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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
I. Article 2(6) of the Rules
Article 2(6) of the Rules states as follows:
Where the Court is to appoint a sole arbitrator or the chairman of an arbitral tribunal, it shall make the appointment after having requested a proposal from a National Committee of the ICC that it considers to be appropriate. If the Court does not accept the proposal made, or if the said National Committee fails to make the proposal requested within the time limit fixed by the Court, the Court may repeat its request or may request a proposal from another appropriate National Committee.
Where the Court considers that the circumstances so demand, it may choose the sole arbitrator or the chairman of the arbitral tribunal from a country where there is no National Committee, provided that neither of the parties objects within the time limit fixed by the Court.
The sole arbitrator or the chairman of the arbitral tribunal shall be chosen from a country other than those of which the parties are nationals. However, in suitable circumstances and provided that neither of the parties object within the time limit fixed by the Court, the sole arbitrator or the chairman of the arbitral tribunal may be chosen from a country of which any of the parties is a national.
Where the Court is to appoint an arbitrator on behalf of a party which has failed to nominate one, it shall make the appointment after having requested a proposal from the National Committee of the country of which the said party is a national. If the Court does not accept the proposal made, or if said National Committee fails to make the proposal requested within the time limit fixed by the Court, or if the country of which the said party is a national has no National Committee, the Court shall be at liberty to choose any person whom it regards as suitable, after having informed the National Committee of the country of which such person is a national, if one exists.
II. Decisions taken by the Court in application of Article 2(6)
From an analysis of the positions taken by the Court, it is clear that this provision has given rise to a wide-ranging series of questions regarding its interpretation and application.
The precise but limited aim of the present note is to provide readers with an initial attempt at structured organisation and analysis of the content of the various solutions found by the Court in the application of Article 2(6).
The decisions of the Court relate to the appointment either of sole arbitrators or of chairmen of tribunals, or of co-arbitrators.
A. Sole arbitrator
In one case involving an arbitration being held in Ottawa (Canada), the Court examined a situation where a National Committee had proposed as sole arbitrator an individual who had knowledge of only one of the two languages used in the case.
The Court decided to apply to another National Committee and ask it to propose a sole arbitrator with knowledge of both languages of the arbitration.
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In a case concerning a multiparty arbitration taking place in Berne (Switzerland) stemming from a single consortium agreement where the arbitration clause had been signed by all three parties, the Court decided to appoint a sole arbitrator despite the claimant's waiver of the right to nominate a co-arbitrator and the fact that the amount in dispute was substantial. The Court took account of the fact that the two defendants (of different nationalities) did not agree either on the number of arbitrators or on the choice of a co-arbitrator.
The Court based its decision on the appropriateness of avoiding the difficulties that might have arisen if a tribunal consisting of three arbitrators had been constituted, in view of the need to comply with the principle of the "equal participation" of the parties in the constitution of the tribunal.
In the same case, the Court weighed the possibility of defendant 2 entering a counterclaim against defendant I in the same arbitral procedure. Because of opposition from the claimant, the Court decided that such a counterclaim could not be lodged in the same procedure and, in consequence, invited defendant 2 to commence a separate procedure in this regard.
B. Chairman of the tribunal
In a decision relating to an arbitration being held in Athens (Greece), the Court examined a case where the two co-arbitrators had jointly proposed an individual with the same nationality as the defendant to act as chairman of the tribunal.
The court confirmed this proposal without granting the parties any period of time for objecting to the appointment under the terms of Art. 2(6) of the Rules.
In a case set in motion in 1995, relating to an arbitration held in Vienna (Austria), the National Committee, which had been asked to nominate a chairman, had suggested the name of a person resident in the National Committee's country but who was not a national of that country. The Court confirmed the appointment of the individual suggested by the National Committee as chairman.
In an arbitration where the two co-arbitrators as well as one of the parties had British nationality, the Court decided to invite the UK National Committee to nominate the chairman.
The Court took the following factors into consideration:
• the co-arbitrators' British nationality;
• the apparent expectation of the parties;
• the place of arbitration (London);
• the applicable law (English law).
Accordingly, the Court applied to the UK National Committee, though in any case the parties still had a right to object, since the chairman of an arbitral tribunal cannot be chosen from a country of which one of the parties is a national unless they all consent.
The Court set in motion a case where the parties had agreed to submit their dispute - which stemmed from two interlinked contracts - to one single arbitration procedure. The arbitration clauses contained in the two contracts were completely different as regards the modalities for appointment of the chairman.
The first clause provided that - in the event of disagreement between the co-arbitrators - the chairman was to be appointed by the Chairman of the Court. On the other hand, the second clause provided for appointment in accordance with the Rules of the said Court.
