ICC Bulletin

Message from the President

The foundation of ICC was fully part of the broad movement for peace that gave rise, before World War I, to the movement of the Hague Peace Conferences, and then to the creation of the League of Nations and the most significant developments of international law. ICC is, without any doubt, a child of that very same dream that has nurtured the development of international arbitration: the idea that conflicts should be peacefully resolved on the basis of the rule of law, not by the use of force. It is therefore no surprise that ICC is the host of the largest and most successful international arbitration institution. Indeed, ICC’s history in the past century is inseparable from the origins and development of international arbitration itself. When the ICC International Court of Arbitration was created in 1923, France did not recognize the validity of arbitration clauses. It was the first president of ICC, Etienne Clémentel, then Minister of Finances under the Cartel des gauches cabinet of Edouard Herriot, and whose bust by Rodin welcomes all visitors to our Paris headquarters, who induced the French Government to ratify in 1925, the 1923 Protocol of the League of Nations on the validity of arbitration clauses and their enforcement. This was, in a way, the true act of birth of France as an international arbitration seat. It was also the cornerstone for all future developments that brought arbitration where it is today. It suffices to remember the words of Article 1 of the 1923 Protocol to realize how important that development was: ‘Each of the Contracting States recognizes the validity of an agreement whether relating to existing or future differences between parties, subject respectively to the jurisdiction of different Contracting States, by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection with such contract relating to commercial matters or to any other matter capable of settlement by arbitration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject’. So was established the international validity and enforceability of arbitration clauses.

ICC also played a key role in the drafting and adoption of the 1927 Convention on the Execution of Foreign Awards, by first advocating the adoption of an international instrument ensuring that awards could be easily enforced, and then providing support as well as legal and technical advice to the League of Nations committee entrusted with the preparation of the Convention. The 1927 Convention, as we know, opened the way to the international validity and enforcement of arbitral awards. Simultaneously, ICC adopted a more modern and significantly improved version of its arbitration rules.

Even more relevant was ICC’s role in the birth of the New York Convention. The 1923 Protocol and 1927 Convention needed to be improved, in particular the requirement of reciprocity (Article 1 of the 1927 Convention) and the requirement that, in order for an award to be enforced, the award is to be final in the country of the seat, thereby introducing a requirement of ‘double exequatur’. In its World Trade journal (June 1950), ICC expressed the view that ‘it ought to be sufficient, in order to obtain legal sanction for an international award that the arbitration has been carried out under the procedure laid down by the parties in their contract’. That vision led to the most important evolution in the field of international arbitration.

The ICC Commission on Arbitration started working on a new instrument, discussed at the ICC 1951 Lisbon Congress, and a preliminary draft was adopted at its session of 13 March 1953, under the leadership of Edwin Herbert, then President of the Commission and vice-president of the Court, and Charles Carabiber, Chairman of the Court.³ The proposal, which was largely based on the works of Professor Jean Robert,⁴ was then presented to the United Nations Economic and Social Council (ECOSOC) and a fruitful debate between the United Nations and ICC followed. As a result, after significant amendments, in particular Professor Pieter Sanders’ proposal to eliminate the requirement of a ‘double exequatur’,⁵ the draft was adopted and became the New York Convention. ICC’s role however did not stop there. In the years that immediately followed the adoption of the Convention, ICC actively campaigned to ensure that the new Convention would be ratified by the largest possible number of States.

The decades that followed were of constant pioneering and innovation, as the ICC Rules were improved to bring ICC Arbitration to the highest level of quality and efficiency. The 1975 Rules saw the introduction of a revolutionary innovation, giving arbitrators the power to decide the case, in absence of a choice by the parties, on the basis of the rules of law they would find appropriate, with no reference to any rule of conflict and, as the case may be, by applying transnational or non-national rules. In 1988 were introduced provisions allowing to deal with multi-party and multi-contracts, which would be further improved in the 1998 Rules with the possibility for the Court to appoint all members of the tribunal in presence of multiple respondents or multiple claimants. 1990 saw the introduction of the pre-arbitral referee rules, which paved the way for the introduction in 2012 of the Emergency Arbitration Rules. Finally, Expedited Procedure Provisions were introduced in the 2017 Rules, providing for an adapted and efficient way of resolving disputes where limited amounts are at stake. Many of these innovations found their way in rules adopted by other institutions, thus framing the practice of international arbitration. In recent years, the Court has continued on its path of innovation by introducing, both in the Rules and in its Practice Note, rules aimed at establishing the highest level of ethics on the part of arbitrators and counsel, and ensuring the transparency of our administrative procedures, thus establishing the conditions for the continuing trust on the part of States and the public in international arbitration as a global system of justice. We are also proud of the progresses made by the Court towards greater diversity in ICC Arbitration, in particular by ensuring complete gender parity in the Court’s membership.⁶

As it celebrates its Centenary, ICC is more than ever rooted in strong values: the rule of law, multilateralism, the belief in sustainable growth as a way to reduce global inequality and poverty, and the fight for good governance and against corruption, amongst others. The Court is likewise guided, in its day to day action, by the fundamental principles of the right of access to justice, due process, diversity and party equality. As the Court also approaches its Centenary, these values will more than ever inspire our actions in the years to come.

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