Alexis Mourre

With 801 new cases involving 2,283 parties from 133 countries and independent territories filed during the year, the 2015 statistics published in this Bulletin confirm that the ICC International Court of Arbitration is firmly established as the world's dominant arbitral institution. It is also the only truly global institution, administering cases from offices on three different continents. Comprising 130 members from 80 countries, the Court is supported by a Secretariat of 100 lawyers and administrative staff of 35 nationalities, who speak as many languages, and by an international network of 87 National Committees and Groups. The Court does not emanate from any state, receives no government funding, and is not the expression of any particular legal culture. As such, it answers the parties' desire for neutrality while being uniquely placed to address the challenges and particular needs of international disputes in different parts of the world.

With 801 new cases involving 2,283 parties from 133 countries and independent territories filed during the year, the 2015 statistics published in this Bulletin confirm that the ICC International Court of Arbitration is firmly established as the world's dominant arbitral institution. It is also the only truly global institution, administering cases from offices on three different continents. Comprising 130 members from 80 countries, the Court is supported by a Secretariat of 100 lawyers and administrative staff of 35 nationalities, who speak as many languages, and by an international network of 87 National Committees and Groups. The Court does not emanate from any state, receives no government funding, and is not the expression of any particular legal culture. As such, it answers the parties' desire for neutrality while being uniquely placed to address the challenges and particular needs of international disputes in different parts of the world.

To strengthen its unique global reach, the Court has doubled its efforts to be as close as possible to its users. Recent initiatives include the creation of new national arbitration commissions in India, Colombia and Chile, and collaboration with ICC Japan on the organization of an Arbitration Week in Tokyo next September. For the first time ever, the Court will hold a plenary session outside Paris in June at the time of the second Asia Regional Conference in Hong Kong, and the Court's annual working session will take place in New York next September.

With the opening of a new office in Shanghai, the Court can be proud to be the first non-Asian arbitration institution to set foot in mainland China. This office, under the leadership of our new director for North Asia, Mingchao Fan, will be a powerhouse for developing our services in China following the ground-breaking decisions of the Supreme People's Court in Anhui Longlide Packaging & Printing Co. Ltd v. BP Agnati S.R.L. and Ning Bo Bei Lun Li Cheng Lubricating Oil Co. Ltd v. Fa Mo Wan Chi Co.1, which confirmed the validity of arbitration agreements providing for an ICC arbitration seated on the mainland.

The Court will soon open an office in Brazil, one of our most buoyant jurisdictions. Located in São Paulo, the office will provide a base from which to continue the development of our presence in the region, and at the same time be a sign of our support for and confidence in Brazil's arbitration community in these difficult times for that country.

The Court is also about to sign an ambitious long-term cooperation agreement with OHADA, the 17-state organization for the harmonization of business law in Africa. OHADA has greatly advanced the cause of arbitration in a region where this was and still is greatly needed, and it has done much to unify and modernise business law in West Africa. It deserves our full support and we hope to make a valuable contribution from our experience, especially of arbitration. The Court's cooperation with OHADA will be a great opportunity to help train skilled arbitrators, develop use of arbitration on the continent, and increase the diversity of the international arbitration community by allowing more African arbitrators to sit on our cases. It will also allow the Court to enhance its presence in the region and better serve its African users.

These and other initiatives taken by the Court build on principles established almost a century ago by ICC's founding fathers: multilateralism; global trade; growth that is at once fair, sustainable and ethical; the fight against corruption; the rule of law; access to justice. Our achievements are also inspired by the core values that underpin our vision of arbitration: transparency, diversity, ethical excellence, and of course high-quality and efficient services worldwide. At a time when arbitration faces renewed challenges, the Court's recent actions reaffirm these values for the benefit of our users and in the broader interest of the global system of international justice that international arbitration represents. To that end, we have adopted several important measures aimed at enhancing the transparency and efficiency of our procedures. They have been incorporated into the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, 2which we encourage users to read carefully.

The first of these measures is the communication of reasons, whenever requested by the parties, for the Court's decisions on challenges and several other types of decisions, including those on prima facie jurisdiction and consolidation. This is a further sign of our commitment and responsiveness to users' needs, and we encourage parties to consider including a reference to this service in their Terms of Reference.

