Lecture 2. International Arbitral Institutions Professor Assist. Mushak Nataliya
PLAN n International Chamber of Commerce (ICC). 1. 1. The activity and purposes of the ICC. 1. 2. The ICC International Court of Arbitration (functions and competence). 1. 3. ICC International Centre for ADR n n n London Court of International Arbitration (LCIA). Court of Arbitration for Sport (CAS) Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
1. About International Chamber of Commerce (ICC) - The World Business Organization. - http: //www. iccwbo. org/ The aims of the ICC are: n n n to promote international trade, services and investment, while eliminating obstacles and distortions to international commerce; to promote a market economy system based on the principle of free and fair competition among business enterprises; to foster the economic growth of developed and developing countries alike, particularly with a view to better integrate all countries into the world economy.
Name, Purposes, International Headquarters n n n The Organisation is called International Chamber of Commerce, also known as the "World Business Organisation" or by the acronym "ICC". Since its foundation in 1919, the seat and the International Headquarters of ICC have been located in Paris. ICC is composed of members sharing the objectives as set forth in the Preamble and contributing to its purposes stated in Article 1. 2.
The ICC International Court of Arbitration n n commonly known simply as the “the Court”, comprises more than 100 members from about 90 countries. The Court is one of the world's most experienced and renowned international arbitration institutions. Working closely with its Secretariat, the Court’s primary role is to administer ICC Arbitrations. It performs the functions entrusted to it under the ICC Rules of Arbitration and continually strives to assist parties and arbitrators to overcome any procedural obstacles that arise. In performing its functions, the Court is mindful of its duty to make every effort to ensure that awards are enforceable at law.
1. The Court's specific functions under the Rules include: 1. Fixing the place of arbitration 2. Assessing whethere is a prima facie ICC Arbitration agreement 3. Taking certain necessary decisions in complex multi-party or multi-contract arbitrations 4. Confirming, appointing and replacing arbitrators 5. Deciding on any challenges filed against arbitrators 6. Monitoring the arbitral process from the filing of the request for arbitration to the notification of the final award to ensure that it proceeds in accordance with the Rules and with the required commitment to diligence and efficiency 6. Scrutinizing and approving all arbitral awards, in the interests of improving their quality and enforceability 7. Setting, managing and, if necessary, adjusting costs of the arbitration, including the ICC administrative expenses and the arbitrators’ fees and expenses 8. Overseeing emergency arbitrator proceedings
The Court’s official working languages are English and French. In recent years, however, the Court has begun to hold special Court sessions for the scrutiny of arbitral awards in German and Spanish, when the awards themselves are in one of those languages. The Secretariat’s official working languages are also English and French, but Secretariat personnel speak approximately 25 languages. The Court’s official written correspondence is also available for arbitrations in German, Spanish and Portuguese.
1. 3. ICC International Centre for ADR n n The ICC International Centre for ADR (“Centre”) is the administrative body that oversees the application of the ICC Amicable Dispute Resolution (ADR). The Centre encompasses the ICC International Centre for Expertise and the ICC International Dispute Board Centre but is a separate entity from the ICC Court of Arbitration and its Secretariat, which exclusively manages ICC Arbitration proceedings. The Centre works with parties to establish a holistic dispute resolution that meets the parties’ specific interests. Parties may choose to resolve their dispute by selecting one of the available dispute resolution methods or may customize the procedure by combining various dispute resolution techniques.
KEY ISSUES: What is the difference between ICC ADR and ICC Arbitration? n n n Both ICC ADR and ICC Arbitration are administered procedures, which require the parties to file a Request with either the ICC International Centre for ADR (“Centre”) (for ADR) or with the ICC International Court of Arbitration (“Court”) (for arbitration). ADR (amicable dispute resolution) under the ICC ADR Rules (“ADR Rules”) aims to facilitate a settlement with the assistance of an independent neutral, most frequently through mediation. However, the ADR Rules also encompass other amicable dispute resolution techniques, for example conciliation, neutral evaluation and a variety of combinations of these and other techniques. Arbitration under the ICC Rules of Arbitration is a formal procedure leading to a binding decision from a neutral arbitral tribunal, susceptible to enforcement pursuant to both domestic arbitration laws and international treaties such as the New York Convention.
2. London Court of International Arbitration (LCIA)
What is it? n n n The LCIA is one of the leading international institutions for commercial dispute resolution. Its organisation, operation, outlook and services are worldwide, in the fields of arbitration, mediation and other forms of ADR. The LCIA has access to the most eminent and experienced arbitrators, mediators and experts from many jurisdictions, and with the widest range of expertise. The LCIA's dispute resolution services are available to all contracting parties, without any membership requirements. The Arbitration Court of the LCIA is a body of eminent arbitrators which is the final arbiter for the proper application of the LCIA Rules. Its key functions include appointing Tribunals, determining challenges to arbitrators and controlling costs. There is no connection between the LCIA and any State Court.
