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KINGSTON UNIVERSITY
Dissertation
The scrutiny of the award by the ICC Court of
Arbitration
by Afzalian Iman
LLM 045
TABLE OF CONTENTS
INTRODUCTION
I - Presentation of the ICC
A - The International Chamber of Commerce and its
rules
a. The International Chamber of Commerce history
b. The International Chamber of Commerce organization
§ The World Council
§ National committees and groups
§ The Executive Board
§ The Chairmanship
§ International Secretariat
§ Secretary General
§ The commissions
§ Finance committee
§ The International Chamber of Commerce Court of
Arbitration
c. Tasks of the International Chamber of Commerce Court of
Arbitration
1. Designation of arbitrators
2. Control of the procedural aspect of the arbitration
3. Determination of the payment of the arbitrators
d. The International Chamber of Commerce Rules
1. Modifications of the Rules
2. The modifications of the «scrutiny of the Award by the
Court» article
B - The main task of the International Chamber of
Commerce: scrutiny of the award
II - The process of scrutiny of the
award
A. Scrutiny of an award, not a procedural order
B. The submission of a draft Award to the Counsel by the
Arbitral Tribunal
C. Designation of a Reporter by the Court
D. Transfer of the Report and the draft Award to the
Court
E. The Plenary Session
F. The Court decision
a. Distinction between issues of form and issues of
substance
1. Issue of form
2. Issue of substance
3. Issue of form and substance
4. A third power: respect of the parties' fundamental right
to be heard
b. No consideration by the Tribunal of the International
Chamber of Commerce Court of Arbitration recommendation
c. Award approved by the Court: final and enforceable
G. Conclusion on the process of scrutiny of the award
III - The prima facie examination of the
judgment or the questioning of the impartiality of the arbitrator? (Did the
Court interfere in the arbitrators functions?)
IV - A possible questioning of the state justice of
second degree?
A. An old «decentralized» judicial body
B. To a new arbitration founding a winner more than a
co-operation
C. A new «internalized» form of control
D. The «judicialisation» of the International
Chamber of Commerce action upon the arbitral award?
E. A possible control of nationals Courts after the scrutiny
of the award?
CONCLUSION
A. The scrutiny of the award: The source of a state
intervention decreased in posteriori
B. The scrutiny of the award: the roots of the most secure
system of arbitration of the world
INTRODUCTION
Disputes have always been part of human relationships, whether
they are economic, political or of any other type. In order to solve these
disputes, other than by fighting, parties sought to solve their disputes
through the intervention of a third party. In order to have a partial answer it
is obviously better to give the resolution of a dispute to a third party. One
of the oldest examples is the famous «King Salomon trial». In 950 AD,
two women had a child of the same age, but one died accidentally, suffocating
during his sleep. Each claimed that the child was hers. King Salomon ordered
the child cut in two. The first one accepted, the second preferred losing the
child to killing him. So Salomon decided to give the child to the second one,
guessing that by her behavior she was the real mother.
In modern societies, parties have the choice of solving a
dispute in court or by referring to a third party. In the lasts decades, it
became common for the parties who had to deal with a dispute to prefer an
alternative dispute resolution mode than a national judicial process. Some
courts now require parties to resort to some type of alternative dispute
resolution, usually mediation, before permitting the parties' cases to be
tried. The rising popularity of alternative dispute resolution can be explained
by the increasing caseload of traditional courts. There is a perception that
alternative dispute resolution imposes fewer costs than litigation, involves
greater confidentiality and provides parties with greater control over the
selection of the individual or individuals who will decide their dispute.
The three main types of alternative dispute resolution are
negotiation, mediation and arbitration. In negotiation, participation is
voluntary and there is no third party who facilitates the resolution process or
imposes a resolution. In mediation, there is a third party, a mediator, who
facilitates the resolution process, but does not impose a resolution on the
parties. In arbitration, participation is typically voluntary, and there is a
third party who, as a private judge, imposes a resolution. Arbitration often
occurs because parties contractually agree that any future dispute concerning
the agreement will be resolved by arbitration. This is known as a 'Scott Avery
Clause'. Lately, the enforceability of arbitration clauses, particularly in the
context of consumer agreements, has drawn scrutiny from courts. Although
parties may appeal arbitration outcomes to courts, such appeals face an
exacting
standard of
review.
The growth of international trade brought greater
sophistication to a process that had previously been largely ad hoc in
relation to disputes between merchants resolved under the auspices of the
lex
mercatoria. As trade grew, so did the practice of arbitration,
eventually leading to the creation of a variant now known as
international
arbitration as a means for resolving disputes under international
commercial contracts. Indeed, the use of arbitration in an international point
of view made a distinction between ad hoc arbitration and
institutional arbitration.
Ad hoc arbitration is a proceeding that is not
administered by others and requires the parties to make their own arrangements
for the selection of arbitrators and for the designation of rules, applicable
law, procedures and administrative support. The most popular rules chosen for
ad hoc arbitrations are the UNCITRAL Arbitration Rules adopted by the
United Nations General Assembly on 15 December 1976. Provided that the parties
approach the arbitration in a spirit of cooperation, ad hoc
proceedings can be more flexible, cheaper and faster than an administered
proceeding. The absence of administrative fees alone makes this a popular
choice.
Regarding this particular type of arbitration, it seems
obvious that arbitration is cheaper than litigation; but usually the parties
will opt for more security and rapidity: institutional arbitration. The legal
comparatist, René David stated in 1965 that «to the ancient
arbitration, which was organized on an ad hoc basis, justified by exceptional
circumstances, tolerated because of the «scope limited solution» of
the decision process, has been substituted a pre-organized, systematic
institutional arbitration». This type of arbitration had its own
disadvantages which are:
- Administrative fees for services and use of facilities may
be high in disputes over large amounts
- The institution's bureaucracy may lead to added costs and
delays
- The disputants may be required to respond within
unrealistic time frames
In an institutional arbitration, the contract between the
parties will contain an arbitration clause which will designate an institution
as the arbitration administrator. The advantages of institutional arbitration
are apparent1(*):
- Availability of pre-established rules and procedures which
assure that arbitration will get off the ground and proceed to conclusion with
dispatch
- Administrative assistance from institutions providing a
secretariat or court of arbitration
- Lists of qualified arbitrators, often broken down by fields
of expertise
- Appointment of arbitrators by the institution
- Physical facilities and support services for arbitrations;
- Assistance in encouraging reluctant parties to proceed with
arbitration and
- An established format with a proven record
There are approximately 1,200 institutions, organizations and
businesses worldwide offering institutional arbitral services. Some of these
institutions are associated with a trade association and many are independent.
The four main ones are the London Court of International Arbitration, the
Chartered Institute of Arbitrators (UK), the National Arbitration Forum (USA)
and the International Chamber of Commerce of Paris. Each of these institutions
has its own rules and some of them are famous for the quality of their rules.
The most popular institutional rules are the Rules of Arbitration of the
International Chamber of Commerce, effective as of 1 January 1998.
One particularity of this institution is situated in its
article 27. This article stipulates that: «before signing any Award, the
Arbitral Tribunal shall submit it in draft form to the Court. The Court may lay
down modifications as to the form of the Award and, without affecting the
Arbitral Tribunal's liberty of decision, it may also draw its attention to some
points of substance. No award shall be rendered by the Arbitral Tribunal until
it has been approved by the Court as to its form». This
«quasi-judicial» function2(*), as Pierre Lalive called it, is a fundamental feature
of International Chamber of Commerce arbitration and distinguishes it from all
of the other major international institutions. Even if the American Arbitration
Association Rules also deter the practice of challenging the awards before the
state courts (in the article 27), the International Chamber of Commerce Rules
go further by providing a waiver of the rights to challenge the award before
them. Indeed, the article 28(6) of the International Chamber of Commerce
provides that «every Award shall be binding on the parties. By submitting
the dispute to arbitration under these Rules, the parties undertake to carry
out any award without delay and shall be deemed to have waived their right to
any form of recourse insofar as such waiver validly can be made».
