ICC issues checklist for arbitrators drafting awards

To facilitate the ICC Court's scrutiny of draft awards and avoid the delays that are sometimes caused by the formal corrections required before an award can be notified to the parties, ICC has created a checklist to help ensure that arbitrators do not overlook matters important to the effectiveness of their awards.

The checklist reminds arbitrators of key information that must normally be included in an ICC award. These include the correct and full identification of all players in the arbitration, details about the relevant arbitration agreement, the complete history of the proceedings, any decisions on jurisdiction, the disposal of the parties' claims and, in final awards, the costs of the arbitration. Such information is necessary, not only to resolve the dispute, but also to demonstrate the integrity of the proceedings in the event of a subsequent attempt to set aside the award.

The checklist also draws attention to matters of presentation, stressing the importance of clarity and consistency. The readability of an award will be greatly enhanced if it is carefully structured, includes a table of contents and numbered pages and paragraphs, and provides translations of any texts quoted in foreign languages.

The checklist is for guidance only. It does not seek to be exhaustive, nor is it mandatory or otherwise binding upon arbitrators.

The document reflects the experience of the ICC Court in scrutinizing and approving hundreds of awards each year from arbitrators all over the world. An initial draft was prepared within the Secretariat of the Court by German Counsel Jan-Heiner Nedden and then finalized by the Chairman, Secretary General and Deputy Secretary General of the Court and endorsed by the Bureau of the Court in late 2009.

The scrutiny of draft awards is one of the most appreciated added values of arbitration proceedings administered by the ICC Court. In 2009, only 33 of the 415 draft awards approved by the Court were accepted without comment. In the remaining 382, the arbitral tribunal was invited to look again at certain aspects of its award. It is hoped that the new checklist will render much post-scrutiny adjustment on minor formal matters unnecessary.

The checklist, which is reproduced on the following pages, has been distributed to all arbitrators in active cases and will in future be distributed systematically to all arbitrators when the case file is transmitted to them. [Page20:]

Click hear to view checklist

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Revision of ICC arbitration costs and fees

On 1 May 2010, new provisions relating to ICC arbitration costs and fees came into force. The revision does not change ICC's traditional method of calculating administrative costs and arbitrators' fees on the basis of the amount in dispute, but the rates applicable to each 'slice' of the amount in dispute have been adjusted. An increase averaging 0.14 of a percentage point has been applied to most slices. At the top end of the scale, a new slice has been added to distinguish between cases valued at US$ 100-500 million and those over US$ 500 million. In the latter cases, a flat rate of US$ 113,215 is now charged for administrative expenses and arbitrators' fees are calculated using rates that are the same, or slightly less, than before. The initial payment required when filing a request for arbitration has been raised from US$ 2,500-the level at which it has been held since 1998-to US$ 3,000.

ICC arbitration costs were last revised in January 2008. Since then, the global economy has suffered a period of exceptional and unforeseen instability. The volatility of the financial markets has created a situation of great unpredictability, not least for the ICC Court. The Court's revenue is in US dollars, but most of its expenditure is in euros. The increase in the levels of its administrative expenses will allow the Court better to withstand the impact of these developments and to maintain the quality of service for which it is recognized worldwide.

The change in arbitrators' fees is intended to keep the Court well positioned in an increasingly competitive market. A balance has been struck between the need to keep fees to business users at an acceptable level and the need to offer arbitrators remuneration commensurate with the work they do. When setting arbitrators' fees, the Court will continue to take into consideration an arbitrator's diligence, the time spent on the case, the rapidity of the proceedings and the complexity of the dispute.

An estimation of the advance on costs that might be fixed by the Court on the basis of the new cost provisions can be obtained using the cost calculator available at www.iccarbitration.org.

The costs of ICC arbitration are regulated by Articles 30 and 31 of the ICC Rules of Arbitration and Appendix III to those Rules. The amended provisions, all of which are in Appendix III, are set out below.

Appendix III

Arbitration Costs and Fees

Article 1

Advance on Costs

1

Each request to commence an arbitration pursuant to the Rules must be accompanied by an advance payment of US$ 3,000 on the administrative expenses. Such payment is non-refundable, and shall be credited to the Claimant's portion of the advance on costs.

[All other paragraphs of Article 1 remain unchanged.]

Article 4

Scales of Administrative Expenses and Arbitrator's Fees

1

The Scales of Administrative Expenses and Arbitrator's Fees set forth below shall be effective as of 1 May 2010 in respect of all arbitrations commenced on or after such date, irrespective of the version of the Rules applying to such arbitrations.

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2

To calculate the administrative expenses and the arbitrator's fees, the amounts calculated for each successive slice of the sum in dispute must be added together, except that where the sum in dispute is over US$ 500 million, a flat amount of US$ 113,215 shall constitute the entirety of the administrative expenses.

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Composition of the International Court of Arbitration

On 1 July 2010, three new members and two new alternate members took up office with the ICC International Court of Arbitration, following their appointment by the ICC World Council at its meeting in Hong Kong on 29 June 2010.

