Appointments to the ICC Court in 2004

During 2004, nine new members were appointed to the ICC International Court of Arbitration, which now comprises a total of 124 members from 86 countries. The appointments were made by the ICC World Council at its 187th and 188th sessions held respectively in Marrakesh, Morocco, and Paris, France.1

At the 187th session on 10 June 2004, the following appointments were made:

Members

Carlos E. Jorquiera M (Chile)

Giorgi Begiashvili (Georgia)

Chong Wah Wong (Malaysia)

Bandar Salman Al-Saud (Saudia Arabia)

Alternate member

Campbell McLachlan (New Zealand)

At the 188th session on 3 December 2004, the following appointments were made:

Members

José Ramón Jiménez Carbo (Ecuador)

Ernesto Lima Mena (El Salvador)

Tomas H. Herrera Diaz (Panama)

Mohamed Abdulla Al Roken (United Arab Emirates)

Alternate member

Gabrielle Kaufmann-Kohler (Switzerland)

All of the above appointments were made for the remainder of the current term, which runs until 31 December 2005.

Staff changes at the Secretariat of the Court

On 1 January 2005, the following changes will take effect amongst senior members of staff at the Secretariat of the ICC International Court of Arbitration. These changes reflect the increasing variety and scope of ICC's dispute resolution services.

Jennifer Kirby will take over as Deputy Secretary General of the ICC Court upon the departure of Eduardo Silva Romero, who is returning to private practice in the Paris office of an international law firm after more than six years with ICC. Ms Kirby, who holds British and US citizenship, has been with the ICC Court since 2002, as Counsel in charge of one of its case management teams.

Emmanuel Jolivet, who has been General Counsel of the ICC International Court of Arbitration since 2000, will in addition become Deputy Director of ICC Dispute Resolution Services for services other than arbitration.

Katherine González Arrocha, Senior Counsel, will, in addition to her present responsibilities, oversee matters relating to arbitration in Latin America - an area in which Mr Silva Romero has been particularly active. She will work in liaison with Dyalá Jiménez Figueres, ICC's local representative for dispute resolution services in Latin America, who is based in Santiago, Chile.

Two changes have also been made amongst the Counsel in charge of the Secretariat's case management teams, with the recent appointments of Cristián Conejero Roos and Rudolf Carlos Hömberg.

Mr Conejero is a Chilean citizen. He began his law studies at the Catholic University of Chile and subsequently obtained an LLM from Columbia University in the City of New York, USA, where he was also awarded the Parker School Recognition for Achievement in International and Comparative Law for his thesis on the impact of the UNCITRAL Model Law on International Commercial Arbitration in recent Latin American arbitration laws.2 He is a member of the Bar in Chile, where he practised litigation and arbitration for three years with a leading law firm in Santiago. Prior to joining ICC, Mr Conejero was an associate with an international law firm in New York, where his activity focused on project finance and capital markets. He speaks Spanish, English and French.

Mr Hömberg is a German citizen. After graduating from the University of Bonn Law School, where he specialized in private international law and comparative law, Mr Hömberg obtained a master's degree in European Union law from the University Carlos III Law School in Madrid, Spain, and was subsequently admitted to the Bar in Germany. Bilingual in German and Spanish and fluent in English and French, Mr Hömberg has worked in the fields of corporate and commercial law and arbitration with law firms in Germany, Spain and the USA. He is currently undertaking a comparative study of advertising and advertising self-regulation in Germany and Spain for his doctoral thesis.

Use of the standard ICC arbitration clause in China

Under the 1994 Arbitration Law of the People's Republic of China, one of the conditions for the validity of an arbitration agreement is a reference to the zhongcai weiyuanhui or arbitration commission selected by the parties to conduct their arbitration. Although there is some uncertainty as to whether foreign arbitration institutions qualify as arbitration commissions within the meaning of the law, it would in any case be prudent for parties wishing to have an ICC arbitration in Mainland China to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration, so as to avoid the risk of having the standard ICC clause declared null and void for lack of a sufficiently explicit reference to the arbitration institution of their choice.

It is therefore suggested that such parties adapt the wording of the standard ICC arbitration clause as follows:

'All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.'

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The above rewording of the standard ICC arbitration clause applies only for arbitrations seated in Mainland China. No similar modification is necessary for the purpose of enforcing awards made in arbitrations held elsewhere (including the Hong Kong Special Administrative Region), as China is required to recognize and enforce foreign arbitral awards in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, which it ratified in 1987.