The validity of the Court's scrutiny of draft Awards has been
challenged in the past. It has been argued that in scrutinizing Awards, the
Court unduly interferes with the arbitrator's liberty of decision, violates the
secrecy of their deliberations and deprives the parties of due process as they
are not included in the exchanges between the Court and the Arbitral Tribunal
with respect to draft Awards. Some argued also that, by scrutinizing the
awards, the Court tries to take the place of a state Court of second degree.
These arguments bring 2 questions:
- Did this power of scrutiny of the award make a difference in
the state intervention, on the Arbitral Award, after the Arbitration
process?
- Did this power of scrutiny of the award is a consequence of
the International Chamber of Commerce success?
After a presentation of the International Chamber of Commerce
of Paris and of the power of scrutiny of the award by its Court of arbitration
we will study these controversial arguments according to which the Court
interferes in the arbitrators functions and exercises a second or appellate
level of arbitral jurisdiction.
I - Presentation of the International Chamber of
Commerce
As it is defined in the International Chamber of Commerce
website, «The International Chamber of Commerce is the voice of world
business championing the global economy as a force for economic growth, job
creation and prosperity»3(*). This organization works to promote and support global
trade and globalization. It has direct access to national governments worldwide
through its national committees among others and has developed a range of
activities. The International Chamber of Commerce Court of Arbitration is a
body which hears and resolves private disputes between parties. Under this
Court Arbitration is on the increase at a rate of more than 500
(cases?) a year. This increase in making arbitral awards is
due to the success of the rules which make the award safer than the award of
another arbitral institution and less susceptible to the intervention of a
national judge. The safety of this award is essentially due to the Court's
power of scrutiny.
Before analyzing the contribution of the power of scrutiny of
the award by the International Chamber of Commerce Court of Arbitration (b), we
will start by analyzing the history and organization of the International
Chamber of Commerce (a).
A - The International Chamber of Commerce and its
rules
e. The International Chamber of Commerce history
The International Chamber of Commerce Court of Arbitration has
a distinguished and long-standing history of international dispute resolution.
In 2006 alone, it received almost 600 requests for arbitration from all over
the world. This institution is almost one century old. Indeed, it was founded
in 1919 to serve world business by promoting trade and investment, open markets
for goods and services, and the free flow of capital.
Much of the International Chamber of Commerce's initial
impetus came from its first president,4(*) Etienne Clémentel, a former French minister of
commerce. Under his influence, the organization's international secretariat was
established in Paris and he was instrumental in creating the ICC International
Court of Arbitration in 1923. This Court is established in Paris but organizes
international arbitrations in many countries and is the most important and most
active international arbitration institution.
After the second World War, leaders from the allied nations
met for the first time in Atlantic City to make an international organization
to promote trade between them. Therefore they trusted the Rules of the
International Chamber of Commerce to be applied if two parties from a
contracting country decided to resolve their dispute under this institution.
The original nucleus, representing Belgium, Britain, France, Italy and the
United States, has expanded to become a world business organization with
thousands of member companies and associations in around 130 countries.
f. The International Chamber of Commerce organization
As we have seen, one of the disadvantages of this
institutional arbitration is its bureaucracy. Indeed, the International Chamber
of Commerce is a complex administration composed of several committees and
bodies which make its existence possible. It is comparable to a well-organized
company with a direction and different services, each of them playing a
determining role in the elaboration of an arbitral award. Let us see these
various pieces of the puzzle.
1. The World Council
The International Chamber of Commerce World Council is the
equivalent of the general assembly of a major intergovernmental organization.
The big difference is that the delegates are business executives and not
government officials. There is a federal structure, based on the Council as the
International Chamber of Commerce's supreme governing body. National committees
name delegates to the Council, who normally meet twice a year. Ten direct
members (from countries where there is no national committee) may also be
invited to participate in the Council's work.
2. National committees and groups
They represent the International Chamber of Commerce in their
respective countries. The national committees and groups make sure that
International Chamber of Commerce takes into account their national business
concerns in its policy recommendations to governments and international
organizations.
3. The Executive Board
The Executive Board is responsible for implementing
International Chamber of Commerce policy. The Executive Board has between 15
and 30 members of both business leaders and ex-officio members. They serve for
three years. They have a one third rotation in membership. The Chairman, his
immediate predecessor, and the Vice-Chairman form the Chairmanship.
4. The Chairmanship
The Council elects the Chairman and Vice-Chairman for two-year
terms. The Chairman, his immediate predecessor and the Vice-Chairman form the
Chairmanship. The Council also elects the Executive Board, responsible for
implementing International Chamber of Commerce policy, on the Chairman's
recommendation. The Executive Board has between 15 and 30 members, who serve
for three years, with one third retiring at the end of each year.
The current Chairman is Victor K. Fung. He became the Chairman
of the International Chamber of Commerce on 1 July 2008. He is Chairman of the
Li & Fung Group of companies, with major subsidiaries in trading,
distribution and retailing, including publicly-listed Li & Fung Limited,
Integrated Distribution Services Group Limited, and Convenience Retail Asia.
The actual Vice Chairman is Rajat Kumar Gupta. He became the
Vice-Chairman of the International Chamber of Commerce on 1 July 2008. He is
the Senior Partner Emeritus of McKinsey & Company and served as the
Managing Director Worldwide of McKinsey from 1994 to 2003.
5. International Secretariat
The Secretary General works with the national committees to
carry out the International Chamber of Commerce's work programs and is
appointed by the World Council. The International Chamber of Commerce
International Secretariat is based in Paris and is the operational arm of
International Chamber of Commerce. It carries out the work program approved by
the World Council, feeding business views into intergovernmental
organizations.
6. Secretary General
The Secretary General heads the International Secretariat and
works closely with the national committees to carry out the International
Chamber of Commerce's work program. The Secretary General is appointed by the
Council at the initiative of the Presidency and on the recommendation of the
Executive Board.
The current Secretary General is Jean Rozwadowski. He became
the Secretary General of the International Chamber of Commerce on 1 July 2009.
Prior to joining the International Chamber of Commerce, Mr Rozwadowski, a
businessman with broad international experience, has lived and worked on five
continents, holding senior executive positions in Bahrain, Belgium, Brazil,
Britain, France, Germany, Singapore, and the United States.
7. The commissions
Member companies and business associations can shape the
International Chamber of Commerce stance on any given business issue by
participating in the work of International Chamber of Commerce commissions.
Commissions are the bedrock of the International Chamber of Commerce, composed
of a total of more than 500 business experts who give their time freely to
formulate International Chamber of Commerce policy and elaborate its rules.
Commissions scrutinize proposed international and national government
initiatives affecting their subject areas and prepare business positions for
submission to international organizations and governments
8. Finance committee
The finance Committee advises the Executive Board on all
financial matters. It reviews the financial implications of the International
Chamber of Commerce's activities and supervises the flow of revenues and
expenses of the organization.
9. The International Chamber of Commerce Court of
Arbitration
As international commercial arbitration has grown and expanded
with the growth of international trade, arbitral institutions have also grown
and changed. For example, the American Arbitration Association has created an
international division called the International Centre for dispute Resolution
(ICDR) which is in charge of dealing with international disputes. Lots of
arbitral institutions have updated their rules to present «an
international arbitration-friendly format»5(*). The cost and the quality of the Court of arbitration
of the different institutions can be very different. For the same quality of
work, a very old institution can ask for much more fees than another. But a lot
of companies prefer to pay more for an old institution. In fact, the older an
institution is, the more it has received cases and the more it can be
trusted.