LCIA Arbitration Rules (effective 1 January 1998) Article 1. The Request for Arbitration Any party wishing to commence an arbitration under these Rules ("the Claimant") shall send to the Registrar of the LCIA Court ("the Registrar") a written request for arbitration ("the Request"), containing or accompanied by: n Article 3. The LCIA Court and Registrar The functions of the LCIA Court under these Rules shall be performed in its name by the President or a Vice President of the LCIA Court or by a division of three or five members of the LCIA Court appointed by the President or a Vice President of the LCIA Court, as determined by the President. n Article 5. Formation of the Arbitral Tribunal All arbitrators conducting an arbitration under these Rules shall be and remain at all times impartial and independent of the parties; and none shall act in the arbitration as advocates for any party. No arbitrator, whether before or after appointment, shall advise any party on the merits or outcome of the dispute. n
Article 16. Seat of Arbitration and Place of Hearings n n The parties may agree in writing the seat (or legal place) of their arbitration. Failing such a choice, the seat of arbitration shall be London, unless and until the LCIA Court determines in view of all the circumstances, and after having given the parties an opportunity to make written comment, that another seat is more appropriate. The Arbitral Tribunal may hold hearings, meetings and deliberations at any convenient geographical place in its discretion; and if elsewhere than the seat of the arbitration, the arbitration shall be treated as an arbitration conducted at the seat of the arbitration and any award as an award made at the seat of the arbitration for all purposes.
3. Court of Arbitration for Sport (CAS)- http: //www. tascas. org. n n n At the beginning of the 1980 s, the regular increase in the number of international sports related disputes and the absence of any independent authority specialising in sports related problems and authorised to pronounce binding decisions led the top sports organisations to reflect on the question of sports dispute resolution. In 1981, soon after his election as IOC President, H. E. Juan Antonio Samaranch had the idea of creating a sports specific jurisdiction. The following year at the IOC Session held in Rome, IOC member H. E. Judge Kéba Mbaye, who was then a judge at the International Court of Justice in The Hague, chaired a working group tasked with preparing the statutes of what would quickly become the “Court of Arbitration for Sport”. The idea of creating an arbitral jurisdiction devoted to resolving disputes directly or indirectly related to sport had thus firmly been launched. Another reason for setting up such an arbitral institution was the need to create a specialised authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure. The initial outlines for the concept contained provision for the arbitration procedure to include an attempt to reach a settlement beforehand. It was also intended that the IOC should bear all the operating costs of the court. Right from the outset, it was established that the jurisdiction of the CAS should in no way be imposed on athletes or federations, but remain freely available to the parties. In 1983, the IOC officially ratified the statutes of the CAS, which came into force on 30 June 1984. The Court of Arbitration for Sport became operational as of that time, under the leadership of President Mbaye and the Secretary General, Mr Gilbert Schwaar.
The International Council of Arbitration for Sport (ICAS) n n n The ICAS is the supreme organ of the CAS. The main task of the ICAS is to safeguard the independence of the CAS and the rights of the parties. To this end, it looks after the administration and financing of the CAS. The ICAS is composed of 20 members who must all be high level jurists well acquainted with the issues of arbitration and sports law. Upon their appointment, the ICAS members must sign a declaration undertaking to exercise their function in a personal capacity, with total objectivity and independence. This obviously means that in no circumstances can a member play a part in proceedings before the CAS, either as an arbitrator or as counsel to a party.
The Court of Arbitration for Sport (CAS) n n n The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for servic esin order to facilitate the settlement of sports related disputes through arbitration or mediation by means of procedural rules adapted to the pecific needs specific s of the sports world. The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS). The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year.
What is the function of the CAS ? n n n The CAS has the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgements of ordinary courts. It can also help parties solve their disputes on an amicable basis through mediation, when this procedure is allowed. In addition, the CAS gives advisory opinions concerning legal questions related to sport. Lastly, the CAS sets up non permanent tribunals, which it does for the Olympic Games, the Commonwealth Games or other similar major events. To take into account the circumstances of such events, special procedural rules are established on each occasion.
4. Arbitration Institute of the Stockholm Chamber of Commerce (SCC)
Arbitration Institute of the Stockholm Chamber of 4. Commerce (SCC) n n n The Chamber is located at Malmskillnadsgatan 46 in the heart of Stockholm, with a regional office in Uppsala. The Chamber has a staff of about fifty. The Swedish Chambers are private law Chambers (privately owned), based on voluntary membership. This differentiates them from many other public law Chambers in Europe, where they are partly governmental organisations with mandatory membership. As a result of the Chambers' independence from Government and private enterprise, the Chambers have a unique position as a trusted third party in business agreements. Because of this, the Chambers have developed a number of services for companies in need of a trusted third party when entering into business agreements. Some examples are: The SCC is part of, but independent from, the Stockholm Chamber of Commerce and was established in 1917. The SCC has a Board and a Secretariat. The SCC provides efficient dispute resolution services. The SCC was recognized in the 1970's by the United States and the Soviet Union as a neutral centre for the resolution of East West trade disputes, and the SCC has since expanded its services in international commercial arbitration. In recent years the number of cases filed with the SCC has increased considerably and the SCC has emerged as one of the most important and frequently used arbitration institutions worldwide. Today the SCC caseload includes both domestic and international arbitration cases. About 50 per cent of the cases are international in the sense that they involve at least one non-Swedish party.
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