in force as from 1 July
2001
Preamble
Amicable settlement is a desirable solution for business
disputes and differences. It can occur before or during the
litigation or arbitration of a dispute and can often be facilitated
through the aid of a third party (the "Neutral") acting in
accordance with simple rules. The parties can agree to submit to
such rules in their underlying contract or at any other
time.
The International Chamber of Commerce ("ICC") sets out
these amicable dispute resolution rules, entitled the ICC ADR Rules
(the "Rules"), which permit the parties to agree upon whatever
settlement technique they believe to be appropriate to help them
settle their dispute. In the absence of an agreement of the parties
on a settlement technique, mediation shall be the settlement
technique used under the Rules. The Guide to ICC ADR, which does
not form part of the Rules, provides an explanation of the Rules
and of various settlement techniques which can be used pursuant to
the Rules.
Article 1
Scope of the ICC ADR Rules
All business disputes, whether or not of an international
character, may be referred to ADR proceedings pursuant to these
Rules. The provisions of these Rules may be modified by agreement
of all of the parties, subject to the approval of ICC.
Article 2
Commencement of the ADR Proceedings
A - Where there is an agreement to refer to the
Rules
1. Where there is an agreement between the parties to
refer their dispute to the ICC ADR Rules, any party or parties
wishing to commence ADR proceedings pursuant to the Rules shall
send to ICC a written Request for ADR, which shall
include:
a) the names, addresses, telephone and facsimile numbers
and e-mail addresses of the parties to the dispute and their
authorized representatives, if any;
b) a description of the dispute including, if possible, an
assessment of its value;
c) any joint designation by all of the parties of a Neutral or any
agreement of all of the parties upon the qualifications of a
Neutral to be appointed by ICC where no joint designation has been
made;
d) a copy of any written agreement under which the Request for ADR
is made; and
e) the registration fee of the ADR proceedings, as set out in the
Appendix hereto.
2. Where the Request for ADR is not filed jointly by all
of the parties, the party or parties filing the Request shall
simultaneously send the Request to the other party or parties. Such
Request may include any proposal regarding the qualifications of a
Neutral or any proposal of one or more Neutrals to be designated by
all of the parties. Thereafter, all of the parties may jointly
designate a Neutral or may agree upon the qualifications of a
Neutral to be appointed by ICC. In either case, the parties shall
promptly notify ICC thereof.
3. ICC shall promptly acknowledge receipt of the Request
for ADR in writing to the parties.
B - Where there is no agreement to refer to the
Rules
1. Where there is no agreement between the parties to
refer their dispute to the ICC ADR Rules, any party or parties
wishing to commence ADR proceedings pursuant to the Rules shall
send to ICC a written Request for ADR, which shall
include:
a) the names, addresses, telephone and facsimile numbers
and e-mail addresses of the parties to the dispute and their
authorized representatives,
if any;
b) a description of the dispute including, if possible, an
assessment of its value; and
c) the registration fee of the ADR proceedings, as set out in the
Appendix hereto.
The Request for ADR may also include any proposal
regarding the qualifications of a Neutral or any proposal of one or
more Neutrals to be designated by all of the parties.
2. ICC shall promptly inform the other party or parties in
writing of the Request for ADR. Such party or parties shall be
asked to inform ICC in writing, within 15 days of receipt of the
Request for ADR, as to whether they agree or decline to participate
in the ADR proceedings. In the former case, they may provide any
proposal regarding the qualifications of a Neutral and may propose
one or more Neutrals to be designated by the parties. Thereafter,
all of the parties may jointly designate a Neutral or may agree
upon the qualifications of a Neutral to be appointed by ICC. In
either case, the parties shall promptly notify ICC
thereof.
In the absence of any reply within such 15-day period, or
in the case of a negative reply, the Request for ADR shall be
deemed to have been declined and ADR proceedings shall not be
commenced. ICC shall promptly so inform in writing the party or
parties which filed the Request for ADR.
Article 3
Selection of the Neutral
1. Where all of the parties have jointly designated a
Neutral, ICC shall take note of that designation, and such person,
upon notifying ICC of his or her agreement to serve, shall act as
the Neutral in the ADR proceedings. Where a Neutral has not been
designated by all of the parties, or where the designated Neutral
does not agree to serve, ICC shall promptly appoint a Neutral,
either through an ICC National Committee or otherwise, and notify
the parties thereof. ICC shall make all reasonable efforts to
appoint a Neutral having the qualifications, if any, which have
been agreed upon by all of the parties.