The International Chamber of Commerce Court of Arbitration has
received 14000 cases since its inception in 19236(*). Over the past decade, the Court's workload has
considerably expanded.
The Court's membership has also grown and now covers 86
countries. With representatives in North America, Latin and Central America,
Africa and the Middle East and Asia, the International Chamber of Commerce
Court has significantly increased its training activities on all continents and
in all major languages used in international trade.
The number of cases received and the number of members make
this institution one of the better-known and most prestigious arbitral
institutions. The appellation International Chamber of Commerce
«Court» of Arbitration does not mean Court from a domestic point of
view. This Court is not part of any judicial system, but is more an
administrative body. The Court is responsible for overseeing the arbitration
process.
Two features of the International Chamber of Commerce Court of
Arbitration underline the quality of administration of this institution. First,
the «Terms of Reference» is a list of all the issues in dispute, the
parties, the place of arbitration, the rules... This document ensures that
everyone knows at the beginning of the process what the parameters of the
arbitration will be. Secondly, the power of scrutiny of the award by which the
award is not provided to the parties until it has been reviewed by the Court.
It is clear that the Court of Arbitration cannot be considered
as a usual Court. In fact, the role of the Court is more carried by the
Arbitral Tribunal (chosen by the parties). The Court of Arbitration will help
the Arbitral Tribunal, from an administrative point of view, render an
applicable award with less chance (in particular with the power of scrutiny of
the award) to be questioned by a national Court.
g. Tasks of the International Chamber of Commerce Court of
Arbitration
1. Designation of arbitrators
International arbitration is built around the idea that the
individual parties select their own arbitrators who then appoint the chairman
or presiding arbitrator and the International Chamber of Commerce rules conform
to this principle. The ICC Rules specify that the dispute will be decided by
either a sole arbitrator or by three arbitrators. If the parties do not agree
on the number of arbitrators, the International Chamber of Commerce Court will
decide.
The International Chamber of Commerce rules deal with how the
arbitrator is appointed where the parties have agreed to just one arbitrator.
If they do not agree on a nomination, the International Chamber of Commerce
Court will appoint one on their behalf.
The ICC Rules also provide for when three arbitrators should
be appointed. Each party could nominate one arbitrator with the chairman being
nominated by the International Chamber of Commerce Court, subject to the
agreement of both parties.
2. Control of the procedural aspect of the arbitration
Statement of case: Under the International Chamber of
Commerce Rules, the claimant sets out the details of his claim when sending his
request for arbitration to the secretariat. The respondent then has 30 days
from when he receives the request from the secretariat to file an answer.
Awards: under the International Chamber of Commerce
Rules, the tribunal is given a period of six months for the final award to be
rendered. However, the International Chamber of Commerce Court may extend this
period. Under the International Chamber of Commerce Rules, the award must state
reasons. Although the International Chamber of Commerce Rules allow the
tribunal to correct some errors in their award, they do not expressly provide
for remedying an omission. The International Chamber of Commerce rules waive
the right to object to the decision of the tribunal.
From this procedural point of view it is clear that the Court
plays an administrative role. By looking to the delay for the answer of the
respondent (30 days), by respecting the delay for the final award (6 months or
more if extended) and correcting certain errors, the Court has a crucial
role.
3. Determination of the payment of the arbitrators
The final act of the International Chamber of Commerce Court
is to fix the total cost of the proceedings, which includes the fees and
expenses of the arbitrators as well as the administrative costs of the
International Chamber of Commerce.
The application of all these tasks is the reason of the
success of the International Chamber of Commerce Court of Arbitration. Once the
parties decide to resolve their dispute with this institution, the Arbitral
Tribunal is always supported by the Court of Arbitration. It is the efficiency
of a ground system which is looked for. The regulation of the conflict stage by
stage and the research for a just and incontestable award returned in time are
the fruits of supports of the Court.
a. The International Chamber of Commerce Rules
1. Modifications of the Rules
The Rules of Arbitration of the International Chamber of
Commerce, whose headquarters are in Paris, date from 1922. Their
application is overseen by the International Chamber of Commerce International
Court of Arbitration, whose members come from various sectors of the society.
During their 80-year history, the rules have had a strong and lasting influence
on the development of international arbitration. Many of the world's most
reputed international arbitrators have acted in proceedings conducted under the
auspices of the International Chamber of Commerce, thereby contributing
significantly to the recognition of International Chamber of Commerce
arbitration in industrial and commercial circles. The International Chamber of
Commerce arbitration clause is today used in countless contracts of all kinds.
Over 13,000 cases have been filed with the International Chamber of Commerce
since the inception of International Chamber of Commerce arbitration.
The International Chamber of Commerce International Court of
Arbitration has always been attentive to changing needs and has periodically
adapted its rules.
The International Chamber of Commerce Arbitration Rules have
been revised on several occasions (1922, 1955, 1975, 1988 and 19987(*)), and the latest reform is one
of the most important. The revision process began in 1995 and involved two
years of discussion within the International Chamber of Commerce's
International Committee. The new rules were adopted in April 1997 by the
International Chamber of Commerce Council and entered into force on January 1,
1998. Those new rules will apply to any arbitration beginning after that date,
unless otherwise agreed by the parties.
The International Chamber of Commerce Commission on
Arbitration and its Task Forces and Groups boast over 500 members from 90
countries, including partners in international law firms, in-house counsel, law
professors, experts in different dispute resolution services, and trade
executives in member companies and international organizations. The Task Force
on the Revision of the International Chamber of Commerce Rules of Arbitration
was created in October 2008. The Task force was mandated:
- To study all suggestions received from National Committees,
members of the International Chamber of Commerce, users of the International
Chamber of Commerce rules of arbitration, Court members and members of the
Secretariat;
- To determine if amendments to the International Chamber of
Commerce rules of arbitration are useful or necessary;
- To make any recommendations for the amendment of the
International Chamber of Commerce rules of arbitration that the Task Force
deems to be useful or necessary.
The Task Force is composed of over 175 members from 41
different countries. The Drafting Sub-Committee of the Task Force held its
first meeting in Paris on 23 March 2009.
After all the modifications of the International Chamber of
Commerce Rules we can see that the Task Force is looking for another
modification of these rules. It seems obvious that the International Chamber of
Commerce rules have always been in constant modification. Indeed, this
«constant modification» is understandable as international trade
relations are always changing. It seems obvious that the rules have to be in
adequacy with international trade modification.
2. The modifications of the «scrutiny of the Award by the
Court» article
Prior to the modification of 1998 the article 27 of the
International Chamber of Commerce Rules of 1998 was the article 21 of the
International Chamber of Commerce Rules of 1975. This old article provides that
«Before signing an award, whether partial or definitive, the arbitrator
shall submit it in draft form to the International Court of Arbitration. The
Court may lay down modifications as to the form of the award and, without
affecting the arbitrator's liberty of decision, may also draw his attention to
points of substance. No award shall be signed until it has been approved by the
Court as to its form».
In the new definition of the article 27 of the 1998
International Chamber of Commerce Rules, the qualifying phrase «whether
partial or definitive» is omitted, certainly because the distinction was
not necessary.
Secondly, all the terms previously defined in Article 2 of the
Rules now take their abbreviated form. «Arbitral Tribunal» is used
instead of «arbitrator and «by the Arbitral Tribunal» is
appended to «No Award shall be rendered».
B - The main task of the International Chamber of
Commerce: scrutiny of the award
Under the International Chamber of Commerce Rules, the most
important function of the Court is the scrutiny of arbitral awards. The
International Chamber of Commerce Rules provide that the Court must approve all
awards as to their form and that the Court may also, without affecting the
arbitrators' liberty of decision, draw their attention to points of substance.
