As most of the other speakers today have described the most important changes in the Rules, I thought that I might devote the little time I have to a certain number of matters that have not changed, although they were the subject of considerable discussion during the Rules revision process.

I - Confidentiality

First among these is the matter of the confidentiality of the arbitration process. Although the confidentiality of arbitration is often assumed, a number of recent court cases-most notably in the United Kingdom and Australia-have demonstrated that this cannot be taken for granted in all places and circumstances and that, in the absence of an express agreement to this effect, the parties do not necessarily have an absolute obligation to respect the confidentiality of the arbitration.1 The ICC Rules, like most other arbitration rules, have never explicitly obligated the participants in the arbitration (other than the ICC Court itself pursuant to its Internal Rules) to protect the confidentiality of the proceedings. In the course of reviewing the Rules, the ICC was therefore naturally required to consider whether to introduce a provision on this subject, as in the case, for example, of Articles 73-76 of the WIPO Arbitration Rules and Article 34 of the AAA International Arbitration Rules.

After extensive consideration of this matter within the Working Party, it was decided, however, not to propose a general confidentiality provision and, hence, to leave the matter for the parties and, as necessary, for local laws to deal with, as under the current Rules. Indeed, the Working Party was unable to arrive at a consensus regarding the appropriate formulation of a general confidentiality rule, partly because of the many legitimate exceptions that may arise. In addition, as international arbitration increasingly becomes the normal forum for the final resolution of international commercial disputes, there are increasing numbers of participants in the process who question the conventional notion that, simply because it is private, arbitration must be confidential. Arbitration assuredly gives the parties an opportunity to provide for confidentiality. However, that this ought to be the rule in all circumstances is not universally accepted.

Thus, ail that has been added to the new Rules is a provision authorizing the Arbitral Tribunal to 'take measures for protecting trade secrets and confidential information' (Article 20 (7)). However, this falls short of a general requirement that the parties must respect the confidentiality of the proceedings.

II - Fast-track arbitration

A recurring theme of arbitration conferences and literature in recent years has been the excessive duration of conventional arbitration proceedings. In the wake of the publicity surrounding the conduct of a complex ICC arbitration in less than three months several years ago,2 there has been growing interest in the means of conducting ICC arbitrations on an expedited, or 'fast-track', basis. In fact, other arbitration institutions have since adopted rules or special procedures for the conduct of fast-track arbitrations, as have, for example, WIPO and the Arbitration Institute of the Stockholm Chamber of Commerce.

The new Rules, however, do not contain any provisions on this subject, nor are they otherwise accompanied by any special fast-track rules. This is not because of any particular aversion to fast-track arbitration within the ICC. On the contrary, the ICC Rules, unlike most other arbitration rules, already contain relatively stringent time-limits (as discussed in (VIII) below). It was the view of most of the members of the Working Party, however, and most of the ICC National Committees, that parties wishing to conduct arbitrations on an even more accelerated basis than that provided for in the Rules should fashion procedures appropriate for each individual case and that a special set of rules is not likely to take account of all of the different issues and requirements that may arise. Indeed, in the experience of the ICC, the parties may have very different fast-track needs. All that really matters, therefore, is that the parties are in a position to fashion fast-track rules and procedures if this is what they wish to do.

Thus, the Rules include a new provision (Article 32) intended to make it clear that the parties may agree to shorten the various time-limits in the Rules, subject to the conditions of that provision. Parties should nevertheless take care that any fast-track provisions that they may agree upon are capable of operation in practice and that they do not unduly restrict their ability to present their case adequately in an arbitration.

III - Multi-party arbitration

The subject of multi-party arbitration (i.e. proceedings involving more than two parties) has long vexed arbitration specialists and institutions. Most arbitration rules, including the ICC Rules, have traditionally been drafted as if there were only two parties to the arbitration, a claimant and a respondent.

The failure of arbitration rules to cater for multi-party disputes is often characterized as a disadvantage of the arbitration process, not only because so many transactions involve multiple parties, but also because there is an obvious risk of inconsistent results if it is necessary to organize multiple proceedings relating to the same transaction or a series of related ones. For years, arbitration experts have therefore been seeking a solution to the multi-party arbitration conundrum like the Knights of the Round Table in search of the Holy Grail. In 1978, the ICC established a working party to study the various issues arising in this connection and to make recommendations. More than fifteen years later, in 1994, the best that the working party could do was to suggest that parties deal with the matter when drawing up their arbitration clauses as the related issues are far too various and complex to be dealt with in the Rules themselves.3

Consistent with this recommendation, the Working Party was not prepared to propose that the Rules be amended to deal with the many different issues that may arise in a multi-party context, with the exception, however, of one matter-the constitution of the Arbitral Tribunal.4 This particular issue was singled out not only because it has been the source of difficulties in several ICC cases, but also because the practice followed by the ICC Court in one of those cases led to the annulment, by the French Cour de cassation, of a Paris Court of Appeal decision upholding an ICC award.5

Apart from this one issue, the new Rules now also make it clear from the outset that the Claimant and Respondent may each include a multiplicity of parties.6 There is, thus, no obstacle per se to the conduct of a multi-party arbitration under the ICC Rules. However, the parties may be required to anticipate the special issues that may arise when drafting the arbitration clause.

