The history of the ICC Central and Eastern European Institutional Arbitration Group
The International Chamber of Commerce (“ICC”) is committed to make business work for everyone, every day, everywhere. Since its inception in 1919, ICC has constantly worked to improve the economic and regulatory framework of business activities. ICC’s founders who called themselves the “Merchants of Peace” considered that fostering international growth and development through international trade was instrumental in ensuring peaceful relationships between countries and individuals. However, the ICC organizational principle, which limited membership to companies and individuals that believed in and promoted the free market economy and gave access to the ICC working groups only to these members, ignored a substantial share of other players involved in international trade. Within the ICC framework, its members were not in a position to exchange views with actors from countries that did not recognize the free market as a key economic principle.
Since the decision to set up ICC in 1919 international trade developed to unprecedented levels. This happened despite the tremendous diversity of countries’ political or social structures. ICC identified this increasing volume of business relationship and the lack of institutional channels to discuss topics of common interest with actors from countries with planned economies as a growing impediment to the further development of international trade. Therefore, in May 1964 ICC established the “East/West Committee” to address this situation.[1]
Originally, the Committee was composed of ICC members and members of the Chambers of Commerce and Industry of Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the USSR. It operated through a number of working groups dealing with specific technical aspects of trade such as trade facilitation in general, joint ventures, banking, marketing[2]and dispute resolution.
Regarding dispute resolution the idea was to set up a system providing contractual partners from countries having different political and economic regimes with guaranties as to the efficient, impartial and confidential[3]resolution of disputes arising during the performance of international agreements. Arbitration was felt to be the most appropriate legal mechanism to achieve this purpose. This led to the creation of the Working Group on Arbitration in 1975[4]9, also referred at that time as the ICC “East-West” Working Group (the “Group”).
In the 1980s, the Group focused its activities on three main topics: (i) cooperation between ICC and Chambers of Commerce of the Eastern European members of the Group in exchanging information about laws and regulations on arbitration, (ii) cooperation in exchanging information regarding the choice of competent arbitrators, and (iii) the study of the role of the pre-arbitral expert.17
One of the Group’s practical achievements was a proposal of a recommendation to the East/West Committee on the advisability of referring disputes arising out of or in connection with the East-West trade and economic cooperation contracts to arbitration. This recommendation, adopted by the East/West Committee in 1984 contemplated the suitability of offering an option to refer such disputes to the courts of arbitration attached to the Council for Mutual Economic Assistance ("COMCON"[5]) countries’ Chambers of Commerce and Industry, or to arbitration under the ICC Rules.
The Group held regular meetings and organized seminars and other events opened to the public or selected participants. The first seminars took place in Prague in 1978, in Budapest in 1980 (Techniques in East/West Trade relations[6]), in Paris in 1983 (Differences between arbitration under the ICC Rules and the Rules of Procedure of the Foreign Trade Arbitration Commission of the USSR Chamber of Commerce and Industry[7]), in Varna in 1986 (Evidence in Arbitration in Eastern and Western countries)and again in Paris in 1990 (Joint ventures between companies from COMCON countries and their foreign partners, the resolution of disputes arising out of such joint ventures’ activities by international arbitration).[8]
Following the geopolitical changes in Europe at the end of the 1980s and at the beginning of the 1990s, a question arose as to whether the work of the Group should be continued. The question was prompted by the setting up of ICC local chapters called “ICC National Committees” in many countries formerly classified as “Eastern countries”. In countries where such National Committees had not been established, local actors had the possibility to join ICC as direct members. This new organizational framework empowered ICC to rely on these National Committees to promote arbitration in the respective countries. However, the growing relevance of dispute resolution for East-West business transactions and the specific features of the Group led to the decision to maintain and further strengthen it, and to change its name to the “ICC European Arbitration Group”.10
At the same time, the composition of the Group had to take into account the political developments affecting former socialist countries, the increased caseload and activities of the ICC International Court of Arbitration involving these countries, as well has the greater number of ICC Court members coming from this part of the world. The composition of the Group remained largely the same until 2015 (see below), and its membership was divided into three categories of participants.
The firstcategory was composed of members designated by ICC. These members were former or current ICC Court members from Eastern and Central European countries, former or current ICC Court members from Western countries or former members of the Secretariat of the ICC Court who were actively involved in dispute resolution matters in the region.
The secondcategory of members was composed of representatives of arbitration institutions of the chambers of commerce of Eastern and Central European countries. Traditionally only one chamber of commerce per country was invited to be part of the Group through the Chairman or President of its arbitration court. However, the question of whether it is appropriate to open up the Group to dispute resolution providers from other chambers has been debated regularly. The Group has been reluctant to accept arbitral institutions that do not have a long-standing track record of administering international arbitration proceedings or institutions which are not located in Central or Eastern Europe as members[9].
