ICC International Court of Arbitration 2010 statistics Jason A. Fry Secretary General ICC International Court of Arbitration 1

793 cases received (817 in 2009) 1485 pending cases at the end of 2010 (1461 in 2009) 479 arbitral awards rendered (415 in 2009) 2 145 parties from 140 countries (2095 in 2009 from 128 countries) 10% of the cases involved a State, a public or parastatal entity (9.5% in 2009) 1331 appointements/confirmations by the Court (1305 in 2009) 53 different places of arbitration (same in 2009)

Amounts in Dispute in Cases Pending in US$

Origin of the parties (2010) 5

Place of Arbitration (2010) (countries representing at least 1%) SPEAKER : countries representing 1% of all places of arbitration (from Court statistic 2009)

Nationality of the arbitrators (2010)

India as place of arbitration Indian parties Indian arbitrators India as place of arbitration 8

9

10

11

Sole arbitrator 3 (nominated by the parties) Details for 2010 Sole arbitrator 3 (nominated by the parties) Chairman 1 (jointly nominated by co-arbitrators) Co-arbitrator 13 (12 nominated by the parties ; 1 appointed by the Court) 12

6 as per the arbitration clause 1 fixed by the Court (New Delhi) Details for 2010: 7 times New Delhi 3 Bangalore 2 Mumbai 1 Visakhapatnam 1 6 as per the arbitration clause 1 fixed by the Court (New Delhi) 13

The New ICC Rules of Arbitration A Sneak Peak By, Jason Fry Secretary General, ICC International Court of Arbitration

Overall objective The overall objective of the Task Force, Drafting Committee and the ICC Commission on Arbitration was to devise a modern set of arbitration rules, designed to serve the needs of the business community and states engaged in international commerce and which will continue to serve those needs for at least the next decade. The main changes to the Rules are: Making it clear that only the ICC Court can administer ICC cases; A focus on up-front case disclosure and case management procedures to address concerns about time and cost; A gateway procedure for Art 6(2) to speed up the constitution of the arbitral tribunal; A limited power of direct appointement of arbitrators by the Court; Provisions for complex arbitration: joinder, multi-contract arbitration, cross-claims, consolidation; Emergency Arbitrator Rules; Changes to facilitate use of the rules in treaty based arbitration.

New provisions aimed at reducing the time and cost of arbitration A duty on the arbitral tribunal and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner having regard to the complexity and value of the dispute. Case management conferences with the parties to ensure efficient and continued case management: the arbitral tribunal must convene a case management conference at the outset of the arbitration to consult the parties on procedural measures. Such measures may include case management techniques based on ICC’s publication “Controlling Time and Cost in Arbitration”. The arbitral tribunal may request the parties to submit case management proposals in advance of a case management conference and may request the attendance at any case management conference of the parties in person or through an internal representative. The case management conference may be conducted in person or by telephone or video conference but must take place.

New provisions aimed at reducing the time and cost of arbitration Provisions facilitating cost orders that are responsive to party misconduct: At any time during the arbitral proceedings, the arbitral tribunal may make decisions on costs, other than those to be fixed by the Court, and order payment; In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.

Other changes aimed at improving efficiency Upfront case disclosure; Modifications to Article 6(2): Secretary General to act as gatekeeper – The presumption is that the Tribunal will deal with all jurisdictional issues unless the SG refers them first to the Court; Direct appointment of Arbitrators by the Court in certain circumstances; Arbitral Tribunal must give notice to the parties and the Secretariat of when the award will be submitted in draft to the Secretariat for approval by the court; Rules for the appointment of an Emergency Arbitrator.

New provisions to deal with complex arbitrations Around 30% of the ICC’s cases are multiple party cases. The 1998 Rules are designed around usual paradigm of bi-polar arbitration where the Claimant drives the proceeding. However, practices have become widely used to provide for the joinder of third parties. There was a need for transparency in relation to the Court’s practices. The current advance on costs provisions do not work well in multiparty arbitrations. There are new provisions dealing with multiple parties, joinder, claims based on multiple contracts and consolidation of multiple proceedings. The Court has flexibility in those cases to fix the advance on costs according to the needs of the case.

Other changes to deal with lacunas and miscellaneous matters Appointment of arbitrators: The strengths of the National Committee system for nomination of arbitrators is retained. However, the Court may also appoint directly to act as arbitrator any person whom it regards as suitable where: one or more of the parties is a state or claims to be a state entity; or, 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, the President of the Court certifies to the Court that circumstances exist which, in the President’s opinion, make a direct appointment necessary and appropriate.

Use of gender neutral language: e.g. “Chairman” to become “President” Requirement of impartiality for arbitrators: Included in general provisions (current Art 7 of the Rules) and in respect of challenges (current Art 11 of the Rules). Double standard for disclosure: one subjective and one objective. Changes to take account of developments in Information technology: Drafting points: Eliminate reference to telex, introduction of email; Online-filing and electronic notification? Further modifications will be required and a mandate has been given by the ICC Commissions for this. Art 7 of the Statues: “the Court, in order to take account of developments in information technology, may propose to modify or supplement the provisions of Article 3 of the Rules or any related provisions in the Rules without laying any such proposal before the Commission.” Use of gender neutral language: e.g. “Chairman” to become “President”

Changes to facilitate arbitrations pursuant to investment treaties: Confidentiality: Upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information; The parties undertake to comply with any order made by the arbitral tribunal. Remission of Awards: Court may require payment of an further advance. Changes to facilitate arbitrations pursuant to investment treaties: E.g. The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages; Power of direct appointment of arbitrators by the Court.

Emergency Arbitrator Rules: 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. The procedure does not result in an Award. Emergency Arbitrator appointed normally within two days of receipt of the application. The Emergency Arbitrator Provisions shall only apply to parties which are either signatories of the arbitration agreement under the Rules that is relied upon for the application, or successors to such signatories. The Emergency Arbitrator Provisions shall not apply if, the arbitration agreement under the Rules was concluded before the effective date of the Rules; the parties agreed to opt out of the Emergency Arbitrator Provisions; or the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures (e.g. a Dispute Board or the Pre-Arbitral Referee Rules). The Emergency Arbitrator Provisions do not prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making such an application.