The year of 1998 was the first in which the Court applied the 1998 Rules of Arbitration to cases filed with the ICC Court, the new Rules having come into effect on 1 January 1998. The 1988 Rules normally continued to apply to pending cases; they also applied, in accordance with Article 6(1) of the 1998 Rules, to new cases where the parties had so provided.

With respect to the constitution of the Arbitral Tribunal, 66 qualified statements of independence were submitted in 1998 pursuant to Article 2(7) of the 1988 Rules or Article 7(2) of the 1998 Rules, which both require 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. In three cases the Court appointed a chairman or sole arbitrator not proposed by a national committee, as it has the power to do under Article 2(6) of the 1988 Rules and Article 9(4) & (6) of the 1998 Rules. Of 24 challenges of arbitrators, one was accepted by the Court; two replacements were considered under Article 2(11) of the 1988 Rules, which concerns, as does Article 12(2) of the 1998 Rules, cases where the arbitrator is preventedde jure or de facto from fulfilling his functions, of which one was ordered. A total of 22 resignations were tendered, all of which were accepted by the Court.

As concerns the setting in motion of the procedure, the Court addressed the issue of the prima facie existence, validity or scope of the arbitration agreement in a total of 100 cases, an increase of about 60% from 1997.

Of these 100 cases, the 1988 Rules applied to 22. In all but one, the Court applied Article 8(3) of the 1988 Rules and thus referred the pleas concerning the agreement to arbitrate to the Arbitral Tribunal's decision, having been satisfied of the prima facie existence of the agreement. In the other case, the Court applied Article 7 of the 1988 Rules, deciding that the arbitration could not proceed on the basis of the agreement submitted in the Request for Arbitration.

The 1998 Rules provide in Article 6(2) that where 'the Respondent does not file an Answer' or 'if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the Court may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist' and that if the Court 'is not so satisfied, the parties shall be notified that the arbitration cannot proceed'. The Court decided that the arbitration would proceed under Article 6(2) in 76 cases, thus leaving the question of jurisdiction to the decision of the Arbitral Tribunal. The Court decided in two cases that the arbitration could not proceed under [Page12:] Article 6(2), leaving the parties the right to ask any court having jurisdiction whether or not there was a binding arbitration agreement.

In 1998, 273 awards (as compared with 227 in 1997) were submitted to the scrutiny of the Court under Article 21 of the 1988 Rules or Article 27 of the 1998 Rules: 214 final awards (including 31 awards by consent and two interpretative awards) and 59 partial or interim awards. It will be recalled that the Court has the power to suggest modifications with regard to the substance of the decision and the power to prescribe modifications in relation to its form. No award can be rendered until it has been approved by the Court as to its form. When it scrutinizes draft awards under the Rules, the Court 'considers, to the extent practicable, the requirements of mandatory law at the place of arbitration' (1998 Rules, Appendix II, Art. 6).

Awards which raise particular problems or difficulties are scrutinized at a Plenary Session on the basis of a report by one of the Court members. The Court meets in Plenary Session once every month. Other awards are scrutinized, and may now be approved finally, at a Committee Session of the Court.1 The Committee is comprised of the Chairman or a Vice-Chairman, and two members; it meets thrice every month. In addition, under Article 1(3) of both the 1988 and the 1998 Rules the Chairman of the Court may approve awards in cases of emergency, which decisions are reported to the following session of the Court. No award was approved under that provision in 1998.

Of the awards submitted to the Court, 18 (as compared with 31 in 1997) were referred back to the arbitrators, five for reasons of form and three for reasons of substance. Four awards were referred back with both suggestions as to substance and modifications as to form. Six awards were sent back to the Arbitral Tribunal with a request for clarification.

In addition to the foregoing awards, 62 awards (as compared with 43 in 1997) were approved subject to modifications as to form. In such cases, the awards were not to be resubmitted to the Court, the Secretariat being entrusted with the task of ensuring that the modifications be included.

In 1998, 18 awards were accompanied by dissenting opinions (as compared with three in 1997). In ten of these cases, the dissenting opinion was drafted by the arbitrator nominated by the Respondent, and in seven cases by the arbitrator nominated by the Claimant. In one case the dissenting arbitrator was not identified. It should be recalled that scrutiny by the Court does not relate to the dissenting opinion.2 However, the Court always reads the dissenting opinion - when it has been communicated in time by the minority arbitrator - as this is always helpful for the Court and its rapporteur, when the draft award is being discussed. In addition, majority awards were submitted in three cases where the dissenting arbitrator did not submit an opinion. Lastly, no award was rendered by the Chairman of the Arbitral Tribunal alone in accordance with Article 19 of the 1988 Rules or Article 25(1) of the 1998 Rules.

In 1998, awards were rendered in the following languages: Chinese, Dutch, English, French, German, Italian, Spanish and Turkish.

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1
See Robert Briner, 'The Implementation of the New 1998 ICC Rules of Arbitration', ICC ICArb. Bull., Vol. 8/No. 2, 1997, p. 9.

2
'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 ICArb. Bull., Vol. 2/No. 1, 1991, pp. 32 et seq.