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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
1. This study initiated by the editors of the ICC International Court of Arbitration Bulletin has the great merit of showing how arbitrators respond to the indications given in Articles 18 to 23 of the ICC Rules of Arbitration (hereinafter 'the Rules') relating to procedure. It will be noted that the recommendations, suggestions, instructions and decisions issued by arbitrators on procedural matters do not have to take any particular form. In this respect they differ from the arbitrators' decisions on the merits, which in ICC arbitration must be in the form of an award, with the attendant requirement, laid down in Article 27 of the Rules, that the award be submitted to the ICC International Court of Arbitration (hereinafter 'the Court') in draft form before being rendered. Arbitrators can therefore express themselves on matters of procedure in ordinary correspondence or decisions without any special formal characteristics. Diversity is thus the rule in matters of procedure. The present publication, however, is limited to 'orders', which term reflects an imitation of the solemnity of court rulings. 1 Yet, as can be seen from the orders reproduced, the problems dealt with are more varied in international arbitration than in judicial proceedings. It is important to mention that the Rules encourage flexibility, since the rules of civil procedure created for courts do not apply in arbitration2 and the influence of State laws on the conduct of arbitration has declined. 3 Along with this flexibility goes a large measure of freedom, which is also reflected in the Rules. 4 If we look at the Terms of Reference, Article 18 invites arbitrators to provide particulars of the procedural rules but not to stretch the limits of the Terms of Reference by inserting detailed regulations that are impossible to foresee at an early stage of the proceedings. 5 The UNCITRAL Notes on Organizing Arbitral Proceedings-to which, it may be noted, none of the arbitrators refers in their decisions, notwithstanding the fact that their relevance is not limited to ad hoc arbitration-recognize that there is no need for arbitrators systematically to consider all of the issues covered. Instead, arbitrators are encouraged to select specific matters depending on the procedural circumstances. 6 Each [Page6:] case should be treated in accordance with its specific needs. Given that there has been a certain 'litigization' of arbitration proceedings, 7 arbitrators nonetheless feel obliged to regulate procedure down to the smallest detail.
2. Some arbitrators go to the extent of drafting a full set of procedural provisions at an early stage of the proceedings, contemporaneous with the Terms of Reference, even though their orders contain nothing to suggest that problems already abound in their cases. One order takes six pages to discuss such matters as the agenda for the hearing, its location, the examination of witnesses and documentary evidence. It does no more than touch on these points, however: despite a bombastic style redolent of outdated court drafting, the problems are simply put off and remain unresolved. It is said that the rooms (for the tribunal, the witnesses and counsel) must be of a satisfactory size, that the duration of the hearings will be decided on the spot, and that the parties are invited to raise any problems they may have at the start of the hearing. The tribunal's policy would appear to be 'wait and see'. This is not flexibility, but a lack of foresight. Another order requires a witness's declaration to bear a photo of the witness (although it spares the parties details about size). It could be conceded that such a collection of photos was not entirely unwarranted, since the tribunal had decided not to exercise control over who would testify at the hearing, as all persons who had submitted written testimony were to be summoned. Yet another order, running to three pages, sets out a sort of charter for the interpreter, covering the selection of the interpreter by the parties and the interpreter's qualifications, independence, duty to translate well and correctly, obligation to maintain confidentiality and remuneration. These decisions have not been selected for publication but have been returned to the archives. Those that have been selected were chosen for the interest they offer as illustrations of good use made by arbitrators of their freedom to organize the arbitration or solve a particular problem.
Autonomy and procedural freedom
3. Arbitration proceedings should be characterized by freedom and by the parties' acceptance of the measures adopted by the arbitrators in consultation with the parties. The succinctness of Articles 20 and 21 of the Rules relating to establishing the facts of the case and hearings is explained by the parties' autonomy affirmed in Article 15 dealing with the rules governing the proceedings, which, we repeat, are not dictated by national law. There is a concern to avoid the risk of inadmissibility, nullity and other sanctions encountered in court proceedings and, happily, this concern is shared by many arbitrators.
4. The submission of briefs and evidence should not be subject to rigid deadlines rendering such submissions inadmissible once the deadline has passed. The arbitral tribunal in case 12944 rejected a claim for inadmissibility on such grounds, considering that there was still enough time left before the hearing for the documents to be examined (§§ 2.4-2.6):
[claimant] has more than sufficient time to address the contents, including any assumptions, data or expert opinion set forth in any of the challenged expert documents prior to the Witness Hearings.
