The year 2000 saw widespread and constant use of the dispute resolution services offered by the ICC International Court of Arbitration. Arbitration has for long been the most widely used and highly recognized of these services, overshadowing conciliation. However, in the early history of the Court equal use was made of both methods.

The inspired efforts of ICC's founding fathers to build an effective and widely accepted system of international arbitration and conciliation at the start of the twentieth century have contributed greatly to the authority the ICC Court now enjoys as a leading provider of dispute resolution services. The first rules were promulgated by the ICC Council on 10 July 1922 and were quickly followed by the creation of the Court. Interest was such that requests for ICC's services were received even before this date. The disputes initially submitted to ICC were resolved amicably by conciliation prior to the promulgation of the rules. In November 1922, the first arbitral award was rendered, in a case between British and French parties. Demand rose quickly throughout the twenties, before subsiding in the thirties and forties, after which began the remarkable rise that has continued to the present day.

An ICC arbitration is initiated by a request for arbitration in which the claimant identifies itself and provides information on the dispute, the relief sought and any relevant agreement it may have made on arbitration. In 2000, 541 requests for arbitration were registered by the ICC Court, representing an increase of 2% on the previous year. This brought the number of cases in progress at the end of the year to over 1,000 and the total number of cases handled in the history of ICC arbitration to 11,362.

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Parties to ICC arbitration

The cases registered with the ICC Court in 2000 involved 1,398 parties. Although most involve only two parties-a claimant and a respondent-an increasing number involve more than two, be it several claimants, several respondents, or several claimants and respondents. There were more than two parties in 26.8% of new cases in 2000.

Of the 1,398 parties involved in ICC arbitrations in 2000, 71 were states or parastatal entities (54 respondents and 17 claimants). The principal regions from which they originated were: Central and East Europe, Africa and South and East Asia. The percentage of cases in which at least one of the parties was a state or parastatal entity was 12.5%, which is in keeping with the yearly average since 1990 (12.1%).

Geographically, the appeal of ICC arbitration continues to spread. The parties in the ICC arbitrations commenced in 2000 came from a record 120 countries. For the first time since Court statistics have been published, there were parties from Antigua and Barbuda, Estonia, Grenada and Kirgizstan.

In Europe, the countries with long-standing arbitration traditions are increasingly being joined by more recent recruits, such as the Baltic States and other former members of the USSR. The European country from which the greatest number of parties came in 2000 was France, reversing the lead Germany had taken during the previous two years. There was a notable increase in the number of parties from the United Kingdom, putting it on an even footing with Italy. These are the four most highly represented countries in Europe, as far as numbers of parties are concerned. They are followed by Switzerland, Spain, the Netherlands and Belgium. The number of parties from Denmark increased to levels experienced earlier in the nineties, whilst there was a drop in those from Cyprus, Finland, Portugal and Turkey.

The Americas follow Europe as the next most highly represented continent in terms of numbers of parties. Approximately two thirds of these parties came from Canada and the USA and one third from Latin American and Caribbean countries.

Approximately half of Asian parties came from the Middle East and Central Asia, with significant increases in the number from Lebanon and Israel. Elsewhere in Asia, there were fluctuations both up and down, as compared with 1999. The numbers of parties from India, Japan, Singapore and Thailand fell, whilst those from Korea, Pakistan and the Philippines increased.

As far as African parties are concerned, the number from Nigeria rose from an average of 2 per year between 1991 and 1999 to 23 in 2000 (involving 8 different cases). South African parties also rose sharply in number.

The number of Australian parties rose between 1999 and 2000, but overall the involvement of parties from this region remained relatively stable.

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The arbitral tribunal

Approximately half of the cases submitted to the ICC Court in 2000 were referred to a sole arbitrator and half to three arbitrators. This marks a shift of emphasis as compared with ten years ago, when approximately 60% of the tribunals formed under the ICC Rules of Arbitration consisted of three arbitrators. Most of the three-member tribunals are established in accordance with a wish expressed by the parties in their contract or in a separate agreement.

In 2000, a total of 812 arbitrators were appointed. 205 of these acted as sole arbitrators and 607 as members of a three-person tribunal.

There are various ways in which arbitrators may be appointed. The parties' wishes are paramount, failing which Articles 8, 9 and 10 of the Rules of Arbitration apply. Of the 812 arbitrators appointed in 2000, 446 were proposed by parties. The remaining 366 were appointed in the following ways: 244 upon a proposal from one of ICC's National Committees (proposals were taken from 39 National Committees during the year), 97 upon proposals by co-arbitrators (in the case of three-member tribunals), and 25 were appointed directly by the Court. Proposals are always subject to confirmation by the Secretary General or the Court. Confirmation was refused by the Court in 26 instances.

The great majority (77%) of sole arbitrators were appointed upon proposals from National Committees. 19% were proposed by the parties and 4% appointed directly by the Court.

