2006/Vol. 5 No.1 - Hamline Law - Hamline University

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28 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 Court of Arbitration [in fact, a private, non-governmental organization], established in 1923, is the arbitration body of the ICC and ensures the application of the ICC’s rules. 122 The ICC’s headquarters are in Paris and it currently has national committees operating in eighty-four countries throughout the world. 123 Parties in international commercial investment disputes can also utilize the International Centre for Settlement of Investment Disputes (ICSID). ICSID is an outgrowth of the World Bank and operates as an autonomous organization with services that may be invoked by agreement of the parties who are members of contracting nations under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 124 B. Notifying the Arbitration Agency of Request for Arbitration If the parties choose to use an arbitration agency to facilitate resolution of their dispute, the first step is to notify the agency that the claimant wants the arbitration to begin. The claimant should send (1) a New York Convention). Id. The result is that arbitral awards enjoy greater recognition than judicial decisions. Id. 122. International Chamber of Commerce, Introducing ICC Dispute Resolution Services, at http://www.iccwbo.org/court/english/intro_court/introduction.asp (last visited Nov. 6, 2005); International Chamber of Commerce, supra note 119; see William K. Slate II, International Arbitration: Do Institutions Make a Difference?, 31 WAKE FOREST L. REV. 41, 47 (1996): The ICC Rules contemplate further institutional guidance and supervision over the arbitration proceedings than do the rules of other institutions. These rules delegate to the institution certain functions that are typically reserved for the arbitrator. For instance, whereas other institutional rules provide that it is the arbitrator who decides the prima facie validity of the arbitration agreement, under the ICC Rules, it is the institution that has the authority to make this determination. Additionally, and rather importantly, the ICC reviews the arbitrator’s final award, prior to its signing, to ensure its enforceability. The ICC Rules require the arbitrator, before signing the award, to submit it in draft form to the International Court of Arbitration. The Court may lay down modifications as to the form of the award and, without affecting the arbitrator’s liberty of decision, draw the arbitrator’s attention to substantive issues. Id. 123. International Chamber of Commerce, supra note 119. 124. See International Centre for Settlement of Investment Disputes, About ICSID, at http://www.worldbank.org/icsid/about/about.htm (last visited Oct. 26, 2005). The ICSID was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, October 14, 1966. Id.
<strong>2006</strong>] ARBITRATION: THE BASICS 29 cover letter to the agency requesting arbitration, (2) a check for the filing fee, and (3) a copy of the contract highlighting the arbitration clause. The cover letter to the arbitration agency should provide a basic description of the claim, as well as the name, address and phone number of the respondent. 125 Once these materials are received by the agency from the claimant, the agency will take over. The agency will ensure the respondent has been notified that arbitration has been requested and will send copies of the claim and the arbitration clause to the respondent, who will have an opportunity to respond within a certain time limit. 126 C. Choosing the Arbitrator After the request for arbitration has been filed with the arbitration agency and the respondent has had an opportunity to answer, the parties decide on the arbitrator(s) who will resolve the dispute. The parties are free to choose the number of arbitrators that will be used. Typically, agency rules allow for one arbitrator or a panel of three arbitrators, with three arbitrators being the typical number of arbitrators in international disputes. 127 The trend today in most State and federal arbitrations is to use a single arbitrator in order to reduce the cost. 128 Whether the parties opt for a single arbitrator or a panel of three arbitrators, it is important to weigh the relative benefit of each method against the corresponding cost. It is economical to have one neutral arbitrator chosen by mutual agreement between the parties. But it can be advantageous to have three arbitrators to provide various levels and types of expertise, to allow the arbitrators the ability to divide up tasks, and to give the arbitrators the opportunity to meet and confer with each other about the facts and applicable law. 129 A panel of three arbitrators is the best choice in complex cases. The usual method of picking three 125. See e.g., AAA Rules, supra note 37, R-4; ICC Rules, supra note 84, arts. 4 & 5. 126. See sources cited supra note 125. 127. Jack J. Coe, Jr., Pre-hearing Techniques to Promote Speed and Cost- Effectiveness—Some Thoughts Concerning Arbitral Process Design, 2 PEPP. DISP. RESOL. L.J. 53, 59-60 (2002) (“Three-person tribunals, although not a mandatory characteristic of international arbitration, are part of a standard model. Indeed, under many formulae, a tribunal of three is the default rule.”). 128. See AAA Rules, supra note 37, R. 15 (providing that, “[i]f the arbitration agreement does not specify the number of arbitrators, the dispute shall be heard and determined by one arbitrator, unless the AAA, in its discretion, directs that three arbitrators be appointed”). 129. Id.
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