Moreover, the other orders contain no examples of such a sanction in the event that a deadline set by the arbitral tribunal is not met. On the contrary, extensions are granted to the extent that they do not upset estimations of the foreseeable duration of the [Page7:] proceedings (see order of 10 September 2003 in case 12545 and order of 29 November 2004 in case 12946).
5. It is also worth looking at the order of 23 November 2004 in case 12124. It relates to the admission of hearsay evidence and explains that arbitrators acting under the Rules are under no obligation to apply the rules of evidence in force at the place of the arbitration or any other national law, unless the parties have agreed otherwise. The reference in Article 20(1) of the Rules to 'all appropriate means' for establishing the facts of the case shows that there is no preference for a particular system of evidence. 8 The order of 12 May 2003 in case 12169 recalls the freedom enjoyed by arbitrators in relation to evidence (§ 13):
The Tribunal is not bound by any strict rules of evidence. It may receive and rely upon any evidence it considers relevant and helpful and will determine the relevance, materiality and weight of the evidence before it.
6. The order of 6 July 2004 issued in case 12570 in relation to an attempt at conciliation undertaken in the course of the arbitral proceedings further illustrates the non-coercive nature of arbitration and the desire for a dialogue between the parties and with the arbitral tribunal. 9 Before continuing to stay the proceedings, the arbitral tribunal set the parties a time limit in which to inform it of their reactions to the conciliators' recommendations, along with a firm reminder that the arbitral tribunal would see to it that the proceedings continued in an ordered fashion in the event that negotiations failed. In so doing, the tribunal encouraged the parties to collaborate in the conduct of the proceedings and tried to take advantage of the discussions between the parties to clarify the issues to be resolved:
4. Should the conciliation not bring about an amicable settlement/resolution of the
dispute, this Tribunal will stand prepared to adjudicate any remaining issues in a carefully and expeditiously structured arbitral process.
5. In fact, the arbitral process, if it should take place, could significantly benefit
from the presently pending conciliation procedure, in that-during the conciliation procedure-the key issues on which the Parties disagree and were unable to "cross the bridge" would most likely come out in a clear fashion, allowing the Parties then to focus on these key issues in any resulting arbitration.
Although national traditions concerning the involvement of the courts in conciliation vary considerably, and are sometimes even diametrically opposed, 10 the orders published here show an awareness of conciliation on the part of arbitrators, as the consensual nature of arbitration prevents it from being excluded. 11 The order of 31 July 2003 in case 12279, issued at the stage of the Terms of Reference, which encourages the parties to accept a conciliation phase in the proceedings and does so with insistence (§ 11)-
The Tribunal strongly urges the parties to engage in a mediation with an experienced mediator. This is a complex matter that will be expensive to arbitrate, and the outcome is never certain. Mediation works and will give both sides the opportunity to manage their risk and to control the outcome in a confidential setting. [Page8:]
-is an example of how far the arbitrators' involvement can go, with the prior consent of the parties, one should add, 12 as the fact that they turn to arbitration means they have been unable to resolve their dispute. Otherwise, a suggestion such as this should wait until the hearings have taken place. The Terms of Reference are nonetheless an important stage in the proceedings, during which the parties often settle on some or all of the issues that have been identified by the arbitral tribunal.
Organization of the proceedings
7. Arbitrators are subject to few dictates other than that of establishing the facts of the case as quickly as possible (Article 20 of the Rules), without infringing the adversarial process evoked in Article 15(2) of the Rules. To establish the facts of the case within as short a time as possible by all appropriate means, as required by Article 20 of the Rules, it is essential that the different stages of the proceedings be anticipated and prepared. 13 To this end, the Rules lay down a number of steps that arbitrators should take into consideration when establishing the facts and deciding the case. Article 18(4) requires that a provisional timetable be established when drawing up the Terms of Reference. This requirement obliges arbitrators to engage in a minimum of planning, although without any rigidity as the same article permits modifications to be made so as to keep things reasonable. Article 22 on the closing of the proceedings invites arbitrators to exercise rationality by calling upon them to inform the Secretariat of the approximate date on which, having completed their deliberations, they will be in a position to submit their draft award to the Court (case 12464).
