2-1 The ICC Rules of Arbitration establish the basic framework for ICC arbitral proceedings. Although the Rules are characterized by their flexibility and allow proceedings to be tailored to the individual characteristics of a dispute and the parties’ particular needs, the overall shape and sequence of the proceedings follow a regular pattern, which is charted in this chapter. Readers are referred to the detailed analysis in the following chapter for more information on individual stages and aspects of the proceedings.

Setting the proceedings in motion

2-2 Request for Arbitration. An ICC arbitration begins on the date the Secretariat receives the Request for Arbitration, prepared and submitted in accordance with Article 4. The claimant can submit its Request to any office of the Secretariat but not to an ICC National Committee or Group. There is no prescribed length for the Request, although it should contain the information listed in Article 4(3). The Request must be accompanied by an initial filing fee, currently set at US$ 3,000. Upon receipt of a Request, the Secretariat will assign it to one of its case management teams, which becomes the interface between the parties, their counsel and the arbitrators on the one hand and the Court and its Secretariat on the other.

2-3 Answer to the Request. Once the requirements of Article 4(4) are met, the Secretariat notifies the Request to the respondent, which has thirty days to submit an Answer. If requested, the Secretariat may extend this time limit, provided certain requirements are met. Like the Request, the Answer should provide an account of the dispute and contain the other information mentioned in Article 5. The Secretariat notifies the Answer to the claimant. If the respondent raises counterclaims in the Answer, the claimant is given thirty days in which to submit a reply.

2-4 Provisional advance. Upon receiving a Request for Arbitration, the Secretary General fixes a provisional advance on costs, which is intended to cover the arbitrators’ fees and expenses and the ICC administrative expenses until the establishment of the Terms of Reference (Article 36(1)). The Secretariat requests the claimant to pay the provisional advance in the letter informing it that the Request has been notified to the respondent. The Secretariat does not proceed to submit a case to the Court until the provisional advance has been paid in full.

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2-5 Joinder of additional parties. A party wishing to join an additional party to the arbitration may do so by submitting a Request for Joinder in accordance with Article 7 at any time before an arbitrator is confirmed or appointed in the proceedings. To this end, the Secretariat keeps the parties informed of any impending decisions by the Court or the Secretary General to appoint or confirm an arbitrator, and may also set a time limit for submitting a Request for Joinder. Requests for Joinder must contain the information mentioned in Article 7(2). They can be incorporated into other submissions such as Answers or replies to counterclaims. The requesting party must pay a non-refundable filing fee, currently set at US$ 3,000, for each Request for Joinder it submits. A single Request for Joinder can be used to join more than one additional party. Upon receipt of the Request for Joinder by the Secretariat, and provided all the requirements of Article 7 are met, the additional party will automatically become a party to the arbitration and will be notified of the Request for Joinder by the Secretariat and given thirty days in which to submit an Answer. However, like a regular respondent, the additional party may not remain a party to the arbitration if it is not bound by an agreement to arbitrate with the other parties.

2-6 Emergency arbitrator proceedings. A party in need of urgent interim or conservatory relief that cannot await the constitution of the arbitral tribunal may file an Application for Emergency Measures pursuant to the ICC Emergency Arbitrator Rules contained in Appendix V to the Rules (Article 29). The Application must be submitted prior to the constitution of the arbitral tribunal and can even be submitted before the Request for Arbitration, although in that case a Request for Arbitration must then be filed within ten days of the Application.

Initial procedural decisions

2-7 The Court may need to step in relatively early in the proceedings to decide on certain procedural matters. It will usually do so following receipt of an Answer from the respondent or the expiry of the time limit granted to the respondent to submit an Answer. Where necessary, the Court will make the following decisions:

  • Prima facie assessment. In most cases where the respondent raises jurisdictional objections or does not submit an Answer, the case will simply proceed and any jurisdictional issues will be decided by the arbitral tribunal. In some such cases, however, the Secretary General, pursuant to Article 6(3), will refer the case to the Court for a prima facie assessment pursuant to Article 6(4) as to whether an arbitration agreement binding the relevant parties may exist. Where it is not prima facie satisfied of this, the Court will not allow the case to proceed either at all or in relation to the parties or claims not covered by an arbitration agreement. This decision will usually be made before any other matters such as the constitution of the arbitral tribunal are addressed.
  • Place of the arbitration. Where the parties are unable to agree on a place of arbitration, the Court fixes the place of the arbitration pursuant to Article 18(1).

