In force as of 1 May 2015, ICC Rules for Documentary Instruments Dispute Resolution Expertise (DOCDEX) provide parties with a specific resolution procedure that leads to an independent, impartial and prompt expert decision settling disputes involving trade finance-related instruments.
The version of the Rules that is applicable at the time of submission of a Claim shall apply to the proceedings unless otherwise agreed by each Claimant and Respondent.
|Article 5||Supplementary Information and Additional Documents|
|Article 6||Filing and Finality of Submissions|
|Article 7||Appointment of Experts|
|Article 8||The Proceedings|
|Article 9||The Decision|
|Article 11||Notifications or Communications; Time Limits|
|Appendix||Fees and Costs|
The DOCDEX Rules (the “Rules”) of the International Chamber of Commerce (the “ICC”) are for use in proceedings called Documentary Instruments Dispute Resolution Expertise (“DOCDEX”), which are administered by the ICC International Centre for ADR (the “Centre”), a separate administrative body within the ICC.
In the Rules:
“Appendix” means the Appendix entitled “Fees and Costs” set out hereinafter and at www.iccdocdex.org, where it may from time to time be updated.
“Appointed Experts” means a panel of three experts and “Appointed Expert” any member of that panel appointed by the Centre, having regard to the guidance provided by the Technical Adviser pursuant to Article 7(4), to render a Decision as defined below.
“Banking Commission” means the ICC Banking Commission.
“Claimant”/”Claimants” means a party or parties that submit(s) a Claim to the Centre in the manner described in Article 3 for a Decision as defined below.
“Decision” means the final decision rendered by the Appointed Experts pursuant to Article 9.
“Form” means one of the four forms set out hereinafter, available to download atwww.iccdocdex.org.
“ICC Banking Rules” means any set of rules or standard practices issued from time to time by the Banking Commission, such as the ICC Uniform Customs and Practice for Documentary Credits (UCP), the ICC Uniform Rules for Bank-to-Bank Reimbursements under Documentary Credits (URR), the ICC Uniform Rules for Collections (URC) and the ICC Uniform Rules for Demand Guarantees (URDG).
“Respondent”/”Respondents” means a party or parties named as such in the Claim.
“Technical Adviser” means one of the Banking Commission’s technical Advisers or alternate technical Advisers appointed by the Chair of the Banking Commission to provide guidance as indicated in Articles 2(1), 7(3) and 7(4) and comments on any draft Decision of the Appointed Experts as indicated in Article 9(2).
1. The Rules are available for any dispute which the Centre, in consultation with the Technical Adviser and subject to Articles 2(2) and 2(3) of the Rules, may agree to administer and which relates to:
- a documentary credit,
- a standby letter of credit,
- a bank-to-bank reimbursement,
- a collection,
- a demand guarantee or counter-guarantee,
- a forfaiting transaction,
- a bank payment obligation (BPO), or
- any other trade finance-related instrument, undertaking or agreement.
2. When a dispute falling within the scope of Article 2(1) of the Rules arises, a party may refer the dispute to the Rules to obtain an independent, impartial and prompt expert decision on the basis of the terms and conditions of the relevant instrument, undertaking or agreement, any applicable ICC Banking Rules and international standard practice in trade finance.
3. If the dispute arises out of or is in connection with an instrument, undertaking or agreement that does not provide for the application of ICC Banking Rules, it shall be administered under the Rules only if each Claimant and each Respondent so agree. Their agreement shall be recorded on Forms 1 and 2.
4. The Rules provide for expedited proceedings, with no opportunity for the oral examination of fact or expert witnesses or for oral submissions at a hearing. Accordingly, the Rules are not appropriate where such examination or submissions are required to resolve any factual or legal issues raised by the Claim.
5. Proceedings under the Rules are not arbitral proceedings and a Decision is not an arbitral award.
6. A Decision shall not be binding on any Claimant or Respondent unless each Claimant and Respondent agrees that the Decision shall be contractually binding upon them. Any such agreement shall be recorded on Forms 1 and 2.
1. A Claimant shall apply for a Decision by submitting a claim to the Centre using Form 1 (the “Claim”). The Claim shall be accompanied by all documents that the Claimant considers necessary to support its Claim. The Claim and all accompanying documents shall be supplied to the Centre in electronic form, together with one hard copy for each Respondent.