8. Bound as they are by a duty of diligence towards the parties, arbitrators must be reasonable in planning the proceedings. Their expectations may be thrown off course by various events arising during the proceedings, such as the opening of insolvency proceedings against one of the parties (case 12702). Another example of such an event is an attempt at conciliation leading to a stay in the arbitration proceedings, as illustrated in case 12570 referred to above. Unless a time limit has already been agreed by the parties, arbitrators have a responsibility to keep any parallel conciliation proceedings or attempt at an amicable settlement within reasonable time limits. 14 The existence of parallel arbitration proceedings may also affect the progress of the proceedings. This can be seen in cases 11922 and 11995, where a different decision was reached in each case: a stay of proceedings was ordered in the first case but refused in the second. It is important to note that in both cases the arbitrators were concerned to ensure that the proceedings lost none of their speed. In the case in which the stay was refused, the parallel proceedings were at a less advanced stage than the case being heard by the arbitrators. In the case in which the stay was granted, a partial award had been rendered in the parallel proceedings on issues affecting the case being heard and that award had been challenged in the State courts and was the subject of an application for correction, while the length of the stay was not expected to be excessive. The procedural efficiency that informs cases 11922 and 11995 is also emphasized in the order of 12 April 2004 in case 12510 (II, § 8), referred to above:
Article 35 of the Rules, understood in the context of the actual reliability expected from international arbitration, provides support to the Tribunal's position, and even Article 20,1 ibidem-cited in Claimants' Opposition-may supply further support because, in the same context, the speed called for in such provision shall not be served if under the [Page9:] guise of rushing an arbitral tribunal does not consider and sets aside factors that may delay or complicate the effectiveness of a given decision.
9. The organization of the proceedings should ideally be determined jointly with the parties as early as possible, so that everyone knows how much time will be required for the case. Many of the orders reproduced here deal with this at the same time as fixing the provisional timetable for the case. Let it be said once again that although Article 18(1)(g) invites arbitrators to provide particulars of the applicable procedural rules, it does not require them to indicate in the Terms of Reference how they intend to organize the details of the proceedings. The various measures and steps relating to procedure should rather be dealt with in a decision separate from the Terms of Reference, which are of a contractual and binding nature due to the fact that they are signed by the parties and the members of the arbitral tribunal. 15 Thus, after conferring with the parties, the arbitrators carry out the task of adapting the highly succinct procedural framework set out in Articles 20 and 21 to the requirements of the case through orders which they issue upon completion of the Terms of Reference, when starting to prepare the case.
10. It will be noted that, for reasons of rapidity and therefore efficiency, these decisions are very often signed only by the chair of the arbitral tribunal, albeit on behalf of the entire tribunal since a task as important as the general organization of the proceedings far surpasses the individual powers of the chair of an arbitral tribunal. Indications on how the tribunal is to function collectively should only be included in a procedural decision-as in case 13054 (§ 15):
Except where a request for extension is entirely dismissed, the Chairman of the Arbitral Tribunal, acting alone, will be authorized to extend any procedural time-limit set to the parties during the course of the arbitration proceedings.
-if the parties have first given their consent. Preferably, such indications should appear in the Terms of Reference as part of the particulars to which the aforementioned Article 18(1)(g) refers. This is because, where parties have appointed more than one arbitrator to judge their case, it is necessary and desirable that all the arbitrators should authorize anything for which the chair cannot be considered to be solely competent.
The order of 19 May 2004 in case 13046 (§ 11.1)-
The Chairman is authorized to sign alone procedural orders on behalf of the Arbitral Tribunal, after consultation with the co-arbitrators. In case of urgency, the Chairman may decide on procedural matters alone.
