ICC Dispute Resolution Services The ICC Court powers under Article 6(2) of the Rules Alina Leoveanu Deputy Counsel, ICC International Court of Arbitration Paris Bucharest 27 September 2010

ICC Dispute Resolution Services 2 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

ICC Dispute Resolution Services 3 The 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

ICC Dispute Resolution Services 4 Two scenarios, one test (I)  Respondent does not file an Answer  Respondent raises objections to the existence, validity or scope of the arbitration clause

ICC Dispute Resolution Services 5 Two scenarios, one test (II)  The existence of an arbitration agreement between the parties  The arbitration agreement shall make reference to the ICC Rules

ICC Dispute Resolution Services 6 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

ICC Dispute Resolution Services 7 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

ICC Dispute Resolution Services 8 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

ICC Dispute Resolution Services 9 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

ICC Dispute Resolution Services 10 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

ICC Dispute Resolution Services 11 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

ICC Dispute Resolution Services 12 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

ICC Dispute Resolution Services 13 Conclusion Statistics – I Number of cases submitted to a 6(2) decision  2006: 193 cases = 32.5% of the 593 new cases filed within the year  2007: 238 cases = 39.7% of the 599 new cases filed within the year  2008: 214 cases = 32.3% of the 663 new cases filed within the year

ICC Dispute Resolution Services 14 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  2007: 214 cases = 89.9% of the cases involving a 6-2 decision  2008: 203 cases = 94.9% of the cases involving a 6-2 decision

ICC Dispute Resolution Services 15 Statistics - III Number of cases for which the 6(2) decision was negative (i.e., the entire case is dismissed)  2006: 5 cases = 2.6% of the cases involving a 6-2 decision  2007: 10 cases = 4.2% of the cases involving a 6-2 decision  2008: 3 cases = 1.4% of the cases involving a 6-2 decision

ICC Dispute Resolution Services 16 Conclusion

ICC Dispute Resolution Services 17 Thank you for your attention Alina Leoveanu