbitration remains a perilous system.

When pursuing a certain direction, it is not enough to rely on what already exists: one must always be on the lookout for new paths. Below are some suggestions.

• By its very nature, ICC arbitration is chiefly intended for resolving 'business disputes of an international character' (Article 1(1) of the Rules). This phrase is clearly too restrictive, for two reasons. Firstly, the Court has always accepted proceedings that are not international. This extension is fully justified by the dilution of large corporations and the permeability of State borders, and is expressly allowed by the final sentence of Article 1(1). Secondly, the Court has never attached any importance to whether or not a case can be considered as commercial, if the parties have agreed to submit to ICC procedure. It would indeed be doubtful that a party could on this basis contend that a clause to which it had nonetheless adhered was invalid. Any ambiguity could be removed by amending the wording so as to leave all doors open.

• Going a step further, one could even consider extending ICC arbitration services into sectors where they could prove useful, not with the intention of competing with other institutions, but in order to offer complementary services. Investment arbitration, of course, springs to mind. Several bilateral investment treaties already refer to ICC arbitration for the resolution of any disputes to which they may give rise, and a number of cases have been, or are being, conducted on such a basis. No major difficulties have resulted from the application of the Rules in these cases, although they sometimes need to be interpreted flexibly and to be applied in a manner that befits their purpose. It could nonetheless be useful to deepen our reflection here. Besides, it is also conceivable that ICC arbitration could be used for other disputes linked directly or indirectly to public international law.

• One of the distinctive features of ICC arbitration is its general application, for it is intended to be applicable to all kinds of disputes. It has sometimes been described as being too cumbersome or ill-fitting for areas requiring specialization.

• One of the criticisms commonly made of ICC arbitration concerns the cost of disputes involving small claims. Arbitration should ideally be affordable for everyone. It is of course possible for the arbitrators and parties to agree on a simplified procedure from the very outset of the case, but this may not be sufficient. The Commission looked into the possibility of drawing up special rules for this purpose, but the [Page47:] outcome of the study was inconclusive. The problem lies in the fact that it is necessary to lighten the rules slightly, without at the same time sacrificing the qualities that give ICC arbitration its status and reputation. It is not, I believe, a question of squaring the circle: further reflection is necessary.

• Another avenue to consider is the use of specific procedures for highly specialized sectors where a customized solution is warranted.

2. Other methods for resolving disputes are acquiring increasing importance. This is no doubt partly in reaction to certain disadvantages in arbitration. It is, however, also because these alternatives have undeniable advantages. In recent years, much effort has been put into developing ICC's 'green' dispute resolution services, and those efforts are beginning to bear fruit. Although the role ICC may play here cannot be compared with the role it has in arbitration, it can and should use its reputation not only to promote these alternative methods of dispute resolution but also to offer traditional support services, such as appointing and monitoring persons involved in the proceedings, handling the administrative and financial aspects of the proceedings, and providing general assistance).

• There is an array of flexible and complementary techniques from which the parties may choose. They of course include ADR, Dispute Boards and expertise. Much can be said about them, but that would take us beyond the scope of the present article.

• There is one service, however, that remains linked to arbitration and really needs to be developed. It is the Pre-Arbitral Referee Procedure. Although a special set of rules governing this procedure has been in existence for a number of years, it has had difficulty winning converts for various reasons that need to be explained. The (too) few cases conducted under these rules have shown that the method is extremely effective. Firstly, it allows the parties, on the basis of a summary but serious investigation, to obtain an order for provisional measures from a neutral within thirty days of submitting their request. This clearly saves time and expense. Secondly, the procedure leads to a decision which, although not an award, may in fact meet the needs of the parties. Experience has indeed shown that in all cases where orders were imposed upon parties, they were complied with spontaneously. It has rightly been suggested that this procedure be physically incorporated within the Rules of Arbitration, with an opt-out provision for parties who prefer not to have recourse to the procedure.

3. I consider it highly important to combine different methods of resolving disputes. Arbitration should not be thought to be the only solution. There are a variety of methods from which parties may choose in light of their expectations and needs. The 'market' in which they are offered is in each case the same, for they all concern finding solutions to difficulties, be it through a settlement, a contract or a judgment. Institutions would do well to follow the example of certain State court proceedings and integrate two or more methods, such as Dispute Boards and arbitration, expertise and mediation, but most of all mediation and arbitration, whenever this is possible. There is nothing against trying (on an optional basis) to slip mediation proceedings into the early stages of an arbitration, between the filing of the request and the adoption of the Terms of Reference. [Page48:]

b) Structures

I have already mentioned, and will repeat, that ICC arbitration is not a procedure but a complete system, in which the bodies referred to in the Rules play a key role.47 In my view, any reform needs to take account of this.