-states that it will be acceptable for the chairman to sign procedural orders alone only if the co-arbitrators have first been consulted and hence, presumably, after a collective discussion of the decision to be made. This provision in the order admittedly respects the plurality of a three-member arbitral tribunal, but should not be thought to dispense with the need to seek the approval of the parties, at least as a precaution. The urgency mentioned in the order as authorizing the chair to act alone does not exempt the chair from informing his or her colleagues of the decision as soon as circumstances allow and, if the latter express disagreement, it would be desirable to revise the measure if possible. 16
11. Orders dealing with the general organization of the proceedings should cover problems that actually occur. The submission of written case records is a recurring issue. In international arbitrations, the parties usually produce a considerable number of written documents, which the arbitrators must be able to consult and access quickly [Page10:] so as to organize their work well and save time. It is worth singling out the order of 19 May 2004 issued in case 13046 as a good example of a rational system of organizing written document production (see §§ 2, 3 and 4). The order invites each of the parties to order their briefs and documentary evidence when submitting them and to adopt a system of consecutive numbering that avoids mistakes and misunderstandings over the party producing the document. Each party and each arbitrator will thus have the same list. Many of the procedural orders (e.g. cases 12206 and 13225) are directly or indirectly inspired by the IBA Rules on the Taking of Evidence in International Commercial Arbitration or incorporate them as procedural rules by way of reference (case 12296). However, incorporation by reference may lay the future award open to censure by some State courts in the event that the IBA Rules are misapplied. 17 These Rules (originally issued in 1999, a new version has been released in 2010) contain useful information on documentary, witness and expert evidence, which will need dealing with if it becomes an issue. 18
Witnesses and experts
12. An arbitral tribunal is under no obligation to hear all the witnesses put forward by the parties, as reflected in the wording of Article 20(3) of the Rules ('The Arbitral Tribunal may decide to hear witnesses . . .' (emphasis added)). The Rules do not define the term witness. The parties may call upon numerous individuals to give testimony, including their own representatives. It should also be pointed out that in international arbitration witnesses are rarely outsiders unknown to the parties, but more often than not employees, technicians or officers who have been involved in one way or another in the performance of the contract in dispute. Many procedural orders mention that any person, including a party's officer or legal representative, may be a witness. Examples will be found in cases 13046 (§ 5.3) and 13054 (§ 7):
Any person may be a witness, including a Party's officer or director.
Any individual, including parties and their representatives, may be a witness.
The Rules also refer in Article 20(3) to 'experts appointed by the parties or any other person', which means either an expert witness (as opposed to a fact witness) or a consultant from whom an opinion is sought, including, for example, on a question of law. Given the great diversity of people who may be called upon to take part in the proceedings, it is useful for the arbitrators and the other party to know where they stand, so as to avoid difficulties and surprises concerning the nature of their testimony. There is also the question of the weight to be given by the arbitral tribunal to a particular testimony, which is summed up as follows in case 13046:
5.8. Witnesses who are affiliated with a Party shall be treated in the same manner as witnesses not affiliated with a Party, without prejudice to the relevance, weight and materiality of the evidence offered by a witness affiliated to a Party.
The need for oath-taking in such circumstances has declined, although an isolated exception is found in case 12761 (order of 12 March 2004, § 2). Persons called upon to testify should nonetheless be made aware of the importance of the statements they make, as pointed out in case 13046:
7.6. Witnesses of fact will not be heard under oath but the chairman shall draw their attention to the fact that the Tribunal requests them to tell the truth, the entire truth [Page11:] and nothing but the truth and shall ask them to confirm that they will comply with this request.
13. The order of 19 May 2004 in case 13046 invites the parties to name in their various briefs the persons they wish to hear as witnesses or experts. The parties are requested to annex to their various briefs the statements made by witnesses or experts and to include information on the identity of the person making the statement, that person's relations with the parties and the subject of the testimony:
5.5. The Witness Statements shall be in sufficient detail so as to stand as examination in chief of the witness . . . at the Witness Hearing.
Witness statements are also important as a means of preparing for the hearing-and the tribunal's reaction, should it decide that, while respecting the adversarial process, there is no need to hear a particular person-and allowing the other party to exercise its right to a cross-examination.
Parties generally take it upon themselves to summon their own witnesses to the hearing, as in case 12990:
4.3. Each party shall be responsible for summoning its own witnesses to the applicable hearing . . .
Unlike witnesses, the parties' 'authorized representatives' mentioned in Article 21(4) of the Rules must be summoned to hearings by the arbitrators because this term is to be understood as the persons representing the parties in the proceedings.
The arbitral tribunal will not take account of statements made by people who unjustifiably refuse to obey a summons to appear, as mentioned in cases 13046 (§ 5.7) and 12990 (§ 4.7):
Where the witness duly summoned to appear at the Hearing is not able to attend for valid reasons, the Arbitral Tribunal shall in principle not be entitled to consider his written statement, except if extraordinary circumstances so warrant.
The Arbitral Tribunal shall not consider the witness statement of a witness who fails to appear and does not provide a valid reason.
