ICC Clauses

Single arbitrator:

"[Subject to [ADR Clause ],] any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this clause [number], shall be resolved by arbitration with seat (or legal place) in [ insert choice of Seat ] conducted in the [ Language ] by a single arbitrator [see  ] pursuant to the rules of the International Chamber of Commerce ("ICC") , save that, unless the parties agree otherwise, the arbitrator shall draw up, and submit to the parties for signature, the Terms of Reference within 21 days of receiving the file. [The Terms of Reference shall not include a list of issues to be determined.]"

Three arbitrators:

"[Subject to [ADR Clause ],] any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this clause [number], shall be resolved by arbitration with seat (or legal place) in [ insert choice of Seat ] conducted in the [ Language ] by three arbitrators [see Number of Arbitrators ] pursuant to the rules of the International Chamber of Commerce ("ICC"), save that, unless the parties agree otherwise:

(i) the third arbitrator, who shall act as president of the tribunal, shall be chosen by the two arbitrators appointed by or on behalf of the parties. If he is not chosen and nominated to the International Court of Arbitration of the ICC for appointment within 30 days of the date of confirmation of the later of the two party-appointed arbitrators to be confirmed by the International Court of Arbitration of the ICC, he shall be chosen by the International Court of Arbitration of the ICC;

(ii) [no arbitrator shall be of the same nationality as any party];

(iii) the tribunal shall draw up, and submit to the parties for signature, the Terms of Reference within 21 days of receiving the file. [The Terms of Reference shall not include a list of issues to be determined.]"

Sub paragraph (ii) may be inappropriate in normal commercial contracts, but it can be important in contracts with States. Its inclusion will prevent the State from appointing as its arbitrator its own national, who may not be predisposed to finding against it:. This provision should be difficult for a State to resist at the negotiation stage but will be valuable if a dispute arises: faced with a genuinely independent tribunal, a State is more likely to be willing to do a deal than go through arbitration.

Click on ICC for more on the ICC and the drafting and use of this clause.

Note: In Russia related contracts (i.e. where enforcement of an award is likely to be required in Russia (e.g. when contracting with a Russian counterparty), or the seat of arbitration is in Russia, or the clause is governed by Russian law) it may be that institutional clauses would benefit from amendment in order to deal with the influence of Russian case-law concerning the identification of arbitral institutions. If relevant to you, please consult a member of the Linklaters International Arbitration group for further information.