ICCMCA FAQ's
1. Q: Why is Mediation not mentioned in the ICCMCA recommended clause while Arbitration is?
A: Our clause says that any dispute referred to ICCMCA will be "finally resolved by Arbitration." This is to make it clear that if the parties to a dispute do not reach a mediated settlement, an ICCMCA panel will resolve the dispute with an arbitral decision, according to the MedArb approach. It is important that this fact is made clear to ensure the applicability of the 1958 N.Y. Convention (see Uncitral) to any resulting awards.
2. Q: If I sign a contract with an ICCMCA clause, and a dispute arises where I do not wish to engage in mediation, would ICCMCA require me to mediate with the other party?
A: Mediation is voluntary. If a claimant believes there are grounds to avoid any attempts at mediation, it is encouraged to explain these in the statement of the claim. Following are examples where ICCMCA would most likely direct its neutral(s) that mediation efforts are not advised:
- Parties have already invested significant, documented efforts to reach a negotiated settlement and it seems clear one cannot be reached;
- A defendant is insolvent or in other circumstances that make their performance of a negotiated settlement unlikely;
- The agreement that is the subject of the action is itself a negotiated settlement which the defending party has failed to perform;
- Time is of the essence to protect the interests of the claimant.
Parties should also consider that circumstances may change in the course of a proceeding, and that the neutral(s) always retain the right to propose mediation if in their sole judgment it could be useful to resolve the dispute. Neutrals are obliged to disregard the refusal by a party to engage in mediation when making an arbitral decision. In other words, the neutral may not penalize a party for not accepting their suggestion to mediate, or take this into account in any way when reaching an arbitral decision.
3. Q: According to the fee schedule, the minimum arbitration fee is $6000 U.S. Dollars. I am entering into an agreement and generally like the idea of using the ICCMCA clause, but I cannot know beforehand what sized claim might arise with my supplier. If I find myself with a relatively small claim of for example $5000, wouldn't this be an excessively expensive way of resolving it?
A: You have correctly understood the minimum fee in the ICCMCA fee schedule. This is based on the estimated minimum cost of appointing a single neutral to resolve a claim. As you correctly observe, a claim could be less than the fee. However, one should consider that an ICCMCA tribunal generally will award the costs of the arbitration to the prevailing party (if that party incurred those costs) along with the amount awarded. This means not only that ICCMCA can be an effective way of resolving even smaller claims (presuming they are valid), but in some circumstances this minimum could encourage settlement of smaller claims without resort to MedArb. One must also consider the advantages of an internationally enforceable arbitral award, which could outweigh seemingly lower costs of litigating a relatively small claim through a local court.
4. Q: What if I wish to submit a claim to ICCMCA, but there are no neutrals on the standing list in the location designated as the seat for dispute resolution?
A: ICCMCA has access to international networks of professionals with the qualifications to serve as neutrals, so this will usually not be an obstacle. It is however easier for ICCMCA to control the costs of a proceeding when the seat is in one of the locales where ICCMCA is primarily active.
5. Q: If I am party to an agreement with an ICCMCA clause and wish to bring a claim, am I required to retain a lawyer for this purpose?
A: No. Parties are free to represent themselves as well as to appoint an non-lawyer to represent them in a proceeding.
6. Q: I am slightly confused... ICCMCA is not an arm of any government or state agency. By what authority are its decisions enforced?
A: Enforcing of any arbitral award or any other order of an arbitral panel, generally has to be approved by a local court in the place where the enforcement action is carried out. However, in all countries that are signatories to the 1958 NY Convention, national courts are generally obliged by national and international law to comply with validly issued arbitral awards and orders. While there may be some cost involved depending on the jurisdiction and the enforcement action in question, it should not exceed the cost associated with taking the same action on a comparable order issued by a national court. Also, courts are generally prohibited from reviewing the substance of a case that is in arbitration, so the opportunity for a defendant to challenge the action of the arbitral panel during an enforcement procedure is severely limited.