The procedural order of 16 December 2003 in case 12575 tells us (§ 4) that if witness statements are an integral part of the evidence, then it is necessary for the witness to appear at the hearing, to be cross-examined and to confirm the written statements he or she has made. This is a practical illustration of the principle of an adversarial process.
14. One may be skeptical about the need for the provisions on the appointment of experts by the arbitral tribunal that we find in cases 13046 (§ 9) and 13054 (§ 14). It is not the contents of these provisions that should be decried-for the arbitrators state that the selection of the expert and the determination of the expert's mission shall be carried out jointly with the parties and that the expert will be questioned by the parties after submitting his or her report-but rather the need to provide for the appointment of an expert when there would appear to be no justification that such a measure is needed, especially as the order has already dealt at length with party-appointed experts, whose input should suffice, and given that the tribunal cannot know whether or not it is appropriate to order an expertise until the parties' experts have made known their findings.
15. The hearing must be meticulously prepared so as to avoid untoward events and loss of time. This, too, is shown in the procedural orders published here. The order issued in case 13046 regulates the sequence in which parties intervene (claimant first), and the questioning of the witnesses and experts (§§ 7.3-7.5). Unlike the experts, the fact [Page12:] witnesses remain outside the hearing room while other fact witnesses are delivering their testimony, so that there is no risk of the latter being influenced. Whether or not a party's officers and employees who have been called upon to testify should be present during the testimony of other witnesses is to be decided by the arbitral tribunal after consultation with the parties, as the officers and employees might already be present in the hearing room with the parties' lawyers (§ 7.8). However, it is important not to exaggerate the spontaneity of the testimonies received. One of the procedural orders (case 12169) allows witnesses to be prepared for the hearing by the parties' counsel, which is a practice now accepted in arbitration proceedings: 19
9. It shall be proper for the representatives of the parties, including Counsel, to interview any prospective or potential witness whom that party considers calling.
Attention should be drawn to the importance of the provisions affirming the arbitral tribunal's supervisory powers over the hearings, which we find in the procedural orders in cases 12290 (§ 4.10) and 13046 (§ 7.5(e)):
the Arbitral Tribunal shall at all times have complete control over the procedure in relation to a witness giving oral evidence, including the right to recall a witness and to impose reasonable limits, on its own motion or at the request of a Party, on the right of a Party to conduct an examination in chief, a cross-examination or re-examination if it appears to the Tribunal that such examination or evidence is unlikely to serve any further relevant purpose.
Hearing
16. The hearing at which the parties present their pleadings also requires careful preparation by the arbitrators, whether it be the order in which the parties are heard or the way in which the hearing is conducted, so as to achieve the speed and efficiency paramount in any arbitration proceedings. As elsewhere, the tribunal should be guided by equal treatment of the parties, as illustrated by case 13046:
8.2. The principle of equal time for each Party shall be observed for the Hearing for Oral Argument.
The fairness of the proceedings is asserted in Article 15(2) of the Rules but needs to be expanded. The details found in the order of 10 February 2004 in case 12154, which is devoted specifically to the preparation of the hearings, perfectly illustrate the matters to which the attention of arbitrators and parties should be drawn. The decision describes a number of events-late arrival, unsolicited interruptions from the other party or the tribunal leading to a reduction in the hearing time allotted to the party causing the interruption, while ensuring flexibility by allowing for adjustments to give additional time to a party to answer questions from the tribunal:
3. The following list illustrates categories of activity typically charged against each Party's time:
- late arrival;
- oral submissions;
- examination of witnesses (irrespective of who proposed the witness, but subject to adjustment in the event of insistent unresponsiveness on the part of the witness);
- causing an unjustified interruption or prolonging a justified interruption (thus, for example, an unsuccessful objection is generally charged against the Party which made it, and a successful objection against the Party which resisted it); [Page13:]
- setting up displays while the Arbitral Tribunal is sitting;
- caucuses between the Parties while the Arbitral Tribunal is sitting (such time is charged equally against both sides).
4. Time used for follow-up questions posed to witnesses by the Arbitral Tribunal will be charged to the examining party. Where the Arbitral Tribunal pursues lines of inquiry independent of the Parties' questions, time will be charged equally to both Parties. The Chairman may make adjustments to the time balance in the event that the Arbitral Tribunal's questions are extensive (i.e. taking more than thirty minutes in a single day).