The new members are: Ernesto Lima Mena from El Salvador, Yousof Mohammed Al-Ali from Kuwait and Casipillai Chakradaran from Sri Lanka-three countries as yet unrepresented in the Court's current term, which runs from 1 July 2009 to 30 June 2012. The appointment of these new members brings the total number of countries represented to 88.

In addition, Derek S. Firth from New Zealand and Antonio Hierro from Spain were appointed as alternate members alongside the existing members from these two countries.

Below is a complete list of the 130 Court members currently holding office.

Chairman

John Beechey (United Kingdom)

Vice-Chairs

Mohammed Chemloul (Algeria)

Teresa Yeuk Wah Cheng (China)

Vladimir V. Khvalei (Russia)

Laurent Lévy (Switzerland / Brazil)

Loretta Malintoppi (Italy)

Salim Moollan (France / Mauritius)

Alexis Mourre (France)

Ciccu Mukhopadhaya (India)

Karyl Nairn (Australia)

Jan Paulsson (France / Sweden)

Alan Redfern (United Kingdom)

Klaus Sachs (Germany)

Carl F. Salans (United States)

Vera van Houtte (Belgium)

Claus von Wobeser (Mexico)

Members and Alternate Members

Algeria

Nasr-Eddine Lezzar

Alternate Member: Mehdi Haroun

Argentina

Sergio Le Pera

Alternate Member: Alberto D.G. Molinario

Australia

Michael Polkinghorne

Alternate Member: Stuart Dutson

Austria

Günther Horvath

Alternate Member: Rudolf Fiebinger

Bahrain

Haya Rashed Al-Khalifa

Alternate Member: Rashid A.R. Ebrahim

Bangladesh

Rafique Ul-Huq

Belgium

Jacques Lévy-Morelle

Bolivia

Juan Carlos Urenda Diaz

Brazil

Arnoldo Wald

Alternate Member: Selma Maria Ferreira Lemes

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Bulgaria

Assen Alexiev

Burkina Faso

Mamadou Traore

Canada

Thomas H. Webster

Caribbean

Roger Hamel-Smith

Chile

Manuel José Vial Vial

China

Jingzhou Tao

Chinese Taipei

Nien-Tsu Li

Colombia

Fernando Mantilla-Serrano

Costa Rica

Fernando Mora Rojas

Cuba

Narciso A. Cobo Roura

Cyprus

Antis A. Triantafyllides

Czech Republic

Alexander J. Belohlávek

Denmark

Georg Lett

Dominican Republic

Fabiola Medina Garnes

Ecuador

Eduardo Carmigniani Valencia

Egypt

Yehia El Gamal

Alternate Member: Mustafa Mohamed El Bahabety

El Salvador

Ernesto Lima Mena

Finland

Gustaf Moller

France

Philippe Boivin

Alternate Member: Emmanuel Vuillard

Georgia

Nick Gvinazde

Germany

Klaus-Albrecht Gerstenmaier

Alternate Member: Rolf Trittmann

Ghana

Samuel K.B. Asante

Alternate Member: Kofi Kumado

Greece

Anna P. Mantakou

Guatemala

Alvaro Rodrigo Castellanos Howell

Hong Kong

Philip Yang Liang-Yee

Hungary

Attila Harmathy

Iceland

Haflidi Kristjan Larusson

India

Dharmasinh Morarji Popat

Alternate Member: Lalit Bhasin

Iran

Mohsen Mohebi

Ireland

Michael W. Carrigan

Alternate Member: James Connolly

Israel

Gideon Fisher

Italy

Luca Radicati di Brozolo

Alternate Member: Andrea Carlevaris

Japan

Hiroshi Oda

Jordan

Adib Sami Habayeb

Korea

Kap-You (Kevin) Kim

Alternate Member: Seung Wha Chang

Kuwait

Yousef Mohammed Al-Ali

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Lebanon

Adel Amin Nassar

Alternate Member: Roland Ziadé

Lithuania

Vilija Vaitkuté Pavan

Luxembourg

Jean Meyer

Madagascar

Hery Frederic Ranjeva

Malaysia

Chong Wah Wong

Mexico

Fernando Estavillo Castro

Monaco

Géraldine Gazo

Morocco

Abdelfattah Bensouda

Alternate Member: Kamal Nasrollah

Nepal

Gandhi Pandit

Netherlands

Marnix A. Leijten

New Zealand

Audley William Sheppard

Alternate Member: Derek S. Firth

Nigeria

Gabriel Adesiyan Olawoyin

Alternate Member: Dorothy Udeme Ufot

Norway

Nina Wang

Pakistan

Syed Sharifuddin Pirzada

Alternate Member: Mahomed J. Jaffer

Panama

Esteban López Moreno

Philippines

Custodio Parlade

Poland

Piotr Nowaczyk

Portugal

José Miguel Júdice

Qatar

Remy M. Rowhani

Romania

Adrian Severin

Russian Federation

Nina Grigorievna Vilkova

Saudi Arabia

Bandar Salman Al-Saud

Alternate Member: Saleh B. Al Tayar

Senegal

Ely Ousmane Sarr

Alternate Member: Rasseck Bourgi

Serbia

Gaso Knezevic

Singapore

Michael Hwang

Alternate Member: Chelva R. Rajah

Slovakia

Frantisek Poredos

Slovenia

Ales Galic

South Africa

Clive Z. Cohen SC

Spain

María-Mercedes Tarrazón Rodón

Alternate Member: Antonio Hierro

Sri Lanka

Casipillai Chakradaran

Sweden

Bo G.H. Nilsson

Switzerland

Markus Wirth

Alternate Member: Philipp Habegger

Syria

Moustafa Al-Sayed

Thailand

Siriporn Chaiyasuta

Tunisia

Ferhat Horchani

Turkey

Ziya Akinci

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Ukraine

Serhii Sviriba

United Arab Emirates

Essam Al Tamimi

United Kingdom

Julian Lew

Alternate Member: Andrew Foyle

United States

Eric A. Schwartz

Alternate Members: Mark Beckett,

Christopher R. Seppala

Uruguay

Paul Fabien Arrighi Bustamante

Venezuela

James Otis Rodner

Secretariat Appointment

Alison Pearsall

