Arbitrage accéléré /Compatibilité avec le Règlement CCI, oui /Articles 2(8), 4, 14(1)

'These cases concern disputes that have arisen under contracts providing for the sale of natural gas originating in Canada to purchasers in the United States.

. . .

According to Clause 9D.6.1 of the Twelfth Amending Contract, each successive November 1, 1985, is called a "Redetermination date". In Clauses 9D.6.2-4, provision is made for the parties' renegotiating a redetermination of commodity charges and minimum volume obligations. Clause 9D.6.5 provides that the renegotiating shall be completed no later than fifteen days prior to the redetermination date and that, if no agreement is reached by that date, either party may elect, within ten days thereafter, by written notice, to have the proposed redeterminations decided by binding arbitration. Clause 9D.6.6 then goes on to provide that the arbitrators shall establish procedures such that a final decision will be rendered no later than sixty days after the redetermination date, which is December 30, 1991. However, in the instant cases, the parties have stipulated that the time for rendition of the award is extended to January 8, 1992.

In an admirable effort to comply with these provisions, the ICC International Court of Arbitration took all appropriate steps to have this Tribunal constituted as speedily as possible. The constitution of the Tribunal was completed, in compliance with the applicable ICC Rules, on December 23, 1991, when the last member of the Tribunal was confirmed.

The Tribunal, immediately upon its constitution, set a schedule for arbitrating such issues as would be subject to the fast-track procedure within the time frame allowed by the contracts. It directed that the parties make all their submissions, including all evidentiary materials, statements of witnesses and experts, and legal authorities, by 5:00 p.m. on December 30, 1991, and that the parties be afforded a hearing on January 2, 1992. The Tribunal also provided for each party's having an opportunity to cross-examine the witnesses, including expert witnesses, of any other party.

On December 27, 1991, the arbitrators and the parties also signed Terms of Reference which were transmitted to the ICC International Court of Arbitration in compliance with Article 13 of the ICC Rules. A copy of these Terms of Reference is attached to, and made part of, this Award.

The parties' submissions were duly made on December 30, 1991, and the hearing was held on January 2, 1992. The Tribunal deliberated and drafted the award immediately thereafter and submitted it to the ICC International Court of Arbitration for its approval pursuant to Article 21 of the ICC Rules.

. . .

The Tribunal will not address in this segment of the proceedings whether it has the competence to arbitrate the claims asserted by Claimant 1 that are not subject to the fast-track procedure. It will also decide this issue in a sequel to this fast-track segment. The Tribunal notes that Claimant 1 has asserted various claims that are not subject to the fast-track procedure and that Claimant 1 has invoked Article XIII as providing a proper basis for the Tribunal's competence to adjudicate those claims. However, since Clause 9 D.6.6(b) provides that no issues not covered by the fast-track procedure shall be determined, the Tribunal, without acknowledging that this provision necessarily precludes it from deciding this issue now, prefers addressing and deciding it later, when it will address all issues not covered by the fast-track procedure.

The only remaining question then is what procedure should be followed in arbitrating the issues not subject to the fast-track procedure. Clause 9D.6.6 provides that they shall not be arbitrated in the fast track proceedings prescribed for re-determination of the commodity charges and minimum volume obligations. It may be questioned whether this provision is compatible with the ICC Rules, which, in Article 14(1), provide that "[t]he arbitrator shall proceed within as short a time as possible to establish the facts of the case by all appropriate means" and authorises the Tribunal, after study of the submissions and hearing the parties, to render an award on such schedule as it finds appropriate.

In an effort to dispose of this problem, the Tribunal has suggested to the parties that they consider the desirability of agreeing upon a somewhat more relaxed, modified, fast-track procedure in which the Tribunal would address all issues raised by the parties. However, since the parties have not reached an agreement to this effect, the Tribunal must address the problem. Although it is of the view that the parties cannot force the Tribunal to follow procedures that deviate from those of the ICC International Court of Arbitration, the Tribunal prefers to avoid a possible attack upon its award on the ground that it exceeded its authority. It therefore rules that issues that do not properly arise in the redetermination process regulated by Clause 9D.6. will be addressed under a schedule that will afford the parties more time than allowed by Clause 9D.6.6 to present their cases. This schedule will be set by the Tribunal after consultation with the parties. It will meet Defendant 2's objection that it has not had an adequate opportunity to address these issues in the fast-track procedure.

Before determining which issues can properly be determined in the fast-track mode, the Tribunal must consider a preliminary question. That question is whether the fast-track procedure prescribed by Clause 9D.6.6 is compatible with the ICC Rules.

The Tribunal has concluded that, at least in the instant cases, there is no conflict that cannot be, or has not been, appropriately resolved. The ICC Rules provide in Article 4 that the respondent must submit its answer within 30 days. Respondents have submitted their answers within that time period. Furthermore, the Tribunal has been constituted, and its members have been confirmed by the ICC Court, in accordance with the ICC Rules. Article 2(8) provides that the parties must file their challenges of an arbitrator within 30 days after being notified of the arbitrator's appointment. However, in the instant case, the parties have accepted the arbitrators and the thirty days' limitation is therefore of no concern. Otherwise, the ICC Rules do not conflict with the provisions for fast-track arbitration in the contracts at hand. Indeed, Article 14(1) of the ICC Rules provides that the Tribunal shall proceed as fast as possible towards adjudication of the claims submitted. The fast-track procedure pursues the same goal. Furthermore, the procedure adopted by the Tribunal, under which the parties had to make all their submissions by December 30, 1991, and were heard on January 2, 1991, accords with the provisions of Clause 9D.6.6 of the Basic Contract, as amended by the Twelfth Amending Contract, the stipulation of the parties that the award may be rendered by January 8, 1992, and the applicable ICC Rules. The Tribunal therefore rules that the fast-track procedure followed in the instant cases does not conflict with the applicable ICC Rules.'