To avoid objections that would upset the conduct of the hearing, another arbitral tribunal (case 13046) regulated the use of tables, charts and other explanatory documents produced in support of pleadings by asserting that none of these documents should contain evidence that has not already been produced in the proceedings:
4.7. The use of demonstrative exhibits (such as charts, tabulations, etc.) is allowed at the Witness Hearing and the Hearing for Oral Presentation, provided that no new evidence is contained therein. Each Party shall number its demonstrative exhibits consecutively ("C-demo...", "R-demo..."). A hard copy of any such exhibit shall simultaneously be provided by the Party submitting such exhibit to the other Party and to each member of the Tribunal.
Procedural incidents
17. Here we shall deal with language, confidentiality, and the consolidation and stay of proceedings, all of which are discussed in the procedural orders published here. The language of the proceedings is a tactical choice, for the reference to legal structures and concepts and a style of procedure will in particular be determined by the choice made. Where parties have not expressed their intention, it will be interesting to turn to arbitration practice for examples of the 'relevant circumstances' to which Article 16 of the Rules on the choice of language refers. It is conceivable that the need to decide on the language does not always arise as a result of disagreement, and an agreed solution may be found and, for example, recorded in the section of the Terms of Reference giving particulars of the relevant procedural rules. When this proves impossible, the procedural orders drawn up in cases 12584, 12754 and 13155 show that the parties' customary use of a given language during their contractual relations is a decisive factor. The language of the contract, which is expressly mentioned in the aforementioned Article 16 of the Rules as one of various relevant circumstances to be taken into consideration by the arbitral tribunal, and the substantive rules chosen by the parties for their dispute are also important factors (see case 12584, §§ 9-16). The parties' origins and the legal background of their lawyers cannot be overlooked either. The conclusion that may be drawn is that the arbitrators give a balanced interpretation of Article 16 of the Rules, pragmatically allowing the parties the possibility to submit documents in a language other than that of the proceedings when the contractual context shows that the parties have also used other languages and these are mastered by their counsel and the arbitrators (case 12946, order of 23 November 2004). The use of interpretation and translations may also be mentioned, including for witnesses (case 13046, § 10), if the cost is not prohibitive for the parties. 20 There is no need to wait until the Terms of Reference before deciding on the language: Article 15 is sufficiently flexible to allow the arbitral tribunal to deal with the question as soon as required. Alternatively, the Terms of Reference could be drawn up in the same language as the contract and the language of the proceedings listed as one of the issues to be determined. [Page14:]
18. The confidentiality of the proceedings, which protects trade secrets, is often cited as one of the attractions of arbitration compared with litigation in the courts. Case 12242 offers an interesting example of a party being accused of leaking information on the arbitration to the press. The arbitral tribunal found that the respondent had unwisely disclosed information on the proceedings and, 'referring to the general principles of international arbitration law', invited the parties to correct the inaccuracies in the published information and show caution in the future by issuing joint press releases when communicating information. 21 Views differ on the underpinnings of confidentiality, which is seen as a tacit obligation deriving variously from the arbitration agreement, from a 'customary principle' as mentioned in the order in case 12242, from a statute or from the applicable arbitration rules. 22 Although confidentiality exists in the common interest of the parties, they may choose to waive it or, on the contrary, make it subject to strict limits. Article 20(7) of the Rules allows the arbitral tribunal to 'take measures for protecting trade secrets and confidential information'. If the parties wish to strengthen the obligation of confidentiality, then this will create additional work for themselves and their lawyers in association with the arbitral tribunal, which in practice will increase the legal costs they have to pay. The foregoing remarks concern the confidentiality of the proceedings. When it comes to awards, a different approach applies: if it is in a party's interest to refer to an award in another case, the party should be entitled to disclose what is necessary to conduct its defence in that case.
