Claim No: CL-2024-000563 - [2025] EWHC 1586 (Comm)

Together with the Request, the claimant shall:

It failed to specify “the basis upon which claims are made” as required by Article 4(3)(c). Mr Dunning KC submits that to comply with that requirement, it is necessary to set out every fact which it would be necessary for the HHI 2019 Company to prove to establish its cause of action under English law, which includes its succession to the Supply Contract by virtue of the Spin-Off plan.

It failed to attach “any relevant agreements and, in particular, the arbitration agreement(s)”, as required by Article 4(3)(e) because it did not attach the Spin-Off plan.

At p.47, the authors note:

“There have occasionally been instances in ICC arbitration where Respondent parties have complained that the information provided in the Request concerning the claim and relief sought is insufficient …. Indeed, in at least one case, a party sought to have an ICC award annulled in the Netherlands on the ground that a Claimant’s alleged failure to comply with the Rules’ requirements in this regard prevented the Arbitral Tribunal from complying with its mandate and placed its Award in conflict with public policy. The challenge of the Award was unsuccessful, however, the Dutch court having concluded that the description of the claim in the Request was sufficiently clear to enable the Respondent to raise a defence”.

At p.51, the authors continue:

“When a document calling itself a Request for Arbitration is received by the Secretariat, the Secretariat reviews it in order to determine that it contains the information required to be included in a Request … This being said, the Secretariat is reluctant to undertake to verify thoroughly and systematically the Claimant’s compliance with all of the requirements of the Rules relating to the Request, and the Court has also generally avoided having to decide whether all of the relevant requirements have been satisfied in cases of disagreement … Indeed as a general rule neither the Court nor the Secretariat has wished to be responsible for deciding upon the sufficiency of a party’s satisfaction of the specific requirements of the Rules in cases where this is disputed, except possibly where the alleged breach is manifest … Moreover it has not generally been the position of either the Court or those arbitrators who have been called upon to decide such matters that a defect in a Request should have the consequences of invalidating it, provided it is correctible”.

Once again, the commentary would encourage considerable caution before holding that an RFA was invalid and had failed to refer a claim to arbitration because of a failure to comply with one of the stipulations in Article 4(3).

At [4-29], the authors note:

“As noted, a claimant may choose to submit a less detailed Request, when the key point is to commence the proceedings. This can be the case if there is a need to interrupt a limitation period or where negotiations between the parties have broken down and the claimant wishes to indicate that the matter will proceed to arbitration in the absence of an agreement. The claimant may also submit a less detailed Request where it is certain of the claim, but less confident of the details or the calculation of damages. A claimant may also file a general request to see the type of response that it receives in the Reply; sometimes, in the simple hope that the other side would be willing to engage in settlement discussions. In addition, in complex construction, oil and gas, telecommunication or intellectual property-related disputes, the claimant may decide that the matter will have to be the subject of detailed submissions later in any event and limit itself to outlining the basic elements and framework for the claim in the Request.”

At [4-30], they continue:

“In deciding whether the minimum requirements are met, one of the issues that may be expected is whether the respondent was made aware in a general fashion of the claims being made against it. As a result, in most cases, where the claimant has sought to comply with the list of required elements in art.4(3) there should be very little risk of the brevity of the Request causing a procedural issue in annulment or enforcement proceedings.”

At [4-31] they state:

“The Secretariat reviews the material received from a claimant to check the names and contact details of the parties and the existence of an ICC arbitration agreement between the parties named in the Request and any other information that may be relevant for the ICC Court and/or the Secretariat at this stage of the proceedings. However, the Secretariat does not review the Request to determine whether the claimant has met each requirement of the Rules. That will be a matter for the Tribunal, if challenged by the respondent.”

That could have the consequence that an error in giving the parties’ address, or the omission of contact details, would prevent a valid arbitration being commenced.

Many of the matters in Article 4(3) offer considerable scope for divergent views (or, as it is put in two of the commentaries, “discretion”) as to what would be necessary to comply with them, and whether any description is accurate: for example Article 4(3)(c). It seems improbable that a jurisdictional argument could be raised (and re-fought before supervisory and enforcement courts) as to whether what had been said was a sufficient or accurate description, or whether an omitted agreement was “relevant” for Article 4(3)(e) purposes (essentially the issues here).

