For ICC dispute resolution services, the year 2001 has been marked by the final approval and entry into force of a new set of rules devoted to ADR. This event was the culmination of an initiative launched early in 1999, when the ICC Commission on International Arbitration established a working party to study the promotion, adaptation and/or extension of ICC ADR services. During two years of intensive reflection and widespread consultation, the Working Party first identified the need for a new set of rules and then set to work on drafting such rules. In accordance with ICC procedures, ICC National Committees were consulted and a debate took place within the ICC Commission on International Arbitration. The result is a set of rules that reflect not only the skills and experience of those directly involved in drafting them, but broad-based consultations and discussions amongst specialists from all parts of the world. Thanks are due to the Working Party, under the attentive leadership of Peter Wolrich, for its commitment and successful completion of its mandate.

This Special Supplement to the ICC International Court of Arbitration Bulletin has a dual purpose. Whilst it celebrates an important development in the services offered by ICC, it also seeks to set this event in a wider context by presenting a picture of ADR in selected areas of the world. The topics covered reflect the preoccupations and priorities in the countries and regions concerned. Although these vary from one county to another, there are nevertheless certain recurring features and tendencies that can be perceived.

One recurrent theme is the relationship between ADR and proceedings in state courts. Throughout the world, the administration of justice through state systems has been hampered by the relentless rise in the number of cases they have to deal with and the increasing length of proceedings. In this context, a trend has been developing in a growing number of jurisdictions requiring parties to go through an ADR process in an attempt to settle their differences between themselves. Private dispute resolution can only benefit from similarly embracing new techniques and constantly updating the services it offers. As illustrated in the following articles, there is already a move in this direction, leading to creative solutions that build on existing traditions and forms of informal settlement.

ICC is a case in point. Whilst its ADR Rules are innovatory, they may be seen as part of a tradition of informal settlement of business disputes that goes back to ICC's very beginnings. As can be seen in Steuart Hamilton's look at ICC dispute resolution in the 1920s, ICC's activity in this field at that time consisted predominantly of informal settlement by conciliation and friendly intervention.

Precedents to modern ADR can also be found in state law. The German Code of Civil Procedure, for instance, has always required the courts to give consideration to the settlement of entire proceedings or individual issues by amicable arrangements. In practice, this frequently means that parties are encouraged to negotiate a mutually acceptable solution to their difference. They may also be referred to a judge to assist them in doing so. This provision, found in Article 279 of the Zivilprozeßordnung, was designed to allow the parties to transcend the confines of a narrowly defined court action and seek a constructive solution that avoids the risk of continuing conflict.

ADR is thus not so much an alternative as an additional means of resolving disputes. Indeed, different methods may be employed in resolving a single case. The use of friendly negotiation in a court context allows a problem to be clearly defined in legal terms whilst leaving options open when it comes to seeking a solution. Similarly, arbitration should not be thought to exclude the use of other informal techniques of dispute resolution as a case develops, and vice versa. What is important to the parties is the final result. The means should always be subservient to that end. It is to be hoped that as the means become increasingly numerous and diverse, the chances of achieving the best result possible will be enhanced.

ICC statistics suggest that there is considerable scope for ADR. Of the total number of cases submitted to ICC for arbitration, many do not go as far as a binding award but are resolved through the parties coming to a mutual understanding. This may be evidenced in awards by consent, which make up around 12% 1 of all awards rendered each year. In addition, it may be assumed that the cause of many case withdrawals at an earlier stage of proceedings is the fact that the parties have settled their difference between themselves.2 This represents a significant number of cases, since each year around half as many cases are withdrawn as are submitted to the ICC Court. The parties in such cases, and other parties who would not have contemplated arbitration, now have at their disposal in ICC's new ADR Rules an institutional framework designed to offer speed, security, confidentiality and flexibility in the pursuit of an amicable settlement.

Robert Briner

Chairman

ICC International Court of Arbitration

1
Average over the last 10 years.

2
77% of the cases withdrawn so far in 2001 were withdrawn pursuant to the parties' agreement to withdraw. In many instances such agreement is undoubtedly based on their having reached a settlement.