7. Q: Your fee guidelines state that if a case proceeds from Mediation to Arbitration with the same neutral, the mediation fee is credited towards the arbitration fee. How does ICCMCA determine if arbitration would be handled by the same neutral who has acted as a mediator in the same matter?
A: In almost all cases the same neutral who is appointed for the mediation phase of a MedArb proceeding will stay with that case through the arbitration phase if needed. ICCMCA strongly favors using the same neutral throughout a MedArb proceeding in the interest of time and cost savings. The fact that the neutral would already be well familiarized with the parties and the dispute justifies the reduced fee in such a case. In the unlikely event circumstances arise during a mediation which ICCMCA finds to warrant appointment of a different neutral to see the proceeding through an arbitration phase, the full arbitration fee would be required to complete the proceeding.
8. Q: Is it possible to hold hearings by video conference?
A: Yes. ICCMCA guidelines encourage its neutrals in the liberal use of video conferencing to expedite proceedings and minimize the burdens of travel on the parties. However, the ultimate decision on how to conduct hearings lies with the neutrals, and must be made on a case by case basis.
9. Q: How can I know if an ICCMCA award will be enforceable in my country, or a different country?
A: 1958 Convention, consult a professional.
10. Q: Can an ICCMCA neutral make an order for a preliminary seizure of assets or a temporary restraining order?
A: Yes. Like all other arbitral awards/orders these may have to pass through the national courts of the place of enforcement.
11. Q: I am negotiating an agreement and want there to be absolutely no doubt that the counterparty validly signed the agreement. Can ICCMCA register or certify the agreement in advance as undeniable proof of consent?
A: ICCMCA does not have a procedure for registering agreements where parties stipulate to ICCMCA MedArb. While generally not legally required, it might be advisable in some cases to have the signatures on an agreement notarized and/or apostilled, as well as to verify the identity/signature rights of the person signing to bind the counterparty if they are not representing themselves personally. These are the sorts of matters best referred to competent legal professionals.
12. Q: To what extent does ICCMCA oversee neutrals after assigning cases to them?
A: It is the policy of ICCMCA to respect the autonomy of its neutrals and to give them wide latitude to conduct proceedings in matters entrusted to them. ICCMCA does provide guidelines to the neutrals, and is available to provide specific guidance to the neutral if requested. The Registrar monitors proceedings continuously in accordance with the ICCMCA Rules. In extreme cases ICCMCA retains the right to replace a neutral as specified in the Rules.
13. Q: Does ICCMCA publish or disclose its list of neutrals?
A: In the interest of protecting the privacy of the neutrals and the confidentiality of proceedings generally, ICCMCA has elected not to make this information public.
14. Q: Are there limitations on who can be appointed as a neutral?
A: ICCMCA neutrals will in almost all cases be trained legal professionals, though in cases calling for highly specialized knowledge exceptions can be made for suitable candidates. Appointments are not limited to persons on the internal list of neutrals kept by ICCMCA, in appropriate cases we will seek suitable outside candidates to serve as neutrals. One important limitation is that in case of a single member tribunal appointed to resolve a dispute between parties of diverse nationalities, the appointed neutral will be a person from a neutral third country unless there are compelling reasons to do otherwise and the parties unanimously agree.
15. Q: Does ICCMCA have any restrictions on the languages that can be used in an arbitration proceeding?
A: Generally no. Parties are free to specify the language of the proceedings in their arbitration agreement. If they do not, ICCMCA will make a determination, with a presumption that the language of the written arbitration agreement is the default choice. We expect to be able to appoint neutrals able to conduct proceedings in any of the local languages of the countries where we are active, as well as major languages of commerce such as English or Russian.
16. Q: Is it necessary that an agreement to arbitrate a dispute be in writing?
A: In virtually every case this is an absolute requirement. This is a requirement for recognition of a foreign award under the 1958 New York Convention, and most local laws impose the same requirement. However, be aware that this requirement can also be satisfied by for instance an exchange of correspondence (also electronic), and does not always require a conventional written and signed contract per se. The key element is to be able to demonstrate that the parties mutually consented to submitting their dispute to arbitration.