1. I believe that the Court should continue in its present role. It would be wrong, at least in the present state of things, to allow it to deliver judgments. The powers it holds have a strictly contractual basis and are there to assist the parties and the arbitrators. If the nature of these powers were to be changed, this could deprive it of the major advantage it is widely recognized to have.

• The question has arisen in connection with the giving of reasons for the Court's decisions, especially in relation to arbitrators. There are clear advantages in the present situation. They help to inspire trust in the Court's wisdom and avoid the delays and additional difficulties that would undoubtedly result from greater formalization. At the same time, however, it is important that the practice of the Court and, as a consequence, the practice of the arbitral tribunals acting under its auspices, should be made more widely known through articles, notes and publications. Much effort has already been made in this direction, but there is general agreement that it should remain a priority.

• It is quite another matter to consider whether the organization and operation of the Court should be overhauled. The increase in the number of Court members has partly altered its composition, and the accumulation of ongoing cases could eventually cause problems. Recourse to Committees is now firmly established. Some restructuring of Plenary Sessions could no doubt be envisaged.

• At the same time, consideration should be given to strengthening the resources and powers of the Chairman and Vice-Chairmen. The delegation of powers is inevitable, and the experiments made since the last revision of the Rules have proved to be wise.

2. The Secretariat is an irreplaceable body and needs to be given the powers and resources to perform its duties in proper conditions.

• This, in my view, implies giving it greater autonomy. The differences of opinion that have emerged in recent months show how urgent this is, for the effectiveness and credibility of the services are at stake. The Secretariat needs to be able to continue satisfying the requirements of the Rules and the expectations of users, as it always has done in the past. Furthermore, today's market calls for visibility and promotion on a par with other institutions. Like it or not, this is a requirement caused by the competition that has appeared and is now developing, sometimes through dubious commercial methods.

• It is for this purpose that the decision was recently taken to strengthen the Secretariat's presence outside its Paris headquarters. A team is about to be set up in Asia and, unless experience shows it be unnecessary, the idea should be rapidly extended by localizing teams in other key regions. Times have changed and so have techniques. Arbitrators, parties and counsel need to have a direct contact outside Paris [Page49:] and this will at the same time counter the impression of a Eurocentric institution that is sometimes bandied around. It remains to be seen which powers can be delegated without undermining the system's coherence and universality.

3. ICC's national committees are an important part of the system, but difficulties have been encountered with some of them, as mentioned above. One solution would be not to make it obligatory to seek proposals of arbitrators from national committees (cf. Article 9 of the Rules). There is no procedure as strict as this in the other rules that have been adopted in recent years, and it would be in everyone's interest if this absence were generalized. This would certainly not deprive the Court and its Secretariat of the assistance of those national committees that collaborate efficiently and, as such, offer an invaluable service, but it would allow them to choose arbitrators directly in countries where national committees fall short of expectations.

c) Procedures

In general, the provisions of the Rules relating strictly to procedure have not given rise to any difficulties that would necessitate urgent reform. The text is sufficiently flexible to apply to any dispute, of whatever kind and size and irrespective of the seat and applicable law. Parties and arbitrators can adopt whatever rules they consider the most appropriate. The Court and its Secretariat can change their practices without affecting the spirit of the Rules. A few short comments are nonetheless called for.

1. Multiparty arbitration. As already mentioned, this is without doubt one of the most problematic areas. It is of course up to the parties above all to adjust their arbitration clauses in such a way as to reduce the problems. Without going as far as changing the Rules, the Court could also adapt some of its practices, for instance by accepting pleadings by the defendant against a third party. Even if justified for the sake of efficiency, such changes should not, however, prejudice the consensual basis of arbitration, for the validity and enforceability of the award would once again be at risk. It would be different if the Rules, to which the parties are free to adhere, contained some additional provisions. This I consider to be the area in which reform is most urgent and most necessary.

2. Setting time limits. Another recurrent question concerns the various time limits mentioned in the Rules and the way in which they are treated by the Court. This is above all true of the principle laid down in Article 24 of the Rules, where the time limit of six months may lead to expectations that are more often than not illusory. As regards the extension of this time limit, on the other hand, there is nothing stopping the Court from changing its practice of granting extensions by periods of three months and instead monitoring proceedings on the basis of the provisional timetable adopted at their outset (cf. Article 18(4) of the Rules).48

3. Conservatory and interim measures. The complexity and slowness of proceedings often causes parties to seek conservatory and interim measures (cf. Article 23 of the Rules), which may prove to be decisive for the proceedings and the outcome of the [Page50:]case. Reference has already been made to the suggestion to include the Pre-Arbitral Referee Procedure in the Rules. It would seem wise to consider once again whether the current provisions on conservatory and interim measures should not be revised and improved, for instance in keeping with the proposals made by UNCITRAL.

