Where, prior to the date of the entry into force of the Rules, the parties have agreed to request the proposal of an expert or a neutral pursuant to the ICC Rules for Expertise, they shall be deemed to have agreed to make their request pursuant to the ICC Rules for the Proposal of Experts and Neutrals—unless any of the parties objects thereto, in which case the ICC Rules for Expertise shall apply.
The ICC Rules for the Proposal of Experts and Neutrals (the “Rules”) are administered by the ICC International Centre for ADR (the “Centre”), which is a separate administrative body within the International Chamber of Commerce (the “ICC”). In administering the Rules, the Centre is assisted by a Standing Committee, the statutes of which are set forth in Appendix I.
Upon the request of any physical or legal person(s) or any court or tribunal (the “Person”), the Centre can provide the name of one or more experts in a particular field of activity or the name of one or more neutrals. An expert proposed under the Rules may be a physical person or a legal person, such as a company or a partnership.
Under the Rules, the Centre’s role is limited to proposing the name of one or more experts or neutrals. The Person requesting a proposal may then contact directly the proposed expert(s) or neutral(s) and, as the case may be, agree with such expert(s) or neutral(s) on the scope of the appropriate mission and fees. There is no obligation to make use of the services of an expert or a neutral proposed by the Centre.
The proposal of an expert may be useful in many different contexts. A person may require an expert in connection with its ongoing business activities or in connection with contractual relations. A party to an arbitration or other contentious process may wish to obtain the name of a potential expert witness. A court or arbitral tribunal that has decided to appoint an expert may wish to obtain the proposal of an expert.
The proposal of a neutral may be useful to parties who wish to use the services of a neutral as a mediator or a dispute board member, or to assist them with the resolution of a dispute in a similar procedure that is not administered by the ICC.
- Any Person may ask the Centre to propose one or more experts or neutrals by submitting a request for the proposal of an expert or a neutral (the “Request for Proposal”) to the Centre.
- The Request for Proposal shall include:
- the name, address, telephone number, email address and any other contact details of each Person filing the Request for Proposal;
- if applicable, the name and contact details of any person or entity relevant for checking potential conflicts of interest of the expert or neutral;
- when the Request for Proposal is for an expert:
- a description of the field of activity of the expert to be proposed;
- any desired attributes of the expert, including but not limited to education, qualifications, language skills and professional experience;
- any undesired attributes of the expert and a description of any matters that would disqualify a potential expert;
- a detailed description of the work to be carried out by the expert, including whether an expert report or site visits will be required;
- the desired time frame for completing such work;
- the language(s) in which the expert is to carry out such work; and
- the proposed location of any physical meetings with the expert;
- when the Request for Proposal is for a neutral:
- a description of the dispute resolution or other procedure for which the neutral’s assistance is sought;
- a description of the dispute, if any;
- any desired attributes of the neutral, including but not limited to education, qualifications, language skills and professional experience;
- any undesired attributes of the neutral and a description of any matters which would disqualify a potential neutral;
- the desired time frame for conducting and completing the procedure;
- the agreed location of any physical meetings with the neutral, or any proposal regarding such location; and
- the agreed language(s) of the procedure, or any proposal regarding such language.
- Unless requested to do so by the Person seeking the proposal of an expert or a neutral, the Centre will not inform any other person of the filing of a Request for Proposal except as needed in order to find the prospective expert or neutral.
- Any proposal of an expert or a neutral by the Centre shall be made by the Centre either through an ICC National Committee or Group, or otherwise. The Centre’s role under the Rules ends upon the notification of the proposal.
- The Centre shall make all reasonable efforts to propose an expert or a neutral having the attributes set out by the requesting party pursuant to Article 1(2). If, despite such efforts, the Centre is not able to identify an expert or neutral having all of the attributes set out by the requesting party, the Centre may ask the requesting party whether it wishes the Centre to propose more than one expert or a neutral (who between them have the requested attributes), or whether the attributes set out in the Request for Proposal may be modified.
- Before a proposal is made, a prospective expert or neutral shall sign a statement of acceptance, availability, impartiality and independence. The prospective expert or neutral shall disclose in writing to the Centre any facts or circumstances which might be of such a nature as to call into question the expert’s or neutral’s independence in the eyes of the Person filing the Request for Proposal, as well as any circumstances that could give rise to reasonable doubts as to the expert’s or neutral’s impartiality. The Centre shall provide such information in writing to such Person and shall fix a time limit for any comments from such Person.
