Commencing an (ICC) Arbitration

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1 Commencing an (ICC) Arbitration by Rajendra Navaratnam Partner, Azman Davidson & Co. Member, ICC Malaysia Arbitration Committee

2 Introduction Focus on ICC Arbitration Institutional Arbitration ICC Secretariat Maintains Tight Control

3 The Request for Arbitration Initiated by Request for Arbitration-Art 4(1) Date of commencement is the date request received by Secretariat-Art 4(2)

4 The Request for Arbitration Should Contain Name, description and address of parties, and representatives if applicable Description of the nature and circumstances of the dispute Statement of the relief sought [Article 4(3)]

5 The Request for Arbitration Agreements, in particular arbitration agreement Particulars re number of arbitrators, choice, nomination Comments on place of arbitration, law, language [Art 4(3)]

12 The Request for Arbitration Can be very detailed with documents Containing a full description of the case Practice probably from Civil Law origins in Europe Others are less detailed

13 The Request for Arbitration Purpose: 1) to permit the constitution of the most appropriate Arbitral Tribunal and 2) to allow the Respondent to set out its defence on the basis of the Request and attached documents

14 The Request for Arbitration Advantage of Detailed one Can obviate need for Subsequent Statement of Case, Defence etc But Puts Respondent at a disadvantage required to respond within fixed time(30 days)

15 The Request for Arbitration To File With Secretariat Together With - No. of Copies Required by Article 3(1), and - Advance Payment on Administrative Fees Fixed by Schedule III If Fail, Secretariat will fix time limit to comply Otherwise File Closed Without Prejudice to Re-File Article 4(4)

16 The Request for Arbitration On reciept of copies and payment, Secretariat will send Request with documents to Respondent for its Answer Article 4(5).

17 Consolidation Court may consolidate two or more arbitrations Upon request of a party, If the parties have agreed, or All claims under same agreement, or If not under same agreement, (i) the arbitrations are between the same parties, (ii) disputes in the arbitrations arise in connection with the same legal relationship, and (iii) the Court finds the arbitration agreements to be compatible Article 10 [New] replacing Article 4.6.

18 The Answer to Request Article 5(1) Must file Answer Within 30 days Same information required of Respondent as that for Claimant in Article 4 Except of course response to relief sought

19 The Answer to Request Secretariat may grant extension of time to file Answer Article 5(2) Must file requisite copies of Answer with Secretariat Article 5(3) Secretariat will transmit Answer and documents to Respondent Article 5(4)

20 The Answer to Request Counterclaims to be filed with Answer Must include description and circumstances of dispute and reliefs sought, including amounts claimed if possible Article (5) Rules make it clear that there is jurisdiction to include counterclaim

21 Reply Reply must be filed within 30 days Secretariat may grant extension Article 5(6)

22 Effect of Arbitration Agreement Rules shall be those in force at date of commencement of arbitration unless otherwise agreed[article 6(1)] By agreeing to ICC Rules, have agreed that arbitration shall be administered by the Court [Article 6(2)] Significance otherwise some matters specified by the Rules to be within purview of Court may be challenged as interference with tribunal (But quare width of administered ]

23 Effect of Arbitration Agreement No Answer filed by Respondent, or He questions, existence, validity or scope of arbitration agreement, or if all claims made may be decided in single arbitration, i.e. default or jurisdictional challenge Arbitration shall proceed nevertheless Questions will be decided by tribunal unless Secretary General refers to Court pursuant to Art 6(4) [Article 6(3)]

24 Effect of Arbitration Agreement But in Art 6(4) in all cases Court shall decide whether and to what extent arbitration shall proceed Will proceed to the extent Court is prima facie satisfied - there is an arbitration agreement - more than two parties, there is an arbitration agreement between those parties and any others joined pursuant to Article 7(Joinder), to extent Court is prima facie satisfied there is an arbitration agreement that binds all [Article 6(4)]

25 Effect of Arbitration Agreement Where claims under more than one arbitration agreement made pursuant to Article 9[multiple contracts] Will proceed to the extent Court is prima facie satisfied - the arbitration agreements are compatible, and - parties have agreed the claims may be decided in one arbitration [Article 6(4)]

26 Effect of Arbitration Agreement Courts decision without prejudice to merits Tribunal shall determine jurisdiction unless Court decides not to proceed [Article 6(5)] In that case party may have recourse to court having jurisdiction as to whether there is a valid arbitration agreement or not[article 6(6)] But see Dallah Estates v Government of Pakistan [2010] UKSC 46 UK Supreme Court took view that a party could even ask for this determination to be made in the court of the country where enforcement was being sought

27 Effect of Arbitration Agreement Also has liberty to bring claims in future proceedings [Article 6(7)] Party refuses or fails to take part in proceedings or any stage, arbitration will proceed nevertheless [Article 6(8)]

28 Effect of Arbitration Agreement Unless otherwise agreed Tribunal shall not cease to have jurisdiction By reason of any claim that contract is null and void or non-existent Provided tribunal upholds validity of arbitration agreement Tribunal shall continue to have jurisdiction to determine rights, adjudicate claims even though contract is non-existent or null and void [Article 6(9)]

29 Conclusion Commencing ICC Arbitrations differs from others In the sense the pleadings/submissions are as a matter of practice included in the Request and Answer, before the tribunal is constituted Court, and Secretariat play a central role Provisions designed to force the arbitration along even with non-cooperating parties But Parties are advised to proceed with caution to avoid enforcement being prejudiced

30 THANK YOU FOR YOUR KIND ATTENTION! Rajendra Navaratnam

2012 ICC Rules 1998 ICC Rules. Article 1

2012 ICC Rules 1998 ICC Rules. Article 1 2012 ICC Rules 1998 ICC Rules Article 1 International Court of Arbitration 1 The International Court of Arbitration (the "Court") of the International Chamber of Commerce (the "ICC") is the independent