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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
ICC has always aimed to provide the international business community with dispute resolution services adapted to its various needs. These include arbitration, ADR, expertise and, most recently, a service for establishing and using Dispute Boards. Each of these services has its own characteristics and utility. It is up to the parties to determine which of them - or which combination of them - is best suited to their particular needs.
Arbitration is the only one which results in an award by a tribunal that is enforceable at law. Determinations made by Dispute Boards are not enforceable at law as such, although they may become contractually binding on the parties as described below. Hence, Dispute Board members do not act as arbitrators.
ADR is primarily intended to help parties arrive at a settlement agreement in relation to a particular dispute. Unlike Dispute Boards, which are standing bodies set up to deal with disputes as they arise, ADR is designed to deal with disputes on a one-off basis. ADR proceedings are administered by ICC under its ADR Rules.
The purpose of expertise proceedings is to provide parties with an expert's report on a particular issue. These proceedings are administered by ICC pursuant to its Rules for Expertise.
Dispute Boards (DBs) are normally set up at the outset of a contract and remain in place and are remunerated throughout its duration. Comprising one or three members thoroughly acquainted with the contract and its performance, the DB informally assists the parties, if they so desire, in resolving disagreements arising in the course of the contract and it makes recommendations or decisions regarding disputes referred to it by any of the parties. DBs have become a standard dispute resolution mechanism for contractual disputes arising in the course of mid- or long-term contracts.
ICC offers the international businesses community a set of documents providing a comprehensive and flexible framework for establishing and operating DBs in a wide range of contracts in different industries. These documents comprise the ICC Dispute Board Rules, the ICC Model Dispute Board Member Agreement and the Standard ICC Dispute Board Clauses.
The Rules are designed to govern the Dispute Board proceedings.
The Dispute Board Member Agreement covers such matters as the DB member's undertaking, the remuneration to be paid to the DB member and the duration of the agreement. The parties and the DB members are, of course, free to add to or modify the model as they may all agree. They should verify the enforceability of the agreement under applicable law and should also ensure compliance with any requirements necessary for the enforceability of the agreement.
The Standard ICC Dispute Board Clauses consist of three alternatives, each providing for a different type of Dispute Board, followed by arbitration as the ultimate recourse if a dispute is not resolved through the Dispute Board. The parties may choose whichever kind of Dispute Board is most appropriate, given the nature of their contract and their relationship. ICC does not favour any one type of DB over the others. When incorporating one of the clauses in their contract, parties are advised to verify its enforceability under applicable law.
The three alternative types of Dispute Board available to parties under the ICC DB Rules are as follows:
• Dispute Review Board ('DRB')
The DRB issues 'Recommendations' with respect to any dispute referred to it and constitutes a relatively consensual approach to dispute resolution. If no party expresses dissatisfaction with a Recommendation within a stated time period, the parties contractually agree to comply with the Recommendation. If a party does express dissatisfaction with the Recommendation within such time period, that party may submit the entire dispute to arbitration, if the parties have so agreed, or the courts. Pending a ruling by the arbitral tribunal or the court, the parties may voluntarily comply with the Recommendation but are not bound to do so.
• Dispute Adjudication Board ('DAB')
The DAB issues 'Decisions' with respect to any dispute referred to it and constitutes a less consensual approach to dispute resolution. By contractual agreement, the parties must comply with a Decision without delay as soon as they receive it. If a party expresses dissatisfaction with a Decision within a stated time period, it may submit the dispute to final resolution by arbitration, if the parties have so agreed, or the courts, but the parties meanwhile remain contractually bound to comply with the Decision unless and until the arbitral tribunal or court rules otherwise. If no party expresses dissatisfaction with a Decision within the stated time period, the parties contractually agree to remain bound by it.
• Combined Dispute Board ('CDB')
The CDB normally issues Recommendations with respect to any dispute referred to it but may issue a Decision if a party so requests and no other party objects. In the event of an objection, the CDB will decide whether to issue a Recommendation or a Decision on the basis of the criteria set forth in the Rules. The CDB thus offers an intermediate approach between the DRB and the DAB.
The essential difference between a Decision and a Recommendation is that the parties are required to comply with the former without delay as soon as they receive it, whereas a Recommendation must be complied with only if no party expresses dissatisfaction within a stated time limit. In either case, if a party is dissatisfied with a DB's determination of a given dispute, it may refer the dispute to arbitration, if the parties have so agreed, or the courts, in order to obtain an enforceable award or judgement. The DB's determination is admissible in any such further proceedings.
Under the ICC DB Rules, ICC does not administer Dispute Board proceedings, but plays a subsidiary role that may cover appointing DB Members and reviewing DB Decisions as to form at the parties' request. These functions are performed by the ICC Dispute Board Centre, which is separate from the ICC International Court of Arbitration, the ICC International Centre for Expertise and the ICC ADR Secretariat.