2. A Claimant may submit a Claim individually or jointly with one or more other Claimants.
3. At the time of submitting a Claim, the Claimant shall pay the fee specified in the Appendix.
4. Subject to Article 3(6) of the Rules, the Centre shall acknowledge receipt of the Claim and the fee to the Claimant.
5. Subject to Article 3(6) of the Rules, once the Centre has received the electronic and hard copies of the Claim and the fee, it shall send a hard copy of the Claim and any accompanying documents to each Respondent identified in the Claim for its Answer, as provided in Article 11(1) of the Rules.
6. If the Centre finds a Claim or part of a Claim to be outside the scope of the Rules, or considers in its discretion that the administration of a Claim or part of a Claim would not be in the spirit of the Rules, the Centre may reject all or part of that Claim at any time, before or after acknowledging receipt, and in such event shall so inform the Claimant and any Respondent to which the Centre has sent a copy of the Claim. The Centre shall also refund all or part of any fee received pursuant to Article 3(3) of the Rules, as appropriate.
7. In considering whether or not to reject a Claim or part of a Claim prior to the appointment of the Appointed Experts, the Centre may seek guidance from the Technical Adviser pursuant to Articles 2(1) and 7(3) of the Rules. Following the appointment of the Appointed Experts, the Centre shall reject a Claim or part of a Claim if informed by a majority of the Appointed Experts pursuant to Article 8(3) that they consider it to be outside the scope of the Rules.
1. A Respondent may submit an answer to a Claim (the “Answer”) using Form 2. The Answer, if any, shall be accompanied by any additional documents that the Respondent considers necessary to support its Answer.
2. The Answer and all accompanying documents shall be supplied to the Centre only in electronic form in accordance with Article 11(2) of the Rules. The Centre shall forward the Answer and any accompanying documents to the Claimant and any other Respondent.
3. A Respondent may submit its Answer individually or jointly with one or more other Respondents.
4. An Answer must be received by the Centre within the period it specifies when sending the Claim to each Respondent, which shall not exceed 30 days, save exceptional circumstances. Any Answer received by the Centre after the expiry of the specified period shall be disregarded.
5. If a Respondent does not submit an Answer, the proceedings shall nonetheless continue.
1. The Centre may request a Claimant or Respondent to submit supplementary information or copies of documents that the Centre considers relevant to the rendering of a Decision, whereupon such information or documents shall be submitted using Form 3 (the “Supplement”).
2. A Supplement shall be submitted to the Centre within 14 days of its request, in electronic form only. The Centre shall forward the Supplement to each Claimant and Respondent.
3. A Supplement shall be submitted to the Centre only in response to a request from the Centre. Any unsolicited submission made to the Centre by any Claimant or Respondent shall be disregarded. The Centre may, at its discretion, accede to a request from a Claimant or Respondent for permission to make a new or additional submission, whereupon such submission shall be supplied in the form of a Supplement within the period indicated by the Centre.
4. No submission by any person other than a Claimant or Respondent shall be admitted in the proceedings and any such submission received by the Centre shall be disregarded.
1. In addition to the requirements set out in Articles 3(1), 4(1) and 5(1) of the Rules with regard to the form of a Claim, Answer and Supplement, the Centre may require any document to be submitted in hard copy or for the electronic copy to be submitted in a particular electronic form.
2. All fields in the relevant Form shall be completed concisely, in English, and shall contain all necessary information clearly presented.
3. If a document accompanying a Claim, Answer or Supplement contains data not drafted in English, it shall be accompanied by an English translation, unless the Centre agrees otherwise in writing.
4. A Claim, Answer and Supplement shall be considered final as received and may not be amended.
1. The Banking Commission maintains a list of experts (the “List”) having experience in, and knowledge of, trade finance transactions. The Chair of the Banking Commission is the repository of the List and can add or remove experts from the List at any time, as need be.
2. The Centre shall transmit a copy of the Claim to the Technical Adviser after verifying the Technical Adviser’s independence with respect to the parties referred to in the Claim.
3. The Technical Adviser shall, if requested, offer guidance to the Centre on whether the Claim falls within the scope of the Rules.
4. The Technical Adviser shall also provide guidance on the area(s) of expertise that the Claim requires and that the Appointed Experts should possess. Having regard to this guidance, the Centre shall make the appointments and designate one of the Appointed Experts to act as president (the “President”).