Similarly, it seems highly improbable that no valid arbitration can be commenced by a claimant who could, but does not, include an estimate of quantum for the purposes of Article 4(d)(e) (or that the former question can be re-argued de novo under s.67).

Indeed the ICC Rules themselves strongly suggest that Article 4(3) is not setting out a series of jurisdictional pre-conditions. Provision is made in Article 4(4) for what is to happen if the fee is not paid or sufficient copies of the RFA deposited: the Secretariat can set a time limit for doing so and in default of compliance close the file. There is no similar power in relation to Article 4(3).

Mr Dunning KC stressed the importance of the Article 4(3) requirements on the basis that they were necessary for the Secretariat to perform its “screening function” under Article 6 of the ICC Rules. Article 6(4) allows the Secretariat in appropriate cases to refer references to the ICC Court for the Court to consider whether a prima facie case that an arbitration agreement exists has been made out, before the reference proceeds. I agree that the screening process will function more efficiently if the RFA contains more information. However, it is clear that the process is relatively limited, and does not (currently at least) involve checking that Article 4(3) has been complied with see [71(iii)]. In any event, the existence of that screening process is not a sufficient basis for concluding that each of the stipulations in Article 4(3) creates a threshold requirement for validly commencing an ICC arbitration.

I am quite satisfied that Article 4(3)(c) imposes no such requirement, and that the attempt to read technical requirements of English law into rules intended to apply to parties of all nationalities, many of whom will not be represented by any (still less English) lawyers, would involve a significant false step. While the ICC arbitration rules in this case form part of an arbitration agreement governed by English law providing for arbitration with a seat in England and Wales, the meaning and effect of the ICC Rules should essentially be the same, whatever the seat and whatever the applicable law of the arbitration agreement. While I accept the ICC Rules clearly require more than a mere “notice of arbitration”, there is some analogy here with the broad and flexible approach adopted by English law in the context of s.14 of the 1996 Act when determining whether arbitration has been commenced and in respect of what matters, and the reasons for that approach (Mustill & Boyd, [7.17] and [7.20]).

The language of Article 4.3(c) – requiring a “description” of the basis of claim, rather than that it be set out – is indicative of a broad and non-technical approach. That is supported by the background to the introduction of the word “description” in the 1998 ICC Rules ([68]), and the commentaries at [70] and [71].

It would follow from Mr Dunning KC’s argument that if there was a legal dispute between the parties as to what the Letang v Cooper ingredients of the asserted cause of action were, there would be circumstances in which that question could be re-opened de novo under s.67 even though no appeal on a point of English law under s.69 of the 1996 Act was available or could be advanced.

In relation to this particular stipulation, Buhler and Webster note at [4.50] that “the Request should set out the legal basis of the claimant’s claims and not just be limited to facts. However, the claimant will usually do so in general terms referring to elements such as breach of contract or breach of applicable law.” That is consistent with the use of a rather high level description of the claim.

That was done here. I am satisfied that the basis of claim was sufficiently and accurately described in this case as a claim for breach of the Supply Contract (without deciding that a failure to communicate this information in the RFA would necessarily have rendered it invalid, an issue best left to a case where it arises).

In this case, the arbitration agreement in the Supply Contract was identified, so if Article 4(3)(e) creates a jurisdictional requirement to identify the arbitration agreement, it was satisfied. However, assuming it goes that far, Article 4.3(e) can require no more than that (not least given the word “and in particular”). The identification of “relevant agreements” offers obvious scope for different evaluations of relevance.

Derains and Schwarz, A Guide to the ICC Rules of Arbitration (2^nd) (2005), 48 said of the equivalent provision in the 1998 Rules that “it allows the Claimant a great deal of leeway in determining how much supporting documentation to submit together with a request”.

I am not persuaded that Article 4.3(e) creates a jurisdictional requirement to identify every document relevant to the claimant’s contention that it is a party to the identified arbitration agreement (for example the letters said to constitute offer and acceptance or which address any signatory’s authority or demonstrate ratification of unauthorised acts).

In any event, the Spin-Off plan is not an agreement (still less one between the arbitral claimant and respondent, which I suspect is what Article 4.(3)(e) is aiming at), but a unilateral legal act by the company effecting the spin-off which has legal effect under the legislation of its place of incorporation.