The Court decided to grant the co-arbitrators a time limit within which to nominate the chairman by mutual agreement, failing which he would be appointed by reference to Art. 2(6) of the Rules.
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a) The Court dealt with a case with the following characteristics:
• it involved a claimant of German nationality and a Czech defendant;
• it provided for the application of Czech law.
In the light of the East-West nature of the dispute and the law applicable, the Court decided:
• to appoint a Hungarian chairman directly (at that time Hungary did not have a National Committee);
• to lay down a time limit for the parties to raise any objections they might have.
b) In a case between a Czech claimant and an American defendant subject to Austrian law, each party had proposed an arbitrator of its own nationality. The Court decided to appoint a Hungarian chairman directly.
c) In another instance, the Court also directly appointed the chairman of the arbitral tribunal without applying to a National Committee, taking into consideration:
• the parties' respective nationalities (Jordanian and Iraqi);
• the co-arbitrators' nationalities (dual nationality; Anglo-Lebanese and Anglo-Jordanian, respectively);
• the applicable law (Iraqi).
The Court decided to appoint - subject to any objection from the parties - a chairman originating from Bahrain (a country with no National Committee).
In a case where:
• the place of arbitration was Zurich (Switzerland);
• Swiss law was applicable to the merits;
• the claimant was of British nationality and the defendant Yugoslav;
• the arbitrator appointed by the claimant was of Swiss nationality and the arbitrator appointed by the defendant British,
the Court had decided to appoint a Hungarian chairman directly, in other words an individual from a country with no ICC National Committee (at the time). The Court had taken this decision essentially on the basis of the nationality of the parties and the co-arbitrators.
Within the time limit specified by the Rules, the British claimant opposed the said direct appointment by the Court. It based its objection on an alleged violation of the balance of the contract and of the neutrality the parties called for when selecting Zurich as the place of arbitration and Swiss law as the applicable law.
The Court therefore decided to apply to the Finnish National Committee to ask it to suggest a chairman.
In a case submitted to the Court where the place of arbitration was Berne (Switzerland), the Court set in place an arbitration with the following characteristics:
• as members of a consortium, the parties to the arbitration had been defendants in a parallel arbitration where the claimant was the third member of the consortium;
• this parallel arbitration had been conducted by a sole arbitrator;
• the same sole arbitrator had been appointed chairman in the arbitration in question.,
• this appointment had been opposed by the defendant;
• in both cases, the dispute had arisen out of the same consortium agreement.
The Court decided to apply to the same National Committee and ask it to propose a different person as chairman of the tribunal.
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In a case submitted to the Court concerning an arbitration procedure taking place in Geneva (Switzerland), the Court refused to appoint a chairman of the tribunal who was proposed by the Danish National Committee. The reason for its refusal was based on the candidate's previous conduct, as he had shown a certain lack of diligence and speed in administering other arbitration procedures.
In a case concerning an arbitration taking place in Prague (Czech Republic), the Court accepted the resignation of a chairman of the tribunal (appointed in accordance with the provisions of Articles 2(6) and 2(3) of the Rules), which he tendered in view of the fact that he had acted as counsel to an opponent of the claimant in another related arbitration procedure.
C. Co-arbitrator
In an arbitration being held in Geneva (Switzerland) submitted to the Court where the defendant had refused to communicate the address of the arbitrator that it itself had nominated, the Court decided to appoint a co-arbitrator in the interest of the said party.
In situations where several claimants or defendants fail to agree on the nomination of a common arbitrator, this may result in direct appointment by the Court, and therefore no preliminary application to a National Committee for a proposal is made. For example, in an arbitration taking place in Geneva (Switzerland), the Court considered a case where two defendant parties of different nationalities had refused to nominate their common co-arbitrator.
Although both the defendants' respective countries had a National Committee, the Court decided that instead of applying to a National Committee it would directly choose an arbitrator of a different nationality from either of the parties. This practice by the Court of appointing an arbitrator directly is obviously only possible provided the defendants or claimants are of different nationalities; otherwise, the Rules provide that the Court must apply to the National Committee of the country of which the parties in question are nationals when such a committee exists.
In an arbitration being held in Stockholm (Sweden), the defendant had nominated as co-arbitrator a person who had already acted as a co-arbitrator nominated by the same defendant in a previous arbitration between the same parties based on the same contract. Despite opposition from the claimant, the Court confirmed the said appointment.
In the same case, the Court, having to appoint the chairman of the arbitral tribunal, also examined the circumstances arising from the fact that:
• the claims submitted in the second arbitration stemming from the same contract had not been examined in the first arbitration;
• the claimant had nominated a different co-arbitrator;
• the claimant had objected that the chairman, who had acted in the first arbitration, be appointed for this case.
The Court decided to request a proposal from a different National Committee than the one it had applied to in the first case.