In the case of three-member tribunals, 96% of co-arbitrators were appointed upon proposals by parties. Under Article 8(4) of the Rules, the Court appoints the arbitrator who chairs such tribunals, unless the parties have agreed otherwise, which is frequently the case as 58% of chairpersons appointed in 2000 were proposed by co-arbitrators or directly by the parties. If the Court makes the appointment itself, it usually seeks a proposal from a National Committee and only rarely makes the appointment directly itself.

Article 11 of the Rules provides for the challenge of arbitrators. In 2000, 33 challenges were made, three of which were accepted. The number of challenges per year over the last ten years has averaged at 18 and the number of those accepted at two.

Over the last ten years the number of resignations submitted by ICC arbitrators has averaged 20 per [Page9:] year. In 2000, 25 resignations were submitted, 24 of which were accepted. As in the case of challenges, this above-average figure is consistent with the greater number of arbitrators appointed.

Article 12(2) allows the Court to replace an arbitrator on its own initiative for failing to fulfil his or her functions as prescribed. Three replacements were made in 2000.

Geographical origins of arbitrators appointed in 2000

The 812 arbitrators appointed in 2000 came from 58 different countries, as listed below. It was the first time since ICC Court statistics have been published that arbitrators of Lithuanian and Madagascan origin were involved in ICC arbitration. It may be noted that although the total number of arbitrators appointed in 2000 was less than in 1999, there were significant rises in the number appointed from Central and Eastern Europe, the Middle East, North Africa, Central and South America, and South and East Asia.

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Place of arbitration

The place of arbitration was chosen by the parties in 82% of the cases registered in 2000 and by the Court in the remaining 18%. It was situated in a Western European country in 71% of cases. Europe's predominance has been decreasing over the last ten years, in favour of other regions. The place of arbitration was chosen in South and East Asian countries in 10.5% of cases in 2000, as opposed to 2.4% of cases in 1990. For Central and South America, the rise has been from 0.4% in 1990 to 2.9% in 2000. The most frequently chosen country in 2000 was Switzerland. For the first time since the Bulletin has been publishing Court statistics, arbitrations were located in Bolivia, Iran, Israel, Monaco and Trinidad and Tobago.

Dates of contracts

The cases registered with the ICC Court in 2000 show, as in previous years, that disputes most commonly arise when a contract is between two and four years old. True though it may be that the more long-lasting a contract, the less prone it is to controversy, no contract is entirely immune to upset, as shown by the case brought before the ICC Court in 2000 involving a contract over fifty years old. [Page11:]

Applicable law

In 77% of the cases registered with the Court in 2000 the parties had specified in their contracts the rules of law applicable to the merits. This was a set of national laws in 75% of cases. English law and Swiss law were the most common choices, followed by French and German law and the law of the State of New York. There was a notable increase in the number of times the law of a Middle Eastern country was chosen, and a decrease in the choice of South and East Asian laws. Rules other than national laws were chosen by the parties in their contracts in 2% of cases. These included the United Nations Convention on Contracts for the International Sale of Goods (2 cases), and general principles of law and international trade (7 cases). In one case, the parties had explicitly agreed to have their dispute settled in accordance with the principles of amiable composition.

The disputes referred to ICC arbitration in 2000 related to a wide range of sectors, from heavy industry to services. There were notable increases in the numbers of cases involving the following: communications and high technology, energy, finance and transportation (encompassing air, land and sea).

Amounts in dispute

The disputes referred to ICC arbitration involve varied sums of money, ranging from less than US$ 50,000 to over US$ 100 million. Most fall into the middle of this range. The year 2000 saw an increase in the number of cases in which the amount in dispute exceeded US$ 10 million, as compared with 1999. Over half of the cases registered in 2000 involved amounts in excess of US$ 1 million.

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Awards

The total number of awards approved in 2000 was up by 65 on the previous year, at 334 as opposed to 269 in 1999. Of this total, 186 were final awards, (as compared with 162 in 1999), 30 awards by consent (as compared with 38 in 1999) and 118 partial awards (as compared with 69 in 1999). The size of the rise is therefore explained by an unprecedented increase in the number of partial awards.

During the 1990s partial awards represented an average of 22% of the total number of awards made. In 2000, they represented 35%. The issues dealt with in these awards were many and varied. Just over a third were on jurisdiction and some 28% on liability. Other issues covered included the law applicable to the merits (4 cases), admissibility of parties, claims or evidence (6 cases), conservatory and interim measures (4 cases), security for costs (3 cases), the appointment of an expert (2 cases), summary disposition (2 cases), the validity or existence of contractual provisions (4 cases), confidentiality (3 cases), the filing of a bank guarantee (1 case) and the stay of proceedings (1 case).

It is a distinctive feature of ICC arbitration, and a means of ensuring the quality of its service, that all awards are required to be submitted in draft form to the Court for approval before being signed by the arbitrator(s). When giving its approval the Court may require or suggest certain changes to be made to the award. This was the case in 148 of the awards submitted to the Court in 2000. Alternatively, and more rarely, the Court may return an award. In 2000 it did so in 26 instances.