Conclusion

During the last ten years, international commercial arbitration has developed considerably. The ICC Rules and, through them, all those who have ensured their application and compliance with the Rules, have played their role to the full. Based as it is on unique experience, the ICC dispute resolution system remains a model of its kind.

The essential features of the 1998 Rules have proved themselves and there would appear to be no reason for a fundamental reform. This is not to say that everything is perfect. Additions are called for in some areas, certain expressions could be given greater precision, and the organization and operation of certain structures should be reviewed. The procedure that has been initiated will provide an opportunity for this.

A final word must be said about the irreplaceable contribution made by ICC, the Court, its Secretariat and the arbitrators acting under its auspices to the development of arbitration law and practice. Reference has already been made to the driving force of the Commission. Over the years, it has prepared and published numerous studies and reports resulting from wide-ranging and detailed discussions, which are regarded as reference documents. Mention should also be made of the great effort expended, especially with the assistance of the ICC Institute of World Business Law, on extending knowledge of ICC arbitration throughout the world and training people of all ages in the practice of arbitration and other forms of dispute resolution.

The globalization of international business relations has come of age. True to the spirit in which it was born, ICC arbitration has been and remains a mainstay in this development. It is in everyone's interest that it retain and reinforce this position.

1
On the history of the Rules, see especially F. Eisemann, 'The Court of Arbitration-Outline of its Changes from Inception to the Present Day' in ICC Publication 412, on the occasion of the 60th anniversary of the Court (Paris: ICC, 1984) 391, esp. at 391.

2
See 'Proposed Plan for Conciliation and Arbitration Between Traders of Different Countries', Brochure No. 13 of the International Chamber of Commerce.

3
See Rules of Conciliation (Good Offices) and Arbitration, Brochure No. 21 of the International Chamber of Commerce, 4th ed., 22.

4
'The Council of the International Chamber of Commerce shall name an International Committee on Arbitration, for the purpose of facilitating arbitration of disputes arising between business men of different countries. . . .This Committee shall be known as the "Court of Arbitration of the International Chamber of Commerce".' It was not until 1988 that the word 'International' was added to the Court's name.

5
Explanatory comment on Articles XIV/XXXV(a) : 'It is understood that before signing the award, the arbitrators must submit the draft of the award to the Court of Arbitration for examination of the Court from the point of view of form. No award can be pronounced without having been submitted to the approval of the Court of Arbitration.'

6
Articles XIX/XL(e): 'The arbitrators shall be entitled to re-imbursement of all expenses but shall render their services gratuitously. . . .'

7
See Brochure No. 22 of the International Chamber of Commerce, pp. 34-38, esp. p. 34.

8
IVth ICC Congress, Stockholm, 27 June-2 July 1927, Brochure No. 50 of the International Chamber of Commerce.

9
Brochure No. 77 of the International Chamber of Commerce. In this regard, see remarks on 1931 amendment in Brochure No. 78 of the International Chamber of Commerce, pp. 80-83; R. Marx, commentary in World Trade, August 1931, pp. 301-308.

10
Brochure No. 83 of the International Chamber of Commerce, pp. 23-24. See commentary in World Trade, 1934, p. 11.

11
Brochure No. 89 of the International Chamber of Commerce (adoption of an annex concerning the composition and organization of the Court).

12
Brochure No. 100 of the International Chamber of Commerce, pp. 13-15. See commentary in World Trade, August 1939, pp. 47-48.

13
Brochure No. 117 of the International Chamber of Commerce. See commentary in World Trade, August 1947, p. 73-80, esp. p. 76.

14
Brochure No. 186 of the International Chamber of Commerce (idea of separate chairs for conciliation and arbitration).

15
See K.-H. Böckstiegel, 'The New Arbitration Rules of the International Chamber of Commerce of Commerce: From the Inception of the ICC Court to 1988' in Internationales Recht und Wirtschaftsordnung / International Law and Economic Order, Festschrift für F.A. Mann / Essays in Honour of F.A. Mann (Munich 1977) pp. 575-590.

16
On the reform, see especially The New 1998 ICC Rules of Arbitration, ICC ICArb. Bull., 1997 Special Supplement, ICC Publication 586 (Paris, 1997).

17
This expression has a special meaning here, as the Rules are not a statutory instrument. It simply means that the new version of the Rules will from that date apply to all proceedings that are commenced (cf. Article 6(1) of the Rules). On transitional measures, see R. Briner, 'The Implementation of the 1998 ICC Rules of Arbitration' (1997) 8:2 ICC ICArb. Bull. 7.

18
Published in the first issue of each volume. The 2007 Statistical Report can be found in the present issue at p. 5.

19
The Commission took up this matter during the period in question and approved a report compiled within a task force chaired by Yves Derains and Christopher Newmark (Techniques for Controlling Time and Costs in Arbitration).

