Counterclaims / Admissibility of counterclaims filed after the time limit of Art. 5 of the ICC Rules and prior to the drawing up of the Terms of Reference, yes / Arts. 5 and 13 of the ICC Rules

Claimant's plea of tardy lately submission of counterclaims no. 4 to 9 by Respondent

Claimant submits that Respondent's counterclaims no. 4 to 9 cannot be examined by the Arbitral Tribunal because they have not been filed by Respondent within the time limit provided for in Article 5 of the ICC Rules.

Article 5 of said Rules provides that "if the Defendant wishes to make a counterclaim, he shall file the same with the Secretariat at the same time as his answer as provided for in Article 4".

As counterclaims 4 to 9 have not been filed at the same time as Respondent's answer, Claimant considers that said counterclaims are time barred.

In point of fact, the above-mentioned counterclaims have not been filed at the time of Respondent's answer. They have been filed later on but before the drawing up of the Terms of Reference. The Arbitral Tribunal included the said counterclaims and Claimant's objection in the Terms of Reference, subject to examination and decision on this objection.

It appears to the Arbitral Tribunal that no sanction has been provided for in Article 5 for failure by Respondent to file its counterclaims at the same time as its answer to the request for arbitration. Instead, Article 13 of the Rules provides that before proceeding with the preparation of the case, the arbitrator shall draw up, on the basis of the documents or in the presence of the parties, "and in the light of their most recent submissions", a document defining his Terms of Reference.

Counterclaims 4 to 9 were indisputably among Respondent's most recent submissions when the Terms of Reference have been drawn up since they have been included therein.

Therefore, Respondent's counter-claims 4 to 9 are not time-barred.'