International Arbitration Law

The first ever International Chamber of Commerce (ICC) pre-arbitral referee decision was rendered in October 2001, more than a decade since the “ICC Rules for a Pre-arbitral Referee Procedure” entered into force on Jan. 1, 1990. A second pre-arbitral referee procedure, regarding an oil and gas matter, is already on its way.

Under these ICC Rules, parties who seek urgent resolution of issues, before their dispute is heard on the merits by an arbitral tribunal, have rapid recourse to a third party who has the power to order binding provisional measures. The third party, called a “referee,” is nominated by agreement of the parties or by the ICC itself and gives his orders without prejudging the substance of the matter in dispute. Regardless of complexity or size of the file, the order should be given within a 30-day period starting from the submission date of the party’s request. This period may be extended, if need be, by the chairman of the ICC Court of Arbitration. The binding nature of the provisional measures prevails until the referee, or the competent jurisdiction decides otherwise. The pre-arbitral referee procedure, only enacted by the disputing parties’ written agreement, may be part of the disputed contract itself, or may, in fact, be made subsequently. Where parties also wish to resort to ICC arbitration, specific reference to both procedures in their agreement is necessary. (The ICC’s standard pre-arbitral referee and arbitration clauses as well as its rules for a Pre-arbitral Referee Procedure can be found at http://www.iccwbo.org.)