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ICC/CMI International Maritime Arbitration Organisation Rules (1978)

  • FOREWORD 

    In recent years both the volume and complexity of international maritime disputes have increased dramatically. To respond to the needs of maritime interests for a viable alternative to costly litigation, the International Chamber of Commerce (ICC) and the Comité Maritime International (CMI) have jointly produced a set of appropriate rules for maritime arbitration. The rules were prepared by experts from the ICC and the CMI and were adopted by the Assembly of the CMI in March 1978, and by the ICC Council in June 1978. 

    The ICC sand the CMI are uniquely positioned to present these Rules to the international maritime community. The CMI has long been known as one of the leading international maritime organizations. From its inception the ICC International Court of Arbitration has frequently been asked to handle disputes arising in shipbuilding and maritime sectors. 

    Because of the overall cohesion of maritime interests, a key feature of maritime arbitration, as compared to commercial arbitration as a whole, is that it leaves the parties a greater degree of freedom of action. Flexibility is encouraged by the Rules throughout: they expressly request the parties themselves to decide on the place of arbitration, the law applicable, the number of arbitrators and the language to be used. Only if the parties cannot reach agreement on these points or on other questions that may arise during the proceedings does the Standing Committee step in to reach the necessary decisions. Responsibility for general administration of the new Rules lies with the ICC Secretariat. 

    The ICC and CMI are convinced that these Rules will prove to be of great service to the international maritime community. 

    ICC-CMI RULES 

    (in force as from 1 January 1978) 

    The ICC-CMI Arbitral Organization 

    Article 1 

    The International Chamber of Commerce (ICC) and the Comité Maritime International (CMI) have jointly decided, with a view to providing a service to the maritime world at large, to issue rules for the conduct of arbitration disputes relating to maritime affairs including inter alia contracts of chartering, contracts of carriage by sea or of combined transport, contracts of marine insurance, salvage, general average, shipbuilding and ship repairing contracts, contracts of sale of vessels and other contracts creating rights in vessels. 

    Article 2 

    1. An institutional body known as the "Standing Committee on Maritime Arbitration" (hereinafter referred to as the Standing Committee) will have the duty of ensuring the application of these Rules. 

    2. The Standing Committee shall be composed of twelve members: six appointed by the ICC and six by the CMI. 

    The members of the Standing Committee shall be appointed for three years. 

    3. The Chairman of the Standing Committee, selected from among its members, shall be appointed jointly by the ICC and the CMI. 

    Likewise from among the members of the Standing Committee, two Vice-Chairmen shall be appointed: one by the ICC and one by the CMI. 

    4. The Secretariat of the Standing Committee shall be provided by the ICC and its costs shall be met by the parties seeking arbitration under these Rules. 

    The seat of the Standing Committee will be 38 cours Albert 1er, 75008 Paris ( France), where the meetings of the Standing Committee will be held unless otherwise agreed. 

    5. The Standing Committee shall have power to deliberate when at least two of the members appointed by the ICC and two of the members appointed by the CMI are present. Decisions shall be taken within the Committee by a simple majority. If no majority is attained, the Chairman of the meeting shall have a casting vote. 

    Request for Arbitration and Defendant's Answer 

    Article 3 

    1. Where the parties have agreed that disputes between them shall be referred to arbitration under these Rules, such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree. 

    2. A party wishing to have recourse to ICC-CMI maritime arbitration shall submit its Request to the Secretariat of the Standing Committee with a copy of it to the Defendant. 

    The date when the Request is received by the Secretariat shall be deemed, for all purposes, to be the date of commencement of the arbitration proceedings. 

    3. The Request for arbitration shall contain the following information: 

    a) names in full, description, and addresses of the parties; 

    b) a summary of the claimant's points of claim; 

    c) the document containing the arbitration clause or the arbitration agreement; 

    d) such documents as are deemed relevant to clarify the subject matter of the dispute; 

    e) all relevant particulars concerning the number and appointment of arbitrators. 

