Open Access Research Article
INTERNATIONAL CHAMBER OF COMMERCE REPORT ON CONSTRUCTION INDUSTRY ARBITRATION
Published Paper
Article Details
INTERNATIONAL CHAMBER OF COMMERCE
REPORT ON CONSTRUCTION INDUSTRY ARBITRATION
AUTHORED BY - LUMINA L
Abstract:
This article focuses on the “ICC Commission Report on
Construction Industry Arbitration: Recommended tools and techniques for
effective management” – a report for regulating the Construction Industry
Arbitration. The main aim of this article is to show that the Report confirms
all the provisions of ICC Rules of Arbitration 2017. This was done by checking
whether each provision of ICC Rules has its part in the said Report. But the
Research showed that not all provision were included in the Report.
Introduction:
The International Chamber of Commerce (ICC) is a
business Organization that functions globally (in 100 countries) and represents
nearly 45 million companies[1]. The
main aim of ICC is to promote international trade[2].
In 1923 the ICC established International Court of Arbitration to solve the
disputes that arise in international trade.
The ICC from time to time has published various reports to guide ICC
Arbitration. In 2001, ICC published the report on Construction Industry
Arbitration known as “Final Report on Construction Industry Arbitration[3]”.
This Article focuses on the “ICC Commission Report on Construction Industry Arbitration:
Recommended tools and techniques for effective management” which is the update
of 2001 report. The main of this article is to find out whether the ICC
Commission Report on Construction Industry Arbitration 2017 reflects the ICC
rules of Arbitration. This is done by checking the “ICC Commission Report on
Construction Industry Arbitration 2017 and its link with ICC Rules on
Arbitration. The main aim of updating the report of 2001 is to make it confirm
to the rules of ICC Rules of Arbitration[4]
(hereinafter referred to as ICC Rules). This Article will help us know as to whether
this aim is fulfilled.
Provision for Emergency Arbitrators
in Construction Industry:
Article 29 of ICC Rules creates an Emergency
Arbitrator who could be resorted when a party needs interim or conservatory
measures and cannot wait for arbitral tribunal. The Report also sets out the
provision for Emergency Arbitrators[5].
It states that an Emergency Arbitrator may be called when the parties do not
agree in pre-arbitral methods to solve their disputes regarding interim or
conservatory measures.
Number of Arbitrators in
Construction Industry Cases:
ICC Arbitration would have three arbitrators (Article
12). This was changed when Article 30 of ICC Rules introduced Expedited
Procedure. This change was incorporated in the Report[6].
The report while speaking about the number of arbitrators states that when the
amount in dispute does not exceed US $ 2 million, the proceeding would be
considered as an expedited proceeding and only one arbitrator will be appointed
by ICC, although there is a contrary term in arbitration agreement and more
than one arbitrator may be appointed when there is a general agreement between
the parties in that regard.
Initial Stages in Construction
Industry Arbitration:
The Report reiterates that in a Construction Industry Arbitration
Article 4 and 5 of ICC Rules should be applied[7]. When
a party wants to take an issue, the party needs to submit its “request” for
Arbitration. The “request” should contain all the information stated in Article
4 (3) of ICC Rules. In the same way, while the respondent answering the request
should follow the mandate in Article 5 of the ICC Rules.
Selection of Arbitrator:
The Report states that while selecting the arbitrator,
the arbitrator’s prior knowledge on Construction Industry, his knowledge about
relevant case laws, his case management skills, his independency and his
Availability[8] (mandate
in Article 11 is reiterated) need to be checked. Regarding Availability of an
arbitrator, an arbitrator should sign the statement confirming his availability
(Article 11(2) of ICC Rules).
Transmission of File to Arbitral
Tribunal:
Secretariat will transmit the file as soon as the
Arbitral Tribunal is constituted[9].
Terms of Reference in Construction
Industry Arbitration:
The Report states that as required in Article 23 of
ICC Rules, in Construction Industry Arbitration the tribunal should draft the
Terms of Reference[10].
A Terms of Reference will enlist the disputes between parties, scope and limit
of duties of tribunal, full name of arbitrators and parties, summary of claims,
relief sought and issue to be settled. The Report further states that the TOR
should be finalized within 30 days (Article 23(2) of ICC Rules).
