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ICC Dispute Resolution Services
ICC Dispute Resolution Services – ADR, Expertise, Dispute Boards
and DOCDEX
Kim Kit, Ow IndiaJuly 2011
ICC Dispute Resolution “ToolBox”
ICC Dispute Resolution
Arbitration
ADR
Expertise
Dispute Boards
ICC ADR Rules - Overview
ADR Rules and Services: Amicable dispute resolution – ICC ADR Secretariat
• Mainly mediation but also neutral evaluation, conciliation, mini-trial, adjudication etc.
• Leads to settlement of the dispute arising from the contract
• Procedure administered by ICC
Rules for Expertise – ICC International Centre for Expertise
• Proposal, appointment of experts
• Experts from all sectors and nationalities
• Procedure administered by ICC
Dispute Board Rules – ICC Dispute Board Centre
• Standing dispute resolution panels
• Non-administered procedure if not specifically requested by the parties (eg. scrutiny) or if there are procedural difficulties (eg. challenges)
DOCDEX Rules – ICC International Centre for Expertise
• Quick, document-based expert determination procedure for cases involving ICC banking rules
• Administered procedure
• Experts chosen from a closed list
ICC Arbitration
Secretariat of the ICC ICA
ICC International
Court of Arbitration
ICCDispute Resolution
• ADR Secretariat• ICC Centre for Expertise• ICC Dispute Board Centre
ICC Dispute Resolution Services
ICC ADR Rules
ICC ADR RULES ADR = Amicable Dispute Resolution
Mediation, Conciliation, Adjudication, Mini-trial, Neutral
Evaluation etc.
“Not to try mediation is irresponsible“
(In-house counsel of big multi-national)
ICC ADR Procedures - salient features
• Flexible rules
• Procedural framework
• Procedural certainty
– Fallback provisions if disagreement about procedural matters (language and place of the proceeding etc)
• ICC as appointing authority if parties don‘t jointly designate the Neutral
• “Settlement Technique“ – to be agreed failing which it will be mediation (Article 5(1) of the ADR Rules)
• Confidentiality (Article 7 of the ADR Rules)
• Administered procedure
– Request for ADR filed with ICC
– Supervision and quality control through ICC
– Administrative support through ICC
• Request can be based on prior agreement or can be made without prior agreement (Article 2)
almost 120 administered cases
parties from over 65 countries
80% cross-border, 20% domestic cases
80% mediation, 20% other settlement techniques
average amount in dispute: US$20 million - but equally broad spread like in arbitration
average duration from transfer of the file to the Neutral until settlement: 4 months
average costs for Neutral's fees, expenses and ICC administrative expenses: US$20000 –
US$25000
success rate: around 80% of the cases transferred to the Neutral settle
Asian parties included parties from China, Singapore, India, Philippines, Malaysia, Japan,
Korea
increase of cases since 2009. In 2011, more cases were filed by June, as in the whole of
2010
ICC ADR statistics: Ten Year Snapshot 2001 – 2010
• It is not uncommon for dispute resolution clauses to provide for more than one method of settling disputes. Arbitration could be the second or third step taken when attempts to find an amicable settlement fail.
• Holistic ICC DRS infrastructure – combination of two complementary methods
• Example: Obligation to submit dispute to ADR, followed by arbitration if required
“In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.”
Multi-Tiered Dispute Resolution Clauses in ICC Arbitration
ICC Rules for Expertise
ICC Expertise Procedure - salient features
• Standing Committee of Industry Experts
• Three possibilities
– Proposal (non binding)
– Appointment (binding)
– Administration of expertise proceedings
• Experts from different sectors
– Technical
– Financial
– Legal
– Procedural (eg. mediators, adjudicators etc)
• No closed list of experts
• Costs: US$ 2 500 for proposal or appointment
• BUT: Proposal free of charge for Arbitral Tribunal in ICC arbitration
ICC Dispute Board Rules
Types of Dispute Boards
Three types of Dispute Boards:
Dispute Adjudication Board (DAB)
• issues ‘Decisions’
• Parties must comply with Decision
• party may express its
dissatisfaction with the Decision
Combined Dispute Board (CDB)
• normally issues Recommendations with respect to any dispute referred to it• but may issue Decisions
• offers an intermediate approach between the DRB and the DAB
Dispute Review Board (DRB)
• issues ‘Recommendations’
• not binding on the parties
ICC DB Rules – The Specifics
• 1 or 3 member DB
• The ICC DB Centre does not administer proceedings, but can…
• Appoint DB members
• Make decisions upon challenges of DB members
• Scrutinize DB decisions as to their form (if requested to do so)
• ICC provides Model Dispute Board Member Agreement
• the Model Agreement sets out such aspects as the scope of the DB’s work and the remuneration of the DB members
• to be signed by the DB member(s) and the parties to the underlying Contract
DOCDEX Documentary Instruments Dispute Resolution
Expertise
DOCDEX Rules – The Specifics
• DOCDEX Rules are applicable once the dispute arises out of one of the “ICC Financial Rules” (eg. those governing documentary credits like URDG or UCP 600 – guarantees, letters of credit) – usually dispute is straightforward
• Expert Procedure – 3 experts render the decision
• Purely “paper-based” procedure and no hearings
• Experts appointed from a list kept by the ICC Banking Commission
• Identity of the experts not disclosed to the parties
• Quick : Average duration from filing to decision is 70 days
• Low Cost: Standard Fee US$5000, in exceptional cases Additional Fee of up to US$5000 requested (total cost will never exceed US$10,000)
• If parties agree, the decision can be binding.
• Average of 15 to 20 requests for DOCDEX decisions are filed.
Contact us
Hannah Tümpel
Manager, ICC Dispute Resolution Services - ADR, Expertise, Dispute Boards, DOCDEX
38, cours Albert 1er
75008 Paris, France
Email: [email protected]
Tel: +33 1 49 53 30 53
Kim Kit, Ow Director, ICC Arbitration and ADR, Asia
32 Maxwell Road #02-11 Maxwell ChambersSingapore 069115
Email: [email protected]
Tel:: +65 6225 9081
Website:: www.iccadr.org