19. The consolidation of a request for arbitration with an arbitration that is already pending is contemplated by Article 4(6) of the Rules where the request concerns the same legal relationship and the same parties as are involved in the pending arbitration. 23 Whether or not the proceedings are to be consolidated will be decided by the Court prior to the Terms of Reference and thereafter by the arbitral tribunal in accordance with Article 19 of the Rules, which spells out the conditions for admitting new claims falling outside the limits of the Terms of Reference. 24 The strict conditions laid down in Article 4(6), which could notably cause the Court to refuse to consolidate the proceedings, cannot prevent the parties from subsequently attempting to coordinate two or more cases, as shown in case 12510. This may be achieved by staying one of the cases so as to avoid the risk of contradictory decisions and the negative effect of res judicata. 25
Interim measures
20. It is now generally agreed that arbitrators may order interim and conservatory measures alongside State courts. 26 Such measures may be decided at the outset, without waiting for the Terms of Reference to be drawn up, as is clearly explained in the order of 25 November 2003 in case 12779 (section III.2):
The arbitral tribunal is constituted as soon as the file has been transmitted to it (Art. 13, ICC Rules of Arbitration). Certainly, the arbitral tribunal's first duty is to draw up the [Page15:] Terms of Reference. Yet, if the arbitral tribunal is requested to rule on an application for urgent interim measures, it is obvious that priority will be given to this step in the procedure. Besides, as soon as the tribunal has been constituted and has received the file, it is empowered to order interim measures, by virtue of both general law represented by Article 183 PILA and the ICC Rules, which in Article 23 give this power to the arbitral tribunal 'as soon as the file has been transmitted to it'.
It is unnecessary in ICC arbitration to refer to a national law conferring such power, especially as most national laws now accept that such measures can be ordered by arbitrators. This trend has already been observed27 and is confirmed in the procedural orders published here, where the decisions are made without reference to a national law, or with only a secondary reference to national law (order of 25 November in case 12779 and order of 6 June 2003 in case 12035 (§ 34)).
Applications for security for costs, which made their much noted appearance in arbitration with the Ken Ren case, 28 are a typical example of such measures requested of the arbitrators. In all cases (12035, 12228, 12393, 12853) the application is rejected as the applicants were unable to justify the need for the requested measure. The order of 6 June 2003 in case 12035 goes even further, pointing out that, given the financial difficulties experienced by the claimant, security for costs could lead to a denial of justice by making access to arbitration even more costly for the party in difficulty (§§ 3.1-3.2.5).
21. Article 23 of the Rules leaves it up to the arbitrators to decide whether their decisions should take the form of an order or an award. In both cases, the reasons for the decision must be given. Readers will find extracts from awards relating to interim measures in an earlier issue of this Bulletin. 29 When choosing between an order and an award, arbitrators should be guided by appropriateness and flexibility rather than by urgency, which does not characterize all interim measures. Apart from Article 23, the Rules remain silent on the question, and Article 2 simply describes awards without defining them. There are certain matters, like jurisdiction (case 12779) and applicable law (cases 11754 and 12949), on which it would be preferable for the parties to have a response before pleading on the merits and which may be best decided in a form other than an award. In this case, care will need to be taken, for instance by seeking the agreement of the parties and incorporating the decision in a subsequent award (case 11754, § 12), so as not to deprive the parties of their right of recourse against an award (case 12779), for which reference should be made to the arbitration law at the seat of the arbitration. 30 Interestingly, by extending the provisions on the correction and interpretation of awards in Article 29 to an order issued pursuant to Article 23, the procedural order of 6 January 2003 in case 11451 assumes that the decision that has been made is res judicata, at least with regard to the considerations existing on the day it was rendered.
Conclusion
22. Procedure is the area par excellence in which arbitrators reveal their know-how. Their skill here is an indication of their ability to manage an arbitration. It is important that arbitrators should not become trapped in a system inimical to the flexibility that characterizes arbitration and the adaptability of the procedure to the parties' needs. The real role of procedural orders is to resolve important questions. However, such [Page16:] formalization would often be unnecessary when arbitrators create a dialogue with the parties. If there is no real reason for them, a succession of procedural orders dealing with insignificant matters contributes to the 'litigization' of arbitration and can only be a sign of sham procedural activity. To use the words of the distinguished arbitrator, Professor Claude Reymond, it is important to preserve the flexibility and elegance of arbitration.
1 See S. Lazareff, 'L'arbitre singe ou comment assassiner l'arbitrage' 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 (ICC, 2005) 477.
2 See J.-F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Bruylant/LGDJ/Schulthess, 2002) at 483ff.
3 See E. Gaillard, 'Aspects philosophiques du droit de l'arbitrage international' in Collected Courses of the Hague Academy of International Law, vol. 329 (2007) (Nijhoff, 2008) 49 at 135ff.
4 See J.-J. Arnaldez, 'Réflexions sur l'autonomie et le caractère international du Règlement d'arbitrage de la CCI' (1993) Journal du droit international 857.