20
See Article 1(2) of the Rules: 'The Court does not itself settle disputes. It has the function of ensuring the application of these Rules. . . . '

21
See Article 1(2) of Appendix I of the Rules: 'As an autonomous body, it carries out these functions in complete independence from the ICC and its organs.'

22
See Article 3(3) and (4) of Appendix I of the Rules.

23
See Article 4 of Appendix II of the Rules. This practice is based on the authorization to set up Committees given in Article 5 of Appendix I of the Rules.

24
See Article 4 of Appendix II of the Rules.

25
There are currently eight Vice-Chairman, from Australia, Austria, Egypt, France, Japan, Mexico, Singapore and the United Kingdom.

26
This is the traditional interpretation of Article 3(2) of Appendix I of the Rules, as compared with Article 3(1) of the same Appendix, which gives the right of proposal ('recommendation') to the ICC Executive Board.

27
In practice, a spell at the Secretariat can be considered as one of the best training schools for international arbitration law. Proof of this can be seen in the interest attracted by new vacancies and the success encountered by most former Secretariat members in their subsequent careers.

28
See M. Philippe, 'NetCase: A New ICC Arbitration Facility' in Using Technology to Resolve Business Disputes, ICC ICArb. Bull., 2004 Special Supplement, ICC Publication 667 (Paris, 2004) 53; id., 'New Upgrades to ICC NetCase' in the present issue.

29
See 'Secretariat Note on VAT and Other Taxes Applicable to Arbitrators' Fees' (2006) 17:2 ICC ICArb. Bull. 8.

30
See especially ICC's revised Constitution, adopted by the ICC World Council at Stockholm on 13 June 2008.

31
The note has been widely complied with, although some problems still persist.

32
New cost scales have been introduced, the latest of which dates from 1 January 2008.

33
See especially 'Techniques for Controlling Time and Costs in Arbitration', ICC Publication 843, paras. 15 and 26; I. Fadlallah, 'Payment of the Advance to Cover Costs in ICC Arbitration: the Parties' Reciprocal Obligations' (2003 14:1 ICC ICArb. Bull. 53; B. Hanotiau, 'The Parties' Costs of Arbitration' in Evaluation of Damages in International Arbitration (Paris: ICC, 2006) 213; K. Sachs, 'Time and Money: Cost Control and Effective Case Management' in Pervasive Problems in International Arbitration (London, 2006) 103; O. Sandrock, 'Claims for Advances on Costs and the Power of Arbitral Tribunal to Order their Payment' in G. Aksen, K.-H. Böckstiegel, M.J. Mustill, P.M. Patocchi, A.M. Whitesell, eds., Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner (Paris: ICC, 2005) 707.

34
See last sentence of Article 6(2) of the Rules: 'In such a case, any party retains the right to ask any court having jurisdiction whether or not there is a binding arbitration agreement.' The wording is in fact too narrow, because the issue could also turn on whether there was agreement to submit the arbitration to the ICC system.

35
In other words, there neither can nor should be any investigation, and neither the Court nor the Secretariat is required to ask the parties for additional explanations or comments.

36
Such practice has on occasions given rise to objections.

37
A.M. Whitesell & E. Silva Romero, 'Multiparty and Multicontract Arbitration : Recent ICC Experience' in Complex Arbitrations: Perspectives on their Procedural Implications, ICC ICArb. Bull., 2003 Special Supplement (Paris, 2003) 7.

38
This was as a consequence of the Dutco judgment rendered by the French Court of Cassation.

39
It is worth recalling that, in ICC arbitration in general, parties nominate their arbitrators in the majority of cases. In the other cases the appointments are made by the Court, which nonetheless represents quite a substantial number.

40
It is thereby possible to fix the language of the arbitration when this needs to be decided, 'agree' on a timetable, or require the parties to agree to pay advances to cover VAT.

41
A.M. Whitesell, 'Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators' in Independence of Arbitrators, ICC ICArb. Bull., 2007 Special Supplement, ICC Publication 690 (Paris, 2008) 7.

42
If there are no objections, the power to make the appointment lies with the Secretary General.

43
In this case, candidates must be able to make an unqualified statement of independence, as the parties are not invited to make comments before the appointment.

44
In this case, the initial decision taken by a Committee of the Court clearly does not have the force of a final decision, as the matter goes before the Plenary Session of the Court

45
It may be noted that in a particularly serious case, which raised essential procedural matters, the Court started replacement proceedings, which led to the arbitrator's resignation.

46
A recent statement made by the new ICC Chairman dispels any uncertainty that may have been caused by internal tensions.

47
This is why, in my view, no other institution whatsoever can 'administer' ICC proceedings, even if there has been much publicity around claims to the contrary made by some institutions.

48
The question would remain as to how, internally, the Secretariat and the Chairman can become informed of the progress of the proceedings, so as to be able to intervene if necessary (for instance in the event of difficulties or changes in the financial elements).