2. Every prospective Neutral shall promptly provide ICC
with a curriculum vitae and a statement of independence, both duly
signed and dated. The prospective Neutral shall disclose to ICC in
the statement of independence any facts or circumstances which
might be of such nature as to call into question his or her
independence in the eyes of the parties. ICC shall provide such
information to the parties in writing.
3. If any party objects to the Neutral appointed by ICC
and notifies ICC and the other party or parties thereof in writing,
stating the reasons for such objection, within 15 days of receipt
of notification of the appointment, ICC shall promptly appoint
another Neutral.
4. Upon agreement of all of the parties, the parties may
designate more than one Neutral or request ICC to appoint more than
one Neutral, in accordance with the provisions of these Rules. In
appropriate circumstances, ICC may propose the appointment of more
than one Neutral to the parties.
Article 4
Fees and Costs
1. The party or parties filing a Request for ADR shall
include with the Request a non-refundable registration fee, as set
out in the Appendix hereto. No Request for ADR shall be processed
unless accompanied by the requisite payment.
2. Following the receipt of a Request for ADR, ICC shall
request the parties to pay a deposit in an amount likely to cover
the administrative expenses of ICC and the fees and expenses of the
Neutral for the ADR proceedings, as set out in the Appendix hereto.
The ADR proceedings shall not go forward until payment of such
deposit has been received by ICC.
3. In any case where ICC considers that the deposit is not
likely to cover the total costs of the ADR proceedings, the amount
of such deposit may be subject to readjustment. ICC may stay the
ADR proceedings until the corresponding payments are made by the
parties.
4. Upon termination of the ADR proceedings, ICC shall
settle the total costs of the proceedings and shall, as the case
may be, reimburse the parties for any excess payment or bill the
parties for any balance required pursuant to these
Rules.
5. All above deposits and costs shall be borne in equal
shares by the parties, unless they agree otherwise in writing.
However, any party shall be free to pay the unpaid balance of such
deposits and costs should another party fail to pay its
share.
6. A party's other expenditure shall remain the
responsibility of that party.
Article 5
Conduct of the ADR Procedure
1. The Neutral and the parties shall promptly discuss, and
seek to reach agreement upon, the settlement technique to be used,
and shall discuss the specific ADR procedure to be
followed.
2. In the absence of an agreement of the parties on the
settlement technique to be used, mediation shall be
used.
3. The Neutral shall conduct the procedure in such manner
as the Neutral sees fit. In all cases the Neutral shall be guided
by the principles of fairness and impartiality and by the wishes of
the parties.
4. In the absence of an agreement of the parties, the
Neutral shall determine the language or languages of the
proceedings and the place of any meetings to be held.
5. Each party shall cooperate in good faith with the
Neutral.
Article 6
Termination of the ADR Proceedings
1. ADR proceedings which have been commenced pursuant to
these Rules shall terminate upon the earlier of:
a) the signing by the parties of a settlement
agreement;
b) the notification in writing to the Neutral by one or more
parties, at any time after the discussion referred to in Article
5(1) has occurred, of a decision no longer to pursue the ADR
proceedings;
c) the completion of the procedure established pursuant to Article
5 and the notification in writing thereof by the Neutral to the
parties;
d) the notification in writing by the Neutral to the parties that
the ADR proceedings will not, in the Neutral's opinion, resolve the
dispute between the parties;
e) the expiration of any time limit set for the ADR proceedings,
if not extended by all of the parties, such expiration to be
notified in writing by the Neutral to the parties;
f) the notification in writing by ICC to the parties and the
Neutral, not less than 15 days after the due date for any payment
by one or more parties pursuant to these Rules, stating that such
payment has not been made; or
g) the notification in writing by ICC to the parties stating, in
the judgment of ICC, that there has been a failure to designate a
Neutral or that it has not been reasonably possible to appoint a
Neutral.
2. The Neutral, upon any termination of the ADR
proceedings pursuant to Article 6(1), (a)-(e), shall promptly
notify ICC of the termination of the ADR proceedings and shall
provide ICC with a copy of any notification referred to in Article
6(1), (b)-(e). In all cases ICC shall confirm in writing the
termination of the ADR proceedings to the parties and the Neutral,
if a Neutral has already been designated or appointed.
