ICC Dispute Resolution Services ICC Arbitration – An Overview Kim Kit, Ow Taipei 16 May 2011

ICC Dispute Resolution Services Introduction to the ICC – ICC Commissions, Work of the ICC 2

ICC Dispute Resolution Services ICC OVERVIEW ICC Founded in 1919 by entrepreneurs (“Merchants of Peace”), ashes of WW1 and is the world business organization, a representative body that speaks with authority on behalf of enterprises from all sectors in every part of the world. The fundamental mission of ICC is to promote trade and investment across frontiers and help business corporations meet the challenges and opportunities of globalization. ICC has 3 main activities: rules- setting, arbitration and policy. ICC has unrivalled authority in making rules that govern the conduct of business across borders and are observed in countless transactions every day and have become part of the fabric of international trade. 3

ICC Dispute Resolution Services ICC OVERVIEW There are several commissions of the ICC and ICC makes policy in: - Anti-Corruption Arbitration Banking Technique & Practice Commercial Law & Practice Competition Corporate Responsibility Customs & Trade Regulations E-business, IT & Telecoms Economic Policy Environment & Energy Financial Services & Insurance Intellectual Property Marketing & Advertising Taxation Trade & Investment Policy Transport & Logistics 4

ICC Dispute Resolution Services ICC Arbitration and the Structure of the ICC International Court of Arbitration 5

ICC Dispute Resolution Services 6 ICC Arbitration … in the beginning Realised importance of resolving international commercial disputes ICC International Court of Arbitration was established in 1923 First ICC arbitration: 28 February 1921 (before ICC Court established). USA Co. v French Co. Unlawful use of trade mark/ breach of non-competition clause

ICC Dispute Resolution Services 7 Distinguishing Features Substantial experience Truly international character Rules have mechanisms to control the quality of the process, the arbitrators and legality of the award Rules are inherently flexible and adaptable "Red" and "Green" Rules Role of the National Committees

ICC Dispute Resolution Services 8 Substantial Experience Over 17,000 arbitration cases since 1923 Over 1,500 currently pending cases State/Govt. entities: about 10% of parties Growing number of “investment disputes”, BITs Case values as at beginning of 2009: Total value of cases: US$ 99.4 Billion Average value: US$ 82.3 Million Several cases of more than US$ 1 Billion Small cases: 23.1% are less than US$ 1 Million

ICC Dispute Resolution Services 9 Truly International ICC International Court of Arbitration Not a judicial Court; 125 volunteer members from 90 countries Sits weekly (committee sessions) and monthly (plenary sessions) International Secretariat – permanent (salaried) staff Secretary General and Deputy Secretary General Staff of 70 members including 40 lawyers Some 25 different nationalities speaking some 24 different languages Paris: Seven teams of 3-4 lawyers (plus secretarial/admin staff) Hong Kong: branch of the Secretariat for Asian cases, 3 lawyers

ICC Dispute Resolution Services 10 Structure of the ICC – the Secretariat Secretary General Asian Team (HK) Latin American and Carribean Team Deputy Secretary General Counsel Common- wealth Team Swiss and Italian Team Eastern European Team French, African and Middle Eastern Team German and Austrian Team North American Team

ICC Dispute Resolution Services 11 ICC COURT & SECRETARIAT vs. TRIBUNAL Court & Secretariat Does not settle disputes, rather supervises the work of the Arbitral Tribunal Basic procedural decisions Appointments, confirmations, challenges, replacements of arbitrators Control of time limits Scrutiny of Awards Case budget Arbitral Tribunal Settlement of the dispute Management of the case in consultation with the parties Rapidity and diligence Interim/Partial and Final Awards

ICC Dispute Resolution Services 12 ICC National Committees & ICC Groups Role of the National Committee (“NC”) and Group: NC / Group is an Affiliate of ICC that represents ICC. ICC Groups comprise leading companies and business associations in their territories. NCs and Groups shape ICC policies and alert their governments to international business concerns. Over 92 NCs / Groups globally – In Taipei: CIECA Appointment of arbitrators – ICC itself does not have a list of arbitrators. NCs and Groups maintain their own list. Promote ICC Dispute Resolution Services globally

ICC Dispute Resolution Services Features of ICC Rules of Arbitration and the Process of ICC Arbitration 13

ICC Dispute Resolution Services 14 Features of ICC Arbitration Rules Short, Simple and Flexible Rules Quality Control by Court, with assistance from Secretariat: Control of arbitrators –Confirmation/ appointment/ challenge etc. –Remove non-performing arbitrators (Art. 12(2) of Rules) Regular Monitoring of proceedings (prevent delays) Time control: Court closely monitors time; Terms of Reference; Procedural Timetable; pressure re Awards Full Cost control (Ad Valorem, transparency) Award Scrutiny – all draft awards reviewed (Secretariat and ICC Court). Does not interfere with merits

