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The ICC Court powers under Article 6(2) of the Rules Alina Leoveanu

The ICC Court powers under Article 6(2) of the Rules Alina Leoveanu Deputy Counsel, ICC International Court of Arbitration Paris Bucharest • 27 September 2010. Summary. The Role of Article 6(2) of the Rules Two scenarios, one test Non-signatory Respondent Multiple Contracts

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The ICC Court powers under Article 6(2) of the Rules Alina Leoveanu

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  1. The ICC Court powers under Article 6(2) of the Rules Alina Leoveanu Deputy Counsel, ICC International Court of Arbitration Paris Bucharest• 27 September 2010

  2. Summary • The Role of Article 6(2) of the Rules • Two scenarios, one test • Non-signatory Respondent • Multiple Contracts • Multiple Parties • Pre-Conditions to ICC arbitration • Positive 6(2) • Negative 6(2) • Statistics • Conclusion

  3. The Role of Article 6(2) of the Rules • To make sure that the parties have agreed to submit their dispute to ICC arbitration • The Court does not analyse sua sponte whether an arbitration agreement under the Rules exist

  4. Two scenarios, one test (I) • Respondent does not file an Answer • Respondent raises objections to the existence, validity or scope of the arbitration clause

  5. Two scenarios, one test (II) • The existence of an arbitration agreement between the parties • The arbitration agreement shall make reference to the ICC Rules

  6. Non-signatory Respondent • Test: a non-signatory Respondent will be included only ifit has been closely involved with the contract containing an arbitration clause, e.g. if it participated in the negotiations, performance and/or termination of the contract

  7. Multiple contracts The Court may authorize a single arbitration to proceed on the basis of several contracts if: • all contracts are signed by the same parties • all contracts are related to the same economic transaction • all of the arbitration clauses are compatible

  8. Multiple parties • Same tests apply • It is for Claimant to identify the Respondent(s) [Article 4(3) of the Rules] • If non-signatory Respondent(s), the burden of proof of their involvement with the contract containing an arbitration clause lies with Claimant

  9. Pre-Conditions to ICC Arbitration (e.g., mediation, negotiation, recourse to dispute resolution boards in the construction industry) • Do not call into question the existence of the arbitration agreement • They are left for the Arbitral Tribunal to be determined once fully constituted in accordance with Article 13 of the Rules

  10. Positive 6(2) – I If the Court decides that the arbitration can proceed in accordance with Article 6(2) of the Rules: • the Arbitral Tribunal will be constituted: confirmation and/or appointment of arbitrators • the Court will fix, as the case may be, the place of arbitration • the Court will set the amount of the advance to cover the costs of the arbitration

  11. Positive 6(2) – II The Arbitral Tribunal’s determination of its own jurisdiction “[…] any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself.” • The Court’s decision on Article 6(2) of the Rules is administrative in nature and is not binding upon the Arbitral Tribunal • The Court will make sure that the Arbitral Tribunal decides on its own jurisdiction when scrutinizing the Award

  12. Negative 6(2) If the Court decides that the arbitration cannot proceed in accordance with Article 6(2) of the Rules: • the Court will not provide reasons for its decision • the Court will fix the costs of the arbitration • the case will be closed

  13. Conclusion Statistics – I Number of cases submitted to a 6(2) decision • 2006: 193 cases = 32.5% of the 593 new cases filed within the year • 2007: 238 cases = 39.7% of the 599 new cases filed within the year • 2008: 214 cases = 32.3% of the 663 new cases filed within the year

  14. Statistics – II Outcome of the 6(2) decisions Number of cases for which the 6(2) decision was positive (i.e., the case moves forward as it was filed by Claimant) • 2006: 172 cases =89.2% of the cases involving a 6-2 decision • 2007: 214cases = 89.9% of the cases involving a 6-2 decision • 2008: 203cases =94.9% of the cases involving a 6-2 decision

  15. Statistics - III Number of cases for which the 6(2) decision was negative (i.e., the entire case is dismissed) • 2006: 5 cases = 2.6% of the cases involving a 6-2 decision • 2007: 10 cases =4.2%of the cases involving a 6-2 decision • 2008: 3 cases = 1.4% of the cases involving a 6-2 decision

  16. Conclusion

  17. Thank you for your attention www.iccarbitration.org Alina Leoveanu Alina.Leoveanu@iccwbo.org

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