    4. Disputes shall be settled by a sole arbitrator or by three arbitrators if circumstances so require. In the following Articles, the word "arbitrator" denotes a single arbitrator or three arbitrators as the case may be. 

    Article 4 

    1. The Defendant shall within 21 days from the date on which he receives the Claimant's request for arbitration state whether he agrees that the dispute be submitted to arbitration according to these Rules and, if so, comment on the proposals made concerning the number and appointment of arbitrators and, where appropriate, nominate an arbitrator. 

    2. If the Defendant objects to submitting the dispute to arbitration according to these Rules, the Claimant shall have a period of 15 days from the day such objection is communicated to him to comment on the Defendant's objection. If the Claimant agrees that there is no agreement that the dispute be submitted to arbitration under these Rules, the parties will be informed by the Secretariat that the proceedings are discontinued. If the Claimant maintains that there is a valid arbitration agreement, the matter shall be referred to the Standing Committee and resolved according to the provisions of Art. 5. 

    3. The Defendant's failure to reply within the time mentioned above to the Claimant's request for arbitration shall be considered as an objection to the request. 

    4. The Defendant shall have a period of 30 days from the date when he has notified the Secretariat of his agreement to the Claimant's request for arbitration or, failing such agreement, from the date when he has received notice of the Standing Committee's decision that the arbitration shall proceed, to file his defence and supply relevant documents. 

    5. Within the last-mentioned time limit the Defendant may in his defence make a counterclaim to which the Claimant may file a reply within 21 days from the date it was communicated to him. 

    6. The time limits stipulated in this Article may, upon the request of either party, be extended by the Secretariat but not for more than an additional period of 30 days unless the parties otherwise agree. If a longer extension is requested, or failing such an agreement if the Secretariat refuses to grant an extension, the request shall be submitted to the Standing Committee. 

    Validity of the Arbitration Agreement 

    Article 5 

    1. Should one of the parties raise one or more pleas concerning the existence or validity of the agreement to arbitrate, and should the Standing Committee be satisfied of the prima facie existence of such an agreement, the Standing Committee may, without prejudice to the admissibility or merits of the plea or pleas, decide that the arbitration shall proceed. In such a case any decision as to the arbitrator's jurisdiction shall be taken by the arbitrator himself. 

    2. Unless otherwise provided, the arbitrator shall not cease to have jurisdiction by reason of any claim that the contract containing the arbitration agreement is null and void or allegation that it is non-existent provided that he upholds the validity of the agreement to arbitrate. He shall continue to have jurisdiction, even though the contract itself may be non-existent or null and void, to determine the respective rights of the parties and to adjudicate upon their claims and pleas. 

    3. If one of the parties refuses or fails to take part in the arbitration, the arbitration shall proceed notwithstanding such refusal or failure. 

    Constitution of the Arbitral Tribunal 

    Article 6 

    1. Insofar as the parties have not themselves appointed arbitrators, and unless the parties have otherwise agreed, the Standing Committee shall appoint arbitrators in accordance with the provisions of this Article. 

    2. Where the parties have agreed that the disputes shall be settled by a sole arbitrator and fail so to nominate him within 30 days from the date when the Claimant's Request for Arbitration has been communicated to the other party, the sole arbitrator shall be appointed by the Standing Committee. 

    3. Where the dispute is to be referred to three arbitrators, each party shall nominate in the Request for Arbitration and in the Answer thereto one arbitrator. Such person shall be independent of the party nominating him. If a party fails to nominate an arbitrator, the appointment shall be made by the Standing Committee. The third arbitrator, who will act as chairman of the arbitral tribunal, shall be appointed by the arbitrators nominated by the parties (unless the parties have nominated such third arbitrator) within a fixed time limit. Should the two arbitrators fail, within the time limit fixed by the parties or the Standing Committee, to reach agreement on the third arbitrator, he shall be appointed by the Standing Committee. 

