from ICC-ICA

Question 1

What is International Court of Arbitration?

Answer 1

It is the independent arbitration body of the International Chamber of Commerce.

It administers the resolution of disputes by arbitral tribunal and does not itself resolve disputes. It ensures that the application of the Rules of Arbitration and such other rules.

Question 2

What are common ADR Techniques?

Answer 2

1. Mediation - a neutral party helps settle the differences through negotiation
2. Mini-trial - there is a panel that comprises of a neutral and a manager from each party and they propose a solution or give an opinion
3. Neutral evaluation of a point of law or fact - Common to all these techniques is the fact that the decision reached by or in collaboration with the neutral is not binding upon the parties, unless they agree otherwise

Question 3

Characteristics of ICC ADR

Answer 3

1. proceedings are flexible and party-controlled
2. proceedings under the Rules are intended to be rapid and inexpensive
3. proceedings allow the parties to choose whichever settlement technique is best suited to help them resolve their dispute
4. ICC ADR proceedings are confidential
5. the parties are free to agree in writing that they will comply with a recommendation or decision of the Neutral, even though it is itself unenforceable. In that case their agreement is binding upon them in accordance with the law applicable to that agreement.

Question 4

Request for Arbitration

Answer 4

1. Party wishing to have recourse to arbitration shall be the one to file the request
2. The date which the request is received shall be deemed to be the date of the commencement of the arbitration
3. The request shall contain the ff:
   a. Name, description, address, and other contact details of each party
   b. Contact details of any person representing the claimant
   c. Description of the nature and circumstances of the dispute
   d. Statement of the relief sought, together with the amount of qualified claims, to the extent possible an estimate of the monetary value of other other claims

Question 5

Answer to the Request

Answer 5

Within 30 days from the receipt of the request , the respondent shall submit an Answer, which shall contain the following:

a. Name, address and other contact details including the contact details of any person representing the respondent in the arbitration.
b. Comments as to the nature and circumstances of the dispute
c. Response to the relief sought
d. Observation or proposal concerning the number of arbitrators, place, applicable rules of law and language of arbitration.

Question 6

Effect of the Arbitration Agreement

Answer 6

Parties shall be deemed to have:

a. submitted ipso facto to the Rules in effect on the date of commencement of the arbitration, unless they have agreed to submit to the Rules in effect on the date of their arbitration agreement.
b. accepted that the arbitration shall be administered by the Court.

Question 7

Multiple Parties, Multiple Contracts and Consolidation

Answer 7

Party wishing to join as additional party to the arbitration shall submit a request for arbitration (The Request for Joinder).

Arbitration with multiple parties, the claim may be made by any party against any other party provided that no new claims may be made after the Terms of Reference are signed and approved by the Court

Claims arising out of or in connection with more than one contract may be made in a single arbitration irrespective whether such claims are made under one or more than one arbitration agreement.

Two or more arbitration pending under the Rules can be consolidated into a single arbitration.

Question 8

Constitution of the Arbitral Tribunal

Answer 8

The dispute shall be decided by a sole arbitrator or by three arbitrator.

Where parties have not agreed upon the number of arbitrator the court shall appoint a sole arbitrator unless required otherwise to be three.

Sole arbitrator maybe made by agreement of the parties. If parties fail to nominate within 30 days from date of claimants request for arbitration, the sole arbitrator shall be appointed by the Court.

Parties shall nominate in the Request and Answer, respectively one arbitrator for confirmation. The third arbitrator shall be appointed by the Court

Question 9

Who gets to decide on the place of arbitration?

Answer 9

By the parties. Otherwise, the court.

Question 10

Time limit for the final award

Answer 10

The time limit within which the arbitral tribunal must render its final award is six months. Such time limit shall start to run from the date of the last signature by the arbitral tribunal or by the parties of the Terms of Reference

The Court may extend the time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is necessary to do so.

Question 11

Correction and interpretation of the award

Answer 11

• clerical, typographical, or computational errors may be changed upon submission of request within 30 days from the date of the award
• in the form of an addendum (shall form part of the award)
• Where a court remits an award to the arbitral tribunal, the provisions on awards apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission.

Question 12

A notification or communication shall be deemed to have been made on the day it was received by the party itself or by its representative, or would have been received if made in accordance with Article 3(2).

Answer 12

True

Question 13

Periods of time specified in or fixed under the Rules shall start to run on the day following the date a notification or communication is deemed to have been made in accordance with Article 3(3). When the day next following such date is an official holiday, or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall commence on the first following business day. Official holidays and non-business days are included in the calculation of the period of time. If the last day of the relevant period of time granted is an official holiday or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall expire at the end of the first following business day.

Answer 13

True

Question 14

The arbitral tribunal shall continue to have jurisdiction to determine the parties’ respective rights and to decide their claims and pleas even though the contract itself may be non-existent or null and void.