22 of the awards approved in 2000 were majority decisions (in the case of three-member tribunals). A dissenting opinion was expressed by the co-arbitrator nominated by the respondent in 13 cases and by the co-arbitrator nominated by the claimant in 7 cases. In the remaining two cases, the member of the tribunal whose opinion differed from the majority was not identified and the award was signed by all three arbitrators. If the three members of the tribunal cannot reach a majority, Article 25(1) of the ICC Rules of Arbitration provides that the award is made by the chair alone, which happened in one case in 2000.

In 2000, awards were rendered in English, French, German, Spanish, Italian and Portuguese, in decreasing order of frequency. English, accounting for three quarters of all awards, was by far the most widely used language. Two thirds of the remainder were in French. German and Spanish were the most frequent of the other languages used (15 and 13 awards respectively).

Like the awards themselves, corrections and interpretations of awards are subject to the scrutiny of the Court. 28 applications for correction and/or interpretation of awards were submitted to the Court in 2000. Two of these concerned clerical, computational or typographical errors corrected by the arbitral tribunal itself (Article 29(1)). The remaining 26 concerned corrections and/or interpretations requested by the parties, pursuant to Article 29(2) (15 by claimants, 10 by respondents and one by both parties). In response to such requests, the arbitral tribunal issues either an Addendum (if it accedes totally or partially to the request), or a Decision (if it rejects the request). In 2000, 20 Addenda were issued and 8 Decisions. All were approved by the Court, with suggested modifications on 11 occasions.

During 2000, the ICC Court met 36 times in committee form and held 12 plenary sessions. To cope with the Court's increasing activity, a seventh case-management team has been created within the Secretariat, which now includes 30 lawyers of 19 different nationalities. [Page13:]

Conciliation and ad hoc appointments

The ICC Rules of Optional Conciliation currently in force were adopted in 1988. Their purpose is to facilitate the amicable settlement of business disputes of an international character. The Rules provide for the appointment of a sole conciliator, once both parties have agreed to this method of settlement. The year 2000 saw an increase in the number of conciliation cases registered with ICC, reversing a certain disinterest in recent years. This upturn points towards a search for alternative methods of dispute resolution, to which ICC will respond in the near future with the launch of its new ADR Rules.

Of the nine conciliation cases registered in 2000, one reached a settlement within the year. Three of the remaining eight were withdrawn without an agreement having been reached and the other five were still pending at the end of the year, bringing the total number of conciliation cases pending at the year-end to six. Slightly more than half of the parties were of European origin. There were four parties of Asian origin and three from America. Conciliation processes have been undertaken in various sectors of the economy, including agriculture, construction and engineering, general trade and distribution and financial services.

A total of 110 conciliation cases have been registered with the ICC Court since the inception of the current Rules of Optional Conciliation in 1988. As of February 2001, 10% of these cases have resulted in a settlement, 71% have been withdrawn, 18% converted into arbitrations and 1% remained pending.

ICC received a total of thirteen requests to act as an appointing authority in ad hoc arbitrations. This marks a return to the peak reached in 1998 and includes a record seven requests for appointment under the UNCITRAL Rules.

International Centre for Expertise

The services offered by the ICC International Centre for Expertise comprise the proposal or appointment of experts and the administration of expertise proceedings in connection with all kinds of international business transactions pursuant to the ICC Rules for Expertise, and the administration of documentary credit dispute resolution expertise in accordance with the ICC DOCDEX Rules.

In 2000, ten requests were received relating to general expertise. Eight were for the proposal and two for the appointment of an expert. The parties in these cases came from Europe (Austria, Belgium, France, Germany, Italy), America (Argentina, Mexico, USA), the Middle East (Lebanon, Saudi Arabia) and Africa (Tunisia). The experts proposed or appointed came from six different countries: Argentina, France, Sweden, Switzerland, the United Kingdom and the USA.

The cases dealt with in 2000 covered both heavy industry and the services sector. They included, for instance, expertise in connection with the explosion of a component in a power station, technical problems relating to an aircraft, the construction of a water demineralization plant, railway electrification, banking and auditing.

Three requests were received in 2000 for documentary credit dispute resolution expertise. In each DOCDEX case, three experts are appointed from a list kept by the ICC Banking Commission. The experts appointed in 2000 came from Argentina, Canada, Denmark, France, Korea, Mexico, Singapore and the United Kingdom, whilst the parties involved in these cases were from China, El Salvador, Hong Kong, Moldavia, Panama and Switzerland.

For a survey of DOCDEX decisions since the introduction of the DOCDEX Rules in 1997, see Gary Collyer, 'Documentary Credit Dispute Resolution under the DOCDEX Rules Three Years On' in Arbitration, Finance and Insurance, Special Supplement of the ICC International Court of Arbitration Bulletin (ICC Publishing, 2000) 67.