We speak to Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration, about recent amendments to the ICC Arbitration Rules and get his thoughts on the importance of global presence for arbitral institutions and the ethics of counsel conduct.
What are the key challenges facing you as Secretary General of the ICC International Court of Arbitration?
The main challenge is maintaining the leadership and reputation the Court has gained worldwide in its 92 years of life, and doing so in a time of fierce competition among institutions, and with the growing caseload of the last couple of years. As a truly global arbitral institution, the Court needs to make the most of its international network, which comprises national committees in some 90 jurisdictions; regional directors who coordinate educational and promotional efforts in four different areas (North America, Latin America, East Asia, the Middle East and Africa); and two case-management teams outside Paris, in Hong Kong and New York.
We intend to consolidate and expand our presence in regions where ICC arbitration has traditionally been very popular, such as Western Europe and North America. We will continue to grow in developing areas (e.g. Latin America and East Asia) and capture the potential of emerging arbitration markets, such as Sub-Saharan Africa and Central Asia.
Following the launch of the 2012 ICC Arbitration Rules, which amendments have been best received by the parties?
The 2012 ICC Arbitration Rules have generally been extremely well received by users. None of the new provisions introduced in the Rules with the last revision has given rise to major problems of application or to doubts as to their interpretation.
The Emergency Arbitration Provisions are used frequently and seem to respond to a real need of the users of ICC arbitration. In all the cases registered so far, the time limits provided by the Rules for the appointment of the emergency arbitrator by the President of the Court and for the rendering of the Order, albeit challenging, have been respected.
The new provisions on “complex arbitrations” (i.e. multi-party and multi-contract cases, joinders of new parties in already pending proceedings, consolidation of two or more pending arbitrations and claims between multiple claimants or multiple respondents) have increased the transparency and the predictability of the Court’s decisions, and have not caused an increase of unfounded applications by the parties.
The case-management conference which arbitrators are now required to hold at an early stage of the proceedings is proving a very useful tool to consult the parties on the possible adoption of procedural measures aimed at reducing the timescale and costs of the arbitration.
Parties seem to appreciate the efforts which have been put into avoiding delays in the rendering of the award by arbitrators, which are reflected in several provisions of the 2012 Rules. For example, upon closing of the proceedings, the arbitral tribunal is required to inform the parties and the Secretariat of the date by which it expects to submit the draft award for scrutiny, and any delay in this respect may have an impact on the fixing of the arbitrators’ fees by the Court.
Finally, the introduction of provisions aimed at facilitating the participation of states and state entities in ICC arbitrations (including investor-state cases) has proven beneficial to the use of the ICC Rules in this type of arbitration. While states have traditionally been frequent users of ICC arbitration in contractual matters, in the last couple of years we have observed an increase in the number of arbitrations introduced on the basis of an international investment instrument, an area where there seems to be room for further growth.
The Court set up branch offices in Hong Kong (2008) and, more recently, in New York (2014). How important do you think it is for arbitral institutions to have a global presence?
The added value of institutional arbitration consists not only in the quality of the rules, but also (and more importantly) in the role of the institution in administering them. Physical presence in various areas of the world is a key factor for the success of a truly global institution such as the Court. Despite the growing use of IT in arbitration, including in case administration, users still attach a great importance to the proximity of the case managers. The presence of the institution in the same time zone as the parties, or their counsel, facilitates the interaction and consolidates the familiarity with the arbitral institution and with its arbitration system.
Our experience with the teams based in Hong Kong and New York is extremely positive. In both cases, the opening of the offices has coincided with a significant increase of parties from those regions. Arguably, it has contributed to dispelling the false impression of the Court as a “European”, or “Euro-centric”, institution. Both teams are “local” in terms of nationality and in terms of the language skills and legal training of their members.
The main challenge facing institutions with respect to offices far from the headquarters is maintaining the same high standards of quality. In our case, the Hong Kong and the New York offices are an integral part of the structure of the Secretariat and operate just like any of the Paris-based teams (i.e. under the daily supervision of the senior management of the Secretariat and with videoconference internal staff meetings and Court meetings).
What role does arbitration play within the greater scope of the ICC’s dispute resolution services?
In addition to arbitration, the ICC provides other dispute resolution services under its Mediation Rules, Expert Rules, Dispute Boards Rules and “DOCDEX” Rules (Documentary Credit Dispute Resolution Expertise, a quick and cost-effective procedure specifically to settle documentary credit disputes). All of these services are administered by the ICC International Centre for ADR (the Centre), which is not under the supervision of the Court, but is an integral part of the greater secretariat of the ICC dispute resolution services. The number of cases administered by the Centre has grown significantly in the last few years.
Within the ICC dispute resolution services, arbitration and these other mechanisms are by no means in competition with each other. They are part of a broad and articulated offer of dispute resolution services, from which parties can choose, and which they can combine according to their needs. It is not infrequent for parties to proceed to arbitration under the Arbitration Rules after having attempted mediation under the Mediation Rules, or for parties and arbitral tribunals involved in ICC arbitrations to resort to the services of the Centre for the appointment of experts or dispute boards.
The unitary approach to dispute resolution is further reflected in the fact that the Secretary General of the Court also serves as director of the ICC dispute resolution services. Moreover, the ICC Commission on International Arbitration was recently renamed the “ICC Commission on International Arbitration and ADR” (the Commission) to reflect the growing importance of ADR among the services offered by the ICC (all the rules administered by the Centre have either been revised by the Commission in the recent past, or their revision will be finalised in the next few months) and the growing areas of contact between different mechanisms in the dispute resolution practice.
There has been some debate recently regarding the ethics of counsel conduct (or lack thereof) in international arbitration. Do you see evidence of this in ICC arbitrations, and do you think steps should, or could, be taken to address this issue?
The majority of ICC arbitrations are genuinely international in nature, and often parties and counsel come from the most diverse regions of the world and have the most diverse cultural and legal backgrounds. This inevitably poses problems of inhomogeneity of the ethical standards applied and expected. We see evidence of this diversity of ethical attitudes, for example, in the grounds invoked by the parties when challenging arbitrators and in procedural motions filed by the parties.
Initiatives of international professional organizations, such as the adoption of the IBA Guidelines on Party-Representation, are welcome developments in this respect. They contribute to raising awareness of the problem and to fostering consensus on generally accepted ethical standards, without imposing rigid solutions, which may not be equally acceptable to all counsel involved in a specific case. The main purpose of these initiatives should be to encourage parties and arbitrators to engage in an open discussion at an early stage of the proceedings on the procedural conduct expected, with a view to reaching agreement on the ethical standards to be applied in a given case, or, if this proves impossible, at least to highlight areas where expectations may differ.
I am much more sceptical about similar initiatives taken by arbitral institutions. Unlike other institutions, the ICC has chosen not to adopt codes of ethics, or rules automatically applicable in cases conducted under its Rules. As mentioned, ICC arbitrations often involve actors with vastly differing backgrounds and little shared understanding and expectations as to the relevant ethical standards.