I - General

I had the pleasure of being a member of the Working Party chaired by Yves Derains and must congratulate him on being able to reconcile many different points of view on a large number of complicated arbitration issues.

In the Working Party we strongly felt the tension between, on the one hand, the ambition to make the ICC Rules fit for survival in the 21st century and, on the other hand, certain restrictions resulting from the structure of the ICC, in particular that of National Committees. I would not want to go so far as using the word 'conservatism', but it is quite clear that some of us feel more comfortable with structures which have been there for a long time.

All of this has made the new Rules evolutionary rather than revolutionary.

Key to the new Rules is that they are more systematic, their structure is more logical, they are more accessible and there is more emphasis on expediency and control of the timetable. Article 18 (4), obliging the arbitrators to establish a provisional timetable, is a typical example of a major improvement. In addition, the new Rules allow for more delegation by the Court to the Secretariat. Finally, there is a provision on multi-party arbitration (Article 10) which users will find extremely useful.

The other side of the coin is that ICC Rules are still substantially different from other modern arbitration regimes. I would mention inter alia the role of the National Committees in the process of appointment of arbitrators; the existence of a Court of Arbitration in addition to a Secretariat; the existence of terms of reference; the system of scrutiny of arbitral awards; and, last but not least, the lack of 'optionality'.

A typical example of the latter is that the appointment process is what Stephen Bond earlier called 'ICC public policy'. Another example is the Terms of Reference which have to be drawn up even if both the arbitrators and the parties agree that they do not serve a particular purpose in the case at hand. A proposal by the Netherlands National Committee to make terms of reference optional has been rejected, and thereby we have lost an important chance to make the Rules more flexible.

II - The user's perspective

I am the first speaker today who belongs to the category of 'users' of ICC arbitration. If you ask me for a definition of 'user', then my definition would be: he who pays the bill.

What does a user look for in international arbitration in this day and age? I have listed at random ten major requirements that the user of international arbitration, ICC arbitration included, might look for. There is nothing scientific or objective about these 'ten commandments'. I must confess I did not spend much time in listing them, but I would not be surprised if quite a number of other users would recognize them. Let me now briefly say a few words on each of these commandments.

A. Parties in control

From a user's point of view the parties in international arbitration should be magistri litis. This, in my view, results from the contractual nature of arbitration.

In ICC arbitration not the parties but the International Court of Arbitration of the ICC is in control. The lack of 'optionality' is another reason why there is less control by the parties than would have been possible. I think there is a challenge for the Court of Arbitration to keep

the trust of commercial parties worldwide in applying and 'policing' the Rules such that the wishes of the parties are respected wherever possible.

B. Quality of arbitrators

The Rules set forth safeguards in respect of 'independence' of arbitrators which are not substantially different from any other modern set of arbitration rules. An additional safeguard is the involvement of the Court and the Secretariat in the appointment process.

C. Expediency-efficiency

There is promise in the new Rules of a tighter timetable and of avoiding situations where appointment of ICC arbitrators can take up to a year. Whether this promise is fulfilled will depend on the working methods of the Court and the Secretariat.

D. Transparency of procedure

Proceedings of the International Court of Arbitration of the ICC are confidential. The parties have no insight in the deliberations in the Court on issues that may have a serious impact on their case. In my view, this is one of the weaker aspects of ICC arbitration.

E. Enforceability

As is the case with the old Rules, a major advantage of ICC arbitration will remain the existence of the cover page of an ICC arbitral award which gives the award the 'appearance of authenticity'. This will further recognition and enforcement of ICC arbitral awards in certain jurisdictions.

F. Confidentiality

Article 20 (7) of the new Rules provides: 'The Arbitral Tribunal may take measures for protecting trade secrets and confidential information.' I am not quite sure whether this is an entirely adequate provision in those cases where a party will wish to use the press to gain commercial advantage from an arbitration or to improve its position in the arbitration itself. I would have preferred a provision where confidentiality was the rule and a party had to obtain the specific permission of the Arbitral Tribunal to publish any information on the arbitration other than its existence and a mere outline of the facts.

G. Settlement friendliness

The new Rules allow for an award by consent, in line with the old Rules. There is no reference to Alternative Dispute Resolution. In particular, there is no specific provision allowing the arbitrators to suspend an ICC arbitration to enable parties to make a mediation attempt. Here, one could say that a chance has been missed. Some people say that ADR is merely the 'fashion of the day'; however, for many companies-also outside the United States-ADR is seen as a cost-effective and efficient alternative to binding dispute resolution mechanisms such as international arbitration.

H. Cost

Today's Conference marking the launch of the new ICC Rules is a festive occasion and I do not want to spoil the party by tackling the issue of cost at length. Suffice it to say that in quite a number of arbitrations the administrative cost-n itself rather substantial-as well as the arbitrators' fees are still relatively modest in comparison to the cost of counsel.

I . Modest discovery

The new Rules are silent on production of documents. Some international arbitrations are unduly prolonged because of 'fishing expeditions' and other forms of 'US-style' document production which have the effect of swamping arbitrators with documents without necessarily producing a better decision. There is no specific reference in the new Rules to discovery or document production, but one could be hopeful that Article 21 will encourage the Arbitral Tribunal to restrain parties in embarking on unduly onerous discovery (Article 21: 'The Arbitral Tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means').

J. Avoid 'juridification'

There is a tendency in international arbitration to resort to US-style litigation. I have the impression that international arbitration sometimes resembles court litigation in its most adversarial form. I don't think that there is anything the new Rules could do about this. It is something that counsel, parties, arbitrators, the Secretariat and the Court of Arbitration should monitor and counteract.

III - Conclusions

The 1998 ICC Arbitration Rules could have been more revolutionary from a user's perspective.

I would not be surprised if by the year 2010 the Rules should have to be reviewed again. In particular, the role of the International Court of Arbitration and the appointment procedure may have to come under renewed scrutiny. I hope that users will be allowed to participate widely in that process.

Because of a number of improvements in the drafting and structure, the new Rules hold a promise of acceptability by the business community. There are two 'ifs': the new Rules should be applied sensibly by the ICC Court, and the latter should make consumer friendliness paramount when applying the Rules and when communicating with users of ICC arbitration.