In International Chamber of Commerce arbitration, scrutiny is a key element
ensuring that arbitral awards are of the highest possible standards and thus
less susceptible to annulment in the national courts than they might otherwise
be. The scrutiny process provides the parties with an additional layer of
protection that would not otherwise be available, since arbitral awards are
generally not subject to appeal. This unique quality-control mechanism makes
International Chamber of Commerce arbitration the world's most reliable
arbitration system.
To understand how a mechanism of control like that has made
the International Chamber of Commerce Court of Arbitration such a special
institution of arbitration it seemed necessary to analyze the process of
scrutiny of the award.
II - The process of scrutiny of the
award
We are going to analyze the «step by step» process
of scrutiny of the award8(*), with a presentation of the different bodies of the
institution acting in the process of scrutiny.
H. Scrutiny of an award, not a procedural order
The Court will scrutinize an Award, not a procedural order.
The distinction is important since if it is a procedural order, the Court does
not have anything to say about it.
The description that the Tribunal gives to the Award does not
determine whether the decision is an Award or a procedural order. It is the
Substance of the Tribunal's decision which determines it. As it has been held
in a French decision, the Sardisud case9(*), an Award is «the decision of an arbitral
tribunal which finally settles, in whole or in part, the underlying dispute
either on the merits, on jurisdiction or on any procedural issue which
terminates the arbitral proceedings».
American courts and French courts made decisions about this
distinction.
In the Publicis case10(*), the US Court of Appeals decided that an order for
production of documents rendered by a Tribunal in England could be enforced in
the United States. The Court held that «the content of a decision, not its
nomenclature, determines finality» and decided that «despite its
designation as an «order» instead of an «award», the
arbitral tribunal's decision, as to this chunk of the case, was final».
In the Braspetro case11(*), a Tribunal in an International Chamber of Commerce
arbitration had issued a document that entitled an order. The Tribunal did not
submit the order to the International Chamber of Commerce Court of Arbitration
for scrutiny and an application was made to annul it for failure to meet the
procedural requirements of the Rules regarding scrutiny. The Paris Court of
Appeal annulled the order and held that: «the qualification of award does
not depend on the terms used by the arbitrators or by the parties».
Therefore, the Tribunal's decision was an Award and not an order and was
annulled because the procedure in article 27 had not been followed.
To determine if a decision of a tribunal is an award or a
procedural order the Court will determine the nature of that decision. If the
decision deals with an issue in the case, it will be viewed as an Award and if
the decision is a procedural step in the organization of the proceedings, it
will be viewed as a non-final procedural order.
If a Tribunal submits a draft Award to the International
Chamber of Commerce Court, which is viewed by the Court as a procedural order,
the mistake is not very important in this way, and the International Chamber of
Commerce Court will often approve the Award instead of inviting the Tribunal to
issue a procedural order. On the other hand, if the Tribunal submits a
procedural order, which is viewed by the Court as an Award, the mistake must be
resolved and the International Chamber of Commerce Court will invite the
Tribunal to resolve the mistake and issue an Award. This difference in the
treatment of an award or a procedural order makes sense as the International
Chamber of Commerce Court of Arbitration is entitled to scrutinize an Award,
and not a procedural order, which has been submitted to it by the Arbitral
Tribunal.
I. The submission of a draft Award to the Counsel by the
Arbitral Tribunal
The first step that takes place is the submission by an
Arbitral Tribunal of a draft Award to the Counsel in charge of supervising the
Arbitration. The Counsel studies the proposed draft and prepares a written
report describing the arbitration in general terms and noting any obvious
mistakes such as typing errors, mathematically flawed calculations, failure to
deal with a particular claim or any other obvious error. A copy of the draft
will also be given to the Secretary General, the Deputy Secretary General and
the General Counsel of the Court for a review. The counsel in charge of the
file will then discuss with the Secretary General, Deputy Secretary General or
the General Counsel whether the Award should be submitted for scrutiny or not
to the Court's monthly plenary session or to one of the Court's Committees,
which are held four times each month. Normally, most Awards are referred to
Committees of the Court and the submission to the plenary session is reserved
for cases presenting particular difficulties.
J. Designation of a Reporter by the Court
The Court then designates a Reporter among its members who is
requested to prepare a written report setting forth the reporter's
recommendations concerning the approval or modification of the draft. The
Reporter will be chosen for his familiarity with the applicable law, the legal
questions involved and his familiarity with the language of the case. He will
be the same Reporter during all the process of scrutiny of the award. He will
prepare a written report and an oral exposition for the meeting at which the
award is considered.
K. Transfer of the Report and the draft Award to the
Court
Usually at least ten days prior to the Plenary Session of the
Court, during which the «scrutiny» takes place, a copy of the report
with the draft Award are laid out for oral discussion. Any previous Awards
rendered in the Arbitration, the Terms of Reference and a report from the
Secretariat describing the relevant facts and the arbitral procedure are also
laid out for the discussion.
This step is paramount as it is at this particular moment,
during the Plenary Session, that the award is literally «scrutinized»
by the entire Court.
L. The Plenary Session
At the Plenary Session, the Reporter makes an oral
presentation of his conclusions following which there is an open discussion
with respect to the Award in question. During this Plenary Session, the Court
will have to deal with several arbitral awards to be scrutinized and the
discussion can go up to an hour for a particular Award, considering the
seriousness of the case and the multitude of legal systems and points of views
represented on the Court.
M. The Court decision
Following the Court's oral discussions, a decision is
formulated that sets forth the Court's position and that is then communicated
by the Secretariat to the Arbitral Tribunal, but not the parties, who are not
informed of the Court's deliberations.
We can argue that the parties are deprived of due process as
they are not included in the exchanges between the Court and the Arbitral
Tribunal. This concept of due process came from the chapter 39 of Magna Carta
1215 which stipulates that "No free man shall be taken or imprisoned or
disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or
exiled, or any other wise destroyed, nor will we go upon him nor send upon him,
except by the lawful judgment of his peers or by the law of the land».
This concept of due process defines and guarantees fundamental fairness and
justice. Regarding this principle the parties should be informed of the
Tribunal Award and the modification that the International Chamber of Commerce
Court try to make to this award. But this principle is applicable regarding
litigation. Arbitration is a private form of dispute resolution and by its
privacy it includes that the parties are looking for a result, a final award
and therefore they are not intended to be part of the negotiation.
After the Plenary Session, the Court can accept the Award or
return it to the Arbitral Tribunal requiring modifications of the form of the
Award or draw the Tribunal's attention to points of substance.
a. Distinction between issues of form and issues of
substance
In the article 27 of the International Chamber of Commerce
Rules, the authors of the rules made a distinction between issues concerning
the form of the award and issues concerning the substance of the award. In
other words, article 27 permits the International Chamber of Commerce Court to
approve the form of the award or to comment on the substance of the Awards
«without affecting the Arbitral Tribunal's liberty of decision».
1. Issue of form
In order to approve the form of an award, the International
Chamber of Commerce Court of Arbitration can make modifications in several
matters such as12(*):
- whether the Award deals with all issues in Terms of
Reference
- whether reasons have been provided with respect to all
issues to be decided, including quantum and interest
- a reference to the parties
- the date of various procedural steps such as the beginning
of the arbitration
- the date of constitution of the Tribunal in particular by
whom each arbitrator was appointed and when
- a recital of the extensions of time granted by the
International Chamber of Commerce Court for rendering the Award
- details of the hearings
- aspects relating to the drafting of the dispositive
provisions
- aspects relating to decisions on costs, in particular as
regarding the distinction between International Chamber of Commerce costs of
arbitration (fixed by the International Chamber of Commerce Court) and party
cost, fixed by the Tribunal, which in both cases will also have to decide upon
the allocation of these costs.
