from ICC-ICA Flashcards
(44 cards)
What is International Court of Arbitration?
It is the independent arbitration body of the International Chamber of Commerce.
It administers the resolution of disputes by arbitral tribunal and does not itself resolve disputes. It ensures that the application of the Rules of Arbitration and such other rules.
What are common ADR Techniques?
- Mediation - a neutral party helps settle the differences through negotiation
- Mini-trial - there is a panel that comprises of a neutral and a manager from each party and they propose a solution or give an opinion
- Neutral evaluation of a point of law or fact - Common to all these techniques is the fact that the decision reached by or in collaboration with the neutral is not binding upon the parties, unless they agree otherwise
Characteristics of ICC ADR
- proceedings are flexible and party-controlled
- proceedings under the Rules are intended to be rapid and inexpensive
- proceedings allow the parties to choose whichever settlement technique is best suited to help them resolve their dispute
- ICC ADR proceedings are confidential
- the parties are free to agree in writing that they will comply with a recommendation or decision of the Neutral, even though it is itself unenforceable. In that case their agreement is binding upon them in accordance with the law applicable to that agreement.
Request for Arbitration
- Party wishing to have recourse to arbitration shall be the one to file the request
- The date which the request is received shall be deemed to be the date of the commencement of the arbitration
- The request shall contain the ff:
a. Name, description, address, and other contact details of each party
b. Contact details of any person representing the claimant
c. Description of the nature and circumstances of the dispute
d. Statement of the relief sought, together with the amount of qualified claims, to the extent possible an estimate of the monetary value of other other claims
Answer to the Request
Within 30 days from the receipt of the request , the respondent shall submit an Answer, which shall contain the following:
a. Name, address and other contact details including the contact details of any person representing the respondent in the arbitration.
b. Comments as to the nature and circumstances of the dispute
c. Response to the relief sought
d. Observation or proposal concerning the number of arbitrators, place, applicable rules of law and language of arbitration.
Effect of the Arbitration Agreement
Parties shall be deemed to have:
a. submitted ipso facto to the Rules in effect on the date of commencement of the arbitration, unless they have agreed to submit to the Rules in effect on the date of their arbitration agreement.
b. accepted that the arbitration shall be administered by the Court.
Multiple Parties, Multiple Contracts and Consolidation
Party wishing to join as additional party to the arbitration shall submit a request for arbitration (The Request for Joinder).
Arbitration with multiple parties, the claim may be made by any party against any other party provided that no new claims may be made after the Terms of Reference are signed and approved by the Court
Claims arising out of or in connection with more than one contract may be made in a single arbitration irrespective whether such claims are made under one or more than one arbitration agreement.
Two or more arbitration pending under the Rules can be consolidated into a single arbitration.
Constitution of the Arbitral Tribunal
The dispute shall be decided by a sole arbitrator or by three arbitrator.
Where parties have not agreed upon the number of arbitrator the court shall appoint a sole arbitrator unless required otherwise to be three.
Sole arbitrator maybe made by agreement of the parties. If parties fail to nominate within 30 days from date of claimants request for arbitration, the sole arbitrator shall be appointed by the Court.
Parties shall nominate in the Request and Answer, respectively one arbitrator for confirmation. The third arbitrator shall be appointed by the Court
Who gets to decide on the place of arbitration?
By the parties. Otherwise, the court.
Time limit for the final award
The time limit within which the arbitral tribunal must render its final award is six months. Such time limit shall start to run from the date of the last signature by the arbitral tribunal or by the parties of the Terms of Reference
The Court may extend the time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is necessary to do so.
Correction and interpretation of the award
- clerical, typographical, or computational errors may be changed upon submission of request within 30 days from the date of the award
- in the form of an addendum (shall form part of the award)
- Where a court remits an award to the arbitral tribunal, the provisions on awards apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission.
A notification or communication shall be deemed to have been made on the day it was received by the party itself or by its representative, or would have been received if made in accordance with Article 3(2).
