Author: Benjamin G. Davis*
Published: June 1991
International Institutions and Rules
Practice and Procedure
Description: I received the files for the two multi-million dollar fast-track arbitration cases, as well as the two related non-fast-track cases brought under the general arbitration clauses, on my birthday. These cases were quite a special birthday present.
It was apparent that assuring the completion of the fast-track cases within the contractually specified deadline of December 30, 1991 was going to be difficult: jurisdictional objections were raised; myriad proposals for consolidation or suspension of the fast-track and non-fast-track cases were made; a co-arbitrator proposed in all four cases had provided a qualified statement of independence; and the Answer in the last of the four cases — and the second fast-track case — was not due until twelve days before the expiration of the time limit for the Award.
As the Answers in each of the first three cases were received from the respective Defendants around December 5, 1991,1 attempted to accelerate the procedures. This required action on three levels. First, the parties’ positions on several issues had to be considered. These included their positions on consolidation and/or suspension of some or all of the cases, the composition of the Arbitral Tribunals, and a possible extension of the deadline. Second, the Court had to be informed of the urgency of these matters, and a strategy for meeting the deadlines had to be developed. Third, National Committees had to be contacted in order to ensure that the proceedings would not be delayed by the need to appoint Chairmen for the Arbitral Tribunals. There was also the possibility that a co-arbitrator would have to be appointed in the event that one of the parties did not propose an independent co-arbitrator, thus requiring the ICC to designate an arbitrator on the party’s behalf.
The canvassing of the parties’ positions on consolidation and/or suspension, the question of whether the Chairman of the Arbitral Tribunal in each case should be the same, and the extension of the deadline took place over four days. From the responses, it appeared likely that there would be four separate cases with the same Chairman for the two fast-track cases and a different Chairman for the non-fast-track cases. Also, at this point, the parties had not agreed to extend the December 30, 1991 time limit.
Next, I invited the parties’ comments or proposals within three days on co-arbitrators in order to: first, prompt one party that had not proposed a co-arbitrator to make its nomination; and second, stimulate disclosure of objections, if any, to the one co-arbitrator present in all four cases who had raised qualifications in his Statement of Independence. As this co-arbitrator made a further disclosure which was received on December 13, 1991, a further period had to be provided until December 16 for supplementary comments by the parties, In addition, a new set of suspension proposals was received which necessitated comments by December 17. As it turned out, no agreement on suspension was reached, the co-arbitrator in all four cases was the subject of objections, and the party which had not proposed a nominee came forward with its proposal of an independent nominee.
During this time, the Chairman of the Court was kept apprised of the evolving situation in the four matters. Strategy was developed regarding how to proceed under the different options.
On December 18, with the receipt of the Answer — including the proposal of the remaining co-arbitrator — from the Defendant in the last case, all four matters were ripe for decision. Late that day, the Chairman of the Court, under the powers conferred on him to act in urgent matters pursuant to article 1.3 of the ICC Rules, made the decisions necessary for setting the arbitrations in motion.
*Counsel, Secretariat of the ICC International Court of Arbitration. The views expressed in this article in no manner bind the International Court of Arbitration of the ICC. Portions of this article have been published in 3 WORLD ARB. AND MED. RPT 141 (1992).