It is not difficult to commence an International Centre for Dispute Resolution (ICDR) arbitration. The ICDR, the international division of the American Arbitration Association (AAA), is a leading institution for administering cross-border arbitrations, particularly in the United States and across the Americas. Renowned for its neutrality, procedural efficiency, and global enforceability, ICDR arbitration is governed by a robust set of rules designed to accommodate the complexities of international commerce.
Before initiating arbitration proceedings under the ICDR Arbitration Rules, there are two preliminary steps. First, the parties must have concluded a valid arbitration agreement.[1] Most often, this agreement appears in a pre-existing contract as an arbitration clause. Second, the ICDR Arbitration Rules only apply when parties agree to arbitrate international disputes under these rules or designate the ICDR or AAA to administer the proceedings without specifying particular rules.[2]
Once such an agreement is in place, either party may initiate proceedings by filing a Notice of Arbitration. This note provides a step-by-step overview of ICDR arbitration proceedings through to the constitution of the arbitral tribunal.
Step 1: Filing a Notice of Arbitration
The arbitral process is formally initiated by the submission of a Notice of Arbitration (“Notice”) to the ICDR in accordance with Article 2 of the ICDR Arbitration Rules.
The Notice can be relatively skeletal. It should:
- Demand that a dispute be referred to arbitration;
- Provide the names and contact information of the parties and their representatives (if known);
- Include a copy of the arbitration clause or agreement;
- Refer to the underlying contract out of which the dispute arises;
- Describe the claim and key facts;
- Indicate the relief or remedy sought, including any claimed amount;
- Optionally, suggest procedural elements such as the number of arbitrators, place and language of the arbitration, and willingness to mediate.[3]
While the Claimant may choose to include all causes of action and full legal arguments, this is not required by the ICDR Arbitration Rules at this stage.[4] Only a brief “description of the claim” is mandatory.[5] The Notice of Arbitration must be accompanied by the appropriate filing fee.[6]
The filing fee may be calculated using the AAA’s Fee Calculator. This filing fee depends on whether the Standard Fee Schedule or the Flexible Fee Schedule is selected.
For practical assistance, the ICDR website also provides a one-page Notice of Arbitration form that may be used.
It also provides an Arbitration Answering Statement and Counterclaim form, and an ICDR Arbitration Fee Schedule.
Step 2: Serving the Notice and Answer
Once the Notice is filed, it must be properly served on all parties. According to the ICDR Arbitration Rules, service can occur by mail, courier, fax, or electronic means, as long as there is a record.[7]
The Respondent must file an Answer within 30 days following the Notice of Arbitration’s receipt.[8] In this Answer, the Respondent must:
- Admit or deny the claims;
- Set forth any jurisdictional objections;
- Raise counterclaims or assert set-offs, if any;[9]
- Propose any procedural parameters “as to the means of designating the arbitrators, the number of arbitrators, the place of the arbitration, the language of the arbitration, and whether Respondent is willing to mediate the dispute prior to or concurrently with the arbitration.” [10]
Any objection to the arbitral tribunal’s jurisdiction must be raised in the Answer to the Notice of Arbitration. However, the ICDR Arbitration Rules provide that the tribunal can grant an extension.[11]
Please note that if the Respondent fails to submit a timely Answer, the arbitration will nevertheless proceed.[12] However, in accordance with international practice, the tribunal will not automatically grant the relief requested in the Notice of Arbitration solely due to the Respondent’s default.[13] The tribunal must ensure the non-participating party was properly notified and must assess the Claimant’s case on its merits before issuing any award.[14]
Step 3: Administrative Conference
Shortly after the Notice is filed, usually within ten business days,[15] the ICDR organizes an Administrative Conference.[16]
It serves an organizational purpose and should not be confused with a preliminary hearing held by the arbitral tribunal.
Led by the ICDR case manager, the ICDR administrative conference provides an opportunity for the parties to address administrative matters and align procedural expectations. Topics commonly discussed include:
- Communication protocols between the ICDR and the parties;[17]
- Scheduling issues;[18]
- Establishing the approximate length of the proceeding;[19]
- Discussing the suitability of the International Expedited Procedures;[20]
- Handling of time extension requests and interim relief;[21]
- Discussing preferences regarding the number of arbitrators, their qualifications, and appointment method.[22]
In some cases, the parties may also outline uncontested facts and potential witnesses and discuss whether a documents-only procedure might be appropriate. These items, however, are usually handled later by the arbitral tribunal.[23]
The ICDR often uses this opportunity to encourage mediation, either early in the process or closer to the hearing date.[24]
Step 4: Mediation
The ICDR actively encourages parties to consider mediation as a complementary mechanism to arbitration.[25] The ICDR Arbitration Rules state that unless the parties agree otherwise or explicitly opt out, they shall mediate their dispute concurrently with arbitration under the ICDR’s International Mediation Rules.[26] Many parties elect not to participate in mediation, however.
Step 5: Tribunal Formation Process
Number of Arbitrators
Pursuant to the ICDR Arbitration Rules, if the parties have not agreed on the number of arbitrators, the default is one arbitrator unless complexity or size demands three.[27] Having one arbitrator will reduce costs. However, the risk of a poor-quality award increases. Please see Aceris Law’s note on choosing between one and three arbitrators.
