The Role of the ICC in International Commercial Arbitration

The ICC International Court of Arbitration has developed a unique position within arbitration, built to a significant degree off its affiliation with the International Chamber of Commerce and the resulting use of the Court as the default arbitration institution in prominent standardised forms of contract.  It has also unquestionably developed a reputation as a genuinely “leading” institution in terms of the quality of the work it does administering arbitrations.  Most recently, however, it has begun to attempt to position itself as a representative of international commercial arbitration, based on its claimed position as being the only institution with a truly global reach.  Understanding the nature of the ICC’s involvement in international arbitration is important for evaluating the ICC’s ability to properly serve this “representative” role.

The project’s research is obviously in a very early stage, with only a limited number of countries having been covered, however the early results provide some support, of a kind, for the ICC’s claim to have a uniquely global role in international arbitration.  In each of the Scandinavian countries in which interviews were performed (Denmark, Norway, Sweden), the ICC was the only foreign institution to be described as having a significant presence.  There were also references on occasion to the London Court of International Arbitration (LCIA), but it was always clear that the LCIA was a distant second to the ICC.  Initial results, then, provide some support for the ICC as having a uniquely transnational presence, to a much greater degree than even its most prominent institutional competitors.

However, just as notable was the way that the ICC was described as being involved in arbtiration in those countries.  That is, the ICC was never presented as being the institution of choice, or as a gold standard institution used when the budget allows.  Rather, Danes were happy with the Danish Institute of Arbitration (DIA), Swedes were happy with the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) and Norwegians were happy with ad hoc arbitration.  The ICC’s involvement in arbitration in each of these countries arose as a “neutral” choice agreed to satisfy a foreign party who was uncomfortable using a local institution (or local ad hoc arbitration).  The ICC also had little to no serious involvement in the local arbitration communities.  Involvement with the ICC was regularly presented as an important step in developing an international career, but not for networking in the local arbitration community.

Obviously, as already mentioned, these are just initial results, and interviews in other countries may yield a very different picture.  However, the mixed results discussed above, if continued in future research, provide an important qualifier for the ICC’s ongoing efforts to have itself accepted as a representative of the broader global arbitration community.  The ICC seems to have transnational reach and experience that no other institution appears able to match, but its place within arbitration also seems very strongly tied to that “transnational” practice of arbitration.  The ICC, that is, is potentially not so much a global institution able to represent a wide range of communities, but a representative of a particular non-national element of arbitration.  It is, perhaps, to put it overly strongly, “Few people’s first choice, but everyone’s second choice”.  As such, the ICC would certainly have an important perspective to contribute to discussions of arbitration, and it is beneficial to have a prominent institution able to serve as a single point of contact around the world.  But it would also be important to keep in mind that the ICC ultimately represents a certain type of arbitration, and anyone attempting to engage with arbitration seriously, whether for regulatory or research purposes, needs to attend to the ICC, but also to look more broadly.

But, of course, these are early days in the research, and the results may well change significantly as the research continues.

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