Alison Pearsall has joined the Secretariat of the International Court of Arbitration as Counsel. A US citizen, Ms Pearsall previously practised international arbitration and complex commercial arbitration at leading law firms in New York and Paris. In addition to her prior experience as legal counsel, she has served as Chair of the International Trade Committee of the New York City Bar Association where she authored papers on bilateral investment treaties and international investment. She obtained her Juris Doctor from the University of Washington School of Law and also holds Bachelor's and Master's degrees from Columbia University. Ms Pearsall is admitted to the New York Bar. She speaks English, French and Hindi. She heads the case management team dealing principally with cases under English and common law, where she replaces Matthias Kuscher, who left the Secretariat in July.

ICC International Commercial Mediation Competition reaches new heights of success

The verdict at the close of the 5th ICC International Commercial Mediation Competition in February 2010 was unanimous: all participants had experienced a unique event, as enriching for the professional mediators and judges as it was for the competing students. During the five-day competition, 44 teams from 19 countries as far afield as Australia, Brazil, China, India, Israel, Lebanon, Poland, Singapore, Ukraine and the USA, as well as closer European countries, converged on Paris for what has become the annual mediation rally for student lawyers.

This year's winners of the Competition were Alice Eldridge and Philip Godfrey, from Nottingham Trent University in England. Coached by Joy Davies, Principal Lecturer at Nottingham Law School and an accredited mediator with the Chartered Institute of Arbitrators, Alice and Philip were judged on their performance as counsel and client in a mock mediation conducted by professional mediator Birgit Sambeth-Glasner, who is a partner with Altenburger Legal and Tax in Switzerland. They were assessed according to various criteria, including their presentation of their case, teamwork, advocacy, their skills in building a problem-solving relationship and seeking solutions, their ability to communicate and gather information, and their creative use of opportunities arising [Page29:] during the process. Second and third places went respectively to teams from the University of New South Wales in Australia and Osgoode Hall School of Law in Canada.

The winning students were presented with the Competition trophy and a cheque for 1,500 euros at an award ceremony held at the headquarters of the Paris Bar. They and the runners-up also received subscriptions to the ICC International Court of Arbitration Bulletin and the Chartered Institute of Arbitrator's International Journal of Arbitration, Mediation and Dispute Management, mediation-related books authored by some of the participating professionals, and internships with law firms Lovells, Orrick, Clifford Chance and SJ Berwin. In addition, an internship in ICC's own dispute resolution department was awarded to one of the members of the winning team.

The judges had praise for all participants. William Wood, QC, a mediator from Brick Court Chambers in London, attending the Competition for the first time, was impressed by the quality and commitment of the competitors: 'Mediating between teams from China and Canada on my first day, both strong and well prepared, was unforgettable.' The rare gathering of professionals and students, all imbued with formidable energy, enthusiasm and dedication, turned the Competition into what Mr Wood described as 'pure dynamite'. Birgit Sambeth-Glasner admitted that 'professionals learn as much as the participating students, if not more'. Over 85 mediators, lawyers and professors from all parts of the world gave generously of their time to mediate and judge in the Competition.

This year's Competition also included a number of fringe events, both educative and social. The second day, for example, closed with an evening of 'mediation war and peace stories', during which experienced mediators shared with students some of their most interesting, challenging and amusing mediation experiences. There was also a training session for mediation professionals and coaches led by Birgit Sambeth Glasner and Jeremy Lack from Switzerland, Alan Limbury from Australia and Niall Lawless from Ireland. The subjects covered included creativity and cultural diversity in mediation. [Page20:]

The importance of the Competition to the education of tomorrow's practitioners has been recognized by the many supporting and sponsoring firms, corporations and institutions. This year's event enjoyed the patronage of over 20 leading names in the mediation world. Gold sponsors included the law firms JonesDay and Gide Loyrette Nouel and the global audit, tax and advisory firm KPMG. Leading industrial names such as Renault, Bombardier, Thales, GE Oil & Gas, E.ON and AkzoNobel were also present as corporate supporters.

All sights are now set on next year's Competition, which will take place at ICC in Paris on 4-9 February 2011. Information will be available shortly at: www.iccadr.org