Page 2 Spring 2012
The International Law Quarterly
See “2012 ICC Rules of Arbitration,” page 65
International Law Quarterly
is prepared and published by theInternational Law Section ofThe Florida Bar.
Nicolas Swerdlo, Miami
Richard C. Lorenzo, Miami
C. Ryan Reetz, Miami
Peter A. Quinter, Miami
Edward M. Mullins, Miami
Immediate Past Chair
Mark R. Weiner, Tampa
Alvin F. Lindsay, Miami
Angela Froelich, Tallahassee
Lynn M. Brady, Tallahassee
Media Contact,ECO Strategic Communications
Articles between 7 and 20 pages, double-spaced, involving the various disciplinesaffecting international law may be submittedvia email in MS Word format (with the useof endnotes, rather than footnotes).
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DeADLIne FOR neXT IssueIs 20 AuGusT 2012.
2012 iCC RuLEs oF aRBitRation,
from previous page
while some revisions introduced new provi-sions that allowed applications for interimrelief to be made to an emergency arbitrator or that facilitated multi-party and multi-contract arbitration.
The 2012 Rules
came into force on 1January 2012 and, with the exception of theemergency arbitrator provisions,
apply toall ICC arbitrations commenced after thatdate unless the parties’ arbitration agree-
ment species that the parties will submit
the arbitration to the rules in force on thedate of the arbitration agreement.
Wo Admiitr Arbitratioudr t nw ICC Rl?
Under the 1998 Rules, a practice arosewhereby some parties to arbitrations, par-
ticularly in Asia, sought to gain the benet
of having the arbitration conducted in ac-cordance with the ICC Rules but withoutthe cost commonly associated with ICCarbitration. They therefore entered into“mix-and-match” arbitration agreements providing that the arbitration would be con-ducted under the rules of the ICC but ad-ministered by another institution. The mostwell-known example of such a “mix-and-match” clause was
Insigma TechnologyCo. Ltd. V. Alstom Technology
where anarbitration clause providing for ICC arbi-tration to be administered by the SingaporeInternational Arbitration Centre (“SIAC”)was upheld by the Singapore courts.The ICC responded by including a new provision in the 2012 Rules stating that theICC Court is “the only body authorized toadminister arbitrations under the Rules,including the scrutiny and approval of awards rendered in accordance with theRules.”
While the ICC’s intent is clear, itremains to be seen whether this provisionwill be effective in practice. Some partieswishing to avoid the cost associated withICC arbitration may attempt to contract outof this new provision.
One of the most signicant changes in
the 2012 Rules is the introduction of a procedure allowing applications for urgentinterim or conservatory measures to besubmitted to an emergency arbitrator prior to the constituting of the tribunal.
This procedure is intended as an alternative toapplying to the national courts at the seat of the arbitration.
Prior to the introduction of the 2012 Rules, a party to an ICC arbitra-tion requiring urgent interim or conserva-tory relief could either apply to a nationalcourt for that relief or apply to the ICCfor the appointment of a pre-arbitral ref-eree. In practice, however, the ICC’s pre-arbitral referee procedure was rarely used.
In the meantime, other institutions weredeveloping more sophisticated pre-arbitral procedures: the Stockholm Chamber of Commerce (“SCC”) introduced emergencyarbitrator provisions in its revised arbitra-tion rules that came into force on 1 January2010,
and SIAC followed suit six monthslater.
The 2012 Rules therefore follow agrowing trend in international commercialarbitration towards giving parties the op-tion to apply to an emergency arbitrator for urgent interim or conservatory relief.Applications under the emergency arbi-trator provisions are to be submitted to theICC Secretariat,
together with payment of the $40,000 fee, consisting of $10,000 for ICC administrative expenses and $30,000for the emergency arbitrator’s fees andexpenses.
This amount may be increasedat any time during the emergency arbitrator proceedings if so decided by the Presidentof the ICC Court.
If the President of the
ICC Court is satised that the emergency
arbitrator provisions apply, a copy of theapplication will be transmitted by the ICCSecretariat to the responding party.
Therespondent will therefore be on notice of the application, negating the possibility of an ex parte injunction.These provisions impose a new roleon the President of the ICC Court, whoeffectively becomes a gatekeeper for ap- plications for emergency measures. ThePresident of the ICC Court will also appointthe emergency arbitrator, usually withintwo days of receipt of the application bythe ICC Secretariat.
Once the emergencyarbitrator has been appointed, he or she willestablish a procedural timetable in as shorta time as possible, usually within two days