Answer 14

True

Question 15

Request for Joinder

Answer 15

The Request for Joinder shall contain the following information:
a) the case reference of the existing arbitration;
b) the name in full, description, address and other contact details of each of the parties, including the additional party; and
c) the information specified in Article 4(3) subparagraphs c), d), e) and f).
The party filing the Request for Joinder may submit therewith such other documents or information as it considers appropriate or as may contribute to the efficient resolution of the dispute.

Question 16

Instances wherein consolidation of cases may be allowed

Answer 16

The Court may, at the request of a party, consolidate two or more arbitrations pending under the Rules into a single arbitration, where:
a) the parties have agreed to consolidation; or
b) all of the claims in the arbitrations are made under the same arbitration agreement; or
c) where the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take into account any circumstances it considers to be relevant, including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations and, if so, whether the same or different persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties.

Question 17

Confirmation of arbitrator

Answer 17

In confirming or appointing arbitrators, the Court shall consider the prospective arbitrator’s nationality, residence and other relationships with the countries of which the parties or the other arbitrators are nationals and the prospective arbitrator’s availability and ability to conduct the arbitration in accordance with the Rules. The same shall apply where the Secretary General confirms arbitrators pursuant to Article 13(2).

Question 18

Appointment of Arbitrator

Answer 18

Where the Court is to appoint an arbitrator, it shall make the appointment upon proposal of a National Committee or Group of the ICC that it considers to be appropriate. If the Court does not accept the proposal made, or if the National Committee or Group fails to make the proposal requested within the time limit fixed by the Court, the Court may repeat its request, request a proposal from another National Committee or Group that it considers to be appropriate, or appoint directly any person whom it regards as suitable.

Question 19

The Court may also appoint directly to act as arbitrator any person whom it regards as suitable where:

a) one or more of the parties is a state or may be considered to be a state entity;
b) the Court considers that it would be appropriate to appoint an arbitrator from a country or territory where there is no National Committee or Group; or
c) the President certifies to the Court that circumstances exist which, in the President’s opinion, make a direct appointment necessary and appropriate.

Answer 19

True

Question 20

The sole arbitrator or the president of the arbitral tribunal shall be of a nationality other than those of the parties. However, in suitable circumstances and provided that none of the parties objects within the time limit fixed by the Court, the sole arbitrator or the president of the arbitral tribunal may be chosen from a country of which any of the parties is a national.

Answer 20

True

Question 21

When can an arbitrator be replaced?

Answer 21

1. death
2. acceptance by the Court of the arbitrator’s resignation
3. acceptance by the Court of a challenge
4. acceptance by the Court of a request of all the parties
5. on the Court’s own initiative when it decides that the arbitrator is prevented de jure or de facto from fulfilling the arbitrator’s functions, or that the arbitrator is not fulfilling those functions in accordance with the Rules or within the prescribed time limits.

When an arbitrator is to be replaced, the Court has discretion to decide whether or not to follow the original nominating process. Once reconstituted, and after having invited the parties to comment, the arbitral tribunal shall determine if and to what extent prior proceedings shall be repeated before the reconstituted arbitral tribunal.

Question 22

Terms of Reference

Answer 22

As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall include the following particulars:

a) the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party in the arbitration;
b) the addresses to which notifications and communications arising in the course of the arbitration may be made;
c) a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims;
d) unless the arbitral tribunal considers it inappropriate, a list of issues to be determined;
e) the names in full, address and other contact details of each of the arbitrators;
f) the place of the arbitration; and
g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono.

• must be signed within 30 days. if wala, upon approval na lang ng court

Question 23

Case management conferences may be conducted through

Answer 23

a. a meeting in person
b. by video conference
c. telephone
d. other similar means of communication

In the absence of an agreement of the parties, the arbitral tribunal shall determine the means by which the conference will be conducted.

Question 24

If any of the parties, although duly summoned, fails to appear without valid excuse, the arbitral tribunal shall have the power to proceed with the hearing.

Answer 24

True

Question 25

Emergency Arbitrator

Answer 25

1)
A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. Any such application shall be accepted only if it is received by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and irrespective of whether the party making the application has already submitted its Request for Arbitration.
2)
The emergency arbitrator’s decision shall take the form of an order. The parties undertake to comply with any order made by the emergency arbitrator.
3)
The emergency arbitrator’s order shall not bind the arbitral tribunal with respect to any question, issue or dispute determined in the order. The arbitral tribunal may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator.
4)
The arbitral tribunal shall decide upon any party’s requests or claims related to the emergency arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or non-compliance with the order.
5)
Articles 29(1)-29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the “Emergency Arbitrator Provisions”) shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories.
6)
The Emergency Arbitrator Provisions shall not apply if:
a) the arbitration agreement under the Rules was concluded before 1 January 2012;
b) the parties have agreed to opt out of the Emergency Arbitrator Provisions; or
c) the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.
7)
The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat.

Question 26

Composition of the Court

Answer 26

The Court shall consist of a President, Vice-Presidents, and members and alternate members (collectively designated as members). In its work it is assisted by its Secretariat (Secretariat of the Court).