IV - INTERIM MEASURES

A significant improvement in the new Rules is the inclusion of a provision-absent from the previous version-expressly empowering the Arbitral Tribunal to issue interim measures of relief.7 However, this provision will be of little assistance to parties who may require such relief before an arbitral tribunal has been constituted, but who do not wish to refer to the courts for the same.

Several years ago, in 1990, the ICC issued Rules for a Pre-Arbitral Referee Procedure that were intended to cater for those situations where parties might seek interim relief outside the courts prior to the constitution of an arbitral tribunal.8 At the time, it was proposed that, when the ICC Rules were next amended, consideration should be given to importing the Pre-Arbitral Referee Procedure into them. With the passage of time, however, interest in doing so faded. Although the Pre-Arbitral Referee Procedure was generally welcomed as a positive and innovative device when first introduced, it has been the subject of only one reference to the ICC. Whether this is because parties-preferring recourse to the courts during the pre-arbitral phase-do not consider the procedure to have any value or because they are simply unaware of it is not entirely clear. However, the apparent lack of interest in the process militated against its inclusion in the new Rules. Parties may nevertheless have recourse to the existing Pre-Arbitral Referee Rules if they wish.

V - Conciliation

With mediation and conciliation very much in vogue, at least in certain parts of the world, most notably North America, it inevitably fell to the Working Party to consider whether any account ought to be taken of those processes in the new Rules. However, there was no significant support for this and, accordingly, the Rules have not been changed in this respect.

The ICC has, of course, had its own Conciliation Rules since 1923, although few cases are actually conducted under those Rules.9 The ICC may wish to consider whether any renewed efforts ought to be made in order to breathe life into them. However, there is strong resistance within the ICC to imposing them, or any other conciliation process, on the parties during the course of an arbitration. Indeed, even though arbitrators often offer their good offices to parties in order to help them settle an arbitration, they will generally not pursue the matter unless this is what the parties all desire. The ICC Rules of Conciliation, for their part, envisage the complete separation of the conciliation and arbitration processes because of the concern that conciliation cannot function effectively unless parties feel free to communicate information to a conciliator that they might fear would prejudice them if revealed in an arbitration. In addition, the disclosure of information on a confidential basic to a person acting as a conciliator could disqualify him from acting subsequently as an arbitrator.

VI - Mandatory character of the Rules

An issue that arises from time to time in ICC arbitration practice is whether, and, if so, to what extent the parties are free to depart from the Rules or whether the latter are otherwise mandatory. A small number of provisions expressly contemplate their possible alteration by the parties. However, the Rules do not, for the most part, provide for this. Insofar as the ICC, by issuing its Rules, can be said to make an offer to the public to administer arbitrations in accordance therewith, the ICC can reasonably also take the position that it is not obligated to accept to administer cases where the parties have made alterations of the Rules that the Rules do not contemplate. Of course, the ICC is not necessarily precluded from accepting such cases either. It, thus, enjoys the discretion to determine what its policy ought to be in this respect. This is a matter as to which different institutions have taken different positions. Thus, for example, the International Arbitration Rules of the American Arbitration Association provide (Article 1.1) that those rules shall apply 'subject to whatever modifications the parties may adopt in writing'. However, no such general provision is contained in the ICC Rules, and the ICC has, from time to time, refused to administer arbitrations where the parties have agreed to alterations of its Rules that the Rules do not themselves contemplate.

During the process of reviewing the Rules, the Working Party therefore took a fresh look at the question of whether the Rules, either in whole or in part, should be considered to be mandatory and, if so, whether this should be stated in the Rules. It was considered, however, that the related issues of policy should be left to the ICC Court to resolve on a case-by-case basis. Although this may leave parties with a certain amount of uncertainty, the most prudent course for parties, in the circumstances, would be to adopt the Rules without alteration unless they are otherwise able to obtain the ICC's assurance that a specific change will not raise a problem.

VII - The definition of 'award'

One of the most distinctive features of the ICC arbitration system is the requirement that all awards must be scrutinized and approved by the ICC Court. However, nowhere do the Rules state what an award is (although the new Rules now helpfully define an award as including interim, partial or final awards), nor do they indicate which decisions of the Arbitral Tribunal are required to take the form of an award. In this respect, the Rules do not differ from other arbitration rules or most arbitration legislation. Indeed, there is no internationally accepted definition of an award.

