The ICC Pre-Arbitral Referee: First Practical Experiences

Abstract

THE ICC Rules for the pre-arbitral referee were issued in 1990.1 According to the ICC, its intention was to provide the business community with a procedure allowing the parties to apply to a ‘referee’ for urgent provisional measures. The Foreword to the Rules insists that: The Pre-arbitral Referee procedure provides the business world with a new procedure through which rapid action may be taken when certain difficulties arise in the course of a contractual relationship. These Rules are designed to meet a specific need: that of having recourse at very short notice to a third person – the ‘Referee’ – who is empowered to order provisional measures needed as a matter of urgency. These Rules require the inclusion of a special provision in the contract, in addition to the usual arbitration agreement. Such special provisions were included in certain contracts, but it took more than 10 years for them to be applied in two different cases. One subsequently became public as a result of ensuing annulment proceedings before the Paris Court of Appeal. This attracted the immediate attention of the arbitration community and the international arbitration institute organized a well-attended conference in Paris on 31 May 2002, where the counsel for the parties in these proceedings, the individuals appointed by the ICC as referees (Prof. Bernard Hanotiau2 and Prof. Pierre Tercier), and certain practitioners with insider knowledge of the institution were invited to discuss their respective experience.3