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7. ICC Arbitration and Dispute Resolution Services

Teaching rewrite of how ICC’s dispute services work, structured around the 2012 ICC Arbitration Rules. Pedagogical summaries only — not the Rules text. ICC has revised its Rules since (2017, 2021) and changes fees, time limits, and thresholds; always check the current Rules, cost scales, and model clauses at ICC before drafting or filing.

Introduction​

Lesson 6 compared litigation, arbitration, and ADR in general. This lesson looks inside one institution that many export contracts name: the International Chamber of Commerce (ICC). Its International Court of Arbitration was the first body devoted to international commercial arbitration and is widely ranked as the most-used arbitral institution. Around it, ICC offers a toolkit of lighter mechanisms: mediation, expert appointment, DOCDEX for banking-instrument disputes, and dispute boards for long projects.

You will learn:

  • What makes institutional ICC arbitration different from ad hoc arbitration
  • How to write — and how not to modify — the ICC arbitration clause
  • Who does what: the Court, the Secretariat, and the arbitral tribunal
  • The procedure from Request to award, including Terms of Reference, time limits, and costs
  • Key features added in the 2012 Rules: emergency arbitrator, multi-party tools, confidentiality, case management
  • ICC’s non-arbitration services: DOCDEX, mediation/ADR, dispute boards, experts

Assumptions. You already know why arbitration usually beats foreign litigation for cross-border trade (Lesson 6). Here the question is how to use an institution well.

7.1 Why ICC arbitration?​

FeatureWhat it means for a trader
UniversalityAny industry, any country, private or state parties. The Court sits in Paris, but most hearings happen elsewhere — in dozens of countries, with arbitrators of many nationalities.
SupervisionUnlike ad hoc arbitration (parties design and police the process themselves), a professional Secretariat handles case management, fees, and paperwork.
Award scrutinyThe Court reviews every draft award before it is issued — a distinctive ICC quality check. The Court, not the arbitrators, notifies the final award.
StatureDecades of reputation for neutrality — you rarely need to persuade a counterparty that ICC is fair.

Trade-off: supervision and scrutiny cost money and some time. Ad hoc arbitration can be cheaper when both sides cooperate — and much worse when one side does not.

7.2 The ICC arbitration clause​

ICC publishes a short standard clause. Its substance:

All disputes arising out of or in connection with the contract are finally settled under the ICC Rules of Arbitration by one or more arbitrators appointed under those Rules.

(Paraphrased — copy the exact current wording from ICC’s website.)

AddWhy
Place (seat) of arbitrationFixes the procedural law and the courts that can review the award
Number of arbitrators (one or three)A sole arbitrator is the simplest way to keep costs down
Applicable lawSaves a fight later; a neutral country’s law is a common compromise
LanguageAvoids translation disputes

Drafting trap​

Edits should come from experienced arbitration counsel. Classic mistake: writing “…of the International Chamber of Commerce in Paris…” — does that make Paris the seat, or just describe where ICC is? Ambiguity invites a jurisdictional fight before the real dispute even starts.

Timing: parties can agree to ICC arbitration after a dispute arises, but the side that expects to lose has every reason to refuse. Put the clause in the contract.

7.3 Who does what: Court, Secretariat, tribunal​

The Court does not decide disputes. It is an administrative body — attached to ICC but independent of it — with a chair, vice-chairs, and members from many countries. Its job is to make sure the Rules are applied.

BodyRole
Arbitral tribunal (1 or 3 arbitrators)Hears the case and decides it
CourtChecks there is a prima facie arbitration agreement (when referred to it); appoints arbitrators the parties did not; decides challenges; fixes the seat if the parties did not; handles Terms of Reference where a party will not sign; fixes costs and deposits; extends time limits; scrutinises draft awards
SecretariatDay-to-day administration: case teams led by counsel specialised in arbitration procedure

Appointing a sole arbitrator or chair: the Court usually chooses a nationality different from the parties’, then asks the relevant ICC national committee for a proposal (usually but not necessarily followed).