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  • Number of arbitrators. Where the parties are unable to agree on the number of arbitrators, the Court determines whether the case should be referred to a sole arbitrator or three arbitrators (Article 12(2)). The Rules contain a presumption in favour of a sole arbitrator and the Court generally opts for a sole arbitrator unless certain factors (e.g. large amount in dispute, complexity of case, involvement of a state) render a three-member tribunal more appropriate.
  • Consolidation. If requested by a party, the Court will need to decide whether to consolidate two or more pending cases pursuant to Article 10. Parties may bring a request for consolidation at any time during the proceedings, although the Court is more likely to accept such a request before the arbitral tribunal has been constituted in any of the cases to be consolidated.
  • Advance on costs. The Court fixes the advance or advances on costs as early as possible in the proceedings (Article 36 and Appendix III, Article 1). This advance is intended to cover the arbitrators’ fees and expenses and the ICC administrative expenses for the entire case. As the Court will in most cases await receipt of the Answer (or expiry of the time limit set for submitting an Answer) before fixing the advance on costs and as the time limit for submitting an Answer can be extended, it sometimes happens that the process of constituting the arbitral tribunal is well under way, or even completed, before the Court fixes the advance on costs. In the large majority of cases, the Secretariat will not request payment of the advance on costs until it transmits the case file to the arbitral tribunal pursuant to Article 16.

2-8 Under the Rules the following matters are left for the arbitral tribunal to determine once it has been constituted:

  • Language of the arbitration. If the parties have not agreed on the language of the arbitration, the arbitral tribunal selects the language (or languages) pursuant to Article 20.
  • Applicable law. If the applicable law has not been chosen by the parties, the arbitral tribunal decides what it should be pursuant to Article 21(1).

Constitution of the arbitral tribunal

2-9 The next step is to complete the constitution of the arbitral tribunal, unless already done. The constitution process begins as early as the submission of the Request for Arbitration, in which the claimant is required to provide its comments on the constitution of the arbitral tribunal and to nominate an arbitrator where necessary (see Article 12). Generally, the parties are free to nominate the arbitrator(s) of their choice or to agree on a procedure for arriving at such a nomination. The Court or the Secretary General must decide whether to confirm any arbitrator who has been nominated. Failing a nomination, the arbitrator(s) will be appointed by the Court.

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2-10 The process of constituting the arbitral tribunal can vary depending on the number of arbitrators required.

2-11 One arbitrator. If the dispute is to be submitted to a sole arbitrator, the Court appoints the arbitrator unless the parties make a joint nomination within thirty days of the date on which the Request for Arbitration is notified to the respondent, or within any other period agreed upon by the parties (Article 12(3)). In most cases submitted to a sole arbitrator, the arbitrator is appointed by the Court.

2-12 Three arbitrators. Unless the parties agree otherwise, each of the two opposing sides in the dispute is initially invited to nominate a co-arbitrator (Article 12(4)). The claimant(s) must nominate an arbitrator in the Request for Arbitration and the respondent(s) must do likewise in either the Answer or any request for an extension of time to submit the Answer. If the number of arbitrators has not been agreed upon and the Court subsequently decides on a three-member tribunal, the claimant and respondent are each given fifteen days successively to make their respective nominations (Article 12(2)). If either fails to make a nomination, the Court appoints a co‑arbitrator on its behalf.

2-13 The Court appoints the president of a three-member arbitral tribunal unless the parties agree otherwise (Article 12(5)). For instance, parties sometimes agree to have the co-arbitrators jointly nominate the president, or they may jointly nominate the president themselves or agree on another method of nomination.

2-14 If the Court is to appoint an arbitrator, the appointment is usually made on the basis of a proposal from an ICC National Committee or Group (Article 13(3)). For co-arbitrators, the Secretariat will normally approach the National Committee or Group corresponding to the nationality of the party that failed to make a nomination. For sole arbitrators and presidents, the National Committee or Group to be approached for a proposal will be selected by the Court. In certain circumstances arbitrators may be appointed directly by the Court without seeking a proposal from a National Committee or Group (Articles 13(3) and 13(4)).