Revision of Notice to Arbitrators on Personal and Arbitral Tribunal Expenses

In light of inflation since 1993, when the ICC Court's Notice to Arbitrators on Personal and Arbitral Tribunal Expenses was last revised, it has been decided to increase the per diem allowances paid to arbitrators. The revised Notice, which is effective as of 1 January 2005 and applies to expenses incurred on and after that date, is reproduced below. The Court is meanwhile looking into the question of a more extensive review of the Notice.

1 January 2005

Revised Notice to Arbitrators

Personal and Arbitral Tribunal Expenses

(This replaces the Notice dated 1 January 1993.)

Please be advised that an arbitrator's personal expenses and expenses of the arbitral tribunal which are incurred on or after 1 January 2005 will be reimbursed by the Secretariat of the ICC International Court of Arbitration from the advance on costs made by the parties on the following basis:

1.A flat US$ 500 per diem allowance shall be paid to an arbitrator for each day the arbitrator is required to spend on ICC arbitration business out of his or her town of residence, whenever overnight hotel accommodation is used.

2.Alternatively, a per diem allowance up to a maximum of US$ 800 shall be paid for each day the arbitrator is required to spend on ICC arbitration business out of his or her town of residence, whenever overnight hotel accommodation is used, provided all expenses are justified by invoices or receipts and subject to point 4 below.

3.A flat US$ 250 per diem allowance shall be paid for each day the arbitrator spends on ICC arbitration business out of his or her town of residence, if overnight hotel accommodation is not used.

4.Expenses covered by the per diem allowance are those directly related to out-of-pocket personal living expenses, that is:

· Hotel accommodation (except under point 3 above)

· Meals/snacks

· Laundry/ironing

· Inner-city transport (including taxis)

· Telephone calls, faxes and other means of communication

· Tips

Expenses may not include such items as entertainment (theatre tickets, etc.), luxury restaurants or accompanying guests, nor payment of covered items for another arbitrator receiving an ICC per diem. In addition, only limited and reasonable telephone, fax or other communication charges may be included.

5.As the per diem allowance (whether a flat rate or a higher allowance justified by invoices or receipts) is considered to cover all items listed in point 4 above, these items cannot be reimbursed over and above the per diem rate.

6.An arbitrator may be reimbursed for actual expenses (justified by invoices or receipts) for meals and inner-city transport incurred within his or her town of residence to the extent that they are directly related to the ICC arbitration in question and subject to the limitations described in point 4 above.

7.If required to travel for the purpose of an ICC arbitration, an arbitrator will be reimbursed for his or her actual transport costs, as justified by invoices and/or ticket stubs, provided that the amount of the reimbursable costs does not exceed the relevant business class air fare in the case of flights of up to six hours. The cost of first class air travel will be reimbursable for longer flights. In addition, taxi fares for transport to and from the airport will be reimbursed.

8.All expenses related to tribunal activities, such as a clerical secretary (typist), equipment, telexes, faxes, telephone calls, meeting room hire, etc., shall be paid under 'tribunal arbitration expenses' and not charged to 'per diem' living expenses.

9.Arbitrators may request an advance payment on per diem allowances and transport costs, but must subsequently submit the relevant supporting documentation, including transport tickets and a statement of working days and nights spent out of town on ICC arbitration business.

10.Requests for reimbursement of tribunal expenses and payment of per diem allowances must be presented to the Secretariat in a readily comprehensible form, both to allow the Secretariat to carry out its accounting responsibilities and because it is possible for the parties to request the Secretariat to provide them with a statement of the expenses incurred by the arbitral tribunal.

11.In order to ensure that the advance on costs made by the parties is adequate to meet the costs of the arbitration, requests for reimbursement of tribunal expenses and payment of per diem allowances, together with any required supporting documentation, should be submitted to the Secretariat on an ongoing basis as and when such expenses are incurred. All requests for reimbursement of tribunal expenses and payment of per diem allowances relating to the period preceding the submission of the draft final award are due at the latest when the draft final award is submitted to the Secretariat. After this date no further requests for reimbursement of such expenses and payment of such allowances can be taken into consideration.

In the case of a three-member tribunal, the co-arbitrators and the chairman should co-ordinate their submission of bills for tribunal expenses and per diem allowances in order to ensure that they reach the Secretariat no later than the draft final award.

1
The appointment of the Court's members is made pursuant to Article 3 of its statutes, which form Appendix I to the ICC Rules of Arbitration. According to Article 3(3), members are appointed by the ICC World Council on the proposal of ICC national committees, one member for each committee. According to Article 3(4), the ICC World Council may appoint alternate members on the proposal of the Chairman of the ICC Court.

2
Published as 'La Influencia de la Ley Modelo sobre Arbitraje Comercial Internacional en América Latina: Un análisis comparativo' (2004) 19 Revista de la Corte Española de Arbitraje 255.