7.4 The arbitrators​

  • Parties may nominate arbitrators; the Court must confirm them.
  • If they do not, the Court appoints a neutral arbitrator, normally from a neutral country.
  • Every arbitrator must be — and stay — independent of the parties, and (expressly since 2012) impartial, and must sign a statement disclosing anything that could call this into question.
  • A party can challenge an arbitrator before the Court; if the challenge succeeds, the arbitrator is replaced.

One or three?​

Sole arbitratorThree-member tribunal
Default if contract is silentYes — unless the Court finds the case warrants threeOnly if the Court decides so
CostLowerHigher (three sets of fees)
SpeedFaster schedulingMore coordination, possible delay
ComfortParties do not each pick “their” arbitratorEach party nominates one; the two (or the Court) pick the chair

The Court weighs complexity and amount in dispute when choosing.

Checkpoint: institution, clause, tribunal​

Quiz

Checkpoint — sections 7.1 to 7.4

1 / 4

Who decides the merits of a dispute in ICC arbitration?

Pick an answer to see if you are right.

7.5 The procedure, step by step​

flowchart TB
  R[Request for Arbitration<br/>+ filing fee] --> A[Answer within 30 days<br/>+ counterclaims]
  A --> C[Court: seat, arbitrators,<br/>advance on costs]
  C --> T[Terms of Reference<br/>≈2 months after file received]
  T --> P[Proceedings<br/>written submissions, hearings, experts]
  P --> D[Draft award → Court scrutiny]
  D --> F[Final award notified<br/>target ≈6 months after ToR]

a. Request for Arbitration​

The claimant files a written Request with the Secretariat, identifying all parties and describing the case, with a non-refundable filing fee (USD 2,500 under the 2012 Rules — higher today). The Secretariat notifies the respondent, who has 30 days to file an Answer (defence, counterclaims, views on the tribunal). The claimant gets 30 days to reply to counterclaims. The Court then fixes the seat (if not agreed) and constitutes the tribunal.

b. Terms of Reference (ToR)​

A distinctive ICC document drafted by the tribunal with the parties: it summarises the case, defines the issues, and records the seat and procedural rules.

  • Parties comment, then sign; the ToR then go to the Court.
  • All sign → the Court simply takes note. A party refuses → the Court decides whether to approve; the arbitration continues either way.
  • Critics say ToR cost time. ICC’s view: they narrow the issues, make hearings more efficient, and often show the parties they are closer than they thought — opening the door to settlement.

c. Time limits​

MilestoneLimit (2012 Rules)
ToR to the Court~2 months after the tribunal receives the file
Final award~6 months after the ToR are signed / approved

The Court may extend either, on reasoned request or its own initiative — and in complex cases it often does.

d. Proceedings​

Parties may agree their own procedural rules; otherwise the tribunal decides — including whether to hold hearings (a party that asks to be heard has the right to be), hear witnesses, or appoint experts.

e. Applicable law​

If the parties have not chosen, the tribunal decides. Options are broad: a national law, or general principles such as the UNIDROIT Principles of International Commercial Contracts or the lex mercatoria.

f. The award​

  • In writing; by unanimity, by majority, or failing both by the chair alone. Dissenting opinions are possible with three arbitrators.
  • A settlement can be recorded as an award by consent — easier to enforce than a bare settlement contract.
  • The award also allocates costs, including legal fees.
  • The draft goes to the Court, which may modify its form and draw attention to points of substance without overriding the tribunal.
  • Parties are notified only once arbitration costs are fully paid.
  • If the loser will not comply, enforce through national courts under the New York Convention (170+ states).

g. Costs​

Costs = arbitrators’ fees and expenses + ICC administrative expenses + experts + lawyers.