Case Management Conference and
Procedural Timetable in Construction Industry Arbitration:
CMC is a formal meeting which acts as a platform for
smooth arbitral proceedings. Before conducting an arbitral proceeding according
to Article 22 of ICC Rules a CMC need to be convened and procedural measures
need to be discussed. The Report mandates that a CMC need to be convened in a
Construction Industry Arbitration also[11].
The Report also reiterates that before the start of CMC, the Terms of Reference
needs to signed and finalized.
Issues in Construction Industry
Arbitration:
The report (as stated in Article 23(1) of ICC Rules) suggests
preparing a list of issues[12].
Though creating issues may not be possible for big construction cases,
initially known issue at least need to be listed.
Time Table and Practicability of
steps:
The Report calls to create a Procedural time table
that is practicable, in the Case Management Conference[13].
This is a mandate in Article 24 (2) of ICC Rules. The Report has also incorporated
Article 31(1) of ICC Rules which states that the final award needs to be
rendered within six months of preparing the Terms of Reference[14].
Cost Effective measures:
The report has reiterated (as stated in Article 38(5)
of ICC Rules) the arbitral tribunals to take the course that is cost effective
for the parties[15]. It
also urges the arbitral tribunal to take decisions by considering the financial
position of the parties involved[16].
Facts in Construction Arbitration:
In a construction Arbitration Case, the facts need to
be established as soon as possible with all possible means[17].
Experts in Construction
Arbitration:
As stated in Article 25(4) of ICC Rules, the arbitral
tribunal, with the consent of the parties concerned may appoint one or more
experts, mention their terms of reference and receive the reports from them[18].
The parties will also be given opportunity to question the witness at hearing.
Hearing in Construction Arbitration
Case:
The Arbitral Tribunal should be fair and impartial to
both the parties[19].
Language:
In a Construction Industry Arbitration, the language
between the parties as stated in Article 20 of ICC Rules must the one that was
agreed by the party. If no such agreements were made between the parties then
arbitral tribunal will decide the language in which the proceedings will be
undergone.
Conclusion:
The Report “ICC Commission Report on Construction
Industry Arbitration: Recommended tools and techniques for effective
management” has not covered all the aspects of ICC Rules of Arbitration in it. The Report did not speak about:
·
Multiple
Parties, Multiple Contracts and Consolidation in Construction Industry
Arbitration.
·
Awards
(like time limit for Final Award, Award by Consent, Making of Award, and
Scrutiny etc.,) in Construction Industry Arbitration.
·
Costs
(like advance costs, decision as to cost) in Construction Industry Arbitration
·
Others
like Modified Time Limits, Waiver and Limitation of Liability in Construction
Industry Arbitration
[1]
https://iccwbo.org/about-us/who-we-are/
[2]https://iccwbo.org/about-us/who-we-are/our-mission/
[3]
https://iccwbo.org/publication/construction-industry-arbitrations-report-icc-commission-arbitration-adr/
[4]
https://iccwbo.org/publication/construction-industry-arbitrations-report-icc-commission-arbitration-adr/
[7] Paragraph 3.1 of ICC Commission
Report on Construction Industry Arbitration: 2017
[8] Paragraph 2.1 (e) of ICC Commission
Report on Construction Industry Arbitration: 2017
[10] Paragraph 4.1 of ICC Commission
Report on Construction Industry Arbitration: 2017
[11] Paragraph 8.1 of ICC Commission
Report on Construction Industry Arbitration: 2017
[16] Paragraph 6.1, 8.3, 11.1 15.3, 17.1 and 22.1 of ICC
Commission Report on Construction Industry Arbitration: 2017
[18] Paragraph 18.5 of ICC Commission
Report on Construction Industry Arbitration: 2017
[19] Paragraph 19.3 of ICC Commission
Report on Construction Industry Arbitration: 2017
Article Information
INTERNATIONAL CHAMBER OF COMMERCE REPORT ON CONSTRUCTION INDUSTRY ARBITRATION
Authors: LUMINA L
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/09
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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