5. Each Appointed Expert must be and remain impartial and independent of the parties involved in the dispute.
6. An Appointed Expert shall not act or have acted, nor shall any Claimant or Respondent seek to have an Appointed Expert act, in any judicial, arbitral or similar proceedings relating to the dispute that is or was the subject of proceedings under the Rules, whether as a judge, an arbitrator, an expert or fact witness, or a representative or Adviser.
7. Before any appointment, prospective Appointed Experts shall sign a statement of acceptance, availability, impartiality and independence and shall disclose in writing to the Centre any facts or circumstances which might be of such a nature as to call into question their independence in the eyes of any Claimant or Respondent, as well as any circumstances that could give rise to reasonable doubts as to their impartiality. The Centre shall take any such disclosure into account before making the appointment.
8. An Appointed Expert shall immediately disclose in writing to the Centre any facts or circumstances of a similar nature to those referred to in Article 7(7) of the Rules concerning the Appointed Expert’s impartiality or independence which may arise during the proceedings.
9. By accepting to serve, an Appointed Expert undertakes to carry out the Appointed Expert’s responsibilities in accordance with the Rules.
10. An Appointed Expert who becomes unable to carry out the functions entrusted by the Centre shall so inform the Centre without delay. When the Centre deems that an Appointed Expert is unable to carry out the Appointed Expert’s role under the Rules, it shall immediately give notice of termination to such Appointed Expert. The Centre shall inform the other Appointed Experts of such termination and make another appointment from the List.
11. Upon receipt of a notice of termination, an Appointed Expert shall promptly dispose of any documents received from the Centre in an appropriate manner as agreed with the Centre.
1. Unless the Centre has rejected the Claim pursuant to Article 3(6) of the Rules, the Centre shall transmit the Claim, any Answer and any Supplement(s) to the Appointed Experts.
2. When considered necessary by the Appointed Experts, the President may ask the Centre to request any Claimant or Respondent to submit a Supplement in accordance with Article 5 of the Rules.
3. If the Appointed Experts consider that the Claim is outside the scope of the Rules, they shall so inform the Centre, which shall reject the Claim pursuant to Article 3(6) of the Rules.
4. Notwithstanding any disagreement between the Claimant and Respondent as to whether the Claim falls within the scope of the Rules, the Appointed Experts shall continue with the proceedings and render a Decision to the extent that they consider the Claim to fall within the scope of the Rules.
5. Following deliberations among the Appointed Experts, the President shall prepare and submit to the Centre a draft of the Decision for scrutiny pursuant to Article 9(2) of the Rules. The draft Decision shall be submitted within 30 days of receipt by the Appointed Experts of all information and documents they consider necessary for determining the issues in dispute.
6. In exceptional circumstances, and upon a reasoned request submitted by the President, the Centre may extend the time limit for the Appointed Experts to render their draft Decision.
7. There shall be no oral hearing before the Appointed Experts.
1. The Decision shall be drafted in English using Form 4.
2. Upon receipt of the draft Decision from the President, the Centre shall transmit it forthwith to the Technical Adviser for scrutiny. The Technical Adviser may lay down modifications as to the form of the draft Decision and, without affecting the Appointed Experts’ liberty of decision, may also draw their attention to points of substance. No Decision shall be rendered by the Appointed Experts until it has been approved by the Technical Adviser as to its form.
3. The Decision may be made unanimously or on a majority basis and shall so indicate.
4. The Decision shall be deemed to have been made on the date stated therein.
5. The Appointed Experts shall render the Decision exclusively on the basis of the Claim, any Answer and any Supplement, the terms and conditions of the trade finance-related instrument, undertaking or agreement, the ICC Banking Rules that may be applicable and international standard practice in trade finance.
6. Once a Decision has been made, the Centre shall make it available to each Claimant and to any Respondent that has submitted an Answer pursuant to Article 4 of the Rules.
1. The costs of the DOCDEX proceedings shall be the standard fee set out in the Appendix. The standard fee shall be non-refundable, unless the Centre rejects all or part of the Claim pursuant to Article 3(6) of the Rules.
2. An additional fee may be fixed by the Centre, at its discretion, taking into account the facts and documents underlying the dispute and subject to the maximum specified in Article 2 of the Appendix.
