The year of 1997 was the last in which the Court applied the 1988 Rules of Arbitration to all cases filed with the ICC, the new Rules having come into effect on 1 January 1998.

With respect to the constitution of the Arbitral Tribunal, 96 qualified declarations of independence were submitted to the Court in 1997 pursuant to Article 2(7) of the 1988 Rules, which requires a prospective arbitrator, before being appointed or confirmed, to disclose 'any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties'. Confirmation was refused in 19 cases and appointment denied in 2. In 3 cases the Court appointed a chairman or sole arbitrator without requesting a proposal from a national committee, as it has the power to do under Article 2(6). Of 21 challenges of arbitrators, 3 were accepted by the Court; 4 replacements were considered under Article 2(10), which concerns cases where the arbitrator is prevented de jure or de facto from fulfilling his functions, of which 3 were ordered. The Court, finally, accepted 22 resignations out of 23.

As for the setting in motion of the proceedings, the Court applied Article 8(3) on 58 occasions and thus referred the pleas concerning the existence or validity of the agreement to arbitrate to the Arbitral Tribunal's decision, having been satisfied of the prima facie existence of the agreement. In 4 cases, however, the Court applied Article 7 and decided that the arbitration could not proceed either because there was no prima facie agreement to arbitrate, or because the existing agreement did not specify the ICC.

Finally, the Court ordered the consolidation of separate files in four cases, upon the agreement of all parties and at the request of one of them.

In 1997, 227 awards were submitted to the Court (170 final awards, including 33 awards by consent, 53 partial awards, 3 corrected awards and 1 interpretative award) in the context of the preliminary scrutiny specified in Article 21 of the 1988 Rules. It will be recalled that, according to Article 21, the International Court of Arbitration has the power to suggest modifications with regard to the substance of the case ('The Court may ... without affecting the arbitrator's liberty of decision, draw his attention to points of substance') and the power to prescribe modifications in relation to its form ('The Court may lay down modifications as to the form of the award (...). No award shall be signed until it has been approved by the Court as to its form.'). Article 17 of the 1988 Internal Rules supplements these provisions as follows: 'When it scrutinizes draft arbitral awards in accordance with Article 21 of the ICC Rules of Arbitration, the International Court of Arbitration pays particular attention to the respect of the formal requirements laid down by the law applicable to the proceedings and, where relevant, by the mandatory rules of the place of arbitration, notably with regard to the reasons for awards, their signature and the admissibility of dissenting opinions.'

In principle, when draft awards call for in-depth discussion, in particular by reason of the legal issues raised, they are scrutinized directly at the Court's Plenary Sessions, on the basis of a report by one of its members. To this end, the Court meets in Plenary Session each month. Other awards are submitted for preliminary scrutiny by a Committee of the Court. Under the 1988 Rules, this Committee is comprised of the Chairman and two members and makes recommendations to the Court's Plenary Session. In 1997, the Committees of the Court met 34 times, that is, three times each month. In addition, under Article 1(3) of the 1988 Rules the Chairman of the Court may approve awards in cases of emergency, provided that he report any such decision to the following session of the Court. In 1997, 9 awards were approved in accordance with Art. 1(3).

Of the awards submitted, 31 (as compared with 26 in 1996) were referred back to the arbitrators, 12 for reasons of form and 6 for reasons of substance. 13 awards were referred back both with suggestions as to substance and modifications as to form.

In addition to the foregoing awards, 43 awards were approved subject to modifications as to form. In such cases, the awards were not required to be resubmitted to the Plenary Session following modification.

In 1997, 3 awards were accompanied by dissenting opinions. In 1 of these cases, the dissenting opinion was drafted by the arbitrator nominated by the Defendant, and in 2 cases by the arbitrator nominated by the Claimant. In 2 cases, the minority [Page13:] arbitrator did not draft an opinion. Lastly, it should be noted that two awards were rendered by the Chairman of the Arbitral Tribunal alone (Article 19 of the Rules). It should be recalled that scrutiny by the Court does not relate to the dissenting opinion.1 However, the Court always reads the dissenting opinion-when it has been communicated by the minority arbitrator-as this is always helpful for the Court and its rapporteur, when the draft award is being discussed.

In 1997, awards were rendered in the following languages: English, French, German, Spanish and Italian.

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1
1'Final Report on Dissenting and Separate Opinions' of the Working Party on Dissenting Opinions and Interim and Partial Awards of the ICC Commission on International Arbitration, ICC International Court of Arbitration Bulletin, Vol. 2/No. 1, 1991, pp. 32 et seq.