I. The Rules

Article 18 of the ICC Rules of Conciliation and Arbitration (the Rules) is written as follows:

Time limit for award

1

The time limit within which the arbitrator must render his award is fixed at six months. Once the terms of Article 9(4) have been satisfied, such time limit shall start to run from the date of the last signature by the arbitrator or of the parties of the document mentioned in Article 13, or from the expiry of the time limit granted to a party by virtue of Article 13(2), or from the date that the Secretary General of the International Court of Arbitration notifies the arbitrator that the advance on costs is paid in full, if such notification occurs later.

2

The Court may, pursuant to a reasoned request from the arbitrator or if need be on its own initiative, extend this time limit if it decides that it is necessary to do so.

3

Where no such extension is granted and, if appropriate, after application of the provisions of Article 2(11), the Court shall determine the manner in which the dispute is to be resolved.

Until 1988, extension of the time limit under Article 18(2) required evidence of the existence of extraordinary circumstances.

This obligation has been left out of the current wording of Article 18(2) in order to reflect the reality of international arbitration. In fact, even without exceptional circumstances, it is in most cases impossible to meet the time limit of six months.

Article 13(2) of the Rules vests the same power in the Court as stipulated in Article 18(2) for the time limit by which the arbitrator must transmit the Terms of Reference to the Court, signed by the parties and the arbitrator himself. This period is two months from the date on which the file is transmitted to the arbitrator.

For some time now, talks have been in progress and some reforms of the Rules have been contemplated. One of the most important reasons for this is the widespread criticism that ICC arbitrations are slow. Hence, it is altogether possible that the Rules on time limits and control of such time limits by the Court will be amended. I myself believe that this issue requires prudence and care.

First of all, such criticism is not always fair or well-founded.

In fact, arbitrations often involve complex disputes which would also require much time if they were submitted to other types of judiciary or arbitration proceedings.

Second, speed should not be considered a purpose in itself. The right starting point, and in my experience the one considered essential by the Court, is a good balance between satisfactory progress and quality proceedings.

II. Control in practice

In practice, the lawyers of the Court's Secretariat verify the progress of the arbitration proceedings monitored by them.

[Page73:]

If an arbitrator does not pay enough personal attention to progress and time limits, the Secretariat draws his attention to this situation and prompts the arbitrator to speed up the proceedings.

Based on information received from the Secretariat, the Court, generally within the framework of its closed committees, decides whether to extend the time limits or not.

If the requested extension is accepted, which is generally the case, the time limits in Article 13 and 18 are normally extended by two months and three months respectively.

Time limits may also be extended more specifically. For example, a short time limit may be granted in order to prompt the arbitrator to speed up the proceedings.

But whatever the situation, it is obvious that the time limits stipulated in the Articles 13 and 18 are too short and must be extended in most arbitrations.

Control of time limits by the Court is less easy in practice than in theory. Often, one or more of the parties delays the proceedings, whether for dilatory reasons or not, whether for good reasons or not, and whether or not in agreement with the arbitrator.

It also happens that the arbitrator does not advance rapidly enough, whether for valid reasons or not.

Of course, in this case it is the Court's task to push the arbitrator to act more speedily or to take certain measures.

However, there may of course be reasons that are not sufficiently known to the Court or which are hard to evaluate; in such a case, usurpation of the arbitrator's position by the Court should be avoided.

Moreover, the measures available to the Court often entail further delays and added costs, as in the case when one of the arbitrators is replaced during arbitration.

III. Examples of the Court's decisions

Below follow some examples of cases in which the Court accepted or rejected requests for extension of time limits.

Examination of these decisions shows that the Court is generally guided by the specific features of each particular case and does not stand on fixed principles other than to ensure the good progress of the proceedings.

This is the logic behind decisions involving administrative issues and procedural technique, rather than actual legal problems or theory of law.

Because of the ad hoc nature of such decisions, they will be discussed chronologically, starting with 1988.

The stated year corresponds to the year in which the Court met to take a decision, not the year in which arbitration started or ended.

