The more practical question is the extent to which the parties can agree on something that is manifestly exaggerated or that seems inappropriate or unnecessary to the arbitral tribunal. In the examination, the relationship between the arbitral tribunal and the parties must be taken into account. The correct analysis seems to be that “the arbitration agreement is a bilateral contract between the parties to the main contract. Upon appointment, the arbitrator becomes a third party to this arbitration agreement, which becomes a trilateral contract. Under this trilateral contract, the arbitrator performs his judicial functions, taking into account the agreement of the parties to pay him remuneration. Upon acceptance of the appointment, the arbitrator assumes the status of tribunal-type arbitrator and all functions and disabilities associated with that status. Although the point may be correct, it needs more explanation. It cannot be fair for the arbitral tribunal to become a party to the arbitration agreement for all intents and purposes, because if there were a subsequent dispute, it could not reasonably be argued that the same arbitral tribunal must decide it. In addition to theoretical and non-practical problems, the parties are generally free to agree on the dispute settlement system they wish before a dispute arises. National laws can clearly exclude unilateral agreements from survival. For example, in England, section 33 of the Arbitration Act 1996 states: “The Tribunal shall … act in a fair and impartial manner. give each party a reasonable opportunity to present its arguments and deal with those of its opponent.
Thus, if an arbitration clause purports to give only one party the opportunity to apply to the arbitrator, that provision would be invalid. Nor can the parties agree on anything that is fundamentally inconsistent with the laws of the seat of arbitration. In recent decades, the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) has consistently sought to increase the efficiency of ICC arbitration in response to the need to control the increasing costs and time of arbitration (examples of such efforts can be found on the available links. It will take some time to see how and how often Article 12(9) is applied, but from the perspective of an English-trained lawyer, its potential to undermine party autonomy is a potential problem. There are no ICC guidelines on what “extraordinary circumstances” are, and this is at the discretion of the ICC Court. At first glance, it appears to refer to circumstances in which the method of constitution of the tribunal chosen by the parties is manifestly unbalanced. The most obvious examples are when one of the parties gains much more control over the appointment process, for example, an arbitration agreement that gives one party the power to appoint a sole arbitrator or a presiding arbitrator, or gives one party exclusive control of a list of potential arbitrators from which the other party must choose its appointee. However, when considering enforcement, it is also important to recall Article V.1(c) of the New York Convention (as well as similar provisions in some national arbitration laws around the world), which provides that recognition and enforcement of an award may be refused at the request of the party against whom it is invoked, if the composition of the arbitral tribunal did not coincide with the agreement of the parties. Therefore, there may be a very fine line in the exercise of the powers conferred by Article 12(9) of the new ICC rules.
Cambridge Arbitration Day (CAD), an annual arbitration conference organized by the Cambridge University Graduate Law Society, was held in Cambridge, UK, on March 3, 2018. The event was preceded by the Young Practitioners Event, which was held on 2 March 2018 with the ICC Young Referees Forum and students and. One possible response to the possible conflict between Article 12(9) of the new 2021 ICC Rules and Article V.1(c) of the New York Convention is that in choosing the new ICC Rules, the parties agreed that the appointment procedure includes Article 12(9) and that a body appointed under Article 12(9) would therefore comply with the agreement of the parties, even if this is contrary to an express provision on the formation of the arbitral tribunal in the arbitration agreement. With icc rules, an expedited procedure was introduced with effect from March 1, 2017. In doing so, the ICC joined the league of other leading arbitration institutions such as SIAC, LCIA and HKIAC, which had already introduced expedited procedures. Courts around the world have made uniform decisions and views on the interpretation of party autonomy, with the exception of one decision of the. Peter Ashford is a Supreme Court lawyer and partner at Cripps Harries Hall LLP and head of Commercial Firm Peter Ashford is a partner and head of commercial dispute resolution at the leading UK law firm Cripps Harries Hall LLP, Tunbridge Wells, UK. Mr. Ashford advises on a variety of commercial disputes with a particular focus on significant commercial contract disputes, particularly those with an international dimension, partnership and LLP disputes, professional matters for lawyers and professional negligence. He is particularly experienced in complex and high-quality requirements and acts for many international clients. .