The ICC recommends to parties wishing to resort to arbitration under the aegis of its International Court of Arbitration, to insert the following model clause in their contract: "All disputes arising in connection with the present contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules."

This clause consists of an agreement between the contracting parties covering three points: resort to arbitration; submission to the ICC Rules of Conciliation and Arbitration and finality of the forthcoming award, which will not be subject to any means of recourse.

But parties do not always reproduce the proposed clause word for word; moreover, they may not even be aware of the existence of the model clause. Instead, they often manifest their intention to submit their disputes to ICC arbitration using a form of anomalous wording leading to clauses often referred to as "pathological clauses".

The Request for Arbitration is filed with the International Court of Arbitration Secretariat and communicated to the Respondent for its comments. The file is then transmitted to the Court which has the task of setting in motion the procedure by appointing or confirming the arbitrators and determining the advance on costs.

In some instances, the parties' agreement does not at first sight clearly specify that there is to be resort to arbitration; or contains an express reference to an administrative agency other than the ICC; or yet again it may contain provisions that are fundamentally inconsistent with the ICC Rules. In such cases, Article 7 of the said Rules enables the Court to disregard the Request for Arbitration immediately by stating that the arbitration cannot proceed.

On the other hand, when the parties have prima facie agreed to have recourse to arbitration and have shown an apparent intention of using the ICC's facilities, Article 8(3) of the rules allows the Court to set in motion the procedure by constituting the arbitral tribunal, and that tribunal will then have the task of ruling on its own jurisdiction by an award that is not appealable. In so doing, the Court acts as an administrative agency and does not make any formal pronouncement on the arbitrators' jurisdiction.

Article 8(3) may be applied to cases falling in a first group of clauses, where there exists an agreement to arbitrate followed by diversified wording such as:

"International Chamber of Commerce of Geneva;"

"International Chamber of Commerce, Geneva Office;"

"International Chamber of Commerce of London;"

"Chamber of Commerce of Paris;" "Arbitration at Zurich in accordance with ICC Rules;"

"Arbitration by three arbitrators at the Netherlands Arbitrage Instituut in The Hague;"

"Paris Chamber of Commerce;"

"Arbitration before the Swiss ICC National Committee in Zurich;"

"Arbitration Court of the Chamber of Commerce in Zurich";

"Arbitration of ICC, The Hague," and Delhi as place of arbitration;

"International Court of Arbitration in Paris;"

"Arbitration Court in Zurich, Switzerland;"[Page12:]

"International Commercial Arbitration Board in Geneva;"

"Paris Chamber of Arbitration."

In all these cases, the Court held that it was likely that the parties had adopted ICC arbitration and had chosen Paris, London, Zurich or Delhi as the place of arbitration, and that the decision on this question was therefore a matter to be submitted to the arbitral tribunal,

A second category is concerned with Requests for Arbitration containing a clearer reference to ICC arbitration, and, accordingly, the Court has also applied Article 8(3) for such clauses referring to:

the ICC Rules of Conciliation and Arbitration with no indication of an express arbitration agreement and of the manner in which arbitrators are to be appointed;

the Rules of Conciliation and Arbitration of the "International Chamber of Commerce of Paris";

the "Practice of international arbitration as provided at the Chamber of Commerce of Paris";

the "Arbitration Commission of the Paris Chamber of Commerce and Industry";

the "Substantive law of the ICC";

"Arbitration by the International Chamber of Commerce of Paris";

the "Foreign Trade Arbitration Commission in Paris" (translated from Polish).

In some instances, the Court takes account of the fact that the organisation referred to has no arbitration institution, as in the case of the "Brussels Chamber of Commerce". When the description of the arbitration institution is incomplete, the presence of parties of different nationalities and the choice of the law of a third country as the applicable law are then factors that may lead to the presumption that the parties intended to resort to an international arbitration like that of the ICC.

The errors in clauses referring incompletely, or which may be deemed to refer, to the ICC, could be grouped into various categories. For example, a first group could comprise clauses which, irrespective of any specific localisation, refer to an arbitration institution - be it a commission, court or office - which they define by the addition of the adjective "international", so that this word then seems the determining factor. A second could comprise clauses which refer to a "Chamber of Commerce" or "Court of Arbitration" situated in Paris, In this second category, the place (Paris) together with the international nature of the dispute - such as the fact that the parties are of different nationalities - are key factors enabling the prima facie existence of an ICC arbitration agreement to be determined. Lastly, a third group would comprise clauses, which are less common, that refer to a Chamber of Commerce but with no indication of the word 'international' or its being situated in Paris.

In certain cases, the parties have inserted procedural provisions in their contract that are not specified by the Rules. For example, one clause indicated that the arbitrators were to be nominated by the courts of Geneva and Lausanne, but in fact the parties themselves chose their co-arbitrators directly. Another clause provided for a consultation with experts or engineers as a preliminary measure before the arbitration, while another empowered the Chairman of the Lagos Chamber of Commerce to appoint the chairman of the arbitral tribunal and the co-arbitrators if the parties failed to do so.

The Court considers that none of these provisions fundamentally contravenes the Rules, since article 2(1) specifies that the parties may themselves provide for the appointment of arbitrators. Moreover, there is no indication in any subsection of Article 2 that the arbitral tribunal obligatorily has to consist of 1 or 3 arbitrators, although Article 19 of the Rules specifies that if there is no majority, the award is to be made by the Chairman of the arbitral tribunal alone.

Lastly, occasionally parties draw up arbitration clauses which provide not only for recourse to ICC arbitration but also for recourse to national courts or other rules of arbitration at one and the same time. There can be found clauses referring both to:

the International Chamber of Commerce and the Supreme Court of the State of New York;

the International Chamber of Commerce and Algerian courts;

the Rules of the International Chamber of Commerce and the Rules of Arbitration and [Page13:] conciliation of the United Nations Economic Commission for Europe;

the International Chamber of Commerce of Paris and the Chamber of Commerce of Tirana;

ICC arbitration and national courts;

an ad hoc arbitration followed by an ICC arbitration;

ICC arbitration and "Inter-American Commercial Federal".

In all these cases, the Court has restricted itself to finding that the parties have agreed prima facie on ICC arbitration. Thus the arbitral process was set in motion, and the arbitrators had the task of settling the apparent contradiction contained in the clause.

If, after the constitution of the arbitral tribunal and payment of the advances on costs, one of the parties still raises a plea against the arbitral tribunal's jurisdiction, the arbitral tribunal will then seek the common intention of the parties by taking note of the circumstances and exchanges of letters and documents that led to the conclusion of the contract, as well as the attitude of each party to the contract during its performance.

We may conclude that, although the International Court of Arbitration will not systematically decide that it has jurisdiction over every single Request for Arbitration filed with the ICC, it does lend its support to the parties by enabling their case to be decided by an arbitral tribunal, even where their arbitration clause can be dubbed "pathological".