Second, we have also decided to publish on our website the composition of arbitral tribunals in all cases registered from January 2016. Publication will be triggered by the signing or approval of the Terms of Reference. This new policy will allow the public to see the quality and diversity of our appointments, and it sends a strong message to the arbitral community on the importance of accountability.

Third, the Court has recently issued guidance on conflict disclosures. It is in large part inspired by the IBA Guidelines on Conflicts of Interest in International Arbitration, as revised in 20143. The guidance affirms the fundamental principle that parties have a legitimate interest in being fully informed of all facts and circumstances that may be relevant in their view in order to be satisfied that a prospective arbitrator or an arbitrator is and remains independent and impartial. It also stresses that, when preparing disclosures, prospective arbitrators and arbitrators have a duty to make reasonable enquiries in their records as well as in other readily available materials, and that any doubt should be resolved in favour of disclosure. Finally, it is made clear that a failure to disclose will be considered by the Court when assessing an objection to confirmation or a challenge. The aim is to ensure that arbitrators acting under the ICC Rules adhere to the highest possible ethical standards and full transparency in their disclosures.

Ethical standards apply of course to all players, including counsel, who should adopt conduct that is consistent with the duty to arbitrate in good faith and will protect the integrity of the proceedings. On this subject, the IBA is to be commended for having drawn up a clear and balanced set of guidelines, 4which I regard as an excellent tool to which parties and arbitrators may refer in their Terms of Reference.

Lastly, the Court has adopted measures aimed at addressing the much debated question of delays in international arbitration. In the immense majority of cases, arbitrators act with diligence and submit their draft awards promptly. However, we sometimes still see unacceptable delays, with parties left guessing when they will receive a long-awaited award. Although rare, such occurrences are very damaging to the arbitration community and can no longer be tolerated.

As David Rivkin rightly said in his keynote speech at the HKIAC Arbitration Week in October 2015: 'we cannot take for granted that the current system of international arbitration will endure. If we do, the system will disappear for other alternatives. The debate over TTIP has shown this. ... Therefore, we need to act creatively and extensively, and to act now, to improve the system and to make sure we are meeting the needs of the parties that use international arbitration.' 5

This is exactly what the Court has done by cracking down on delays. The Note to Parties and Arbitral Tribunals makes it clear that arbitral tribunals are normally expected to submit their draft awards to the Court within two or three months (depending on whether the tribunal is composed of a sole arbitrator or three arbitrators) following the last substantive hearing or last substantive submission (excluding submissions on costs), and sets out in a transparent manner the financial consequences of any delays.

I am aware that the Note has caused concern among some of arbitration's busiest and most well-established practitioners. However, I am sure these concerns will abate as everyone realizes that the measures are not only needed, but are also reasonable and balanced. In this regard, I would like to make two points:

First, the measures will be applied firmly, but not blindly. The Court and its Secretariat are aware that arbitrators may face unexpected procedural difficulties and that cases can be particularly complex (as when they involve highly technical issues or multiple parties and/or contracts). It is then for the tribunal to explain to the Court why those difficulties and complexities have led to justifiable delays. Tribunals are encouraged to discuss such matters with the parties, too, and, whenever appropriate, agree with them on the timing of the submission of the award to the Court.

Second, the measures are an encouragement to adopt practices that will help avoid delays in deliberations and when submitting awards to the Court. Early deliberations, and early preparation of the factual parts of an award, are good practices to adopt to avoid delay. Elliott Geisinger, President of the Swiss Arbitration Association, could not have put it better in his recent Message: 'the idea of the ICC is not ... to create a Procrustean bed, on which one would lay current practice and hack off anything that would exceed the standard. The approach appears to be far more subtle: the underlying motivation is also - perhaps primarily - to force arbitrators to re-think their methods of deliberating and drafting awards, so as to minimise the time required for the final drafting phase. In other words, the aim is to make arbitral tribunals do things differently and more efficiently, not just faster.'6

1
Respectively, 25 March 2013 and 5 December 2013.

2
Available at http://www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Arbitration/Practice-notes,-forms,-checklists/

3
Available at http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx

4
IBA Guidelines on Party Representation in International Arbitration, available at http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx

5
D.W. Rifkin, ‘A New Contract Between Arbitrators and Parties’, available at http://sccinstitute.com/media/93206/1000973790v2-hkiac-keynote-address.pdf

6
ASA Bulletin, Volume 34, No. 1, March 2016.