2-15 Before they can be considered for confirmation or appointment, prospective arbitrators must complete a statement of acceptance, availability, impartiality and independence (Article 11(2)), in which they are required to inform the Court of any professional engagements they already have. They must also disclose any facts or circumstances that might be of such a nature as to call into question their independence in the eyes of the parties, or which could give rise to reasonable doubts as to their impartiality (Article 11(2)). The disclosure of such information does not automatically disqualify an arbitrator from serving. It rather enables the candidate’s suitability for office to be better assessed and avoids the disruption that can result from discovery of such information later in the proceedings.

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Preparation of the proceedings

2-16 Transmission of the case file to the arbitral tribunal. Once the arbitral tribunal is fully constituted, the Secretariat transmits the case file to it pursuant to Article 16, provided any requested advance on costs has been paid. This transmission marks the beginning of the arbitral tribunal’s obligation to manage the proceedings and resolve the dispute efficiently. The case file will include all submissions that have been filed at that stage by the parties (e.g. Request for Arbitration, Answer, Request for Joinder) and relevant correspondence in the case to date. When informing the parties that the case file has been transmitted to the arbitral tribunal, the Secretariat will also request payment of the advance on costs.

2-17 Terms of Reference. The arbitral tribunal’s first task is to draw up the Terms of Reference in light of the parties’ most recent submissions (Article 23(1)). It has two months in which to do this from the date on which the case file is transmitted to it, although the Court may extend the time limit where necessary (Article 23(2)). In many instances, the arbitral tribunal will prepare a draft that it will then circulate to the parties for comment. Arbitral tribunals are encouraged to set up a meeting with the parties to discuss and finalize the Terms of Reference. This meeting can be combined with the case management conference discussed below.

2-18 Before the arbitration can proceed, the Terms of Reference need to be signed by the parties and the arbitral tribunal (Article 23(2)). Signature does not imply that a party accepts any claims made against it. If a party does not participate in the proceedings or refuses to sign, the Court will need to approve the Terms of Reference to allow the arbitration to proceed (Article 23(3)).

2-19 A party is free to make new claims against any other party or parties only until the Terms of Reference are established or until any earlier deadline set by the arbitral tribunal to facilitate the preparation of the Terms of Reference. Thereafter, claims falling outside the limits of the Terms of Reference will require the authorization of the arbitral tribunal (Article 23(4)).

2-20 Case management conference and procedural timetable. The arbitral tribunal must convene a case management conference with the parties either at the time it establishes the Terms of Reference or as soon as possible thereafter (Article 24). This can take the form of a physical meeting or a video or teleconference. Its purpose is to enable the parties and the arbitral tribunal to discuss the procedure for the case and any appropriate case management techniques that could improve efficiency. This conference is an innovation of the 2012 Rules and is designed to assist the arbitrators and the parties in fulfilling their obligation to make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute (Article 22(1)). The conference also allows the arbitral tribunal to discuss the scheduling of

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hearings and time limits for submissions. During or following the case management conference, the arbitral tribunal must establish the procedural timetable, which will usually take the form of a procedural order (Article 24(2)).

2-21 Both the case management conference and any discussions relating to the Terms of Reference bring the arbitrators and the parties together at an early stage to identify the issues in dispute and the procedures that would be most effective in resolving them. Through such consultation they can often reach agreement on a number of procedural matters to ensure the proceedings run smoothly. These discussions also sometimes enable the parties to settle aspects of their dispute or even the dispute in its entirety.

Management of the proceedings

2-22 The arbitral tribunal and the parties are given considerable freedom to conduct the arbitration as they think appropriate. The relevant provisions of the Rules are found above all in Article 19 on the applicable rules of procedure, Article 22 on the general conduct of the proceedings, Article 25 on establishing the facts of the case, and Article 26 on hearings. No matter how the proceedings are conducted, the arbitral tribunal must ensure that each party has a reasonable opportunity to present its case (Article 22(4)). The arbitral tribunal and the parties must also make every effort to conduct the arbitration in an expeditious and cost-effective manner (Article 22(1)). To help achieve that objective, the Rules set a default time limit of six months, from the establishment of the Terms of Reference, in which the arbitral tribunal must render its final award. In practice, the Court usually fixes a different (and often longer) time limit to match the procedural timetable drawn up for the case (Article 30(1)). If necessary, the Court may extend the time limit pursuant to Article 30(2).

Closing of the proceedings

2-23 For every award that the arbitral tribunal anticipates rendering, it must close the proceedings in relation to the issues to be decided in that award (Article 27, subparagraph (a)). The formal closure of the proceedings prevents the parties from submitting additional evidence or pleadings unless specifically requested or authorized to do so by the arbitral tribunal. The proceedings must be closed as soon as possible after the last relevant hearing or authorized written submission (see Article 27).

2-24 At approximately the same time, the arbitral tribunal must provide the Secretariat and the parties with an estimate of the date on which it expects to submit its draft award for scrutiny (Article 27, subparagraph (b)). The sharing of this information creates external expectations, which help to ensure that the arbitral tribunal delivers on time.

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Preparation and rendering of awards (partial, interim or final)

2-25 Deliberation and drafting of an award. Following the closing of the proceedings, the arbitral tribunal deliberates and then drafts its award. In some, but not all cases in which the arbitral tribunal is composed of three members, the arbitrators meet physically for this purpose.

2-26 Scrutiny and approval of the award by the Court. Once a draft of the award has been completed, the arbitral tribunal must submit it to the Court for scrutiny pursuant to Article 33. All ICC awards must be approved by the Court before they can be rendered by the arbitral tribunal. The scrutiny process generally lasts two to three weeks, although its duration may vary. Upon receiving the draft award, the Secretariat will review it and prepare comments. In most instances, several Secretariat members will be involved in this initial review, including the Counsel of the team assigned to the case and a member of the Secretariat’s management. The Secretariat then transmits the award to the Court, together with its comments. The Court considers the award at one of its following sessions.

2-27 Revision of the award. In the overriding majority of cases where the Court approves an award, its approval is accompanied by comments which the arbitral tribunal is required to address before rendering the award. The Secretariat informs the arbitral tribunal (but not the parties) of the Court’s decision on the award and any comments it may have made. The arbitral tribunal is expected to make any modifications or additions necessitated by the Court’s comments within one to two weeks at the most, although this will depend on the nature of the comments. Once the arbitral tribunal has finished revising an award that the Court approved, it then resubmits it to the Secretariat, which will verify that the Court’s comments have been adequately addressed. Awards that the Court decided not to approve must be resubmitted to the Court for scrutiny and approval.

2-28 Signature and notification of the award. The Secretariat then invites the arbitral tribunal to finalize the award and supply the requisite number of signed hard copies as quickly as possible. Upon receiving these, the Secretariat checks that they are complete, then binds them and notifies them to the parties pursuant to Article 34(1). The Secretariat usually notifies an award to the parties within one business day of receiving it. The arbitral tribunal must not itself notify the award directly to the parties.

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Fixing the costs of the arbitration

2-29 Where (i) a final award is approved, (ii) the parties withdraw all claims, (iii) the arbitral tribunal terminates the proceedings, or (iv) the claims are deemed withdrawn pursuant to Article 36(6), the Court fixes the arbitrators’ fees and the ICC administrative expenses pursuant to Article 37. If the case is withdrawn or terminated before a final award is rendered, the Court fixes the costs of arbitration according to the stage the proceedings had reached (Article 37(6)). In such cases, a portion of the advance on costs is often refunded to the parties. In its final award (if any), the arbitral tribunal must record the costs of the arbitration as fixed by the Court and must decide which of the parties or in what proportion the parties shall bear them (Article 37(4)).

2-30 Once the arbitral tribunal and parties have been informed that the costs of arbitration have been fixed, the Secretariat proceeds to pay the arbitrators their fees and reimburse to the parties any amounts due. However, where the Court has approved a final award, the Secretariat will wait until that award has been notified before making such payments.