Gusy Martin F’s scientific contributions

This chapter explores Article 30 of the ICDR Rules, which prescribes the basic requirements for the time, form, and effect of any ICDR arbitral award. The Article does not provide a comprehensive list of requirements for a valid award; rather, it prescribes certain general minimum standards, while also giving some deference to the potential application of the parties’ agreement and the specific demands of the law at the place of arbitration or where enforcement is sought. The text of Article 30 received a number of revisions during the 2014 amendments to the ICDR Rules. Many of these revisions were aimed at streamlining and internationalizing the language, but others incorporated existing ICDR practices such as review of the draft award by the ICDR or expanded the previous provisions such as establishing a deadline by which the award must be rendered.

This chapter looks at Article 35 of the ICDR Rules, which concerns compensation of the arbitral tribunal. Under the ICDR Rules, the case Administrator at the ICDR takes the lead in ensuring that fee rates are agreed between all tribunal members and the parties. Those fees are almost always based on the arbitrators’ previously advised hourly rates, although the Administrator may intervene to modify rates to avoid any significant disparity. Similarly, although not formally required under the rules, throughout the arbitration and in the final costs of arbitration, the Administrator reviews the reasonableness of the arbitrators’ fees and expenses. In contrast to the equivalent provision in the AAA Commercial Rules, section R-55, the ICDR Rules envisage a more hands-on role to be played by the institution.

This chapter examines Articles E-2 through E-5 of the ICDR Rules, which contain provisions on how an arbitration should be commenced under the Expedited Procedures. Although these provisions preserve the arbitrator’s authority to resolve certain issues, Articles E-2 through E-5 generally address matters that will not yet involve the arbitrator. These include submission of the initiating document and answering document, the preliminary administrative conference call, objection to application of the Expedited Procedures, and amendment of claims and counterclaims. Ultimately, the provisions in Articles E-2 through E-5 are designed to facilitate an expedited resolution of the dispute by frontloading certain activities in the arbitration and by preliminarily resolving procedural matters before the case is transferred to the arbitrator.

This chapter focuses on Article 3 of the ICDR Rules, which addresses the Respondent’s Answer to the Claimant’s Notice of Arbitration. In filing the Answer, the Respondent may introduce counterclaims and set-offs. The Respondent is not required to provide a full defense in the Answer but may do so if it so wishes. In practice, as a responsive pleading, the contents of the Answer will depend on the facts and arguments presented by the Claimant in the Notice of Arbitration. The Respondent is required to ‘respond to the Notice of Arbitration’ and must submit its statement to the Claimant and any other parties, as well as to the Administrator. In a typical case, the Respondent will request that the claims be dismissed or the relief denied, and that the Claimant be ordered to bear the costs of arbitration, including the Respondent’s legal costs.

This chapter focuses on Article 34 of the ICDR Rules, which empowers the tribunal to fix the ‘costs of the arbitration’ and to allocate those costs between the parties. As with most sets of arbitration rules, Article 34 identifies what kinds of costs may be recoverable but leaves the tribunal a broad discretion to decide what costs are reasonable and how recovery of those costs should be allocated between the parties. Evidently, the parties’ agreement, the applicable national laws, and the legal cultures of the respective parties and the tribunal may also play a role in this determination. In considering Article 34, it is also important to bear in mind that US domestic litigation practice provides very few opportunities for any cost-shifting with respect to a party’s attorney fees or otherwise. This so-called ‘American Rule’, at least to some extent, remains the practice in US domestic arbitration.

This chapter addresses Article 37 of the ICDR Rules. The extent to which arbitral proceedings are, or should be, confidential is a topic of recurring debate within the international arbitration community. Article 37—with its focus on imposing a duty of confidentiality on the arbitrators and the institution—represents an innovation by the ICDR that has since been partially adopted by some other institutions. The 2014 revisions to the ICDR Rules added a new provision to this rule that makes clear that issues of confidentiality are otherwise left to the agreement of the parties and any procedural order entered by the tribunal. The revision serves as a reminder to counsel and the tribunal that confidentiality concerns may best be addressed by way of a carefully tailored order within the proceeding itself.

This chapter details Article 17 of the ICDR Rules, which presumes that the parties to an arbitration will choose the place or seat of arbitration in the arbitration agreement. Parties are well advised to do so due to the important role that the seat of arbitration plays in any arbitration. In practice, a majority of arbitration agreements specifically designate a seat of arbitration; for ICDR arbitrations, the US remains the most popular host country, and New York the most popular seat. Importantly, Article 17 provides for the situation in which the parties have failed to agree on a place of arbitration, authorizing the ICDR administrator initially to determine the place of arbitration for the parties, but with the final determination resting with the tribunal.

This chapter examines Article 33 of the ICDR Rules. As with most other arbitral rules, the ICDR Rules provide a limited opportunity for interpretation or correction of an award and for an additional award to be made on claims presented, but not included within the award. Article 33 provides a strict deadline for any such interpretations, corrections, or additional awards. The rationale behind such a limited review and on such a strict timeline is the concern not to interfere with the parties’ agreement for a fast and final resolution of their dispute. For this reason, arbitrators, courts, and commentators are quick to emphasize the very limited scope of an application under Article 33 or its analogous provisions in other rules. Given the likelihood, however, of at least one party feeling aggrieved by the tribunal’s decision, Article 33 can also be subject to creative attempts to reargue a particular legal, evidential, or procedural point.

This concluding chapter discusses Article E-10 of the ICDR Rules, which provides some basic requirements for an award made under the Expedited Procedures. Unlike its analogous counterpart in Article 30 of the main ICDR Rules, Article E-10’s direction is more limited. While Article 30 also provides instruction on the form, content, and confidentiality of the award, Article E-10 only provides specific direction that the award should be in writing, that it is final and binding on the parties, and that it must be rendered within a 30-day time period. Consequently, as with other provisions of the Expedited Procedures and as is provided for in Article E-1, arbitrators and the parties should refer to the provisions of the main ICDR Rules to supplement Article E-10.

This chapter looks at Article 10 of the ICDR Rules. Both the arbitral tribunal and the parties to an arbitration must communicate in an effective and pre-agreed manner to ensure the smooth conduct of arbitral proceedings. Article 10(1) addresses the practicalities regarding notification of all communications between the parties. Notably, it addresses the variety of forms of modern communication, paying particular attention to forms of electronic communication. Likewise, Article 10(1) is drafted in sufficiently broad terminology that permits the parties and the tribunal to communicate in a variety of ways. Meanwhile, Article 10(2) provides the framework for calculating periods of time and time limits under the Rules. By specifically defining when notice periods begin to run, and anticipating holiday and other interruptions, Article 10(2) pre-empts possible dilatory tactics and sets the parties’ expectations for prompt notification, service of documents, and other communications that are essential to the timely and effective functioning of an arbitration.