  1. On receiving the Request, the Secretary General sets a provisional advance (to cover work up to the ToR). The file is not passed to the tribunal until it is paid.
  2. The Court then fixes the full advance on costs, normally split 50/50 between claimant and respondent sides.
  3. ICC’s fees and the arbitrators’ fee range follow a published scale based on the amount in dispute (ICC provides an online cost calculator).
  4. If one side does not pay its half, the other may pay it (or post a bank guarantee) so the case can proceed.

h. Fast-track arbitration​

Parties can agree expedited proceedings — either a deadline for every step (answer, tribunal constitution, challenges, submissions, hearings, award, extensions) or a single deadline for the award. With committed, sophisticated parties, ICC has reported large cases resolved in 60–80 days. Draft fast-track clauses with experienced counsel.

Later development

Since the 2017 revision, ICC Rules include an Expedited Procedure that applies automatically below a value threshold (raised in 2021) unless the parties opt out — check the current threshold.

Worked example: budget and timeline​

A seller files against a buyer. The Court fixes an advance on costs of USD 180,000.

ItemCalculationResult
Each side’s share50% × 180,000USD 90,000 each
Buyer refuses to paySeller pays the buyer’s half too (or posts a guarantee)Seller funds USD 180,000 up front
RecoveryThe award can order the buyer to bear the costsSeller seeks reimbursement in the award

Timeline at the Rules’ default pace, starting from the Request:

StepElapsed time
Answer due~1 month
Court constitutes tribunal, file transmittedsay ~1 more month → ~2 months
ToR due (≈2 months after the file reaches the tribunal)~4 months
Award due (≈6 months after ToR)~10 months

Ten months is a planning baseline, not a promise — extensions are common. Lesson: a party refusing to pay its share shifts cash burden, not final liability; budget for funding the whole advance.

7.6 What the 2012 Rules added​

FeatureWhat it does
Emergency arbitratorUrgent interim measures before the tribunal exists. Appointed within ~2 working days; order within ~15 days; does not bind the later tribunal, which may modify or set it aside. Minimum fee was USD 40,000. Parties may opt out; courts remain available for interim relief.
JoinderJoin a third party (before any arbitrator is confirmed; after that, all parties must agree)
Multi-party claimsAny party may claim against any other before ToR approval; later, with permission
Multiple contractsClaims under several contracts in one arbitration
ConsolidationThe Court may merge related arbitrations on request
Impartiality + disclosureArbitrators must be impartial as well as independent and disclose any doubts
Direct appointmentThe Court may appoint directly — e.g. if a national committee fails, or where a state party is involved
Jurisdiction to the tribunalObjections to the existence, validity, or scope of the arbitration agreement go by default to the tribunal
Confidentiality ordersTribunal can protect trade secrets and even the existence of the case
EmailRecognised as a normal channel
Case managementDuty of expedition and cost-effectiveness; early case-management conference; tribunal announces when it expects to submit the draft award; conduct affects cost allocation
ExclusivityOnly ICC may administer arbitrations under the ICC Rules

Checkpoint: procedure and 2012 features​

Quiz

Checkpoint — sections 7.5 and 7.6

1 / 4

The respondent refuses to sign the Terms of Reference. What happens?

Pick an answer to see if you are right.

7.7 DOCDEX — disputes over banking instruments​

DOCDEX (Documentary Instruments Dispute Resolution Expertise) handles disputes under ICC banking rules: UCP (documentary credits), URR (bank-to-bank reimbursement), URC (collections), and URDG (demand guarantees).

  • Document-based: no hearings; three experts decide on the written file
  • Decision reviewed by the ICC Banking Commission’s technical adviser
  • Not binding unless the parties agree otherwise — but highly persuasive in banking practice
  • Typically 6–12 weeks from request

Use it when the fight is about whether documents complied with a credit or collection — a narrow, technical question where a full arbitration would be overkill.

7.8 ICC mediation and ADR​

Mediation / conciliation = amicable resolution with a neutral third party. Theoretically fast and cheap; non-binding — either side can walk away, and any settlement is usually a contract, not a judgment.

Success depends on both sides’ commitment and the neutral’s skill.

Starting ADR​

  • Needs agreement: an ADR clause in the contract, or consent after the dispute.
  • A joint request starts it directly. A unilateral request is notified to the other side — and if it declines, nothing happens.
  • ICC suggests four ADR clauses, adaptable, escalating from purely optional ADR to an obligation to try ADR, with or without follow-on arbitration.