A thirdcategory of participants, having an observer status, and who were invited on a case-by-case basis when it is uncontested that their knowledge or field of activity could be a useful resource for the Group.
The Group was chaired by the President of the ICC Court. The General Counsel of the ICC Court was the Secretary to the Group. The Counsel and Deputy Counsel of the Secretariat of the ICC Court whose team administers disputes involving Central and Eastern European countries were invited to take part in the yearly meeting of the Group when necessary.
Despite structural changes in the Group, the later continued holding its meetings and discussion about the recent developments in the region. Traditionally, the Group held two meetings a year.[10] However, for the last two decades the Group has convened only once per year. Locations were alternatively fixed in Paris and in a country previously characterized as an “Eastern country”.
Thus, the Group’s 1991 Paris meeting was devoted to the enforcement of arbitral awards. In 1992, the Group’s meeting in Sofia addressed the question of arbitrators’ fees in international arbitration and the future of the 1972 Moscow Convention. The same year a conference on Privatization and International Commercial Arbitration was held in Budapest. In 1993, the Group discussed the “Composition and the procedure of the Special Committee referred to in Article IV of the European Convention on International Commercial Arbitration” elaborated under the auspices of the Economic and Social Council of the United Nations as well as the programme of the seminar “Investment in Czech and Slovak Republics: After the Separation”.
In May 1990, the first issue of the European Arbitration Bulletin (the “EAB”) of the ICC International Court of Arbitration was published at the Group’s suggestion. The purpose of this newsletter was defined in the introduction to its first issue as “promoting arbitration as a means of solving disputes in East-West trade and commerce”. The first issue focused on three main topics: the new regulations and practice of international commercial arbitration in a number of COMCON countries, information about the seminar on East-West joint ventures and arbitration held in Paris in February 1990, and information about the new publications on East-West arbitration and arbitration regulations in COMCON countries. It seems that this first issue of the EAB was not followed by any substantive similar publication. One explanation was the profound desire of participants to keep the debates within the Group confidential and the complexity of the elaborative process required to prepare such a publication.
A short article on the Group’s works was published in the October 1993 issue of the ICC International Court of Arbitration Bulletin (the “Bulletin”).[11]It contained very general information about the Group’s May 1993 meeting in Paris. As usual, the developments in arbitration laws and practices in Central and Eastern European countries were discussed. The article also mentioned that the Group was cooperating with the Bulletin on the preparation of a special supplement to the Bulletin on arbitration in Europe.
This special supplement entitled International Commercial Arbitration in Europewas published in December 1994. It focused primarily on describing the new arbitration laws adopted in the Czech Republic, Hungary, Italy, Moldova, Romania, Ukraine and Russia in 1993-1994.[12]The special supplement also provided information on arbitration legislation, case law and practice in certain other Western and Eastern European countries, such as Bulgaria, Croatia, Germany, England, Estonia, Poland and Slovenia. Arbitration within the legal framework of the European Community was also addressed.
Significant economic changes in 1990-2000 in the Central and Eastern European countries raised again the question about the future of the Group and its mission. Dr. Briner, the Chairman of the ICC Court in 1997-2006, launched the idea of revival of the Group’s works “in a changed context”.This idea was welcomed “with great enthusiasm”by the presidents of the courts of arbitration of the ex-COMCON countries.[13]
Since 2000, the Group’s meetings have each lasted a day and had similar agendas, enabling participants to measure and compare the evolution of the arbitration framework in the various countries represented. Each institution is required to submit a report setting out the main developments in arbitration and since the early 2000s in conciliation and other amicable dispute resolution proceedings in its country in advance of each Group meeting. The reports focus on statistical data, the modifications of the institutions’ dispute resolution rules, national laws and case law. Each institution is asked to present its report and answer questions from participants about these reports and presentations. The second part of the meeting is devoted to topics of common interest that have been chosen jointly by members. The homogeneous structure of the Group, the in-depth consultative process used in drafting the agenda and the confidentiality of the discussions ensure that the items discussed are highly relevant.
The meetings outside of Paris were held in Prague (Czech Republic, 2001), Kiev (Ukraine, 2003), Belgrade (Serbia, 2005), Warsaw (Poland, 2007). Bucharest (Romania, 2009), Budapest (Hungary, 2011), Sofia (2013), Bucharest (2015), Vilnius (2017).
