A medical term was needed to be able to qualify certain arbitration clauses. They had to be given the generic name of "pathological clauses".

This name clearly demonstrates the situation of state tribunals, arbitrators and especially the institutions charged with organizing arbitration, including the International Court of Arbitration, when faced with such clauses.

Experience shows that the demands of the business world are often perceived in such a way by the players concerned that they prefer to win a contract rather than verify the protection and reliability afforded by the clauses to which they commit themselves.

Once there are problems with the merits, lawyers try to use their imagination to "upgrade" the pathological arbitration clauses, often under pressure from their writers, who remain convinced of the good quality of the clauses drafted by them.

The purpose of this paper is not to make an in-depth legal analysis of such clauses but to discuss a few interesting examples submitted to the International Court of Arbitration of the ICC.

The favor arbitratis known throughout the world should not prompt abandonment of the founding principle of arbitration, i.e. the existence of a valid arbitration agreement. When such an agreement refers to ICC Arbitration Rules, identification problems may also occur.

I.

The imagination of one of the parties has prompted it to submit an arbitration request based on a clause worded as follows:

In case of necessity, the ICC Paris shall be called upon.

This sentence led the Court to determine that there was no prima facie agreement to arbitrate and consequently prompted the Court to apply Article 7 of the ICC Arbitration Rules.

This typical case does not carry particular legal difficulties but raises the question of the intention of the parties. The clause in question gives the impression that the parties considered the Court as an institution to be called upon to help out the proper execution of the contract, instead of an organizer charged with settling disputes arising from its execution. This view of the judge's role is unfortunately rather widespread. The judge is supposed to settle all problems encountered, not just disputes. The clause resembles an appeal for support.

In another case the parties submitted an arbitration application based on the Uniform Customs and Practice for Documentary Credits, published by the ICC, to which the contract referred.

Obviously, the Court noted the lack of an arbitration clause and also applied Article 7 of the Arbitration Rules. The application was directed against four defendants. Two rejected the arbitration; the other two did not respond. Here the question at issue is not what was the intention of the parties, but what was the intention of the parties who decided to submit an arbitration application. Were they unaware that the rules on documentary credits do not contain a reference to arbitration? This interpretation is hard to accept. In fact, it is inconceivable that the persons who prepared the application failed to acquaint themselves with the rules on documentary credits.

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The most likely explanation would be that those who submitted the arbitration application were aware that there was no arbitration clause but preferred to settle the dispute by arbitration instead of one or more actions before the public courts. They decided to take advantage of the reference: to the ICC, thus hoping to establish a basis for their choice.

In fact, nothing prevents a party from stating in its Request for Arbitration that it applies for arbitration despite the absence of an arbitration clause, and from referring clearly to Article 7 of the ICC Arbitration Rules. Such a Request could be accepted and give rise to arbitration if the defendant agreed to settle the dispute this way.

However, once a dispute has emerged, it is almost impossible to imagine that the defendants would voluntarily agree to arbitration proceedings not provided for earlier, as witness the many exceptions and nullities argued by defendants when there already is a valid arbitration clause. It is therefore legitimate to think that the plaintiffs or their counsel submit arbitration applications expressed this way in order not to appear naive or any case to support their reasoning at least superficially.

The foregoing examples concerned cases in which there was no arbitration clause. However, there are also cases of ICC arbitration clauses which are void of substance and unsuitable for the use intended by the parties when inserted in the basic contracts.

This was the case with an arbitration clause inserted in a construction surveillance contract submitted to the FIDIC Conditions, which contained a blank space which the parties were supposed to fill out with the applicable arbitration rules. In signing the contract, the parties had omitted to fill out the blank part of the arbitration clause. The plaintiff argued that the FIDIC Conditions provide for ICC arbitration and that a blank space in the arbitration clause necessarily referred back to the FIDIC and therefore to the Arbitration Rules of the ICC. Obviously, the International Court of Arbitration held that there was no reference to the Arbitration Rules of the ICC.

This case is radically opposed to the one mentioned before. The writer of the application tried - intelligently - to "save" an arbitration clause and, perhaps, to "protect" the over-hasty user of a draft contract.

This latter example demonstrates the lack of synchronization which may exist between the different departments of a single company and what practitioners call "legal self-service". For various reasons, many people believe that "law" is merely a matter of common sense and that theirs is better than that of others.

The International Court of Arbitration of the ICC has often had to deal with arbitration clauses which provided for ICC arbitration, but in an erroneous manner. This is the case with clauses in which reference to the ICC is followed by the name of a city. Whenever the wording, however defective, is enough to indicate that the ICC itself is concerned, the International Court of Arbitration does not hesitate to consider itself charged by the parties with the organization of the arbitration and appoints a sole arbitrator or an arbitration tribunal.

The reasoning of the Court is based on the legal principle that terms capable of two meanings must be construed in a meaning in which they have effect rather than in a meaning in which they could not produce any effect. Even so, the words used must have meaning, and the ICC must he identified.