    4. Where the parties have not agreed upon the number of arbitrators, the Standing Committee shall appoint a sole arbitrator, save where it appears to the Standing Committee that the dispute is such as to warrant the appointment of three arbitrators. In such a case the parties shall each have a period of 21 days within which to nominate an arbitrator. 

    5. Where the Standing Committee is to appoint a sole arbitrator or the Chairman of an arbitral tribunal, the sole arbitrator or the chairman of an arbitral tribunal shall be chosen from a country other than those of which the parties are nationals. However, in suitable circumstances and provided that neither of the parties objects, the sole arbitrator or the chairman of the arbitral tribunal may be chosen from a country of which any one of the parties is a national. 

    6. Should an arbitrator be challenged by one of the parties, the Standing Committee, as sole judge of the grounds of challenge, shall make a decision which shall be final. 

    7. If an arbitrator dies or is prevented from carrying out his functions or has to resign consequent upon a challenge or for any other reason, or if the Standing Committee, after having considered the arbitrator's observations, decides that the arbitrator is not fulfilling his functions in accordance with the Rules or within the prescribed time limits, he shall be replaced. In all such cases the procedure indicated in the preceding paragraphs 2, 3 and 5 shall be followed. 

    When an arbitrator is replaced, prior hearings may be repeated at the discretion of the new arbitral tribunal. 

    Deposit of Costs 

    Article 7 

    1. The Standing Committee shall fix the amount of the deposit in a sum likely to cover the administrative costs of arbitration of the claims which have been referred to it and, after consulting the arbitrator, his fee and costs. 

    Where, apart from the principal claim, one or more counterclaims are submitted, the Standing Committee may fix separate deposits for the principal claim and the counterclaim or counterclaims. 

    2. It is for the Claimant or Counter-claimant as the case may be to make the deposit(s) referred to in (1), above. 

    3. The Secretariat may make the transmission of documents to the arbitrator conditional upon the payment by the parties or one of them of the whole or part of the deposit to the Secretariat of the Standing Committee. 

    4. Before proceeding to establish the facts of the case, in accordance with the provisions of Article 11, the arbitrator shall inquire of the Secretariat whether the requests for deposit have been complied with. 

    The arbitrator shall only proceed in respect of those claims for which he has received confirmation from the Secretariat of the payment of the deposit. 

    Place of Arbitration, Procedure and Applicable Law 

    Article 8 

    The place of arbitration shall be that agreed by the parties. In the absence of such an agreement, the place of arbitration will be fixed by the Standing Committee. 

    Article 9 

    Unless otherwise agreed, the Rules governing the proceedings before the arbitrator shall be those set out in these Rules and, where these Rules are silent, any Rules which the parties (or, failing them, the arbitrator) may settle. 

    Article 10 

    1. The parties shall be free to determine the law to be applied by the arbitrator to the merits of the dispute. In the absence of any indication by the parties as to the applicable law, the arbitrator shall apply the law designated as the proper law by the rule of conflict of laws which he deems appropriate. 

    2. The arbitrator shall assume the powers of an amiable compositeur only if the parties have agreed to give him such powers. 

    Arbitration Proceedings 

    Article 11 

    1. All pleadings and written statements submitted by the parties, as well as all documents annexed thereto, shall be sent with one copy of each to the Secretariat, the other party and the arbitrator. When the arbitrator has not yet been appointed the copies intended for him shall be sent to the Secretariat which, subject to the provisions of Art. 7 (3), shall transmit them to the arbitrator when appointed. 

    All notifications or communications from the parties, the Secretariat and the arbitrator shall be validly made if they are delivered against receipt or forwarded by registered post to the address or last known address of the party for whom the same are intended. 

    Notification or communication shall be deemed to have been effected on the day when it was received, or should, if made in accordance with the preceding paragraph, have been received by the party itself or by its representative. 

    2. The parties shall be at liberty to apply to any competent judicial authority for such measures as are outside the jurisdiction of the arbitrator and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator. 