Since 2015 at the suggestion of Alexis Mourre, the then President of the ICC International Court of Arbitration, the Group changed its name to “ICC Central and Eastern European Institutional Arbitration Group”. The new name was introduced with a view to more accurately reflect the new membership of the Group, leaving the ICC the leading role in coordinating activity of the Group. The ICC International Court of Arbitration Director for Europe, a position created in 2015, was appointed as the Secretary of the Group.
This brief description of four decades of the Group’s work is relevant to the evolution of international arbitration and ICC’s commitment to promoting knowledge and acceptance of international arbitration as a preferred and often most efficient means of solving international business disputes. The Group’s work has been instrumental in expanding the boundaries of international arbitration both geographically and in terms of the types and numbers of parties resorting to arbitration. One cannot seriously challenge that the number of arbitration cases involving both private parties and States and parastatal entities from former socialist countries is closely linked to the groundwork laid under the Group’s auspices. The Group’s success in building a common knowledge and understanding of arbitration mechanics in this part of the world has paved the way for the construction of a truly global culture of international arbitration. A noticeable result is the ever increasing number of young practitioners from Central and Eastern Europe involved in arbitration events and in international arbitration proceedings conducted not only under the aegis of local arbitral institutions but also under the rules of institutions located outside the boundaries of former socialist countries.[14]
Dr. Emmanuel Jolivet, Dr. Galina Zukova, Paris
The text of this article is based on and is a follow up on a previous article titled “The European Arbitration Group” published in Festskrift till Gustaf Möller, Dan Frände, Lauri Railas and Eva Storskrubb (Eds), Juridiska Föreningen I Finland, JFT, 2011, pp. 487-494.
[1]See for example. East/West Trade Report. ICC Publication №309. 1977.
[2]European Arbitration Bulletin of the ICC International Court of Arbitration, №1, May 1990, p. 1.
[3]It is interesting to point out that confidentiality was repeatedly emphasized as a fundamental feature of arbitration proceedings in this context.
[4]Forewordin International Commercial Arbitration in Europe, Special Supplement, The ICC International Court of Arbitration Bulletin, December 1994, at 5. For more information, see for example, Jarvin, Sigvard, Commercial Arbitration in East-West-Relations: The experience of the ICC's arbitration court: choice of law; number of arbitrators and seat of arbitration, International trade law and practice, Masson, 1984, 117-138; Herman, Gerold, Overcoming Regional Differences: Arbitral Practice, Comparative Law and the Approximation of Laws, in Pieter Sanders (ed), Arbitration in Settlement of International Commercial Disputes Involving the Far East and Arbitration in Combined Transportation, ICCA Congress Series 1988 Tokyo, Kluwer Law International 1989, 291-299; Melis, Werner; Strohbach, Heinz, East-West Arbitration, in Pieter Sanders (ed), Yearbook Commercial Arbitration Vol. VII - 1982 VII, Kluwer Law International, 1982, pp. 395-406.
[5]https://en.wikipedia.org/wiki/Comecon
[6]The discussion was focused at the main characteristics and differences between procedural rules of arbitral institutions from Eastern and Western countries.
[7]Third Seminar on East-West Arbitration: (Paris, December 6-8, 1983),Journal of International Arbitration, Vol. 1, Issue 1, 1984, p. 81.
[8]European Arbitration Bulletin of the ICC International Court of Arbitration, No. 1, May 1990, p. 1.
[9]With an exception of Kazakhstan, as historically Kazakhstan is closer to the European developments and traditions.
[10]European Arbitration Group: Keeping Ahead of Change,The ICC International Court of Arbitration Bulletin, Vol, 4/No. 2, October 1993, p. 4.
[11]European Arbitration Group: keeping ahead of change.The ICC International Court of Arbitration Bulletin, Vol. 4/No. 2, October 1993, pp. 4-5.
[12]Forewordin International Commercial Arbitration in Europe. Special Supplement, The ICC International Court of Arbitration Bulletin, December 1994, p. 5.
[13]Klein, Bohuslav, Robert Briner's Role in the Revival of Institutional Arbitration in Eastern Europe,in Global Reflections on International Law, Commerce and Dispute Resolution Liber Amicorumin honour of Robert Briner,ICC Publishing, 2005, p.461.
[14]Two new ICC groups have been set up to involve this new generation of arbitration practitioners in knowledge sharing session and educational activities: the ICC Young Arbitrators Forum (YAF) was set up in 2008, and the new European Arbitration Group, whose members are arbitration practitioners in the Eastern and Central Europe, was set up in 2016.