True
Periods of time specified in or fixed under the Rules shall start to run on the day following the date a notification or communication is deemed to have been made in accordance with Article 3(3). When the day next following such date is an official holiday, or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall commence on the first following business day. Official holidays and non-business days are included in the calculation of the period of time. If the last day of the relevant period of time granted is an official holiday or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall expire at the end of the first following business day.
True
The arbitral tribunal shall continue to have jurisdiction to determine the parties’ respective rights and to decide their claims and pleas even though the contract itself may be non-existent or null and void.
True
Request for Joinder
The Request for Joinder shall contain the following information:
a) the case reference of the existing arbitration;
b) the name in full, description, address and other contact details of each of the parties, including the additional party; and
c) the information specified in Article 4(3) subparagraphs c), d), e) and f).
The party filing the Request for Joinder may submit therewith such other documents or information as it considers appropriate or as may contribute to the efficient resolution of the dispute.
Instances wherein consolidation of cases may be allowed
The Court may, at the request of a party, consolidate two or more arbitrations pending under the Rules into a single arbitration, where:
a) the parties have agreed to consolidation; or
b) all of the claims in the arbitrations are made under the same arbitration agreement; or
c) where the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take into account any circumstances it considers to be relevant, including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations and, if so, whether the same or different persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties.
Confirmation of arbitrator
In confirming or appointing arbitrators, the Court shall consider the prospective arbitrator’s nationality, residence and other relationships with the countries of which the parties or the other arbitrators are nationals and the prospective arbitrator’s availability and ability to conduct the arbitration in accordance with the Rules. The same shall apply where the Secretary General confirms arbitrators pursuant to Article 13(2).
Appointment of Arbitrator
Where the Court is to appoint an arbitrator, it shall make the appointment upon proposal of a National Committee or Group of the ICC that it considers to be appropriate. If the Court does not accept the proposal made, or if the National Committee or Group fails to make the proposal requested within the time limit fixed by the Court, the Court may repeat its request, request a proposal from another National Committee or Group that it considers to be appropriate, or appoint directly any person whom it regards as suitable.
The Court may also appoint directly to act as arbitrator any person whom it regards as suitable where:
a) one or more of the parties is a state or may be considered to be a state entity;
b) the Court considers that it would be appropriate to appoint an arbitrator from a country or territory where there is no National Committee or Group; or
c) the President certifies to the Court that circumstances exist which, in the President’s opinion, make a direct appointment necessary and appropriate.
True
The sole arbitrator or the president of the arbitral tribunal shall be of a nationality other than those of the parties. However, in suitable circumstances and provided that none of the parties objects within the time limit fixed by the Court, the sole arbitrator or the president of the arbitral tribunal may be chosen from a country of which any of the parties is a national.
True
When can an arbitrator be replaced?
- death
- acceptance by the Court of the arbitrator’s resignation
- acceptance by the Court of a challenge
- acceptance by the Court of a request of all the parties
- on the Court’s own initiative when it decides that the arbitrator is prevented de jure or de facto from fulfilling the arbitrator’s functions, or that the arbitrator is not fulfilling those functions in accordance with the Rules or within the prescribed time limits.
When an arbitrator is to be replaced, the Court has discretion to decide whether or not to follow the original nominating process. Once reconstituted, and after having invited the parties to comment, the arbitral tribunal shall determine if and to what extent prior proceedings shall be repeated before the reconstituted arbitral tribunal.
Terms of Reference
As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall include the following particulars:
a) the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party in the arbitration;
b) the addresses to which notifications and communications arising in the course of the arbitration may be made;
c) a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims;
d) unless the arbitral tribunal considers it inappropriate, a list of issues to be determined;
e) the names in full, address and other contact details of each of the arbitrators;
f) the place of the arbitration; and
g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono.
- must be signed within 30 days. if wala, upon approval na lang ng court
Case management conferences may be conducted through
a. a meeting in person
b. by video conference
c. telephone
d. other similar means of communication
In the absence of an agreement of the parties, the arbitral tribunal shall determine the means by which the conference will be conducted.
If any of the parties, although duly summoned, fails to appear without valid excuse, the arbitral tribunal shall have the power to proceed with the hearing.
True
