I have had the pleasure of representing the French National Committee of the International Chamber of Commerce in the Working Party. The debate within this Working Party was often lively because of the different cultural backgrounds of the various members. For this very reason, these discussions were most fruitful and led to a result which creates a reasonable balance between different tendencies.

How was this balance achieved?

First of all, it can be seen in the measures taken with a view to improving the commencement of the arbitration procedure. For example, there is no longer any necessary link between the payment of advances to cover administrative costs and the arbitrators' fees, on the one hand, and the implementation of the Terms of Reference, on the other hand. However, the counterpart to the breaking of this link is that under certain circumstances the Secretariat may now suspend the arbitration procedure.

Another example of balance is the effort deployed with a view to reflecting the natural growth of an arbitration procedure, whose content may develop and become more complex, thus enabling the parties to become more precisely aware of the nature of their own claims.

This vitality was partially hindered by the former Article 16 on new claims. Now, the restatement of Article 16 (Article 19 of the new Rules) makes provision for the development of the dispute, but the counterpart of this flexibility is the fact that the arbitrator has been granted the power to assess whether or not an additional claim may be allowed, in the light of all the circumstances.

Many other examples may be cited of the subtle balance that the new ICC Rules aim to achieve.

Another example stems from the nature of the powers of the Arbitral Tribunal. In many respects, the powers of the arbitrators have been strengthened, in particular in relation to establishing the facts, taking investigatory measures and ensuring that the operations are kept confidential. However, this strengthening does have limits, and it cannot lead to an arbitrary use of power on the part of the arbitrators.

If one turns to the example of confidentiality, it is noted that, in this connection, the Arbitral Tribunal is authorized to take whatever decisions it deems essential, but at the same time the actual limit to this power is the latitude afforded to the arbitrator to devise solutions that are appropriate to the dispute. From this viewpoint, the new ICC Rules can be distinguished from other rules which, although perhaps more precise, are also more rigid, such as for instance the WIPO rules, which provide an effective system in relation to confidentiality but one which is, as it were, imposed in advance on the Arbitral Tribunal.

The Arbitral Tribunal is thus encouraged to define its own freedom itself, as is witnessed-and this is another example-by the power it is given to order interim measures, while limiting the scope of these measures by guarantees or safety mechanisms aimed at moderating the consequences of the decision that it has taken.

An analogous measure can be seen in relation to the rules applicable to the merits of the case, as summarized so clearly by Marc Blessing. It is true that the new ICC Rules of arbitration have substituted the 'direct method', in other words the possibility for the arbitrator to determine the particular rule of law that he considers the most appropriate, in place of the conflict of laws approach, which was still in force in the previous text. In fact, Article 17 (1) does not exclude reasoning based on the rule of conflict of laws; it merely gives the arbitrator the necessary freedom to enable him to adapt his method to each particular dispute.

Admittedly, the balance that the Working Party aspired to is especially evident in those areas where the new Rules are the most innovative, because of the caution that it felt was necessary in the final wording of the texts. One example of this caution is given by the provisions of Article 12 (5). Unlike the Rules of the American Arbitration Association or those of WIPO, the Court alone takes the decision to enable a truncated arbitral tribunal to continue with the arbitration procedure, taking into account the comments of the remaining arbitrators and the parties. Similarly, the new article concerning the correction and interpretation of awards sets in place a system of guarantee and safeguard intended to avoid the complicated discussions that sometimes arise in certain countries regarding the legal nature of an interpretation or rectification award.

I should like to conclude these comments by saying that the new Rules are distinctive not only by their concern for balance, but also by a desire to respect the economy of expression which has always been a characteristic of the ICC Rules of Arbitration. Certain institutional rules currently in force, but not perhaps as modern as one would think, present details and an accumulation of provisions which are not compatible with the spirit of the International Chamber of Commerce.

Lastly, the Working Party has always tried to define the boundary between pedagogical instructions and the genuine contractual rules which should constitute a set of Rules of arbitration. It was essential in fact to fight against the growing trend in international arbitration to mix different types of concepts together, and to develop a kind of moralistic approach that is quite foreign to standard legal thinking.