The absence of any definition of the award in the Rules may give rise to uncertainties in practice. Most of the uncertainties that have arisen in this connection do not, of course, relate to the arbitrator's final award, which is generally recognizable, but rather to the many other decisions that arbitrators may make prior to the end of arbitration proceedings. Such decisions may, for example, concern such matters as:

(i) the arbitrator's jurisdiction;

(ii) the law to be applied by the arbitrator to the merits of the dispute;

(iii) the language of the arbitration;

(iv) procedural issues (e.g., whether to appoint an expert);

(v) other preliminary questions (e.g., whether any or all of the claims are barred by statutes of limitation);

(vi) interim measures of protection; and

(vii) substantive claims in the arbitration.

Several years ago, a working party of the ICC Commission on International Arbitration suggested that, when the Rules were next revised, the ICC should consider specifying the types of decisions that ought to take the form of an award, and that, as a consequence, would be required to be scrutinized by the ICC Court.10 In the end, however, this was not done, in large measure because of the absence of any uniform rules or practice in this respect.

Indeed, even within jurisdictions such as France and Switzerland-historically the two most important venues for ICC arbitration-there continue to be disagreements and uncertainties concerning the definition of an arbitral award. Thus, it is the view of certain, but not all, Swiss authorities that no decision of an arbitrator that does not result in the final determination of a claim can be considered to be an award.11 In accordance with this view, for example, an arbitral tribunal's decision, by means of a preliminary ruling, that the claims submitted to arbitration are not barred by a statute of limitations would not be regarded as an award (although a contrary decision normally would be). Nor would a decision on the principle of a party's liability (prior to consideration of the relevant damages claimed) constitute an award unless the decision were that there was no liability.

Such a relatively restrictive view of what constitutes an award is to be contrasted, however, with the decision of a French court of appeal in the case of Société Industrialexport-Import v. Société GECI et GFC.12 In that case, which related to an ad hoc arbitration conducted in Paris, the court found to be awards susceptible to recourse before the French courts three 'procedural orders' of the Arbitral Tribunal which (i) decided that the Arbitral Tribunal was competent and had been correctly constituted; (ii) determined the applicable procedural rules; and (iii) rejected an application for the suspension of the arbitral proceedings. The French court found that all three orders were, in fact, arbitral awards (although they did not purport to be) because they (translation) 'constituted decisions of a jurisdictional nature' that finally settled litigious procedural issues between the parties. Even if the characterization of all of these decisions as 'awards' might reasonably be questioned, the judgement in this case illustrates the uncertainties that continue to prevail internationally.

VIII - Time limits

Finally, the Working Party was required to consider whether to maintain the time-limits in the Rules for the Terms of Reference (two months) and the award (six months), respectively. As those time-limits almost always have to be extended by the ICC Court, the issue for the Working Party was whether they should be increased.

Although the members of the Working Party recognized that the time-limits-particularly, for the award-may be difficult to satisfy in many international cases, it was nevertheless felt that they should not be altered, and, as a consequence, they have not been. Indeed, the very purpose of many of the changes introduced in the new Rules is to permit the acceleration of the arbitration process. The time-limits, even if tight, serve as a reminder to all concerned that time is of the essence.

In closing, it should be re-emphasized that, apart from the above specific matters, the basic features of the ICC arbitration system have also not been modified. Notwithstanding the various changes that have been made, therefore, the ICC arbitration process under the Rules will remain very similar to what it was before and will retain all of its distinctiveness. Indeed, early in the revision process, it became apparent that there was a broad consensus among users and practitioners internationally that the Rules, while improvable, were not in need of radical reform.

1
See Paulsson and Rawding, 'The Trouble with Confidentiality', The ICC International Court of Arbitration Bulletin, Vol. 5/No. 1 (1994).

2
See the series of articles on this subject in The ICC International Court of Arbitration Bulletin, Vol. 3/No. 2 (1992).

3
See the Report on Multi-Party Arbitrations of the ICC Commission on International Arbitration, The ICC International Court of Arbitration Bulletin, Vol. 6/No. 1 (May 1995).

4
See in this connection the article by Stephen Bond in this Supplement to the Bulletin.

5
Siemens AG and BKMI Industrienlagen GmbH v. Dutco Construction Co., 7 January 1992.

6
Article 2 (Definitions).

7
See the article by Sigvard Jarvin in this Supplement to the Bulletin.

8
See Arnaldez and Schäfer, 'Le règlement de référé pré-arbitral de la CCI', Rev. arb. (1990), p. 83.

9
See Schwartz, 'International Conciliation and the ICC', The ICC International Court of Arbitration Bulletin, Vol. 5/No. 2 (November 1994).

10
See the Report of the Working Party in The 1CC International Court of Arbitration Bulletin, Vol. 1/No. 2 (December 1990).

11
See, e.g., Lalive, Poudret, Reymond, Le droit de l'arbitrage interne et international en Suisse (Payot, 1989), pp. 405-408.

12
Court of Appeal of Paris, 9 July 1992; Rev. arb.( 1993), No. 2, p.303 (note Jarrosson).