3. The Centre shall fix a time limit for the payment of the additional fee. The Centre may instruct the Appointed Experts to suspend their work until the additional fee has been paid.
1. A hard copy of the Claim shall be sent by the Centre to each Respondent pursuant to Article 3(5) of the Rules. It shall be sent by delivery against receipt, registered post or courier to the address of the Respondent provided by the Claimant in the Claim.
2. Subject to Article 11(1) of the Rules, all notifications or communications to and from the Centre shall be made by email or by any other means of telecommunications, excluding fax, that provides a record of the sending thereof. Such notifications or communications shall be made to the last email or other electronic address of the Claimant or Respondent, or its representative for whom the same are intended, as notified for this purpose by the party in question. If the Respondent fails to notify the Centre of an email or other electronic address, then the Centre may use the address for the Respondent that is provided by the Claimant.
3. A notification or communication shall be deemed to have been made on the day it was received by the Claimant or Respondent itself or by its representative, or would have been received if made in accordance with Article 11(2) of the Rules.
4. Periods of time specified in or fixed under the Rules shall start to run on the day following the date a notification or communication is deemed to have been made in accordance with Article 11(3) of the Rules. When the day following such date is an official holiday or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall commence on the first following business day. Official holidays and non-business days are included in the calculation of the period of time. If the last day of the relevant period of time granted is an official holiday or a non-business day in the country where the notification or communication is deemed to have been made, the period of time shall expire at the end of the first following business day.
1. The Centre may authorize the publication of any Decision, provided that the identities of each Claimant, Respondent and any other person or entity named in the Claim, Answer or any Supplement are not disclosed.
2. Any information or documents given by the Centre to the Technical Adviser or the Appointed Experts in connection with proceedings under the Rules shall be used by the Technical Adviser and the Appointed Experts only for the purpose of such proceedings and shall be treated by them, as well as by the Centre, as confidential.
3. The Centre, the Technical Adviser and the Appointed Experts shall not reveal the identities of the Appointed Experts and the Technical Adviser to any Claimant, Respondent or other person.
4. In all matters not expressly provided for in the Rules, the Technical Adviser, the Appointed Experts and the Centre shall act in the spirit of the Rules.
5. The Technical Adviser, the Appointed Experts, the Centre, the ICC and its employees, and the ICC National Committees and Groups and their employees and representatives shall not be liable to any person for any act or omission in connection with any proceedings or Decision under the Rules, except to the extent such limitation of liability is prohibited by applicable law.
6. The version of the Rules that is applicable at the time of submission of a Claim shall apply to the proceedings, unless otherwise agreed by each Claimant and Respondent.
Article 1 – Standard Fee
Where the amount in dispute does not exceed US$ 1,000,000, the standard fee is US$ 5,000, which includes the Centre’s administrative expenses and the Appointed Experts’ fees. For all amounts in dispute exceeding US$ 1,000,000, the standard fee is US$ 10,000.
Article 2 – Additional Fee
As indicated in Article 10(2) of the Rules, the Centre may charge an additional fee of up to 50% of the standard fee.
Article 3 – Payment
Payment shall be made by bank transfer to the account of the International Chamber of Commerce shown below, carrying the reference “DOCDEX case”.
Swift code: UBSWCHZH80A
IBAN: CH06 0024 0240 2245 3461 R
At the time of payment, an advice in writing should be sent to:
ICC International Centre for ADR
33-43 avenue du Président Wilson
75116 Paris, France
stating the following data:
- DOCDEX case number (if known to the Claimant)
- date of Claim
- Name of Claimant Date and amount of payment
- Postal address
Article 4 – Currency, VAT and Scope
1. All amounts fixed by the Centre or pursuant to the Rules and the Appendix are payable in US dollars except were prohibited by law, in which case the ICC may apply a different scale and fee arrangement in another currency.
2. Any standard or additional fee may be subject to value added tax (VAT) or charges of a similar nature at the prevailing rate.
3. The above provisions on the costs of proceedings shall be effective as of 1 May 2015 in respect of all proceedings commenced on or after such date under the present or any previous version of the ICC DOCDEX Rules.
Article 5 – Disclaimer
This Appendix is subject to change without notice. Please refer to www.iccdocdex.org for the current version.