Article 7
General Provisions
1. In the absence of any agreement of the parties to the
contrary and unless prohibited by applicable law, the ADR
proceedings, including their outcome, are private and confidential.
Any settlement agreement between the parties shall similarly be
kept confidential except that a party shall have the right to
disclose it to the extent that such disclosure is required by
applicable law or necessary for purposes of its implementation or
enforcement.
2. Unless required to do so by applicable law and in the
absence of any agreement of the parties to the contrary, a party
shall not in any manner produce as evidence in any judicial,
arbitration or similar proceedings:
a) any documents, statements or communications which are
submitted by another party or by the Neutral in the ADR
proceedings, unless they can be obtained independently by the party
seeking to produce them in the judicial, arbitration or similar
proceedings;
b) any views expressed or suggestions made by any party within the
ADR proceedings with regard to the possible settlement of the
dispute;
c) any admissions made by another party within the ADR
proceedings;
d) any views or proposals put forward by the Neutral; or
e) the fact that any party had indicated within the ADR
proceedings that it was ready to accept a proposal for a
settlement.
3. Unless all of the parties agree otherwise in writing, a
Neutral shall not act nor shall have acted in any judicial,
arbitration or similar proceedings relating to the dispute which is
or was the subject of the ADR proceedings, whether as a judge, as
an arbitrator, as an expert or as a representative or advisor of a
party.
4. The Neutral, unless required by applicable law or
unless all of the parties agree otherwise in writing, shall not
give testimony in any judicial, arbitration or similar proceedings
concerning any aspect of the ADR proceedings.
5. Neither the Neutral, nor ICC and its employees, nor the
ICC National Committees shall be liable to any person for any act
or omission in connection with the ADR proceedings.
APPENDIX
SCHEDULE OF ADR COSTS
A. The party or parties filing a Request for ADR shall
include with the Request a non-refundable registration fee of US$
1,500 to cover the costs of processing the Request for ADR. No
Request for ADR shall be processed unless accompanied by the
requisite payment.
B. The administrative expenses of ICC for the ADR
proceedings shall be fixed at ICC's discretion depending on the
tasks carried out by ICC. Such administrative expenses shall not
exceed the maximum sum of US$ 10,000.
C. The fees of the Neutral shall be calculated on the
basis of the time reasonably spent by the Neutral in the ADR
proceedings, at an hourly rate fixed for such proceedings by ICC in
consultation with the Neutral and the parties. Such hourly rate
shall be reasonable in amount and shall be determined in light of
the complexity of the dispute and any other relevant circumstances.
The amount of reasonable expenses of the Neutral shall be fixed by
ICC.
D. Amounts paid to the Neutral do not include any possible
value added taxes (VAT) or other taxes or charges and imposts
applicable to the Neutral's fees. Parties are required to pay any
such taxes or charges; however, the recovery of any such taxes or
charges is a matter solely between the Neutral and the
parties.
Request
The requirements for filing a Request for ADR depend on
whether or not of there is an agreement to refer to the
Rules:
Where there is an agreement to refer
to the Rules
1. Any party or parties wishing to commence ADR
proceedings pursuant to the ICC ADR Rules shall send to ICC a
written Request for ADR, which shall include:
a) the names, addresses, telephone and facsimile numbers
and e-mail addresses of the parties to the dispute and their
authorized representatives, if any;
b) a description of the dispute including, if possible, an
assessment of its value;
c) any joint designation by all of the parties of a Neutral or any
agreement of all of the parties upon the qualifications of a
Neutral to be appointed by ICC where no joint designation has been
made;
d) a copy of any written agreement under which the Request for ADR
is made; and
e) the registration fee of the ADR proceedings, as set out in the
Appendix to the ICC
ADR Rules, amounting to US$ 1,500.
The Request must be sent
to:
International Chamber of Commerce
Dispute Resolution Services - ADR
38, Cours Albert 1er
75008 Paris
France
Fax: + 33 1 49 53 29 29
E-mail: adr@iccwbo.org
The accompanying registration fee is
payable:
- by cheque to the order of the INTERNATIONAL CHAMBER OF
COMMERCE
or
- by wire transfer to our account no. 240-224534.61R
at:
UBS SA
35 rue des Noirettes
P.O. Box 2600
CH-1211 Geneva 2
Switzerland
Swift code: UBSWCHZH12A
(Please identify creditor.)