Techniques​

TechniqueHow it works
Mediation (default)Neutral facilitates the parties’ own agreement
Neutral’s opinionNeutral gives a view on specific issues
Mini-trialPanel of the neutral plus one executive from each side gives an opinion
CombinationMix as needed

Parties may jointly pick the neutral or set required qualifications for ICC’s appointment; a party may make a reasoned objection to ICC’s choice within 15 days. Proceedings start with a discussion to agree the procedure.

Result​

A settlement on some or all issues — or no binding outcome. ADR combines well with arbitration: try mediation during an arbitration when settlement looks possible, or use a tiered clause (ADR first, arbitration if it fails). Like ICC arbitration, ICC ADR is confidential.

Naming update

ICC’s ADR Rules were replaced by the ICC Mediation Rules (2014), administered by the ICC International Centre for ADR. The concepts above still apply.

7.9 Dispute boards for long-term contracts​

Long projects (construction, plant supply) breed disputes as circumstances change. A dispute board (DB) — a standing panel of one or three independent members who know the contract and follow its performance — resolves them as they arise, keeping the project moving. Best set up at the start, though it can be formed later.

TypeOutputBound when?If a party objects in time
Dispute Review Board (DRB)RecommendationIf no one objects within the stated periodNot obliged to comply (may choose to) pending arbitration/court
Dispute Adjudication Board (DAB)DecisionImmediately on receiptStill must comply; may take the dispute to arbitration/court if the contract allows
Combined Dispute Board (CDB)Recommendation, or a decision if one party asks and none objectsDepends on which was issuedIf a party objects to a decision being issued, the CDB decides which to issue

ICC does not administer DB proceedings. It plays a supporting role: appointing members, deciding challenges, and reviewing the form of decisions when asked. ICC offers DB Rules, standard clauses, and a model DB member agreement.

7.10 Experts​

ICC can help with experts in two ways (now through the ICC International Centre for ADR):

ServiceBinding?Use case
Proposal of an expertNo — requester need not use the proposed personA party (even before contracting) or a tribunal wants a name for a technical, financial, or legal question
Appointment of an expert (by agreement)The choice of expert binds the partiesParties want a report to settle questions amicably or establish facts

Example matters: a plant’s operating capacity, corrosion of materials, a financial audit during a takeover, revaluing a contract price, supporting dispute adjudication boards on construction projects.

Rank: choosing ICC services​

Quiz

Sequence ICC dispute tools

1 / 2

Rank these ICC mechanisms from least to most binding on the parties’ substantive dispute.

OrderDrag the handle to rearrange — top should be first.

  1. 1Optional ADR clause — either party may decline to mediate.
  2. 2Mediation that the contract obliges the parties to attempt.
  3. 3Final arbitral award — enforceable under the New York Convention.
  4. 4Dispute Adjudication Board decision — must be complied with immediately, subject to later arbitration.
  5. 5Dispute Review Board recommendation — binding only if no one objects in time.

Drag items into the correct order (or use ↑↓), then check.

Check: ICC arbitration and dispute services​

Quiz

ICC arbitration and dispute services

1 / 8

The main advantage of institutional ICC arbitration over ad hoc arbitration is…

Pick an answer to see if you are right.

Takeaways​

Remember
  • ICC = institutional arbitration: Secretariat administration + Court scrutiny; the tribunal decides
  • Use ICC’s standard clause, add seat, number of arbitrators, law, language — and do not improvise wording
  • Sole arbitrator = cheapest; three = more control, more cost and delay
  • Procedure: Request → Answer → tribunal → Terms of Reference → hearings → scrutinised award
  • Advance on costs splits 50/50; if the other side will not pay, you may have to fund it all
  • Emergency arbitrator for urgent relief before the tribunal exists
  • Lighter tools: DOCDEX (banking documents), mediation, dispute boards (long projects), experts

Further Reading​