5 See J.-J. Arnaldez, 'L'acte déterminant la mission de l'arbitre' in Etudes offertes à Pierre Bellet (Litec, 1991) 1
6 See P. Fouchard, 'Une initiative contestable de la CNUDCI à propos du projet de « directives pour les conférences préparatoires dans le cadre des procédures arbitrales »', (1994) Revue de l'arbitrage 461, reproduced in Philippe Fouchard, Écrits (Comité français de l'arbitrage, 2007) 415.
7 See P. Fouchard, 'Où va l'arbitrage international ?' (1989) McGill Law Journal 435, reproduced in Philippe Fouchard, Écrits (Comité français de l'arbitrage, 2007) 393.
8 See D.B. King & L. Bosman, 'Rethinking Discovery in International Arbitration: Beyond the Common Law/Civil Law Divide' (2001) 12:1 ICC ICArb. Bull. 24.
9 See F. Nariman, 'Mediation and Arbitrators' in Arbitration in the Next Decade, ICC ICArb. Bull., 1999 Special Supplement (ICC, 1999) 43
10 K. Sachs & N. Schmidt-Ahrendts, 'Settlement Efforts in Arbitration', Revista de Arbitragem e Mediação, Ano 7, n° 25, abr.-jun./2010, p. 161.
11 F. Nariman, 'The Spirit of Arbitration: The Tenth Annual Goff, Lecture' (2000) 16:3 Arbitration International 261.
12 K. Sachs & N. Schmidt-Ahrendts, supra note 10.
13 See K.-H. Böckstiegel, 'Major Criteria for International Arbitrators in Shaping an Efficient Procedure' in Arbitration in the Next Decade, ICC ICArb. Bull., 1999 Special Supplement (ICC, 1999) 49.
14 .See Techniques for Controlling Time and Costs in Arbitration (ICC Publication 843, 2009) para. 43, p. 28.
15 See S. Lazareff,' Terms of Reference' (2006) 17:1 ICC ICArb. Bull. 21.
16 See Article 33(2) of the 2010 UNCITRAL Arbitration Rules.
17 See B. Hanotiau, 'Document Production in International Arbitration: A Tentative Definition of "Best Practices"' in Document Production in International Arbitration, ICC ICArb. Bull., 2006 Special Supplement (ICC, 2006) 113.
18 See B. Hanotiau, 'Civil Law and Common Law Procedural Traditions in International Arbitration: Who has Crossed the Bridge?' in Arbitral Procedure at the Dawn of the New Millennium (Bruylant, 2005) 83.
19 See W. Park, 'Arbitrators and Accuracy' (2010) 1:1 Journal of International Dispute Settlement 25.
20 See Techniques for Controlling Time and Costs in Arbitration (ICC Publication 843, 2009) para. 19, p. 20.
21 See J. Paulsson & N. Rawding, 'The Trouble with Confidentiality' (1994) 5:1 ICC ICArb. Bull. 48.
22 See H. Bagner, 'The Confidentiality Conundrum in International Commercial Arbitration' (2001) 12:1 ICC ICArb. Bull. 18.
23 See 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 (ICC, 2003) 7. See also P. Level, 'Joinder of Proceedings, Intervention of Third Parties and Additional Claims and Counterclaims' (1996) 7:2 ICC ICArb. Bull. 36.
24 See E.A. Schwartz, '"New Claims" in ICC Arbitration: Navigating Article 19 of the ICC Rules' (2006) 17:2 ICC ICArb. Bull. 55.
25 See B. Hanotiau, 'The Res Judicata Effect of Arbitral Awards' in Complex Arbitrations: Perspectives on their Procedural Implications, ICC ICArb. Bull., 2003 Special Supplement (ICC, 2003) 43.
26 See J.D.M. Lew, 'Commentary on Interim and Conservatory Measures in ICC Arbitration Cases' (2000) 11:1 ICC ICArb. Bull. 23.
27 Ibid.
28 Voest Alpine v. Ken Ren Chemicals and Fertilizers, Q.B. Commercial Court, London, 3 September 1992.
29 Vol. 11 No. 1 (Spring 2000), pp. 37-116.
30 Swiss Private International Law Act, Articles 186(3) and 190(3); see J.-F. Poudret & S. Besson, supra note 2 at 749ff.