2. Where the Request for ADR is not filed jointly by all
of the parties, the party or parties filing the Request shall
simultaneously send the Request to the other party or parties. Such
Request may include any proposal regarding the qualifications of a
Neutral or any proposal of one or more Neutrals to be designated by
all of the parties. Thereafter, all of the parties may jointly
designate a Neutral or may agree upon the qualifications of a
Neutral to be appointed by ICC.
In either case, the parties shall promptly notify ICC
thereof.
Where there is no agreement to refer
to the Rules
1. Where there is no agreement between the parties to
refer their dispute to the ICC ADR Rules, any party or parties
wishing to commence ADR proceedings pursuant to the Rules shall
send to ICC a written Request for ADR, which shall
include:
a) the names, addresses, telephone and facsimile numbers
and e-mail addresses of the parties to the dispute and their
authorized representatives, if any;
b) a description of the dispute including, if possible, an
assessment of its value;
c) if possible, any proposal regarding the qualifications of a
Neutral or any proposal of one or more Neutrals to be designated by
all of the parties;
d) the registration fee of the ADR proceedings, as set out in the
Appendix to the ICC ADR Rules, amounting to US$ 1,500.
The Request must be sent
to:
International Chamber of Commerce
Dispute Resolution Services - ADR
38, Cours Albert 1er
75008 Paris
France
Fax: + 33 1 49 53 29 29
E-mail: adr@iccwbo.org
The accompanying registration fee is
payable:
- by cheque to the order of the INTERNATIONAL CHAMBER OF
COMMERCE
or
- by wire transfer to our account no. 240-224534.61R
at:
UBS SA
35 rue des Noirettes
P.O. Box 2600
CH-1211 Geneva 2
Switzerland
Swift code: UBSWCHZH12A
(Please identify creditor.)
2. ICC shall promptly inform the other party or parties in
writing of the Request for ADR. Such party or parties shall be
asked to inform ICC in writing, within 15 days of receipt of the
Request for ADR, as to whether they agree or decline to participate
in the ADR proceedings. In the former case, they may provide any
proposal regarding the qualifications of a Neutral and may propose
one or more Neutrals to be designated by the parties. Thereafter,
all of the parties may jointly designate a Neutral or may agree
upon the qualifications of a Neutral to be appointed by ICC. In
either case, the parties shall promptly notify ICC
thereof.
In the absence of any reply within such 15-day period, or
in the case of a negative reply, the Request for ADR shall be
deemed to have been declined and ADR proceedings shall not be
commenced. ICC shall promptly so inform in writing the party or
parties which filed the Request for ADR.
Process
Once the neutral has been chosen (Article 3 of ICC ADR
Rules), discussion takes place between the parties and the neutral
in order to reach agreement on the settlement technique to be used
and to define the specific ADR procedure to be followed. In the
absence of such an agreement, mediation shall be used (Article
5).
The ADR proceedings terminate upon the occurrence of one
of the events listed in Article 6(1). In all cases, ICC sends the
parties written confirmation of such termination.
The general principle of confidentiality covering ADR
proceedings requires that any settlement agreement between the
parties shall not be disclosed, nor be used as an element of proof
in judicial, arbitral, or similar proceedings. Confidentiality may
be overruled only if the parties have so agreed or the applicable
law requires the disclosure (Article 7).
Costs
Any Request for ADR must be accompanied by a
non-refundable registration fee amounting to US$ 1,500, payable to
the International Chamber of Commerce.
For proceedings to commence, ICC shall request the parties
to pay a deposit in an amount likely to cover the administrative
expenses of ICC and the fees and expenses of the Neutral, as set
out in the Appendix to the ICC ADR Rules. The administrative
expenses shall not exceed the maximum sum of US$ 10,000.
The total costs of the proceedings are settled by ICC upon
termination. The parties are reimbursed for any excess payment they
may have made or billed for any outstanding balance they maybe
required to pay.
The fees of the Neutral are calculated on the basis of an
hourly rate fixed by ICC in consultation with the Neutral and the
parties. The amount of reasonable expenses of the Neutral is fixed
by ICC (Article 4 and Appendix to the ICC ADR Rules).