LEGAL VIEWPOINT: Procedure for processing arbitration at ICC – Paris By Dr AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

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Dr AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

The Claimant submits a request for arbitration to the Secretariat of the International Court of Arbitration in Paris. Based on this, the secretariat transmits such request to the other party (Respondent). The respondent must send an answer to the request with any counterclaim, if any, within 30 days. After receipt of the request, the secretary general requests the Claimant to pay a provisional advance to cover costs until the Terms of Reference have been drawn up.

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After payment, the procedure is set in motion. This happens, when no Court decision is needed as to the prima facie existence, validity and scope of the arbitration agreement, the constitution of the Arbitral Tribunal or the place of arbitration.

The procedure is normally set in motion through the Secretary General, who may confirm arbitrators nominated by the parties or pursuant to their agreements. Secretary General confirms arbitrators provided they filed a statement of independence.

Thereafter, the file is transmitted to the Arbitral Tribunal. The Court otherwise sets the procedure in motion by taking the required decisions. The Secretariat transmits the file to the Arbitral Tribunal provided the advance on costs requested at this stage has been paid.

The Arbitral Tribunal draws up, based on documents or in the presence of the parties and in the light of their submissions, a document defining the” Terms of Reference”.  This includes the full names and description of the parties and arbitrators, the place of arbitration, a summary of the claims, and concerning the applicable procedural rules.

After this, the Arbitral Tribunal establishes a procedural timetable for the arbitration and communicates it to the Court. This is very important to enable all parties to be aware about timing and to undertake all necessary steps within the time framework in the rules.

The “Terms of Reference” are signed by the parties and the Arbitral Tribunal. If one of the parties refuses to sign them or to take part in drawing them up, they are submitted to the Court for approval, whereupon the arbitration may proceed. The Arbitral Tribunal proceeds to establish the facts of the case by appropriate means.

When it is satisfied that the parties have had a reasonable opportunity to present their cases, the Arbitral Tribunal declares the proceedings closed and prepares a “draft” Award. The Court scrutinizes the draft Award.

Important to mention, the role of the Court for scrutinizing is not to interfere with the arbitrators’ liberty of decision. The Court may, if necessary, draw Arbitral Tribunal’s attention to points of substance and lay modifications as to the form of the Award. Once approved, the Award is signed by the arbitrator(s) and notified to the parties by the Secretariat.

The request for Arbitration and Respondent’s answer (as amended), provides that, the request for arbitration is registered on the day it reaches the secretariat at its Paris headquarters or in Hong Kong. The secretariat acknowledges receipt of the request and indicates to the claimant the names and contact details of the Counsel and other members of the team in charge of the file.

The request includes the following elements, the name in full, description and address of each of the parties, a description of the nature and circumstances of the dispute giving rise to the claims, a statement of the relief sought, including, an indication of any amount(s) claimed, the relevant agreement and, in particular, the arbitration agreement, all relevant particulars concerning the constitution of the Arbitral Tribunal and comment as to the place of arbitration, the applicable rules of law and the language of the arbitration.

The request must be accompanied by a payment of US$ 3,000, as an advance on administrative expenses. This sum is not refundable but is credited to any further cost advance payable by the claimant. The request should be supplied in as many copies as there are respondent parties, one for each arbitrator and one for the Secretariat.

After a review of the documents, the Secretary General requests from claimant a provisional advance intended to cover the costs of the arbitration until the Terms of Reference have been drawn up. This payment is credited to the claimant’s share of the advance on costs fixed later by the Court.

Copy of the request is communicated to the respondent by the Secretariat. The respondent’s answer, including counterclaim(s), is to be submitted within 30 days from the day following the date of its receipt of the request unless that period is extended by the Secretariat.

The arbitral process is supervised by the International Court of Arbitration (while the dispute itself is decided by the Arbitral Tribunal). The Court meets in plenary sessions once a month, and in committee sessions weekly throughout the year. All sessions of the Court are confidential. Neither the parties nor the arbitrators may attend.

Following receipt of the respondent’s answer to the request (or the expiration of the time limit for such receipt), the case is submitted, if necessary, to the Court, which takes such decisions as may be required to set the arbitration in motion. The Court may be called upon to decide whether it is prima facie satisfied that an agreement to arbitrate under the ICC Rules may exist between the parties. The Secretariat directly notifies the parties of the Court’s decisions. Other steps will be discussed later.