- details of the place of arbitration
- issues of jurisdiction
- issues relating to the applicable rule of law
- any formal requirements of the place of arbitration to the
extent known by the Secretariat
Usually, points of form raised by the International Chamber of
Commerce Court are minor. In these cases, the Court may approve the draft
award, subject to modifications of the form. Then the revised Award is received
by the Secretariat and does not need to be resubmitted to the Court. But if the
Tribunal disapproves the order of modification and does not make it, in other
word if the Tribunal does not change the form, the Secretariat will resubmit
the draft Award to the International Chamber of Commerce Court for a decision.
If the explanation given by the Tribunal is convincing, the International
Chamber of Commerce Court will approve the draft Award. If the explanation
given by the Tribunal does not convince the International Chamber of Commerce
Court, the Court will not approve the draft Award and will return it to the
Tribunal with comments.
For major issues of form, which are rarer, the Tribunal is
expected to resubmit the draft for the approval of the International Chamber of
Commerce Court after having corrected these issues.
If the issue of form is such as it called into question the
enforceability of the Award, then the issue will be whether the Award should be
approved if it does not meet the formal requirements of the International
Chamber of Commerce Rules.
However, in practice the issues of form are not the main
tension between the International Chamber of Commerce Court and Arbitral
Tribunals but the comments on substance.
2. Issue of substance
Contrary to issues of form, issues of substance are ordinarily
major issues. This is the reason why issues of substance give rise to most of
the difficulties in practice. Like the issues of form, there are several types
of issues of substance, such as:
- contradiction in certain elements of the draft Award
- contradiction of the applicable law
Because of the importance of issues of substance, such issues
will go up to the Plenary Session of the Court. Then the Court returns the
draft Award with suggestions. The Tribunal then re-submits the Award.
3. Issue of form and substance
In some cases, the comments as to form overlap with comments
as to the substance. In these cases the Court can deal with both the comments
at the same time.
4. A third power: respect of the parties' fundamental right
to be heard
A third power not specifically mentioned in Article 27, but
explicit in Article 35, is that of assuring that the proceedings have respected
the parties' fundamental right to be heard.
b. No consideration by the Tribunal of the International
Chamber of Commerce Court of Arbitration recommendation
For an issue of form or substance, after the discussion during
the Plenary Session and if the Court does not approve the draft Award and
decides to return it with suggestions, it happens that the Tribunal re-submits
the Award without taking the suggestion into consideration. In this case, it
will re-start the process and the Award will be presented again to a Plenary
Session for approval with a Reporter once again presenting its conclusions to
the Court.
But for an issue of form, the Tribunal is not obliged to
follow the Court suggestion. Indeed, the Tribunal is free to disregard the
comments of the International Chamber of Commerce Court and the Award will
still be approved, as the International Chamber of Commerce Court is approving
the Award solely as to form.
c. Award approved by the Court: final and
enforceable
Once approved by the Court notification of such approval is
given to the Arbitrators who then sign the Award rendering it final and
enforceable. The award so signed is deemed to have been made instead of the
Arbitral proceedings on the date of signature. The parties are then notified by
the Secretariat of the Court.
N. Conclusion on the process of scrutiny of the award
As one of the members of the Court puts it, some of the awards
are «so perfect that it calls for no comment other than the admiration of
the members of the Court»13(*). It is a labor-intensive process involving many
people from the Court and the Secretariat. These modifications brought by the
Court save a lot of time and money as they avoid the delays that might result
if an Award was set aside due to a defect that would not have been noticed
otherwise and avoid the possible intervention of a national Court.
But this examination of the Award by the International Chamber
of Commerce Court brings some difficulties. The first problem is to determine
if by scrutinizing the award, the International Chamber of Commerce Court is
interfering in the arbitrators' functions.
III - The prima facie examination of the
judgment or the questioning of the impartiality of the arbitrator? (Did the
Court interfere in the arbitrators functions?)
The impartiality and independence of an arbitrator are
essential features of the quasi-judicial process that is arbitration. But under
an institutional arbitration, the International Chamber of Commerce Arbitration
in particular, the issue can be partial and the International Chamber of
Commerce Court of arbitration can challenge the independence of the
arbitrator.
The term partiality refers more to the dependence of the
arbitrator to one of the parties and his favor in relation to the issues in
dispute. «Partiality arises where an arbitrator favors one of the parties
or where he is prejudiced in relation to the subject-matter of the
dispute»14(*).
Independence is measured in terms of degree of the
relationship between an arbitrator and one of the parties. The article 2.7 of
the International Chamber of Commerce Rules of Arbitration requires each
arbitrator to declare whether there exists any past or present relationship,
direct or indirect, with any of the parties or any of their counsel, whether
financial, professional, social or of another kind and whether the nature of
the relationship is such that disclosure is called for considering the
arbitrator's independence in the eyes of the parties.
The power of the institution to administer the arbitration is
conferred by the International Chamber of Commerce Rules. Therefore, the
institution, through the International Chamber of Commerce Court, has the right
to scrutinize the arbitrators services (the award). In case of mistakes from
the arbitrator, the institution can remove him. This power of scrutiny of the
award does not seem to go against the impartiality and independence of the
Arbitrator, because by scrutinizing the award, the International Chamber of
Commerce Court does not go against these powers. Indeed, the arbitrator is (and
must be) independent and impartial vis à vis the parties and
not the institution which is there to administrate the arbitration procedure.
Under a French case15(*) it has been held that this requirement of
independence and impartiality of the arbitrator came from the article 6
paragraph one of the European Convention on Human Rights. This article is part
of the Convention which protects the right for a fair trial. The French Court
said that the jurisdictional function of arbitration is the task of the
arbitrators and that the International Chamber of Commerce Court of Arbitration
is only liable for the administration, the organization of the arbitration.
Therefore, as far as the International Chamber of Commerce Court remains in its
prerogative of the administration of arbitration, the arbitrators can stay
independent and impartial in their jurisdictional function and the trial will
be fair. The Court held that the Control exercised by the Court of Arbitration
«does not lead to any interference into the jurisdictional task of the
arbitrators, but only aims at ensuring the efficacy of the arbitration».
By scrutinizing the award, the International Chamber of Commerce Court does not
interfere in the jurisdictional function of the arbitrator, it stays in its
organizational function and does not hurt the impartiality and independence of
the arbitrators.
But the essential conflicts of opinion do not concern the
questioning of the impartiality of the arbitrator. Indeed, the question which
is now resolved but was subject to a lot of doctrinal conflicts is to determine
whether the Court of Arbitration of the International Chamber of Commerce
exercises a second or appellate level of arbitral jurisdiction or not.
IV - A possible questioning of the state justice of
second degree?
By analyzing the history of international commercial
arbitration it seems that during its history this form of dispute resolution
shifted from a «primitive legal system» based on a decentralized
judicial body to a more centralized one, based on unifying «quasi
legislative» institutions16(*). After analyzing this evolution we will determine if
by scrutinizing the award the International Chamber of Commerce Court of
Arbitration is not playing the role of a state justice of second degree.
F. An old «decentralized» judicial body
In 1965, the legal comparatist, René David, stated that
«to the ancient arbitration, which was organized on an ad hoc basis,
justified by exceptional circumstances, tolerated because of the «scope
limited solution» of the decision process, has been substituted a
pre-organized, systematic institutional arbitration».
This old system of international arbitration, the ad hoc
arbitration, is a «decentralized» system as it is not administered by
a state Court (like litigation) or by an institution. Following the definition
proposed by Leben, a «decentralized» order is a «legal order in
which the functions of the creation of law and administration of justice have
not yet been concentrated in the hands of central organs»17(*).
In this decentralized system of ad hoc arbitration, the
parties are required to determine all aspects of the arbitration like the
number of arbitrators, the manner of their appointment, the procedure for
conducting an arbitration, etc... If the parties operate with a minimum of
cooperation, ad hoc proceedings can be more flexible, cheaper and faster than
an administered proceeding. In this type of arbitration, the arbitrator plays
the role of jurisdiction and administration at the same time.