    3. The arbitrator shall proceed within as short a time as possible to establish the facts of the case. He may fix time limits. After study of the written submissions of the parties and of all documents relied upon, the arbitrator shall hear the parties if one of the parties so requests; failing such a request he may of his own motion decide to hear them. 

    In addition, the arbitrator may decide to hear any other person in the presence of the parties or in their absence provided they have been duly summoned. 

    4. The arbitrator may appoint one or more experts, define their terms of reference, receive their reports and/or hear them in person in the presence of the parties or in their absence provided they have been duly summoned. 

    5. The arbitrator may decide the case on the relevant documents alone if the parties so request or agree. 

    6. At the request of one of the parties or if necessary on his own initiative, the arbitrator, giving reasonable notice, shall summon the parties to appear before him on the day and at the place appointed by him and shall so inform the Secretariat. 

    7.  If one of the parties, although duly summoned, fails to appear, the arbitrator, if he is satisfied that the summons was duly received and the party is absent without valid excuse, shall have power to proceed with the arbitration. 

    Such proceedings shall then be deemed to have been conducted in the presence of all parties. 

    8. The arbitrator shall determine the language or languages of the arbitration, due regard being paid to all the relevant circumstances and in particular to the language of the contract. 

    9. The arbitrator shall be in full charge of the hearings, at which all the parties shall be entitled to be present. Save with the approval of the arbitrator and of the parties, persons not involved in the proceedings shall not be admitted . 

    10. The parties may appear in person or through duly appointed representatives. In addition, they may be assisted by advisers. 

    The Arbitration Award 

    Article 12 

    1. If the parties reach a settlement the same shall, if the parties so request and the arbitrators agree, be recorded in the form of an arbitral award made by consent of the parties. 

    2. The arbitrator shall make his award within six months after the date for the constitution of the arbitral tribunal. The Standing Committee may, if necessary, extend this time. 

    3. Where no such extension is granted and, if appropriate, after application of the provisions of Art. 6 (7), the Standing Committee shall determine the manner in which the dispute is to be resolved. 

    4. When three arbitrators have been appointed, the award is given by a majority decision. If there be no majority, the award shall be made by the chairman of the arbitral tribunal. 

    5. The arbitrator's award shall, in addition to dealing with the merits of the case, fix the costs of the arbitration and decide which of the parties shall bear the costs or in what proportions the costs shall be borne by the parties. 

    The costs of the arbitration shall include the arbitrator's costs and fees, the fees and expenses of any experts, the normal legal costs incurred by the parties, and the administrative costs fixed by the Standing Committee. 

    6. The arbitrator shall, when fixing his fee, take into account the complexity of the subject matter and the time spent. 

    The arbitrator's decision on his own fees may be appealed to the Standing Committee within 30 days after the notification of the award. 

    Article 13 

    The arbitral award shall be deemed to be made at the place of the arbitration proceedings and on the date when it is signed by the arbitrator. 

    Article 14 

    1. Once an award has been made, the Secretariat shall notify to the parties the text signed by the arbitrator, provided always that the costs of the arbitration have been fully paid by the parties or by one of them. 

    2. Additional copies certified as true by the Secretariat shall be made available, on request and at any time, to the parties but to no one else. 

    3. By virtue of the notification made in accordance with (1) of this Article, the parties waive any other form of notification or deposit of the award. 

    Article 15 

    1. The arbitral award shall be final. 

    2. By submitting the dispute to the ICC-CMI International Maritime Arbitration Rules, the parties shall be deemed to have undertaken to carry out the resulting award without delay and to have waived their right to any form of appeal insofar as such waiver can validly be made. 

    Article 16 

    An original of each award made in accordance with the present Rules shall be deposited with the Secretariat. 

    The Secretariat and, when requested by the Secretariat, the arbitrator, shall assist the parties in complying with whatever further formalities may be necessary. 

    Article 17 

    In all matters not expressly provided for in these Rules, the Standing Committee and the arbitrator shall act in the spirit of these Rules and shall make every effort to make sure that the award is enforceable at law.