By including an ICC Arbitration Clause in a contract, the parties agree that their dispute will be resolved by arbitration and that the arbitration proceedings will be governed by the procedural rules in the ICC Rules of Arbitration, in addition to any mandatory rules at the seat of arbitration.
This also implies that the International Court of Arbitration will administer arbitration proceedings and assist the parties and the arbitral tribunal, e.g., confirming, appointing and replacing arbitrators, deciding on any challenges made against the arbitrators, overseeing emergency proceedings before the start of the arbitration, and scrutinizing and approving the arbitral award.
While dispute resolution clauses are one of the last issues on which parties tend to agree during the negotiations of the contract, a well-drafted arbitration clause can ensure that parties spend less time and costs should a dispute arise. In case the parties would like their dispute to be resolved in accordance with the ICC Arbitration Rules, the International Chamber of Commerce advises the parties to include in their contract the following standard ICC arbitration clauses and ICC mediation clauses.
Standard ICC Arbitration Clause
“All disputes arising out of or in connection with the present contract 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.”
We typically advise our clients to also include the flowing stipulations relating to the seat of arbitration, the language to be used in the arbitration proceedings as well as the substantive law governing the contract, which are frequently contentious issues after a dispute arises.
“The seat of arbitration shall be [… e.g., Singapore].
The language to be used in the arbitral proceedings shall be […e.g., English].
This contract shall be governed by the substantive law of […e.g., Switzerland].”
ICC Arbitration without the Possibility of an Emergency Arbitrator
In case the parties would like to exclude the possibility of requesting a ruling for conservatory measures by an Emergency Arbitrator, the following statement should be added after the standard clause in order to opt-out of this feature of ICC arbitration.
“The Emergency Arbitrator Provisions shall not apply.”
ICC Arbitration without the ICC’s Expedited Procedure
The parties may also opt-out and exclude the application of the Expedited Procedure Provisions.
“The Expedited Procedure Provisions shall not apply.”
Expedited Procedure Irrespective of the Amount in Dispute
The parties may also opt-in and provide in their contract that the Expedited Procedure will apply to disputes where the amount in dispute exceeds USD 2 million, with the goal of reducing the cost of resolving disputes through ICC arbitration.
“The parties agree, pursuant to Article 30(2)(b) of the Rules of Arbitration of the International Chamber of Commerce, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute.”
Other Recommendations for ICC Arbitration Clauses
If the parties would like to have an ICC Arbitration with the seat of arbitration in Mainland China, the ICC suggests including an explicit reference to the ICC International Court of Arbitration in the arbitration clause.
“All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and 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.”
Option to Use the ICC Mediation Rules
While this option technically exists whenever a dispute arises, the parties may wish to encourage mediation by including the following option explicitly.
“The parties may at any time, without prejudice to any other proceedings, seek to settle any dispute arising out of or in connection with the present contract in accordance with the ICC Mediation Rules.”
Obligation to Consider the ICC Mediation Rules
Rather than making mediation optional, the parties may also require mediation prior to proceeding with arbitration.
“In the event of any dispute arising out of or in connection with the present contract, the parties agree in the first instance to discuss and consider referring the dispute to the ICC Mediation Rules.”
Obligation to Refer Dispute to the ICC Mediation Rules while Permitting Parallel Arbitration Proceedings if Required
Another option is to permit mediation and arbitration to run in parallel.
“In the event of any dispute arising out of or in connection with the present contract, the parties shall first refer the dispute to proceedings under the ICC Mediation Rules. The commencement of proceedings under the ICC Mediation Rules shall not prevent any party from commencing arbitration in accordance with sub-clause y below.
All disputes arising out of or in connection with the present contract 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.”
Obligation to Refer Dispute to ICC Mediation, Followed by ICC Arbitration if Required
The parties may also provide for mediation to be attempted for a certain period of time, prior to commencing arbitration.
“In the event of any dispute arising out of or in connection with the present contract, the parties shall first refer the dispute to proceedings under the ICC Mediation Rules. If the dispute has not been settled pursuant to the said Rules within [45] days following the filing of a Request for Mediation or within such other period as the parties may agree in writing, such dispute shall thereafter 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.”
If the parties would like to have recourse to the Emergency Arbitrator Provisions prior to expiry of the 45-day or other agreed period following filing of the Request for Mediation, the following precision should be added to the clause:
“The requirement to wait [45] days, or any other agreed period, following the filing of a Request for Mediation, before referring a dispute to arbitration shall not prevent the parties from making an application, prior to expiry of those [45] days or other agreed period, for Emergency Measures under the Emergency Arbitrator Provisions in the Rules of Arbitration of the International Chamber of Commerce.”
If the parties would like to have recourse to the Emergency Arbitrator Provisions, but only after expiry of the 45-day or other agreed period following the filing of the Request for Mediation, the following precision should be added to the clause:
“The parties shall not have the right to make an application for Emergency Measures under the Emergency Arbitrator Provisions in the Rules of Arbitration of the International Chamber of Commerce prior to expiry of the [45] days or other agreed period following the filing of a Request for Mediation.”