• In a 1988 case, at the claimant's request, the Court agreed to extend the time limit on the basis of Article 18(2), given that the competent judge had ordered enforcement of a partial award in the same arbitration proceedings and it was not yet known whether the defendant would appeal against this decision by the stipulated time limit.

• In a second case in 1988, the Terms of Reference had been signed and were ready for communication to the Court by virtue of Article 13. The parties jointly requested the Court's Secretariat not yet to forward the Terms of Reference to the Court, as a result of which the case remained for a long time dormant without clear instructions from the parties. The Court decided that it could not allow the proceedings to wait too long and that the right balance had to be found between the Court's service to the parties and its operation. Accordingly, the Court granted the parties a last time-limit to make their intentions known, failing which the Terms of Reference would have to be transmitted to the Court.

• In 1988 again, the Court decided that it did not have the jurisdiction needed to accept the [Page74:] claimant's request for suspension of the arbitration. The request was based on the fact that a Court of Appeal had declared void the arbitration clause between the parties, and therefore it would be necessary to wait for a decision from the Supreme Court. The Court held that it could not accept this request because an arbitral tribunal had already been formed to which the file had been forwarded.

• In a case examined in 1989, the Court took the view that the time limits had been extended in accordance with Article 13 of the Rules and that the fact that the arbitrators but not the parties had been informed of these extensions were without influence on the extensions' regularity.

• In another 1989 case, the defendant did not respond to the arbitrator's repeated communications. Accordingly, the arbitrator refused to request a new time limit under Article 13(2) of the Rules. The Court agreed with the arbitrator's position and refused to grant a further time limit.

• In 1990, when filing his declaration of qualified independence, the co-arbitrator, nominated by the claimant, declared that he would be unable to meet the time limit of six months stipulated in Article 18. The Court decided that this was not sufficient reason to disqualify the arbitrator.

• In 1990 again, the Court was requested to grant a longer time limit than six months, in accordance with Article 18(2). The Court decided that it was entitled to do so under Article 18(2) and accepted the requested extension.

In this decision, it is remarkable to see the Court return to the criterion of exceptional circumstances, previously removed from Article 18(2).

• Still in 1990, the Court's Secretariat proposed to extend the time limit in order to enable the arbitral tribunal to make certain corrections in a final award. The Court did not accept this request and stated - in reference to the applicable Swiss law - that is was not necessary to grant an extension since the final award had been notified to the parties.

• In 1992, in the context of four related fast-track arbitrations, the Court confirmed that the parties had waived the time limits stipulated in the Articles 13 and 18 of the Rules, given that the arbitration clause called for a final award within 60 days from the stipulated date.

• In a 1993 case, in which the parties had submitted a settlement for approval to a bankruptcy Court and therefore had lost interest in the arbitration, the Court decided that there was no reason to grant extension under Article 18(2).

• In 1994, an arbitral tribunal requested the Court no longer to accept extension under Article 13. The assets of one of the claimants had disappeared and the other claimant was unable to pay its part of the advance on costs.

Even so, the Court granted a last extension of 15 days.

• Lastly, in 1995, the Court decided that it had no reason to extend the time limit set in the Terms of Reference given that the claimant had withdrawn its claim and that the defendant had failed to provide further information about its counterclaim.

Conclusion

As already explained, examination of the Court's decisions concerning time limits shows that it takes account of the special circumstances of each case.

This pragmatic approach seems right to me.

A more formal approach based on predetermined principles would not sufficiently reflect the fact that it was the parties which opted for arbitration and that their intention must prevail. Moreover, arbitrations are often too disparate for a narrower approach.

Although I am not against a certain reform of the Rules, among others in order to speed up proceedings, I believe that the existing time limit control system works rather well and that its basic principles need to be preserved.

[Page75:]

Briefly, I believe that these basic principles are to:

• ensure good progress of the proceedings and therefore to maintain fixed time limits, which may only be modified on reasoned request;

• preserve the Court Secretariat's important function as a source of control and initiative;

• permit a certain flexibility in the Court's decisions to accept or reject extensions of time limits.

In other words, any reform should seek to avoid an excessively rigid system - as regards control of time limits - which would counter the relative flexibility necessary to take into account the specific features of the arbitration concerned.