According to the records of the International Chamber of Commerce (“ICC”), approximately forty-seven percent of ICC arbitrations are withdrawn before a final award is rendered. In the event of a settlement, in order to avoid additional costs, the parties must immediately inform the ICC Secretariat and the arbitral tribunal of the settlement. Once a settlement has been reached, the parties may request that the arbitration be withdrawn. Another option is to ask for a reward by consent, which should be discussed in our article. Consent arbitral awards are set out in Article 32( 2) of the ICC Arbitration Rules (“Rules”). If, after the record has been submitted to the arbitral tribunal in accordance with article 16 of the Rules of Procedure, the parties reach a settlement, the rules shall be registered as an arbitral award rendered with the consent of the parties, if the parties so request and the arbitral tribunal so agrees. It is common for icc model dispute settlement clauses to provide for more than one method of dispute settlement. A second or third step can be taken to reach an amicable settlement before the start of the arbitration procedure, such as.B. the usual recourse to a dispute settlement committee for construction contracts. Another issue in the case of positive awards is the apportionment of the costs of arbitration. Finally, the award lays down the agreement between the parties on the apportionment of costs in accordance with Article 37(4) of the Rules of Procedure.
The arbitral tribunal should ask the parties to agree on the apportionment of costs. These costs should include those set by the Court of Justice. 3 If legal advisers are present, it is customary for such advisers to assume primary responsibility for drawing up the settlement agreement and, if necessary, for obtaining contributions from their clients. The mediator will continue to facilitate discussions on the draft if necessary. 5. During mediation, the parties may exchange settlement proposals which may result in a negotiated agreement. These proposals can be made directly between the parties or through the mediator. According to Article 1(3) of the Mediation Code, the term mediation includes `such conciliation procedures or procedures` and the term `mediator` includes the person who carries out those conciliation procedures or proceedings. Regardless of the method of settlement used, the term “procedure” as used in the rules refers to the process that begins with its beginning and ends with its end in accordance with the rules. “ICC arbitration can be used as a forum for the final resolution of a dispute after an attempt to resolve it by other means such as mediation. Parties wishing to include in their contracts a multi-level dispute resolution clause combining ICC arbitration and ICC mediation should refer to the MODEL CLAUSES of the ICC Mediation Rules. As the above statistics show, the majority of international arbitration proceedings initiated are either settled or withdrawn.
During the arbitration, the parties and their lawyers may discuss dispute resolution or use other EXTRAE SETTLEMENT mechanisms to resolve their claims in their entirety. 33. As provided for in Article 9 of the Rules of Procedure, mediation (but not the fact that it takes place, has taken place or will take place) is private and confidential, unless the parties have agreed otherwise or the applicable law so requires. Therefore, in accordance with Article 9(2) of the Rules of Procedure, documents, statements or communications submitted by another party or by the mediator in or for the mediation proceedings may be produced as evidence in arbitration, dispute or similar proceedings only if they can be produced by the party wishing to present them in those proceedings: be obtained independently. The same applies to the opinions expressed, settlement proposals or admissions of another party to mediation. The arbitral tribunal should assist the parties in correctly converting their rules into an appropriate arbitral award. However, such an examination must be carried out with great care and sensitivity, since it is not for the arbitral tribunal to advise a party on the settlement. Sometimes comparisons may contain problems that are beyond the scope of the problems.
Such a settlement agreement may be incorporated into the award by consent, provided that all parties agree; However, the award must specify that other issues have been treated by the parties as falling within the scope of the overall dispute. (ii) Where agreed between the parties and the arbitral tribunal, the arbitral tribunal may take measures to facilitate the settlement of the dispute, provided that every effort is made to ensure that a subsequent award is enforceable before the tribunal. Parties to an ongoing arbitration may consider opting for an award by consent rather than a simple settlement agreement.3 A consent award requires that the court, at the request of the parties, “register the settlement in the form of an arbitral award on agreed terms”.4 This approach is preferable because consent judgments may be enforceable as arbitral awards under the New York Convention.5 On the other hand, simple Settlement agreements would require parties to act in accordance with local contract law and to prosecute in the event of a breach of contract in the event of non-compliance with the settlement agreement.6 Consent awards are also preferable because they provide a “final and identifiable result” to arbitration sanctioned by the authority of the arbitral tribunal.7 8. Mediation allows the parties to agree on solutions that could not be obtained through legal proceedings such as arbitration or litigation and would therefore not be available through the issuance of an arbitral award or court decision. For example, the preferred solution by the parties to a contractual dispute may be to renegotiate the terms of the contract. Renegotiation of a contract is possible in mediation, while it is unlikely that there is a legal basis to seek such a remedy in arbitration or litigation. 24. Each party must understand the other party`s views on the disputes that will be discussed at one of the next mediation meetings. This allows each party to conduct its own risk analysis and review possible settlement options in advance. To this end, it is customary for the parties to exchange short documents (sometimes called position papers, mediation statements or case summaries) prior to the mediation session, during which they explain the context of the dispute, the topics, the history of the negotiations and their positions. These case summaries are also made available to the mediator as a source of information on the context of the dispute. The parties may request arbitral awards by mutual agreement if they reach a settlement after submitting a file to the arbitral tribunal. You must meet the formal requirements that apply to other ICC fellowships.
Since consent awards are technically arbitral awards, they have advantages in terms of enforcement. There is no doubt that positive awards are of great importance in the practice of arbitration. 1 These mediation guides contain guidelines for the mediation process. They do not provide guidance for other settlement procedures that the parties may agree to apply in accordance with the ICC Mediation Rules. V. Concerns about settlement agreements in ISDS As regards the timing of settlement, this should be done after the case has been submitted to the arbitral tribunal. The reason for this is that any award should result from a genuine dispute. 40. Without imposing settlement conditions on the parties, the mediator may, at the request of all the parties, recommend settlement conditions for their consideration.
5 If the parties and the mediator wish to enter into a mediation agreement, it is recommended that a draft such agreement be sent to the ICC International ADR Centre so that the Centre can ensure that the provisions of the proposed agreement are in accordance with the Centre`s rules of procedure and case management practices. III. ICSID Settlement Agreements and the UNCITRAL Arbitration Rules Settlement agreements are not expressly defined in international arbitration. However, they can be described as legally binding agreements between two or more parties aimed at resolving disputes in a mutually acceptable manner. Settlement agreements may be negotiated by the parties themselves1 or facilitated by formal procedures such as mediation.2 4 Unless an agreement can be reached on the venue of the physical meetings or the language to be used at such meetings, rule 4 of the Rules of Procedure provides that such matters shall be determined by the International Centre for Alternative Dispute Resolution or the mediator: so that mediation can continue. 35. If the parties agree on the terms of the settlement through mediation conducted in arbitration, they may be able to set out the terms of the settlement in a consent award in accordance with Article 32 of the ICC Arbitration Rules. .