It is recently apparent, that more and more key players and commercial as well as national entities world wide, are adopting an innovative conception, according to which, the most efficient and practical method to resolve commercial disputes and enforce such resolutions, especially internationally speaking, is by international arbitration rather then legal procedures in domestic courts wherever they may be.
During our legal careers, we have all faced one way or another the great difficulties of initiating legal proceedings in domestic courts against foreign entities and/or businessmen and we have all experienced that the said difficulty greatens once attempting to enforce a domestic judgment in foreign countries, if possible at all (depending of the country involved).
It is evident today, more then ever, that the power of international trade supercedes any political borders or boundaries and international commercial players will always find the way to conduct trade despite any obstacles, emphasizing the commercial version implementation of the well known saying "where there's a will there's a way". Yet, as we all know, disputes still arise as an inseparable part of life and trade, and key ongoing players in the international commercial field have learned, usually the hard way, that in order to be able to maintain business on one hand and enforce obligations on the other, they must turn to pragmatic legal solutions that will allow to calculate and consider reasonable solutions in reasonable timetables for disputes.
These are roughly the basic reasons we witness a drastic shift world wide towards parties including international arbitration clauses in their agreements and even turning to resolve disputes by International arbitration without specific prior agreements, all in the name of efficiency, also making extremely important use of the 1958 New York Convention concerning enforcement of foreign arbitral awards.
For this purpose we would like to point out one of the most significant institution in this regard - The ICC- International Chamber of Commerce. The organization was established after World War One in order to promote world peace through fair trade recognizing the magnitude and great influence and role economics and trade has in this respect. The ICC has branches and members in 150 countries worldwide, and is an influential advisory body for the world's economic policy- makers, such as the OECD, WTO.G8 and UN.
One of the ICC's main activities is its international court of arbitration, headcounters located in Paris. This is one of the leading and longest-established courts in the world. Over the years, according to the ICC records more than 15,000 commercial arbitration cases have been heard, and in 2006 alone the court dealt with 1,800 arbitrations cases, by means of 1,000 arbitrators from 50 different countries.
The uniqueness of the ICC court lies in the framework of its activities, clearly laying down the procedures and timetables that are to be followed. The rules of arbitration laid down by the ICC are clear and, for the most part, leave no room for differences of interpretation. According to article 1 of the ICC's international court of arbitration rules, the role of the court is to use its proceedings to resolve business disputes of an international nature, in accordance with the rules of arbitration.
As a recent example for the importance and efficiency to the ICC, we would like to point out that on behalf of our client, a major international corporation in the energy technology field, we were able to initiate a binding arbitration upon a known African state, concerning damages of tens of millions of Euro's due to violation of an energy agreement by the African state. This would not have been possible and our client would have never been able to actually sue for the great damages caused to it with out the ICC arbitration clauses in the agreements and the ICC institution enforcing such arbitration upon the African state.
We wish to clarify a common mistake that perhaps wrongfully turns lawyers away from ICC arbitration. The ICC court is NOT the arbitral tribunal that will hear the case and award the judgment, these aspects remain the exclusive and unique role of the arbitrators the parties will appoint. However, among other advantages the ICC court provides two key elements that extremely and importantly influence the arbitration within the ICC. The ICC court and secretariat provide tight supervision of the legal proceedings through out the arbitration and more importantly a unique legal supervision and inspection by leading senior lawyers world wide of the final awards of the arbitrators, promising no injustice or arbitrary judgments.
The court rules state that the arbitration ruling must be reasoned and must be formally confirmed, and that the court has the authority to make remarks relating to its content before it's signed, without overruling the arbitrator's discretion.
It should be point out that not all the advantages of the ICC court have been presented above, and it is recommended to study the court's rules of arbitration closely in order to understand how efficient and pragmatic the ICC rules are, including for situations one party (that has signed arbitration clauses in an agreement) declines to respond or take an active role in the arbitration.
In Israel, as in many other countries, the advantages of the ICC's international court of arbitration have begun to be recognized after realizing certain situations would have been better handled if were admitted to ICC arbitration rather then domestic court proceedings of regular local arbitrations with out setout rules and/or actual supervision, for instance in regards with mandatory confidentiality, which is greatly important for many key players and unlike the way a similar case would be managed in the Israeli courts, where documents and selected quotes from the hearings have great potential to appear in the media.
Therefore we advise our colleagues to look further into the option of providing for ICC arbitration, not only when a dispute arrives, but in the preliminary stage of drafting the commercial agreement, your clients may be very grateful someday.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.