Request for arbitration / Language of the Request / Art. 3 of ICC Rules

The arbitration agreement in the contract specified that 'the arbitration shall be held in Paris and the language of the arbitration shall be English'.

'The Demande d'arbitrage dated April 21, 1988, and signed by the Claimant, arrived at the International Chamber of Commerce on April 26, 1988.

The English translation of the Demande d'arbitrage ("Request for Arbitration") dated July 26, 1988, arrived at the International Chamber of Commerce on August 17, 1988. [Respondent's reply and counterclaim were formulated in legal briefs dated September 15, 1988 and November 24,1988.]

The Terms of Reference were signed by the Claimant on June 16, 1989, and by the Respondent on June 26, 1989.

. . .

The Parties thus having failed to determine the applicable municipal arbitration law, the Arbitral Tribunal exercising the powers conferred upon it by Article 11 of the ICC Rules, finds that the law of the place of arbitration prevails, where the ICC Rules are silent . . . Consequently, French arbitration law is to be applied where the ICC Rules are silent.

The initiation of the arbitral proceedings

Under the Terms of Reference the Arbitral Tribunal is to decide whether the arbitral proceedings were properly initiated.

According to the Respondent, the Claimant could not validly initiate arbitral proceedings to be conducted in English by means of, on the one hand, a request in French signed by the Claimant, and, on the other, a request in English which is not signed by the Claimant.

The Claimant is of the opinion that the arbitral proceedings were properly initiated and that the Respondent's position is not in accordance with the applicable procedural law.

The Opinion of the Arbitral Tribunal

Absent a provision in the ICC Rules of the Arbitration specifically dealing with this issue and since Article 3 of the ICC Rules does not mention the language of the introductory request, it is the Arbitral Tribunal's opinion that the combination of the signed Request in French and the unsigned Request in English constitutes a valid initiation of the arbitral proceedings.

The Claimant's signature on the Request in French implies such Party's intention to commence arbitral proceedings, whereas the translation of this Request in English safeguards the Respondent's rights of defense.

The Arbitral Tribunal points out that under French procedural law, which in casu is applicable, legal proceedings may be invalidated only if the party invoking the invalidity can prove that its legitimate interests were harmed by the way the proceedings were initiated (see Section 114, para. 2 of the French Nouveau Code de Procédure Civile). The Respondent has not submitted such proof.

. . .

The arbitral proceedings were properly initiated.'