- Any information or documents given to the prospective expert or neutral by the Centre or any party in connection with the proposal shall be used by the prospective expert or neutral only for the purposes of the proposal and shall be treated by the prospective expert or neutral as confidential.
- Each Request for Proposal must be accompanied by the non-refundable filing fee specified in Article 1 of Appendix II. No Request for Proposal shall be processed unless accompanied by the filing fee.
- When the Centre is requested to propose more than one expert or more than one neutral, the non-refundable filing fee accompanying the Request for Proposal and to be paid by the requesting Person is the amount referred to in the preceding paragraph multiplied by the number of experts or neutrals requested.
- After taking into consideration the specificities of the case, the Centre may fix an additional fee, as specified in Article 2 of Appendix II, to be paid by the party or parties having filed the Request for Proposal.
- The Centre may cease acting if any requested additional fee has not been paid.
- An expert proposed under the Rules may be a physical person or a legal person, such as a company or a partnership. The term “expert” as used in the Rules applies mutatis mutandis to both physical and legal persons.
- Where, prior to the date of the entry into force of the Rules, the parties have agreed to request the proposal of an expert or a neutral pursuant to the Rules for Expertise of the ICC, they shall be deemed to have agreed to make their request pursuant to the ICC Rules for the Proposal of Experts and Neutrals, unless any of the parties objects thereto, in which case the Rules for Expertise of the ICC shall apply.
- The expert or neutral, 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 the proposal of an expert or a neutral, except to the extent such limitation of liability is prohibited by applicable law.
- In all matters not expressly provided for in the Rules, the Centre shall act in the spirit of the Rules.
Appendix I – Statutes of the Standing Committee
The Standing Committee is composed of a maximum of fifteen members (a president, three vice-presidents and up to eleven other members) appointed by the ICC for a three-year renewable term.
A meeting of the Standing Committee shall be convened by its president whenever necessary.
- The Standing Committee shall advise the Centre concerning all aspects of the services carried out by the Centre pursuant to the Rules, in order to help ensure the quality of those services. It shall assist the Centre in reviewing the attributes of the experts or neutrals to be proposed under the Rules.
- The Centre shall inform the members of the Standing Committee about all Requests for Proposal and ask the members for their advice.
- The president shall make the final decision on the proposal of the expert or neutral.
- In the absence of the president, or otherwise at the president’s request, one of the three vice-presidents shall be authorized by the Centre to fulfil the tasks of the president, including taking decisions pursuant to these statutes.
The work of the Standing Committee and the Centre is of a confidential nature, which must be respected by everyone who participates in that work in whatever capacity.
Appendix II – Costs
Save as provided in Article 3 below, each Request for Proposal pursuant to the Rules must be accompanied by a filing fee of US$ 5,000 per expert or neutral to be proposed. The filing fee is non-refundable. No Request for Proposal shall be processed unless accompanied by the requisite payment.
- Depending on the specificities of the case, the Centre may request the payment of an additional fee from the party or parties by which the Request for Proposal has been filed.
- When fixing the additional fee, the Centre shall take into account all circumstances of the case, including the requested attributes of the expert or neutral, the specific nature of the case, including the amount of time needed by the Centre to identify suitable candidates, the time frame in which the Centre shall proceed with the proposal and any other relevant circumstances.
- The additional fee shall not exceed US$ 5,000 per expert or neutral to be proposed.
- If the Request for Proposal of an expert is made by an arbitral tribunal acting pursuant to the ICC Rules of Arbitration, the services of the Centre shall be provided free of charge.
- If the Request for Proposal of a neutral who shall act as mediator is made jointly by all the parties in ongoing proceedings pursuant to the ICC Rules of Arbitration, the services of the Centre shall be provided free of charge
- All amounts fixed by the Centre or pursuant to any Appendix to the Rules are payable in US dollars except where prohibited by law, in which case the ICC may apply a different scale and fee arrangement in another currency.
- Any ICC administrative expenses, including the filing fee and the additional fee, may be subject to value added tax (VAT) or charges of a similar nature at the prevailing rate.
- The above provisions on the costs of proposals of experts and neutrals shall be effective as of 1 January 2018 in respect of any Request for Proposal filed on or after such date under the present Rules and in respect of any request for the proposal of an expert filed on or after such date under the Rules for Expertise of the ICC.