Appointment of Arbitrators
Under the ICDR Arbitration Rules, the parties are free to agree on any method for appointing arbitrators and must inform the Administrator of such procedure.[28] If no agreement is reached within 45 days of the commencement of arbitration, or if the agreed method fails, the ICDR will appoint the arbitrators upon written request by any party.[29]
If the parties have not agreed on a method or do not nominate arbitrators within the designated timeframe, the ICDR may appoint them using the “list method.” [30] This entails the ICDR providing each party with an identical list of candidates. Parties may strike names, rank their preferences, and return the list within 15 days.[31] The Administrator will then appoint arbitrators based on mutual preferences or, if no consensus is reached, select arbitrators directly.[32]
Arbitrator Disclosures, Challenges, and Replacement
Arbitrators must be impartial, independent, and act in accordance with the ICDR Arbitration Rules and the Code of Ethics for Arbitrators in Commercial Disputes.[33] Upon appointment, arbitrators must confirm their availability and disclose any circumstances that could give rise to justifiable doubts regarding their independence or impartiality.[34]
A party may challenge an arbitrator within 15 days of learning the grounds for challenge.[35] The Administrator reviews the challenge, seeks input as needed, and may remove the arbitrator if the challenge is upheld.[36] Please see Aceris Law’s note on the challenging of arbitrators.
If an arbitrator resigns, is removed, or cannot continue, Article 16 allows for a replacement to be made under the same procedure as the original appointment unless the parties agree otherwise.[37] If the tribunal had three arbitrators and one ceases to participate, the remaining two may proceed if agreed by the Parties and the arbitrators.[38] If they cannot agree, the Administrator will declare the seat vacant and appoint a replacement.[39]
Once constituted, the arbitral tribunal typically holds a procedural hearing with the parties to organize the arbitration, establish a schedule, and agree on procedural matters. At this stage, the ICDR plays a more limited but still important role, offering administrative support, assisting with procedural issues, overseeing financial aspects such as costs and fees, and handling the issuance and notification of the final award.
Conclusion
Commencing an ICDR arbitration is relatively straightforward, but, like all legal proceedings, it demands careful attention. From submitting a well-drafted Notice of Arbitration to navigating the pivotal stage of appointing the arbitral tribunal, each step should be approached with precision. The selection of arbitrators is especially critical – arbitration is only as effective as those who decide the dispute. Although parties are not required to engage legal counsel to initiate an ICDR arbitration, they often underestimate the procedural and strategic complexities that can arise as the case progresses.
[1] The ICDR’s website provides a Submission to Dispute Resolution Form. Please visit the ICDR’s website in order to ensure that the most recent version is being used: https://www.icdr.org/rules_forms_fees
[2] Article 1(3) of the 2021 ICDR Arbitration Rules.
[3] Article 2(3) of the 2021 ICDR Arbitration Rules.
[4] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 2.25.
[5] Article 2(3)(e) of the 2021 ICDR Arbitration Rules.
[6] Article 2(4) of the 2021 ICDR Arbitration Rules.
[7] Article 11(1) of the 2021 ICDR Arbitration Rules.
[8] Article 3(1) of the 2021 ICDR Arbitration Rules.
[9] Article 3(2) of the 2021 ICDR Arbitration Rules.
[10] Article 3(4) of the 2021 ICDR Arbitration Rules.
[11] Article 21(3) of the 2021 ICDR Arbitration Rules.
[12] Article 3(6) of the 2021 ICDR Arbitration Rules; Article 29(1) of the 2021 ICDR Arbitration Rules.
[13] Article 29(3) of the 2021 ICDR Arbitration Rules; M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 3.22.
[14] Article 29(3) of the 2021 ICDR Arbitration Rules; M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 3.22.
[15] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.02.
[16] Article 4 of the 2021 ICDR Arbitration Rules.
[17] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[18] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[19] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[20] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[21] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[22] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.04.
[23] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.05.
[24] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 4.06.
[25] M. Gusy and J. Hosking, A Guide to the ICDR International Arbitration Rules (2nd edn., 2019), para. 5.01.
[26] Article 6 of the 2021 ICDR Arbitration Rules.
[27] Article 12 of the 2021 ICDR Arbitration Rules
[28] Article 13 of the 2021 ICDR Arbitration Rules.
[29] Article 13(3) of the 2021 ICDR Arbitration Rules.
[30] Article 13(6) of the 2021 ICDR Arbitration Rules.
[31] Article 13(6) of the 2021 ICDR Arbitration Rules.
[32] Article 13(6) of the 2021 ICDR Arbitration Rules.
[33] Article 14 of the 2021 ICDR Arbitration Rules.
[34] Article 14(3) of the 2021 ICDR Arbitration Rules.
[35] Article 15(1) of the 2021 ICDR Arbitration Rules.
[36] Article 15(2) of the 2021 ICDR Arbitration Rules; Article 15(3) of the 2021 ICDR Arbitration Rules.
[37] Article 16(1) of the 2021 ICDR Arbitration Rules.
[38] Article 16(3) of the 2021 ICDR Arbitration Rules.
[39] Article 16(4) of the 2021 ICDR Arbitration Rules.
