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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
It is recommended that parties wishing to make reference to the ICC pre-arbitral referee procedure in their contracts use one of the following standard clauses. The first provides for the use of the pre-arbitral referee procedure alone and the second in combination with ICC arbitration. Pursuant to Article 29 of the 2012 ICC Rules of Arbitration, opting for the ICC pre-arbitral referee procedure excludes the application of the Emergency Arbitrator Provisions in the Rules of Arbitration.
Any party to this contract shall have the right to have recourse to and shall be bound by the pre-arbitral referee procedure of the International Chamber of Commerce in accordance with its Rules for a Pre-Arbitral Referee Procedure.
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The Emergency Arbitrator Provisions shall not apply.
Parties should choose whichever clause is appropriate to their needs. It may be necessary or desirable for them to adapt the clauses to their particular circumstances. In particular, when providing for arbitration, they may wish to stipulate the number of arbitrators, given that the Rules of Arbitration contain a presumption in favour of a sole arbitrator. They may also wish to stipulate the language and place of the arbitration and the law applicable to the merits.
Before inserting one of the above clauses in their contracts, parties should ensure that the ICC Pre-Arbitral Referee Rules conform with applicable law(s). Also, they should take account of any factors, such as mandatory requirements, that may affect the enforceability of the chosen clause under applicable law.
At all times, care must be taken to avoid any risk of ambiguity in the drafting of the clause. Unclear wording causes uncertainty and delay and can hinder or even compromise the dispute resolution process.