II.

In many other cases, the ICC is clearly identified and its Rules of Arbitration may even be referred to directly in a contractual clause, but the writers of the clause insert provisions which distort or contradict the Rules of Arbitration.

This is the case with clauses providing for the appointment of two arbitrators and, only in case of disagreement between them, the appointment of an umpire to decide between them.

The same applies to clauses stipulating that the arbitrators will be appointed by the parties, who will determine their fees, and that their appointment may not be confirmed by the Court.

This also applies when the arbitration clause stipulates that the award may not be examined by the International Court of Arbitration.

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According to the text of the Rules of Arbitration from which the terms of the clause derogate, the Court either grants the parties time in which to come to an agreement, failing which the arbitration cannot take place, or agrees to set in motion the arbitration.

Thus, there have been cases in which the International Court of Arbitration held that the appointment of an umpire at the end of the proceedings to decide between the arbitrators is not valid, According to the ICC Arbitration Rules, the whole arbitration tribunal must be formed before the start of the proceedings.

On the other hand, it has held that such a clause is valid if the three arbitrators are appointed at the start of the proceedings, in which case the president may pronounce the award alone in case of disagreement, according to Article 19 of the Rules.

In such cases, the Court was empowered to refuse to set in motion the proceedings, on the basis of either Article 7 of the Rules, according to which an arbitration cannot proceed when an arbitration agreement does not specify the International Chamber of Commerce, or Article 3 of the Statutes of the International Court of Arbitration, vesting on it all necessary powers to ensure the application of the Rules of Arbitration.

Appointment of arbitrators by the parties without the Court's confirmation, determination of the arbitrators' fees by the parties and the absence of review of draft awards by the International Court of Arbitration, are derogations to characteristic provisions of the ICC Arbitration Rules.

In fact, the Court could no longer exercise any control over the arbitrators if it could not confirm their appointment and did not set their fees. If it did not have power of confirming and, as applicable, appointing arbitrators, the Court would be unable to replace an arbitrator who resigned or became unable to carry out his functions, if such arbitrator were not replaced by the appointing party.

The situation would become even more complicated if' a replacement could be made only upon agreement between the two parties to the arbitration.

It may also be asked whether an arbitrator not confirmed by the Court could be subjected to a request for replacement or a challenge, whose result could only be a final stalemate.

This is why the Court, in a particular case, refused to set in motion the proceedings based on an arbitration agreement which stipulated that appointments, challenges and replacements of arbitrators were to be decided by a ministerial authority from the defendant's country. Similarly, in application of Article 3 of its Statutes, the Court rejected an arbitration clause under which it was not involved in the appointment of the co-arbitrators or the determination of their fees and did not examine the draft award.

Lastly, even if the Court's examination of draft awards only concerns the form and, indirectly, problems of ultra and infra petita, and not the merits of the dispute submitted to the arbitrators, it is very useful and practical.

Legally, the Arbitration Rules also enable the Court, "without affecting the arbitrator's liberty of decision" to "draw his attention to points of substance". Examination of the award prompts arbitrators to apply high standards, since they know they will be checked, and in any case helps correct the draft award in case of clerical errors.

All such clauses are not necessarily void in themselves. However, they belong to the area of ad hoc arbitration instead of ICC arbitration, and it is easy to see why the Court cannot agree to accept responsibility for the organisation of arbitration proceedings to which it would only lend its name and Secretariat. Moreover, the services of the Secretariat would be limited to forwarding documents in such cases.

Frequently, the parties, or at least one of them, have refused to remedy these causes when the Secretariat and subsequently the Court informed them that arbitration could not proceed. However, this situation would have been easy to remedy by an exchange of correspondence with the Secretariat in order to modify the clauses concerned and to include such modification in the Terms of Reference. The reason for refusal is obvious. Once a dispute has arisen, the best defence is to make sure that no action is brought or to make it as difficult as possible.

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It is more difficult to discover the underlying reason for such clauses. Given such minute details, it is impossible to believe that the parties were in a hurry or lacked common sense. Was one or were all of the parties really or voluntarily unaware of the Arbitration Rules? Were the provisions of the Rules incorrectly construed?

Here one can only conjecture.

What makes this especially serious is that scrutiny of such clauses tends to prompt the conclusion that they were drafted by lawyers. Are such lawyers the real authors or did they merely "pick up the pen"?

It is impossible to answer these questions. Perhaps owing to its success, ICC arbitration is increasingly popular and therefore reaches parties and lawyers who are not yet sufficiently aware of its mechanisms, despite an increasing number of seminars and colloquia which are held on this theme. Therefore, there is a need for a wider circulation of information among parties and lawyers.

Will it one day be possible to rediscover harmony and simplicity in a world with an increasingly dense and, unfortunately, often confused corpus juris?

Whatever the future may bring, the ICC Arbitration Rules are a model of simplicity and effectiveness compared with other texts.

And no text will ever be able to replace personal investigative effort.