Dr. AbdelGadir Warsama Ghalib
This Court, undoubtedly, took the lead in securing the worldwide acceptance of “arbitration” as the most effective alternative way of resolving commercial disputes… ADRs. The ICC arbitration is possible only by an agreement between the concerned parties. Herein, the ICC recommends a “standard clause” to be inserted in the contracts. However, in all instances, an arbitration clause shall include, the governing law, number of arbitrators, place of arbitration, language of the arbitration, etc... Needless to say that, the law in some countries lay down certain requirements in respect of arbitration clauses. The parties should always ensure that the relevant agreement is in writing, as The New York Convention of 1985 states that “States shall recognize arbitration agreements in writing".
To start the process of arbitration, the claimant submits a request for arbitration to the secretariat of the International Court of Arbitration in Paris. Then, the secretariat sends the request to the other party which must send an answer within 30 days. Thereafter, the Secretary General sets the procedure in motion and the file is transmitted to the arbitral tribunal provided the advance on costs requested at this stage has been paid. The arbitral tribunal establishes a procedural timetable for the arbitration and communicates it to the Court and, also, the “terms of reference” are signed by the parties and the arbitral tribunal. The arbitral tribunal, then, proceeds within short time to establish the “facts of the case” by all appropriate means. In sequence, 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 request for arbitration should include the name, address of the parties, a description of the dispute, a statement of the relief, including, an indication of any amount claimed, the relevant arbitration agreement, all relevant particulars concerning the constitution of the arbitral tribunal and the place of arbitration, the applicable law and the language….
The parties are free to select the arbitrators of their choice. The Court or the Secretary General confirms arbitrators nominated by the parties. In all cases, the arbitrators are asked to declare their independence. If arbitrators disclose facts or circumstances that might question their independence in the eyes of the parties, such facts and circumstances are to be communicated to the parties. When a dispute is referred to three arbitrators and unless the parties have agreed otherwise, claimant and respondent each nominate an arbitrator for confirmation. If a party fails to nominate, the appointment is made by the Court. The third arbitrator, who chairs the arbitral tribunal, is appointed by the Court. When appointing an arbitrator, the Court generally requests a proposal from an ICC national committee. The national committee is provided with relevant information on the dispute and on the qualifications required. The Court has the authority to accept or reject the national committee's proposal. The Court can also, in certain circumstances, select an arbitrator from a country where there is no national committee.
When the Court appoints a sole or a third arbitrator, the arbitrator comes from a "neutral" country. In other words, the sole or third arbitrator should be a national of a country other than those of the parties, unless none of the parties object. However, when the Court appoints an arbitrator on behalf of a party that has failed to nominate one, a proposal is requested from the national committee, if any, in the country of which that party is a national.
Before the actual merits of the case can be addressed, the arbitral tribunal must first draw up the “terms of reference”. Such terms, should contain the particulars listed in the ICC Rules. These include names of the parties and arbitrators, place of arbitration, a summary of the claims and details concerning the applicable procedural rules. Terms of reference also contain a list of issues to be determined, unless the arbitral tribunal considers this inappropriate. At this stage, the arbitral tribunal establishes a provisional timetable to be followed in the conduct of the arbitration.
The terms of reference must be transmitted to the Court within two months of the file being transmitted to the arbitral tribunal. If one of the parties refuse to take part in drawing up or sign the terms of reference, the latter are submitted to the Court for approval, whereupon the arbitration may proceed. The terms of reference become operative once they have been signed by the parties and the arbitrators, or have been approved by the Court where a party has, failed to sign them. The arbitral tribunal must then proceed to establish the facts of the case. When it is satisfied that the parties have had a reasonable opportunity to present their cases, the arbitral tribunal declares the proceedings closed and proceeds to draft an award. The award is rendered within six months from the signature or approval of the terms of reference, a time limit which the Court may extend. After the closing of the proceedings, the arbitral tribunal draws up a draft award which is submitted to the Court's scrutiny. The Court may lay down modifications as to form and, without affecting the arbitral tribunal liberty of decision, may draw its attention to points of substance. In scrutinizing draft awards, the Court considers, to the extent practicable, the requirements of mandatory law at the place of arbitration. Once approved by the Court, the award is signed by the arbitrators. It is deemed to be made at the place of the arbitration on the date it indicates and then notified to the parties by the Secretariat. This award is final and executable..