ICC Dispute Resolution Services 15 Scrutiny of ICC Awards – Art 27 Deliberation: Arbitral Tribunal alone Submission of draft award to the Secretariat/ Court (Art 27) All awards reviewed by 5-6 arbitration lawyers: Reviewed by Counsel handling the case + by Deputy Secretary General + sometimes by Secretary General or General Counsel + sometimes by a “rapporteur” Court member + by other Court members Potential problems are often discovered –2009: 415 awards rendered, 382 returned to Arbitral Tribunal with comments

ICC Dispute Resolution Services 16 Benefits of Scrutiny Improves the quality and enhances the enforceability of the award Compensates for the absence of appeal? Especially important with less experienced arbitrators (eg, a banking industry expert who may not have much experience of international arbitration law and practices)

ICC Dispute Resolution Services ICC Arbitration – 2005 to 2010 Overview 17

ICC Dispute Resolution Services Statistics In 2010: 793 Requests for Arbitration were filed with the ICC Court; Those Requests concerned 2,145 parties from 140 countries and independent territories; In 10% of cases at least one of the parties was a State or parastatal entity; The place of arbitration was located in 53 countries throughout the world; Arbitrators of 73 nationalities were appointed or confirmed under the ICC Rules; The amount in dispute was under one million US dollars in 24.1% of new cases; 478 awards were rendered.

ICC Dispute Resolution Services Asia Pacific Snapshot 19 YearNumber (%) of Asia-Pacific parties in ICC arbitrations Number (%) of Asia-Pacific seats of arbitration (4.7%)Zero (11.2%)8 (3.2%) (11.6%)13 (12.7%) (11.9%)60 (10.1%)

ICC Dispute Resolution Services Places of Arbitration in Places of arbitration in brief: most commonly selected cities and countries A total of 101 different cities in 53 countries were selected as places of arbitration in 2009.

ICC Dispute Resolution Services 21 Asia Pacific Statistics in 2009 India was the most frequently represented country, followed by China, then South Korea, Singapore, Japan and Malaysia. * 33 from Mainland China (15 claimants, 18 respondents); 15 from Hong Kong (7 claimants, 8 respondents); 1 from Macau (claimant)

ICC Dispute Resolution Services 22 Expansion of ICC in Asia Pacific in 2008 to 2009 Branch of the ICC Secretariat in Hong Kong December the ICC Secretariat established its first branch outside Paris in Hong Kong. Parties can now file Requests for Arbitration to the Secretariat’s office in Hong Kong, instead of sending them to Paris. The Secretariat’s exchanges with parties and arbitrators are facilitated by real-time communication in a common time zone. To contact the Secretariat’s Asia Office, Ms Khong Cheng-Yee, Director and Counsel at or telephone ICC Regional Office, Asia in Singapore December the ICC created the ICC Regional Office, Asia in Singapore. Dedicated liaison office for the promotion and business development aspects of the ICC Dispute Resolution Services. To contact the ICC Regional Office, Asia, please Ms Ow Kim Kit, Director ICC Arbitration and ADR, Asia at or telephone

ICC Dispute Resolution Services 23 OTHER DISPUTE RESOLUTION SERVICES ADR Rules (2001) Expertise (2003) Dispute Boards (2004) DOCDEX (2002) The ICC ADR Rules offer a framework for settling business disputes amicably with the help of a third party (Neutral). The Rules allow the parties to choose from various settlement techniques (eg. mediation, negotiation, neutral evaluation, mini-trial etc…) in order to resolve the dispute in an amicable manner. Expertise is for finding the right person to make an independent assessment in technical, legal, financial and other areas relevant to the business operations. The ICC International Centre for Expertise may be called upon for the proposal of an expert, the appointment of an expert or the administration of expertise proceedings. Independent standing bodies designed to help resolve disagreements and disputes as and when they arise during the performance of a contract. The ICC has established a set of documents providing a comprehensive and flexible framework for establishing and operating Dispute Boards in a wide range of contracts in different industries. The International Centre for Expertise also administers the ICC Rules for Documentary Instruments Dispute Resolution Expertise (DOCDEX), drawn up by the ICC Banking Commission to facilitate the rapid settlement of disputes under the applicable ICC Rules of UCP; URR ; URC or URDG (the ICC Financial Rules). Commonly known as the “GREEN RULES”, these rules are intended for use by parties seeking to resolve disputes amicably, through expertise, or with the existence of a dispute board.

ICC Dispute Resolution Services 24 THANK YOU ! Kim Kit, Ow Director, ICC Arbitration and ADR, Asia 32 Maxwell Road #02-11 Maxwell Chambers Singapore Telephone: