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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Two principal means of settling international commercial disputes through arbitration involve use either of the International Rules of the Court of Arbitration established by the International Chamber of Commerce (ICC), or of the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
The ICC offers to act as appointing authority in cases where parties choose to use the UNCITRAL Arbitration Rules to govern their procedure, but also wish to draw on the long experience of the ICC in appointing qualified arbitrators.
This paper explains the procedure to be followed in such cases.
The ICC International Court of Arbitration, established in 1923, enjoys a long standing reputation for its services to the private and public international business community.
Whenever a commercial dispute is to be settled by arbitration, parties can rely on the ICC system, which is characterized by neutrality, complete freedom of the parties to choose the place of arbitration, the applicable law, the language of the proceeding and the nomination of arbitrators, and at the same time enjoys the security of a supervisory body (the ICC International Court of Arbitration) and the administrative services offered by its secretariat.
The UNCITRAL Arbitration Rules, adopted in 1976, have been recommended by the United Nations General Assembly for worldwide use by the international business community. They have been drawn up for ad hoc arbitration in the context of international commercial relations, and envisage the designation of an authority which will appoint arbitrators where the parties fail to do so.
To parties who do not take advantages of the full services offered by the ICC under its own Rules, the ICC is willing to offer its experience in finding qualified arbitrators, in order to assist parties to an arbitration under the UNCITRAL Rules.
Whenever the ICC is designated as appointing authority it will draw up lists with names of qualified arbitrators and submit the lists to the parties. Thereby only persons having the necessary professional and business background, primarily those who have demonstrated their capacity as arbitrators will be considered.
Designations will be made by a three-member Committee convening twice a month, presided over by the Chairman (or a vice-Chairman) of the ICC International Court of Arbitration. Sole arbitrators or presiding arbitrators of three-member tribunals will be of a nationality other than those of the parties.
In cases where a party has failed to appoint a co-arbitrator in a tribunal of three arbitrators, the ICC will make the nomination on behalf of the defaulting party, and will ensure that arbitrator is independent and impartial. Challenges of arbitrators will be decided by the ICC International Court of Arbitration based upon a report by one of its members.
The ICC will nominate substitutes for arbitrators who for one reason or another have to be replaced.
Parties may ask the ICC to provide a statement on a consultative basis as to the fees charged by the arbitrators and deposits required by them.
On the request of a party or an arbitration tribunal, the ICC is willing to hold deposits until the fees and costs for the arbitration have been settled.
Each request made to the ICC to act as appointing authority will entail a charge of US$ 2500.
When requested to act as the appointing authority and to appoint a sole or presiding (third) arbitrator, the ICC will follow the list-procedure set forth in the UNCITRAL Rules (Art. 6 Section 3) unless all parties agree that the list procedure is not appropriate for the case. In selecting arbitrators, the ICC will choose qualified persons having the necessary professional and business background primarily from among those who have previously acted as arbitrators under the ICC Arbitration Rules. The ICC will carefully consider the nature of the case as described in the notice of arbitration in order to include in the list (if the list-procedure is considered appropriate) only those persons whose knowledge and experience as arbitrators are recognised in this particular field.
When appointing the sole or presiding arbitrator under the UNCITRAL Rules the ICC will follow its usual practice and, insofar as possible, designate a person of a nationality other than the nationalities of the parties, unless the parties agree otherwise in writing. In order to fulfil the functions of appointing authority the ICC through its Court of Arbitration will constitute a special committee ("the UNCITRAL Committee") of three persons chosen from among the members of the ICC Court of Arbitration under the chairmanship of its Chairman. (The Chairman may designate a Vice-Chairman of the Court to replace him during a session of the UNCITRAL Committee).
The UNCITRAL Committee will sit in principle every two weeks. Its decisions are taken unanimously. If the decision cannot be taken unanimously the matter is referred to the Plenary Session of the ICC Court of Arbitration.
Under Art. 7 of the UNCITRAL Rules when three arbitrators are to be appointed, each party is to appoint one arbitrator, but if a party fails to do so, the other party may request that the nomination is made by the appointing authority designated by the parties. In accordance with the UNCITRAL Rules, the ICC (through the UNCITRAL Committee) will, when appointing the second arbitrator on behalf of a party in default, exercise its discretion and ensure that such second arbitrator is impartial and independent of each party.
Under Art. 10 of the UNCITRAL Rules, every arbitrator - including the arbitrator appointed by a party - is required to be impartial and independent. Art. 10 provides that any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Art. 12 of the UNCITRAL Rules requires that decisions upon all contested challenges be made by the appointing authority.
When making decisions upon challenges at the request of any party, the ICC will do so through the ICC Court of Arbitration which decides in plenary session after hearing a report from one of its members.
The UNCITRAL Rules provide that the fees of the arbitrators shall be reasonable in amount taking into consideration the amount in dispute, the complexity of the subject matter, the time spent by the arbitrators and any other relevant circumstances of the case (Art. 39 Section 1). The ICC has a schedule of fees for arbitrators, which provides a minimum and maximum amount, for cases which are conducted under the ICC Arbitration Rules. At the request of any party the ICC through the UNCITRAL Committee will give a statement as to the fees of the arbitrators on a consultative basis (Art. 39 Section 4). Further, at the request of any party, the ICC through the UNCITRAL Committee will make any comments it deems appropriate to the arbitral tribunal concerning the amount of any deposit of supplementary deposits to be made under Art. 41 of the UNCITRAL Rules.
In addition to giving advice as to the amount of deposits as provided for in Article 41 of the UNCITRAL Arbitration Rules, the ICC upon request of one of the parties or of the arbitral tribunal is prepared to hold deposits and to render an account thereof to the arbitral tribunal.
For its services as appointing authority under the UNCITRAL Rules the ICC will charge the requesting party a fixed amount of US$ 2500. - in respect of each request made.