Question 27

Appointment

Answer 27

1)
The President is elected by the ICC World Council upon the recommendation of the Executive Board of the ICC.

2)
The ICC World Council appoints the Vice-Presidents of the Court from among the members of the Court or otherwise.

3)
Its members are appointed by the ICC World Council on the proposal of National Committees or Groups, one member for each National Committee or Group. On the proposal of the President of the Court, the World Council may appoint members in countries and territories where there is no National Committee or Group.

4)
On the proposal of the President of the Court, the World Council may appoint alternate members.

5)
The term of office of all members, including, for the purposes of this paragraph, the President and Vice-Presidents, is three years. If a member is no longer in a position to exercise the member’s functions, a successor is appointed by the World Council for the remainder of the term. Upon the recommendation of the Executive Board, the duration of the term of office of any member may be extended beyond three years if the World Council so decides.

Question 28

UNCITRAL

Answer 28

United Nations Commission on International Trade Law

Question 29

At present, there exist three different versions of the Arbitration Rules: (i) the 1976 version; (ii) the 2010 revised version; and (iii) the 2013 version which incorporates the UNCITRAL Rules on Transparency for Treaty-based Investor-State Arbitration.

Answer 29

ok

Question 30

The UNCITRAL Arbitration Rules (as revised in 2010) have been effective since 15 August 2010.

Answer 30

cool

Question 31

UNCITRAL

For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non
business days occurring during the running of the period of time are included in calculating the period.

Answer 31

uki

Question 32

Number of arbitrators in ICC-ICA

Answer 32

1. If the parties have not previously agreed on the number of arbitrators, and if within 30 days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed.
2. Notwithstanding paragraph 1, if no other parties have
   responded to a party’s proposal to appoint a sole arbitrator within the time limit provided for in paragraph 1 and the party or parties concerned have failed to appoint a second arbitrator in accordance with article 9 or 10, the appointing authority may, at the request of a party, appoint a sole arbitrator pursuant to the procedure provided for in article 8, paragraph 2, if it
   determines that, in view of the circumstances of the case, this is more appropriate.

Question 33

If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions, unless the arbitral tribunal decides otherwise.

Answer 33

Ok

Question 34

The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person
or persons to be joined, the opportunity to be heard, that joinder should not be permitted because
of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration.

Answer 34

ok

Question 35

The periods of time fixed by the arbitral tribunal for the
communication of written statements (including the statement of claim and statement of defence) should not exceed 45 days. However, the arbitral tribunal may extend the time limits if it concludes that an extension is justified.

Answer 35

uki

Question 36

What is an interim measure?

Answer 36

An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to:
(a) Maintain or restore the status quo pending
determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a
subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.

Question 37

A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

Answer 37

ok

Question 38

Within 30 days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation of the award.

The interpretation shall be given in writing within 45 days after the receipt of the request. The interpretation shall form part of the award and the provisions of article 34, paragraphs 2 to 6, shall apply.

Answer 38

oks

Question 39

What are costs as established in UNCITRAL?

Answer 39

(a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 41;
(b) The reasonable travel and other expenses incurred by the arbitrators;
(c) The reasonable costs of expert advice and of other
assistance required by the arbitral tribunal;
(d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) The legal and other costs incurred by the parties in
relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable;
(f) Any fees and expenses of the appointing authority
as well as the fees and expenses of the Secretary-General of the PCA

In relation to interpretation, correction or completion of
any award under articles 37 to 39, the arbitral tribunal may charge the costs referred to in paragraphs 2 (b) to (f), but no additional fees.

Question 40

Objectives of the New York Convention

Answer 40

The Convention’s principal aim is that foreign and non-domestic arbitral awards will not be discriminated against and it obliges Parties to ensure such awards are recognized and generally capable of enforcement in their jurisdiction in the same way as domestic awards. An ancillary aim of the Convention is to require courts of Parties to give full effect to arbitration agreements by requiring courts to deny the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.

Question 41

5 grounds upon which recognition and enforcement may be refused at the request of the party against whom it is invoked

Answer 41

1. incapacity of the parties
2. invalidity of the arbitration agreement
3. due process
4. scope of the arbitration agreement
5. jurisdiction of the arbitral tribunal
6. setting aside or suspension of an award in the country in which, or under the law of which, that award was made

two additional grounds relate to a. arbitrability and b. public policy

Question 42

How to become a party under the New York Convention

Answer 42

The Convention is closed for signature. It is subject to ratification, and is open to accession by any Member State of the United Nations, any other State which is a member of any specialized agency of the United Nations, or is a Party to the Statute of the International Court of Justice (articles VIII and IX).

Question 43

Effect of denunciation of New York Convention

Answer 43

Any Party may denounce this Convention by a written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of the receipt of the notification by the Secretary-General (article XIII).

Question 44

What are arbitral awards under the New York Convention?

Answer 44

The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted