16 January 2018, Paris

The conference was primarily intended to introduce the ICC Young Arbitrators Forum (YAF) to an audience of young in-house corporate lawyers and arbitration practitioners.

The panel moderated by Hanaé Desbordes (Legal Counsel, Intercloud, Paris) comprised of arbitration lawayers Marina Papadatou (Associate, Leboulanger & Associés, Paris; ICC YAF Representative) and Clément Fouchard (Associate, Linklaters LLP, Paris; ICC YAF Representative), ICC Deputy Counsel Aurélien Zuber (Deputy Counsel, ICC International Court of Arbitration, Paris), financial expert Battine Edwards (Manager, Deloitte Forensic, International Arbitration, Paris) and in-house counsel Todd Ptak (Head of Risk Management & Statutory Affairs, Airbus Group, Toulouse).

The dispute resolution clause

In the first session, the speakers presented arbitration as an alternative dispute resolution mechanism, whose benefits, compared with state justice, include celerity, confidentiality and the ability for the parties to choose a specialised ‘judge’. Addressing the widespread conception that arbitration is expensive, the speakers pointed out that, according to an ICC study, 80% of the arbitration costs relate to lawyers’ fees,1 that would be incurred through either arbitration or litigation in state court.

According to the speakers, counsel have a better chance of convincing parties to incorporate an arbitration clause in their contracts if they highlight arbitration’s flexibility and confidentiality and the parties’ ability to choose their arbitrator.2 Parties are also generally more willing to agree to arbitration if the dispute resolution clause expressly provides for an amicable dispute settlement mechanism prior to, or at any time during, the arbitration.

The validity requirements of an arbitration clause were briefly outlined, with an emphasis on the arbitrability of the dispute and the parties’ consent to arbitration. The panel reminded of the importance of drafting a clear and unambiguous arbitration clause with a broad scope that covers a wide range of disputes, in order to avoid delays resulting from disputes on the interpretation of the arbitration agreement. They referred to the standard ICC arbitration clause, which has the benefit or being broad and concise, but incorporates the ICC Arbitration Rules, which contain detailed provisions related to the arbitration mechanism.

The speakers also gave several examples of arbitration clauses encountered in practice and commented on the different terms and expressions used by the parties in their drafting. They gave the example of pathological arbitration clauses such as those that provide for both arbitration and state court jurisdiction.

The speakers raised several consequences related to the inclusion into, or the omission from, the arbitration clause of terms related to the method of appointing arbitrators or the language of the arbitration. Focusing on the seat of the arbitration, they insisted on the importance of opting for a jurisdiction whose legislation is favorable to arbitration. By ‘favorable’, the speakers meant States with a legislation that promotes arbitration as an alternative dispute resolution mechanism, such as States that have signed the 1958 New York Convention for the recognition and enforcement of foreign arbitral awards.

The ICC arbitral procedure

The second session focused on the arbitral proceedings under the ICC Rules. After briefly mentioning the emergency arbitration and the ICC Expedited Procedure, the speakers reminded that the arbitration starts with Claimant’s filing of the Request for Arbitration before the ICC Secretariat, who will serve the Request on the respondent after the Claimant has paid the ICC filing fee. The respondent then has 30 days to answer the Request for Arbitration and submit its counterclaims, if any. The ICC Rules allow the Secretariat to grant the respondent an extension to submit the Answer – provided the respondent’s request for an extension meets certain conditions. Speakers mentioned that this additional period could allow the respondent to find and engage counsel, contact potential witnesses, and gather the necessary documents. The speakers also insisted on the advantages of having an expert involved in the early stages of the process, in order to properly quantify the claims (and counterclaims) and avoid inconsistencies between the initial and subsequent submissions.

Following the constitution of the arbitral tribunal, the ICC Secretariat transfers the file to the arbitrators, who, together with the parties, sign the Terms of Reference and hold a case management conference. It is recommended that parties attend this conference, in order for them to have a first encounter with the arbitrators and attempt finding an amicable resolution of the dispute. At the end of this conference, and provided that no amicable solution is reached, a provisional procedural timetable is issued.

After establishing the facts of the case by all means (namely reviewing the parties’ written submissions and the documents relied upon, holding a hearing and examining witnesses and experts, etc…) and after closing the proceeding, the arbitral tribunal renders an award, which can be final, interim or by consent.

A draft award is submitted to the ICC Court for scrutiny, in which the court can request formal modifications to the award. After approval by the ICC Court, the final version of the award is notified to the parties, who may file an application for correction or interpretation within 30 days following the notification.

To conclude, the speakers mentioned the possibility for the parties to file an application to set aside the award by way of annulment in court. In the vast majority of States, the grounds for annulment are very restrictive, and can by no means lead to a review on the merits of the awards, which further bolsters the efficiency of arbitration.

The remaining 20% relate to the arbitrators’ fees and to the ICC administrative costs (see the introduction to the ICC Commission on Arbitration and ADR report ‘Effective management of arbitration - A Guide for In-House Counsel and Other Party Representatives’, available at https://iccwbo.org/publication/effective-management-of-arbitration-a-guide-for-in-house-counsel-and-other-party-representatives/).

Under French law, unlike domestic arbitration, confidentiality is not the principle in international arbitration and should be expressly provided for by the parties.