Défaut de la partie défenderesse de participer à la procédure/ Pouvoir du tribunal arbitral de procéder néanmoins à l'accomplissement de sa mission/ Art. 15 (2) du Règlement/ Acte de mission approuvé par la Cour/ Devoir du tribunal arbitral de vérifier les prétentions de la partie demanderesse et d'ordonner la présentation d'arguments et la production d'éléments de preuve fondant la demande/ Notifications et communications faites à la dernière adresse connue du destinataire/ Art. 6 (2) du Règlement/ Sentence valide et exécutoire nonobstant le défaut de la partie défenderesse.

'Claimant filed a request for arbitration with the ICC against a public entity which failed to file a response to the request.

[...]

The Arbitral Tribunal arranged for a hearing for the purpose of agreeing on the terms of reference and determining the further course of the arbitration. It sent draft terms of reference for the parties' review and drew the parties' attention to the fact that the terms of reference would be finalised and signed at the hearing, even in the absence of one party.

The hearing for the terms of reference was then held as scheduled. Defendant did not appear. Since it had received due notice of the hearing, all forwarded by DHL, which confirmed delivery to the arbitrator prior to the hearing, the sole arbitrator proceeded with the hearing. Counsel for the Claimant and the Arbitral Tribunal finalised and signed the terms of reference.

[...]

Since Defendant had not put forward any defense, the Arbitral Tribunal specified in the terms of reference that it would assume that Defendant opposed the claim in full and requested its dismissal as well as an order that Claimant shall bear the arbitration costs.

[...]

The Arbitral Tribunal sent (by fax and by DHL, which confirmed delivery at the address stated in the terms of reference) a copy of the signed terms of reference to Defendant for signature and return by October 15, 1993. The Arbitral Tribunal also wrote that, failing a response, it would request the ICC International Court of Arbitration to take the necessary steps to allow the arbitration to proceed despite Defendant's lack of approval of the terms of reference. Defendant did not react to this communication.

On November 17, 1994, the ICC International Court of Arbitration approved the terms of reference and granted Defendant an additional thirty day time limit for signature.

On November 30, 1993, the ICC resent copies of the entire correspondence in the arbitration to another address communicated by Claimant and extended the time limit for the signature of the terms of reference for another thirty day period.

Such time period elapsed unused and on January 20, 1994 the Arbitral Tribunal rendered procedural order no. 1 giving directions for an exchange of briefs and a hearing for the examination of witnesses and presentation of oral arguments to be held on May 18 and, if necessary, May 19, 1994 in Paris. Such hearing was held as scheduled, in the absence of Defendant.

[...]

Defendant did not participate in this arbitration. Pursuant to Article 15 (2) ICC Rules and to the general practice in international arbitration, an arbitration may proceed despite the non-appearance of the respondent, if the latter has received due notice of the proceedings. However, the arbitrator does not give a default award without review of the merits like some state courts. The arbitrator is under a duty to test the assertions made by the active party and to call for such evidence and legal argument as may be required to this end (see for instance, Alan Redfern/Martin Hunter, International Commercial Arbitration, 2d ed., London 1991, p. 381).

In this arbitration, Defendant has received due notice of the proceedings. Pursuant to Article 6 (2) ICC rules, notices are valid if made at the last known address provided by the party or its opponent. The ICC and the Arbitral Tribunal have complied with this requirement for all notices and communications. They have even gone further by sending many communications by fax first and confirming them then by courier, by re-sending all earlier correspondence to a new address, and by sending communications to two addresses at the same time. Moreover, DHL, which forwarded communications sent by courier, has confirmed delivery for all such communications. In addition, Defendant has been granted three successive time limits for the signature of the terms of reference and the proceedings did not continue prior to the expiration of the last of such time limits.

The Arbitral Tribunal also expressly drew Defendant's attention to the fact that the arbitration would proceed even if it were not to participate.

Furthermore, the Arbitral Tribunal has fully complied with its duty to test the assertions made by Claimant. Indeed, in its review of the merits, it assumed that Defendant opposed Claimant's claim in full and it asked the Claimant to supply it with factual and legal clarifications as well as to produce additional evidence in support of its claim.

As a result, these proceedings complied with applicable rules in the event of default and this award is valid and enforceable despite Defendant's failure to appear.'