Those two tasks being resolved by one body, the arbitrator,
makes the ad hoc arbitration a more flexible type of arbitration.
The second reason which made the success of ad hoc arbitration
was that under this system, in cases involving state parties, the parties felt
that their sovereignty was not devaluate. Indeed, under institutional
arbitration, state parties often felt that their sovereignty was lost under the
powers of the institution.
The third advantage of ad hoc arbitration is that it is less
expensive than institutional arbitration. Parties only pay fees to the
arbitrator, lawyers or representatives. They do not have to pay for a large
institution which includes many employees.
Finally, ad hoc arbitration was appreciated for the fact that
the parties negotiated and settled arbitrators' fees with him directly. The
parties can negotiate a reduction in fees.
In several cases, the combination of jurisdictional and
administrative powers brought the arbitrator to fail at one of these functions.
Splitting the role of jurisdiction and administration in two different
organizations, new international arbitration is based on an institutional
system, the arbitrator being responsible for the jurisdictional aspect and the
institution for the administrative aspect.
Furthermore, some parties were looking for a more structured
mode of dispute resolution. The parties were looking for the more predictable
character of institutional arbitration.
G. To a new arbitration founding a winner more than a
co-operation
The generalization of international arbitration has been
accompanied by an increasing number of cases in which the main goal of the
parties is to win the dispute. They are not looking to find an average result
that aims at preserving the relationships within the merchants' community as
well as promoting an equitable result18(*). This trend goes against the original features of the
arbitral community, described by Stone Sweet as presenting a certain degree of
«co-operation and commitment»19(*). This communitarian, consensual environment has
progressively evolved into a more aggressive, conflict-orientated one. The
switch from a cooperative environment to a conflict-orientated one has
increased the probability that the losing party would follow the fight before
the national courts. In this new system, users have fewer interests in
maintaining a high degree of cooperation. Consequently, the tensions between
arbitral autonomy and state control are likely to find different outcomes,
especially with regards to the growing intervention of arbitral
institutions.
H. A new «internalized» form of control
Under institutional arbitration, fees are stipulated by the
institution directly and parties cannot negotiate it. This makes institutional
arbitration a less flexible type of arbitration.
The administrative aspect of arbitration being centralized in
one institution gave this system a new, internalized form of control. Such an
institutional control of awards leads to a process of re-centralization,
through which international commercial arbitration is shifting from a
«primitive legal system» based on decentralized judicial bodies to a
more centralized one, based on unifying «quasi-legislative»
institutions.
But this new system of arbitration brought new issues, the
main one being to determine if by scrutinizing the award the Court cannot be
assimilated to an appeal or a second degree arbitration».
I. The «judicialisation» of the International
Chamber of Commerce action upon the arbitral award?
As we have seen, the arbitrator is responsible for the
judicial manner of the arbitration and the institution is responsible, from an
administrative standpoint, for the arbitration. But article 27 of the
International Chamber of Commerce Rules gave the opportunity to oppose to this
clear distinction the fact that the International Chamber of Commerce Court of
Arbitration is also playing a judicial role in the arbitral process. Indeed, by
scrutinizing the award, the Court is acting as a second degree of arbitration,
the first one being the Award rendered by the Arbitral tribunal.
This assimilation of the International Chamber of Commerce
Court of Arbitration as an appeal Court brings a problem of competition between
the International Chamber of Commerce scrutiny of the award and a national
Court of Appeal. If this comparison is applicable, it leads to the paradoxical
statement that the International Chamber of Commerce Court is «better
treated than the judges themselves»20(*). For example, in the French system, if the decision
of a an Appeal Court is not permitted by the French Constitution, the
«Conseil Constitutionnel« could avoid the decision and ask for a
re-examination of the case by another Appeal Court. But in International
Chamber of Commerce Court scrutiny of the award, the principle is that the
French jurisdiction will not intervene in the work of the Court of
Arbitration21(*). This is
the result of what Pierre Lalive called a contradiction between the
International Chamber of Commerce's claim for its «quasi-judicial»
function 22(*) and the
emphasis that it puts on its administrative tasks when its action is challenged
before the court. In fact, according to him, it seems that the International
Chamber of Commerce Court of Arbitration's practice goes further than simply
«providing drafting advice»23(*). As Lalive stressed, it is difficult to establish a
clear line between the «form» of the temporary award, with which the
court is supposed to deal, and its «substance», to which the court is
supposed to draw the arbitrators' attention24(*). Consequently, the court is likely to extend its
prerogative of control, ultimately to the merits of the awards25(*). However, even under the
assumption that this review extends to the merits, the International Chamber of
Commerce Court of Arbitration still exercises such a control in an automatic
way, before the award is rendered, which prevents one from qualifying this
control as a true «appeal».
Pierre Lalive is not the only one who proved that the
International Chamber of Commerce Court of Arbitration is not a second level of
arbitral jurisdiction, even nationals Courts have argued that.
In France, the Court of Appeal of Paris26(*) approved by the Court de
cassation27(*) has
recognized that the Court of Arbitration does not exercise a second or
appellate level of arbitral jurisdiction, and that it does not infringe upon
the arbitrators' liberty of decision. The Court held that that such control is
perfectly sound and does not endanger the independence of the arbitrators. The
reasoning of the courts was the following: the control exercised by the Court
of Arbitration «does not lead to any interference into the jurisdictional
task of the arbitrators, but only aim[s] at ensuring the efficacy of the
arbitration». Ultimately the French Court qualified the International
Chamber of Commerce Court of arbitration as «an association which does not
constitute a jurisdiction», as opposed to the arbitral tribunal which is
entitled to exercise a jurisdictional function. From this differentiation comes
the non-intervention of the French jurisdiction into the work of the Court of
Arbitration.
In Germany, the Superior Court of the Canton of
Zurich28(*) found that the
powers of the Court did not constitute a forbidden interference in the freedom
of decision of the arbitral tribunal.
The International Chamber of Commerce is not exerting a second
or appellate level of arbitral jurisdiction, does it mean that national Courts
can exercise an appeal of an Award scrutinized by the Institution?
J. A possible control of nationals Courts after the scrutiny
of the award?
Contrary to the International Centre for Settlement of
Investment Disputes, the waiver of the article 27 of the International Chamber
of Commerce does not preclude national courts from exercising their traditional
control over arbitral awards. Some parties have even provided in their
arbitration agreement for «rights of recourse beyond those that cannot
validly be waived»29(*), thus expressing their willingness to submit awards
to an increased degree of control from national courts. For instance, Stephen
Bond reported that in 1989 only 26 per cent of the International Chamber of
Commerce clauses specifically provided such a waiver30(*). As a whole, the International
Chamber of Commerce, as well as the American Arbitration Association and the
International Centre for Settlement of Investment Disputes, strive to
«autonomise» their action from state courts' supervision to
encompassing rules.
CONCLUSION
C. The scrutiny of the award: The source of a state
intervention decreased in posteriori
Some authors have argued that the success of the arbitral
institutions, and especially of the International Chamber of Commerce, was due
to the elimination of the «need for the parties to refer to the courts if
difficulties arise in setting in motion, or during, the arbitration31(*).» The willingness of the
International Chamber of Commerce to play the role of a true «court»
of arbitration and therefore to reduce the need to resort to national courts
during the proceedings has translated into its rules dealing with the exclusion
of liability32(*) or
pre-arbitral referee procedures. By providing an internalized system of
control, the International Chamber of Commerce may also have reduced the need
for the parties to refer to the courts after the rendering of the award.
