1. ICC Dispute Resolution Services ICC Dispute Resolution Services – ADR, Expertise, Dispute Boards and DOCDEX Kim Kit, Ow India July 2011

2. ICC Dispute Resolution “ToolBox” ICC Dispute Resolution Arbitration ADR Expertise Dispute Boards

3. ICC ADR Rules - Overview ADR Rules and Services: Amicable dispute resolution – ICC ADR Secretariat Mainly mediation but also neutral evaluation, conciliation, mini-trial, adjudication etc. Leads to settlement of the dispute arising from the contract Procedure administered by ICC Rules for Expertise – ICC International Centre for Expertise Proposal, appointment of experts Experts from all sectors and nationalities Procedure administered by ICC Dispute Board Rules – ICC Dispute Board Centre Standing dispute resolution panels Non-administered procedure if not specifically requested by the parties (eg. scrutiny) or if there are procedural difficulties (eg. challenges) DOCDEX Rules – ICC International Centre for Expertise Quick, document-based expert determination procedure for cases involving ICC banking rules Administered procedure Experts chosen from a closed list

4. ICC Arbitration Secretariat of the ICC ICA ICC International Court of Arbitration ICC Dispute Resolution ADR Secretariat ICC Centre for Expertise ICC Dispute Board Centre ICC Dispute Resolution Services

5. ICC ADR Rules ICC ADR RULES ADR = Amicable Dispute Resolution Mediation, Conciliation, Adjudication, Mini-trial, Neutral Evaluation etc. “Not to try mediation is irresponsible“ (In-house counsel of big multi-national)

6. ICC ADR Procedures - salient features Flexible rules Procedural framework Procedural certainty – Fallback provisions if disagreement about procedural matters (language and place of the proceeding etc) ICC as appointing authority if parties don‘t jointly designate the Neutral “Settlement Technique“ – to be agreed failing which it will be mediation (Article 5(1) of the ADR Rules) Confidentiality (Article 7 of the ADR Rules) Administered procedure – Request for ADR filed with ICC – Supervision and quality control through ICC – Administrative support through ICC Request can be based on prior agreement or can be made without prior agreement (Article 2)

7.  almost 120 administered cases  parties from over 65 countries  80% cross-border, 20% domestic cases  80% mediation, 20% other settlement techniques  average amount in dispute: US$20 million - but equally broad spread like in arbitration  average duration from transfer of the file to the Neutral until settlement: 4 months  average costs for Neutral's fees, expenses and ICC administrative expenses: US$20000 – US$25000  success rate: around 80% of the cases transferred to the Neutral settle  Asian parties included parties from China, Singapore, India, Philippines, Malaysia, Japan, Korea  increase of cases since 2009. In 2011, more cases were filed by June, as in the whole of 2010 ICC ADR statistics: Ten Year Snapshot 2001 – 2010

8. It is not uncommon for dispute resolution clauses to provide for more than one method of settling disputes. Arbitration could be the second or third step taken when attempts to find an amicable settlement fail. Holistic ICC DRS infrastructure – combination of two complementary methods Example: Obligation to submit dispute to ADR, followed by arbitration if required “In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.” Multi-Tiered Dispute Resolution Clauses in ICC Arbitration

9. ICC Rules for Expertise

10. ICC Expertise Procedure - salient features Standing Committee of Industry Experts Three possibilities – Proposal (non binding) – Appointment (binding) – Administration of expertise proceedings Experts from different sectors – Technical – Financial – Legal – Procedural (eg. mediators, adjudicators etc) No closed list of experts Costs: US$ 2 500 for proposal or appointment BUT: Proposal free of charge for Arbitral Tribunal in ICC arbitration

11. ICC Dispute Board Rules

12. Types of Dispute Boards Three types of Dispute Boards: Dispute Adjudication Board (DAB) issues ‘ Decisions ’ Parties must comply with Decision party may express its dissatisfaction with the Decision Combined Dispute Board (CDB) normally issues Recommendations with respect to any dispute referred to it but may issue Decisions offers an intermediate approach between the DRB and the DAB Dispute Review Board (DRB) issues ‘Recommendations’ not binding on the parties

13. ICC DB Rules – The Specifics 1 or 3 member DB The ICC DB Centre does not administer proceedings, but can… Appoint DB members Make decisions upon challenges of DB members Scrutinize DB decisions as to their form (if requested to do so) ICC provides Model Dispute Board Member Agreement the Model Agreement sets out such aspects as the scope of the DB’s work and the remuneration of the DB members to be signed by the DB member(s) and the parties to the underlying Contract

14. DOCDEX Documentary Instruments Dispute Resolution Expertise

15. DOCDEX Rules – The Specifics DOCDEX Rules are applicable once the dispute arises out of one of the “ICC Financial Rules” (eg. those governing documentary credits like URDG or UCP 600 – guarantees, letters of credit) – usually dispute is straightforward Expert Procedure – 3 experts render the decision Purely “paper-based” procedure and no hearings Experts appointed from a list kept by the ICC Banking Commission Identity of the experts not disclosed to the parties Quick : Average duration from filing to decision is 70 days Low Cost: Standard Fee US$5000, in exceptional cases Additional Fee of up to US$5000 requested (total cost will never exceed US$10,000) If parties agree, the decision can be binding. Average of 15 to 20 requests for DOCDEX decisions are filed.

16. Contact us Hannah Tümpel Manager, ICC Dispute Resolution Services - ADR, Expertise, Dispute Boards, DOCDEX 38, cours Albert 1er 75008 Paris, France Email: adr@iccwbo.org Tel: +33 1 49 53 30 53 Kim Kit, Ow Director, ICC Arbitration and ADR, Asia 32 Maxwell Road #02-11 Maxwell Chambers Singapore 069115 Email: drs@iccasia.com.sg Tel:: +65 6225 9081 Website:: www.iccadr.org