Part I Commentary on the ICDR International Rules, 39 Article 39—Interpretation of Rules
Martin F Gusy, James M Hosking
Martin F. Gusy, James M. Hosking
39.01 Article 39 provides a bright-line rule that seeks to clarify when the arbitrators, as opposed to the institution, are responsible for interpreting and applying the ICDR Rules: to the extent that a rule impacts on the tribunal’s powers and duties, then the tribunal is charged with its application; in all other cases, this duty falls on the ICDR. Practically speaking, however, given the ICDR’s extensive experience with applying the rules, arbitrators typically will consult with the institution before making such an interpretation.
39.02 Article 39 is substantially the same as its predecessor in Article 36 of the 2009 ICDR Rules. The only notable revision is that the provision now expressly provides that any emergency arbitrator or consolidation arbitrator will have the same authority as the arbitral tribunal to interpret and apply the Rules.
39.03 The intention behind the division of responsibilities in Article 39 is self-explanatory. Nevertheless, it may not always be so clear what provisions ‘relate to [the tribunal’s] powers and duties’ and therefore fall to it to be decided. In practice, however, the ICDR is unlikely to interfere with a tribunal’s exercise of its power pursuant to the rules. More importantly, the ICDR staff are available to assist arbitrators with questions that may arise about a particular provision.
(p. 326) 39.04 The analogous provision in the AAA Commercial Rules (and in the other AAA Arbitration Rules) largely provides the same text as in Article 39, but also states that where there is a dispute between arbitrators over ‘the meaning or application of these rules, it shall be decided by a majority vote’. Further, ‘[i]f that is not possible, either an arbitrator or a party may refer the question to the AAA for final decision’.1
39.05 The AAA rule on interpretation has been considered by US courts mainly in the context of rejecting challenges to awards. Courts have invoked that provision in dismissing arguments that the tribunal misapplied the rules regarding, for example, scheduling of a hearing after an initial award,2 submission of supporting documents to correct an inadvertent omission,3 timeliness of an arbitral award,4 the tribunal’s decision to hold a hearing following a vacancy,5 and suspension of the proceedings following non-payment of costs.6
39.06 Article 39 of the ICDR Rules was specifically addressed by a US federal appellate court in the T Co Case.7 The court cited to what is now Article 39 (previously Article 36) in finding that where the parties had agreed to be bound by the ICDR Rules, a reviewing court must accord ‘significant deference to the arbitrator’s interpretation’ of the rules.8 Thus, the court refused to second-guess an arbitrator’s interpretation of his powers to correct an award under what is now Article 33 of the ICDR Rules.9
39.07 The ICC, SIAC, and other institutions issue ‘Practice Notes’ to ‘supplement, regulate and implement these Rules’.10 The ICDR also issues Practice Notes, but, to date, the only current note is the ICDR Guidelines for Arbitrators Concerning Exchanges of Information.11 Practice advisories about amendments to the rules or the filing fees are also regularly published on the AAA website.12 The ICDR has also inaugurated an email newsletter disseminated to practitioners and other users of ICDR arbitration.
39.08 The ICDR Rules do not contain a catch-all ‘General Rule’ of the sort found in ICC Rules, Article 41, and LCIA Rules, Article 32, in which the tribunal and the institution are directed that, in all matters not expressly provided for in the rules, they are to act in the ‘spirit’ of the (p. 327) rules and to make every effort to ensure that the resulting award is enforceable.13 The 2014 Rules Revision Committee discussed amending Article 39 to include such a ‘gap-filling’ provision. Such revision was ultimately considered unnecessary, however, because the ICDR considers that, even though not explicitly stated in the ICDR Rules, such principles are intrinsic to the rules as a whole.14 (p. 328)
7 T Co Metals, LLC v Dempsey Pipe and Supply, Inc, 592 F3d 329, 336–37 (2d Cir 2010). See discussion at paras 33.05–33.08.
9 ibid. See also Contec Corpn v Remote Solution, Co Ltd, 398 F3d 205 (2d Cir 2005) (holding that the parties incorporation of the AAA Commercial Rules manifested intent to have the tribunal determine its own jurisdiction to bind non-signatory to the arbitration agreement), Ecopetrol SA v Offshore Exploration & Production LLC, 46 FSupp3d 327, 344 (SDNY. 2014) (finding that the ‘Court is bound’ to defer to the tribunal’s interpretation and application of the ICDR Rules).
11 See discussion at para 0.70.
12 See <https://www.icdr.org/icdr/faces/i_search>.
13 A similar ‘gap-filling provision’ was considered during the debate on revising the UNCITRAL Rules, but ultimately abandoned in the absence of consensus. See UNCITRAL, Report of Working Group II on the Work of its 52nd Session, UN Doc A/CN.9/688 (19 February 2010) paras 39–44.