the icc court powers under article 6(2) of the rules alina leoveanu

ICC Dispute Resolution Services

The ICC Court powers under The ICC Court powers under Article 6(2) of the RulesArticle 6(2) of the Rules

Alina LeoveanuDeputy Counsel, ICC International Court of Arbitration

Paris

Bucharest • 27 September 2010


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Summary

The Role of Article 6(2) of the Rules Two scenarios, one test Non-signatory Respondent Multiple Contracts Multiple Parties Pre-Conditions to ICC arbitration Positive 6(2) Negative 6(2) Statistics Conclusion


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The Role of Article 6(2) of the RulesThe Role of Article 6(2) of the Rules

To make sure that the parties have agreed to submit their dispute to ICC arbitration

The Court does not analyse sua sponte whether an arbitration agreement under the Rules exist


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Two scenarios, one test (I)

Respondent does not file an Answer

Respondent raises objections to the existence, validity or scope

of the arbitration clause


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Two scenarios, one test (II)

The existence of an arbitration agreement between the parties

The arbitration agreement shall make reference to the ICC Rules


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Non-signatory Respondent

Test: a non-signatory Respondent will be included only if it has been closely involved with the contract containing an arbitration clause, e.g. if it participated in the negotiations, performance and/or termination of the contract


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Multiple contracts

The Court may authorize a single arbitration to proceed on the basis of several contracts if:

all contracts are signed by the same parties

all contracts are related to the same economic transaction

all of the arbitration clauses are compatible


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Multiple parties

Same tests apply

It is for Claimant to identify the Respondent(s) [Article 4(3) of the Rules]

If non-signatory Respondent(s), the burden of proof of their involvement with the contract containing an arbitration clause lies with Claimant


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Pre-Conditions to ICC Arbitration(e.g., mediation, negotiation, recourse to dispute resolution

boards in the construction industry)

Do not call into question the existence of the arbitration agreement

They are left for the Arbitral Tribunal to be determined once fully constituted in accordance with Article 13 of the Rules


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Positive 6(2) – I

If the Court decides that the arbitration can proceed in accordance with Article 6(2) of the Rules:

the Arbitral Tribunal will be constituted: confirmation and/or appointment of arbitrators

the Court will fix, as the case may be, the place of arbitration

the Court will set the amount of the advance to cover the costs of the arbitration


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Positive 6(2) – II

The Arbitral Tribunal’s determination of its own jurisdiction

“[…] any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself.”

The Court’s decision on Article 6(2) of the Rules is administrative in nature and is not binding upon the Arbitral Tribunal

The Court will make sure that the Arbitral Tribunal decides on its own jurisdiction when scrutinizing the Award


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Negative 6(2)

If the Court decides that the arbitration cannot proceed in accordance with Article 6(2) of the Rules:

the Court will not provide reasons for its decision

the Court will fix the costs of the arbitration

the case will be closed


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ConclusionStatistics – I

Number of cases submitted to a 6(2) decision

2006: 193 cases = 32.5% of the 593 new cases filed within the year




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Statistics – II

Outcome of the 6(2) decisions

Number of cases for which the 6(2) decision was positive (i.e., the case moves forward as it was filed by Claimant)

2006: 172 cases = 89.2% of the cases involving a 6-2 decision




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Statistics - III

Number of cases for which the 6(2) decision was negative (i.e., the entire case is dismissed)





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Conclusion


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Thank you for your attention

www.iccarbitration.org

Alina LeoveanuAlina Leoveanu

[email protected]

the icc court powers under article 6(2) of the rules alina leoveanu

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