Where parties consent to arbitration under the International Chamber of Commerce (ICC) Rules, they are immediately subject to the version of the Rules in effect on the date the arbitration commenced, unless a specific agreement designates the version in effect on the date of their arbitration agreement. Agreement to arbitration under these Rules also constitutes acceptance that the ICC’s International Court of Arbitration will administer the proceedings.
If a respondent fails to submit an answer, or if a party challenges the existence, validity, or scope of the arbitration agreement, or the consolidation of claims within a single arbitration, the process will continue. The arbitral tribunal will directly address jurisdiction issues and claim consolidation, except when the Secretary-General refers the matter to the Court per Article 6(4).
The Court, when acting under Article 6(3), determines the extent to which the arbitration will proceed. If the Court is prima facie satisfied that an arbitration agreement under the Rules may exist, the arbitration proceeds. Specifically:
(i) In multi-party arbitration, the arbitration will proceed among those parties, including additional parties joined under Article 7(1), for whom the Court is prima facie satisfied that a binding arbitration agreement exists; and
(ii) When claims under Article 9 involve multiple arbitration agreements, the arbitration proceeds for claims where the Court is prima facie satisfied (a) that the agreements are compatible, and (b) that all parties have agreed to consolidate the claims.
The Court’s decision under Article 6(4) does not prejudice the admissibility or merits of any party’s arguments.
In all matters the Court decides under Article 6(4), the arbitral tribunal then decides its own jurisdiction, except regarding parties or claims the Court has deemed ineligible to proceed.
If the Court decides under Article 6(4) that the arbitration cannot proceed for some or all parties, any party retains the right to seek a court ruling on the existence of a binding arbitration agreement, and for whom it applies.
A Court decision under Article 6(4) to disallow a claim does not prevent a party from reintroducing the same claim later in other proceedings.
If a party refuses or fails to participate in any stage of the arbitration, the arbitration will proceed regardless.
Unless otherwise agreed, the arbitral tribunal retains jurisdiction despite allegations that the contract is non-existent or void, provided the arbitration agreement’s validity is upheld. The tribunal maintains jurisdiction to determine the parties’ rights and decide their claims even if the contract itself is deemed non-existent or void. This principle, known as separability or severability, is a cornerstone of international arbitration. It ensures that the arbitration clause survives even if the main contract is challenged.
In conclusion, the ICC Rules of Arbitration provide a robust framework for resolving international commercial disputes. The rules are designed to be flexible and adaptable to a wide range of situations, while also ensuring fairness and efficiency. Understanding these rules is crucial for anyone involved in international business.