By «keeping the review within the institution», the
International Chamber of Commerce has probably fulfilled the users current
claims for an increased judicial review of awards. As a result of this control,
an International Chamber of Commerce practitioner stressed that 90 percent of
the International Chamber of Commerce awards are voluntarily complied
with33(*).
D. The scrutiny of the award: the roots of the most secure
system of arbitration of the world
This «internalized» system of control has certainly
contributed to the preeminence of the International Chamber of Commerce in the
field of international commercial arbitration. Jan Paulsson, the President of
the London Court of International Arbitration, stressed how this internalized
review of awards has allowed the International Chamber of Commerce Court of
Arbitration to check the arbitrators' work and to increase its pool of
arbitrators34(*).
It is even argued that the International Chamber of Commerce
control is the main reason for its success, and that consequently this control
should be enlarged. The reasoning is the following: with regard to the
increased technicalities of international arbitral proceedings, judicial
review is becoming more popular, de facto enlarged to the merits of
the awards. Hence, the judicial review of arbitral awards is occasionally
extended to an appeal review. In this context, the International Chamber of
Commerce should be «prepared to broaden its review to include the clarity
and comprehensiveness of an award, or establish a procedure for the parties to
submit (through the court) requests for clarification or completion35(*).» Such an evolution would
allow the International Chamber of Commerce Court of Arbitration to exercise
similar powers to those exercised by national courts, which would eventually
lead this court to limit and replace their control.
BIBLIOGRAPHY
Books:
- Fouchard Gaillard Goldman, International Commercial
Arbitration, Edited by Emmanuel Gaillard, John Savage, Kluwer Law
International, 2008.
- Michael W. Buhler and Thomas H. Webster Handbook of
International Chamber of Commerce Arbitration, Chapter 20, «The
Court's Scrutiny of Awards», Second Edition - Sweet & Maxwell, 2008
- Margaret L. Moses, The Principles and Practice of
International Commercial Arbitration, Cambridge, 2002
- Smith and Turner, Enforcement by US Court of
International Arbitration Interim Orders and Awards under the New York
Convention
- W. Lawrence Craig and Willimam, International Chamber
of Commerce Arbitration, Third edtion, Oceana Publications, 2001
- W. Laurence Craig and Coudert Freres, Paris , William W.
Park, Boston University School of Law, and Jan Paulsson, Freshfields
Annoted Guide to the 1998 International Chamber of Commerce Arbitration
Rules, Article 27, Paris
- Yves Derains, Eric A. Schwartz, A guide to the new
International Chamber of Commerce rules of arbitration, Kluwer Law
International, 1998. 347.09/DER
Articles:
- Alec Stone Sweet, «Islands of Transnational
Governance» in Martin Shapiro and Alec Stone Sweet (eds), On Law,
Politics, and Judicialisation (2002)
- Antoine Kassis, "Réflexions sur le
Règlement d'Arbitrage de la Chambre de Commerce Internationale"
[Reflections on the Arbitration Rules of the International Chamber of
Commerce], (1988) L.G.D.J
- Carl Nisser and Gordon Blanke, « ICC draft best
practice note on the European Commission acting as amicus curiae in
international arbitration proceedings: an explanatory note», (2008) E.B.L.
Rev. 2008, 19(1), 193-197
- Carl Nisser and Gordon Blanke, «International Chamber
of Commerce draft best practice note on the European Commission acting as
amicus curiae in international arbitration proceedings: the text», (2008),
E.B.L. Rev. 2008, 19(1), 198-217
- Caroline Kehoe. In-House Lawyer, «Amicable Dispute
Resolution, The New International Chamber of Commerce ADR Procedure». LNB
News, 2 July 2002, Journal,1 June 2002
- David T. McGovern, «Scrutiny of the award by the
International Chamber of Commerce Court», the International Chamber of
Commerce International Court of Arbitration Bulletin Vol 51Number 1 - May
1994
- Eric A. Schwartz, «The Role of the Arbitral
Institution in the New Millennium», (1999) 65 Arbitration Journal of
Chartered Institute 324
- Eugene Lenehan, «Arbitration Rules - International
Chamber of Commerce versus UNCITRAL», (2006) 17 8 Construction Law 13, 1
October 2006
- Florian Grizel, «Control of awards and
re-centralisation of international commercial arbitration», 2006,
Civil Justice Quarterly
- Hans Kelsen, «Compulsory Adjudication of International
Disputes» (1943) 37 Am.J.Int'l L. 397 at p.400
- Jane Wessel and Peter Eyre, «United States: discovery
available for International Chamber of Commerce international
arbitration», (2009), International Arbitration Law Review
- Jan Paulsson, «Vicarious Hypochondria and
Institutional Arbitration» in Yearbook of the Arbitration Institute
of Stockholm Chamber of Commerce (1990), p.99.
- Konstantin D Magliveras, «The Arbitral Referee
Procedure -- A New Initiative of the International Chamber of Commerce»,
(1990), Journal of the law society of Scotland, 35 JLSS 322, August
1990
- Lawrence Craig Reviewed by Anthony Connerty, "International
Chamber of Commerce arbitration", (2001), International Arbitration Law
Review, Publication Review
- Matthieu De Boisseson, «The Arbitration Act 1996 and
the new International Chamber of Commerce Arbitration Rules 1998: a comparative
approach», (1998), International Arbitration Law Review
- Michael E. Schneider, «The International Chamber of
Commerce International Court of Arbitration Tercier's resignation and a new
sense of identity», (2008) International Arbitration Law
Review
- Ottoarndt Glossner, «The Influence of the
International Chamber of Commerce upon Modern Arbitration», in 60
Years of International Chamber of Commerce Arbitration: a Look at the
Future (International Chamber of Commerce, 1984), p.403
- Philippe Fouchard, "Les Institutions Permanentes
d'Arbitrage devant le Juge Etatique" [The Permanent Arbitral Institutions in
front of the State Judge], (1987) Revue de l'Arbitrage [Arbitration
Review] 225 (Fr.)
- Philippe Fouchard, «Où va l'Arbitrage
International ?» [Where is International Arbitration Going?] (1989) 34
McGill L.J. 435
- Pierre M. Genton, «International Chamber of Commerce
promotes Dispute Board rules worldwide», (2005), Construction Law
Journal
- Richard Appuln, «International Chamber of Commerce
dispute board rules: the civil law perspective», Arbitration 2006, 72(4),
310-319
- Samuel G. Goekjian, «International Chamber of Commerce
Arbitration from a Practitioner's Perspective», (1980) 14 J.Int'l L. &
Econ. 407 at p.433
- Stephen R. Bond, «How to Draft an ICC Arbitration
Clause (Revisited)» (1992) 7 ICSID Rev. Foreign Inv .L. J. 153 at p.165
- « Arbitration rules - ICC versus
UNCITRAL », Cons. Law 2006, 17(8), 29-31
- «International Chamber of Commerce, Alternative
Dispute Resolution and DRBs - a DIY solution to ICDs», I.B.L. 2002, 30(3),
119-125
- «International and International Chamber of Commerce
arbitration», Arbitration 1992, 58(1), 64
- «International arbitration - International Chamber of
Commerce - London - award - compensation to corporate group - jurisdictional
challenge - part of award set aside», S.T.L. 2004, Jul/Aug, 4-5
- «Provisional measures in international commercial
arbitration - the effectiveness of the International Chamber of Commerce Rules
for a Pre-Arbitral Referee Procedure«, C.L. Pract. 2006, 13(8), 202-207
- «The International Chamber of Commerce pre-arbitral
referee: first practical experiences», Arbitration Int. 2004,
20(1), 13-37
- «The practice of the International Chamber of Commerce
International Court of Arbitration with regard to the fixing of the place of
arbitration», Arbitration Int. 1996, 12(3), 347-357
- «Towards the harmonization of international
arbitration rules: comparative analysis of the rules of the ICC, AAA, LCIA and
CIETAC», Arbitration Int. 2001, 17(1), 101-110
- «Revisions of the LCIA and ICC rules for international
arbitration: some of the key changes», I.H.L. 1997, 48(Mar), 82-83
- «Role of the International Chamber of Commerce
International Court of Arbitration», I.B.L.J. 1997, 4, 443-47
Cases:
- Braspetro Oil Services Company & Anor v FPSO
Construction Inc & Anor, June 24, 2005, [2005] EWHC 1316 (Comm),
Commercial Court of Appeal.
