Pre-Arbitral Referee procedure
The pre-arbitral referee procedure is designed to meet emergency cases requiring provisional measures at a very short notice. The procedure is divided into four main parts: the request for Referee; the appointment of the Referee; the proceedings; and the order.
1. Request for Referee
The Request is made by any party or both parties and sent in two copies to the Secretariat of the ICC International Court of Arbitration. At the same time, the party requiring the appointment must itself notify the other party of the Request, by the quickest available method of delivery.
2. Appointment of the Referee
Upon receipt of the answer or within eight days from the time the other party has received the request—whichever is sooner—the Referee is appointed by the President of the Court.
Two hypotheses must here be considered:
- First, the parties have jointly nominated a Referee, in which case the person of their choice is appointed by the President of the Court.
- Second, no joint proposal has been made, in which case a Referee is directly appointed by the President.
In order for the Referee to have a clear picture of the issues as quickly as possible, the Rules give him or her the possibility of conducting the proceedings in the manner which he or she considers appropriate. This includes the right to have access to all documents that he or she may consider necessary or to any place for the purpose of an inquiry.
The Referee may also convene the parties to appear before him or her within the shortest time limit possible. The results of the investigations and inquiries are communicated to the parties for comment. In any case, he or she must be satisfied that the other party against which an order is sought has received ,or should have received, the request for referee and has had the possibility of communicating an answer or comment.
Within 30 days from the date on which the file was transmitted, the Referee makes and sends the Order to the Secretariat. This act notifies the parties of the Order of the Referee. A wide-range of powers are conferred upon the Referee. For example, he or she can order conservatory measures, measures of restoration or any measures necessary to preserve or establish evidence. The Referee can also order a party to make a payment that should be made, signed or deliver a document. These powers, which can be altered by express written agreement between the parties, are listed under Article 2.1 of the Rules.