I should like to look very briefly at two points in the context of what has been said so far.

I - The <i>prima facie</i> examination by the Court of the existence of an arbitration agreement

According to the new Rules, there is no longer a prima facie examination by the Secretariat into whether or not an arbitration agreement exists; Article 7 of the current Rules has disappeared. If 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, it is now the Court alone which has the responsibility of carrying out such an examination. Article 8 (3) becomes the new Article 6 (2). By eliminating the prima facie examination by the Secretariat, the Working Party again demonstrates its concern to save time in setting arbitration proceedings in motion, as under the present Rules the Court is in fact almost always obliged to carry out a prima facie examination after the Secretariat pursuant to Article 12 of the Internal Rules (which, logically, also disappears).

The term 'scope' has been added in the text of the new Article 6 (2): the Court carries out a prima facie examination when one of the parties disputes the existence, validity or scope of the arbitration agreement. The addition of this term merely reflects the reality: the parties' objections in actual fact very often refer to the scope, ratione materiae or ratione personae of the arbitration agreement. This does not represent any change to the role of the Court, whose intervention not only does not encroach upon but rather safeguards the wide powers the arbitrators have to rule on their own jurisdiction themselves (a principle enshrined in ICC

arbitration since the 1955 Rules). It is only when there is undoubtedly no arbitration agreement that the Court refuses to set the procedure in motion.

Lastly, it is obvious that, even though the list of issues to be determined (in the new Article 18 on Terms of Reference) is no longer mandatory, as a result of the application by the Court of the new Article 6 (2), the arbitrators must still include in the Terms of Reference the question of jurisdiction as the first issue to be determined or, put differently, as the first decision to be taken.

II - Joinder of proceedings

The change made by Article 19 on the introduction of new claims may, in my opinion, have an indirect-and positive-effect on the joining of proceedings. Reference is made to Article 4 (6) of the new Rules, which echoes the text of the present Article 13 of the Internal Rules; such transposition is moreover an example of the rational restructuring of the Rules. According to this provision, when a party submits a request for arbitration in connection with a legal relationship in respect of which arbitration proceedings between the same parties are already pending, the Court may, at the request of one of the parties, decide to include the claims in the pending proceedings. In practice, the question arises in particular in the case of a set of contracts linking the same parties, that is to say, in the case of a single transaction with multiple contracts containing identical arbitration clauses.

Whereas, according to Article 4 (6), the decision to include the proceedings set in motion in the pending proceedings before the Terms of Reference of the latter have been signed or approved is at the Court's discretion, once the Terms of Reference have been signed or approved, the Court must take account of the provisions of Article 19 before a decision on inclusion is made.

However, according to the new Article 19, new claims that do not come within the limits of the Terms of Reference will no longer need an express agreement of the parties (a rider), as under the present Article 16, in order to be included in the arbitration. They may be authorized by the Arbitral Tribunal in the light of the particular circumstances-both substantive and procedural-of the individual case. It follows that, unlike the present situation, in which it is totally impossible for the Court to join arbitration proceedings once the Terms of Reference have been signed or approved, unless both parties expressly agree to the joinder, under the new Rules the Court is free to judge whether or not it is appropriate for proceedings to be joined in the light of the elements common to both cases and the particular circumstances of the pending case. The Court can actually decide in favour of a joinder if it considers this to be necessary in order to ensure that the arbitrations are coherent and satisfactorily administered.

It remains to be seen, however, not only whether, in the interpretation of Articles 4 (6) and 19, the agreement of the Arbitral Tribunal will now be considered necessary for the purpose of deciding in favour of a joinder, but also-and especially-to what extent the Court will, in practice, actually make use of this latitude indirectly given to it.