- Lalive, Cour of Appeal Paris, 15 septembre 1998, (1999)
Revue de l'Arbitrage [Arbitration Review] 118.
- Société Binaate Maghreb c.
Société Screg Routes, December 12, 1989, Cour of Appeal
Paris.
- Sociétés Carfa Trade Group et Omnium de
travaux c. République de Guinée et autres, November 18,
1987, Cour of Appeal Paris
- Fouchard, Sociétés Carfa Trade Group et
Omnium de travaux c. République de Guinée et autres,
Arbitral Chamber of Paris, May 4, 1988, Rev Arb.
- Société Cubic Defense Systems Inc c.
Chambre de commerce internationale, February 20, 2001, Cour de
cassation, Première chambre civile [French Civil Supreme Court].
- Société Schutte Lanz c. Veuve
Gallais, January 23, 1974, Cour de cassation, Deuxième chambre
civile [French Civil Supreme Court].
- Société Sardisud et autre v
société Technip et autre, March 25, 1994, (1994) Arbitration
Review No.2 p.391, Court of Appeal Paris.
Websites:
-
http://www.iccwbo.org/id93/index.html
(ICC website 25/06/2009)
-
http://www.carrow.com/ad-hoc.html
(Mister Carrow 10/07/2009)
-
http://www.iccwbo.org/id93/index.html
(11/07/2009)
Institutional publication:
- «Guide to ICC Arbitration» (ICC Publication No
448, 1994)
11500 Words
* 1
http://www.carrow.com/ad-hoc.html
(Mister Carrow 10/07/2009)
* 2 Lalive, Note
sous Cour d'appel de Paris,
15 septembre 1998 [Case note Court of Appeal of
Paris] (1999) Revue de l'Arbitrage [Arbitration
Review] 118
* 3
http://www.iccwbo.org/id93/index.html
(11/07/2009)
* 4
http://www.iccwbo.org/id93/index.html
(ICC website 25/06/2009)
* 5 Margaret L. Moses, The
Principles and Practice of International Commercial Arbitration,
Cambridge, 2002.
* 6 Fouchard Gaillard Goldman,
International Commercial Arbitration, Edited by Emmanuel Gaillard,
John Savage, Kluwer Law International, 2008.
* 7 Guide to ICC
Arbitration (ICC Publication No 448, 1994)
* 8 David T. McGovern,
«Scrutiny of the award by the ICC Court» the ICC International
Court of Arbitration Bulletin Vol 51Number 1 - MAY 1994
* 9 Paris, March 25, 1994,
Société Sardisud et autre v société Technip et
autre, (1994) Rev Arb No.2 p.391
* 10 Smith and Turner,
«Enforcement by US Court of International Arbitration Interim Orders and
Awards under the New York Convention».
* 11 Braspetro Oil Services Company & Anor v
FPSO Construction Inc & Anor, Court of Appeal - Commercial Court, June 24,
2005, [2005] EWHC 1316 (Comm)
* 12 W. Laurence Craig, Coudert
Freres, Paris , William W. Park, Boston University School of Law , and Jan
Paulsson, Annoted Guide to the 1998 ICC Arbitration Rules, Article 27,
Freshfields, Paris.
* 13 Michael W. Buhler, Thomas
H. Webster, Handbook of ICC Arbitration, Chapter 20, «The Court's
Scrutiny of Awards», Second Edition - Sweet & Maxwell, 2008
* 14 Article 3 of IBA's Ethics
for International Arbitrators
* 15 Cour de cassation
première chambre civile 20 février 2001 n° 99-12.574
(n°255FS-P) [French Supreme Court of Civil cases]
* 16 Florian Grizel,
«Control of awards and re-centralisation of international commercial
arbitration», Civil Justice Quarterly, 2006
* 17 Hans Kelsen,
«Compulsory Adjudication of International Disputes» (1943) 37
Am.J.Int'l L. 397 at p.400
* 18 Philippe Fouchard,
«Où va l'Arbitrage
International ?» [Where is International Arbitration Going?]
(1989) 34 McGill L.J. 435.
* 19 Alec Stone Sweet, «
Islands of Transnational Governance» in Martin Shapiro and Alec Stone
Sweet (eds), On Law, Politics, and
Judicialization (2002)
* 20 Florian Grizel,
«Control of awards and re-centralisation of international commercial
arbitration», Civil Justice Quarterly, 2006
* 21 Fouchard, Cour
d'appel [CA] [regional court of Appeal] Paris, November 18, 1987 and
May 4, 1988, "Chambre arbitrale de Paris,
Sociétés Carfa Trade Group
et Omnium de travaux c.
République de Guinée et
autres" [Case note] (1988) [Arbitration Review]
* 22 Lalive, Note
sous Cour d'appel de Paris,
15 septembre 1998 [Case note] (1999) Revue
de l'Arbitrage [Arbitration Review] 118.
* 23 Pierre Lalive,
Note sous Cour d'appel de
Paris, 15 septembre 1998 [Case note] (1999)
Revue de l'Arbitrage [Arbitration Review] p 114
- 115.
* 24 Pierre Lalive,
Note sous Cour d'appel de
Paris, 15 septembre 1998 [Case note] (1999)
Revue de l'Arbitrage [Arbitration Review] 118
* 25 Pierre Lalive,
Note sous Cour d'appel de
Paris, 15 septembre 1998 [Case note] (1999)
Revue de l'Arbitrage [Arbitration Review] p
115 ; Antoine Kassis, Réflexions sur le
Règlement d'Arbitrage de la
Chambre de Commerce Internationale
[Reflections on the Arbitration Rules of the International Chamber of Commerce]
(1988) L.G.D.J. p. 71.
* 26 20/04/1972, Societe
Schutte Lenz v. Veuve Gallais [Case Note]
* 27 23/01/1974
* 28 29/06/1979
* 29 Yves Derains and Eric A.
Schwartz, A Guide to the New ICC Rules of Arbitration (Kluwer Law
International, 1998), p.298.
* 30 Stephen R. Bond,
How to Draft an ICC Arbitration Clause (Revisited), (1992) 7 ICSID
Rev.--Foreign Inv.L. J. 153 at p.165.
* 31 Eric A. Schwartz, «
The Role of the Arbitral Institution in the New Millennium» (1999) 65
Arbitration Journal of Chartered
Institute [Arb.J. of Chartered Inst] 324.
* 32 ICC Rules Art.34.
* 33 Ottoarndt Glossner,
«The Influence of the International Chamber of Commerce upon Modern
Arbitration» in 60 Years of ICC
Arbitration: a Look at the
Future (International Chamber of Commerce, 1984), p.403.
* 34 Jan Paulsson,
«Vicarious Hypochondria and Institutional Arbitration» in
Yearbook of the Arbitration
Institute of Stockholm Chamber of
Commerce (1990), p.99 («The ICC Court's scrutiny of awards makes
it easier for parties and the Court, knowing that mistakes of ignorance may be
averted, to accept arbitrators with little or no experience in international
cases. There is no question but that this factor enables the ICC to increase
the pool of prospective arbitrators, all the while holding true to its
standards»).
* 35 Samuel G. Goekjian,
ICC Arbitration from a Practitioner's Perspective, (1980) 14 J.Int'l
L. & Econ. 407 at p.433.
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