Notes on the Conduct of Arbitration in Accordance with the ICC Rules

(2), it is possible to request that the Court set a provision for additional fees and expenses of the arbitral tribunal and additional administrative expenses of the ICC (Article 2(10) of Appendix III). The arbitral tribunal shall not proceed with a request until it has been transmitted to it by the Secretariat. 203. Even if the Court did not request a provision for expenses at the time the request was filed, it may make a decision on costs at the time of examination and make notification of the addendum or the decision conditional upon payment by one or both parties of the costs thus fixed by the Court. 204. Upon receipt of the request from the Secretariat, the arbitral tribunal shall grant the parties a brief time period, normally not exceeding 30 days, to submit their comments. Nevertheless, the arbitral tribunal may grant a shorter time period to the parties depending on the circumstances of the case, once all relevant circumstances have been considered. 205. The parties must be aware of the limited scope of Article 36(2), which does not permit the review or modification of determinations that have been made finally in the award. 206. The arbitral tribunal shall submit its draft determination to the Court for prior examination within 30 days following the expiration of the time period granted for submitting comments. If the arbitral tribunal requires an extension of such time period, it shall inform the Secretariat accordingly. 207. The determination of the arbitral tribunal may take one of the following four forms:

• a)

  Addendum: if the arbitral tribunal decides to correct or interpret the award, since this will constitute part of the award. The Addendum is an integral part of the award;

• b)

  Decision: if the arbitral tribunal decides that the award does not require correction or interpretation and does not make a decision on costs. A Decision is not an integral part of the award. c. Addendum and Decision: if there are two or more requests and the arbitral tribunal decides to correct or interpret the award in response to one or more requests, but not all of them; d. Decision and Addendum on Costs: if the arbitral tribunal decides that the award does not require correction or interpretation, but makes a decision on costs relating to the request. The addendum on costs is an integral part of the award. 208. All decisions and addenda must indicate the reasons on which they are based. They must also include the operative conclusions ("dispositivo") or a decision denying or approving the request, as applicable. For further guidance on what should be included in the draft decision or addendum, see the ICC Checklist on Correction and Interpretation of Arbitral Awards. The Court shall examine all draft decisions and addenda. Once approved by the Court, the arbitral tribunal shall sign the decision or addendum and send it to the Secretariat for notification to the parties in accordance with paragraphs 197-199. 209. In all cases, the arbitral tribunal must first ensure that the mandatory legal rules in force at the seat of the arbitration do not exclude correction or interpretation of an award by the arbitral tribunal.

  NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 32 XVIII - Additional Awards 210. As provided in Article 36(3), a party may request an additional award with respect to claims on which the arbitral tribunal has not made a decision. A claim on which the arbitral tribunal has not made a decision is a claim submitted in the arbitration on which the arbitral tribunal, taking into account the parties' submissions, should have decided in the award. 211. Any request for an additional award must be submitted to the Secretariat within 30 days following receipt of the award by the requesting party. Upon receipt of the request for an additional award, the arbitral tribunal shall grant an opportunity to the other parties to submit comments on the request. Since objections to the admissibility of the request could be raised or there could be a need to submit submissions, a time period must be granted to the other parties in all cases. 212. Since a request for an additional award relates to claims submitted in the arbitration on which the arbitral tribunal has not made a decision, it is expected that the parties will have already submitted submissions on such claims in the arbitration, and extensive additional submissions should not be necessary. Accordingly, the

(3) provides that a brief time period, normally not exceeding 30 days, should be granted to the other parties to submit comments on the request. Nevertheless, the arbitral tribunal, after considering all relevant circumstances, may grant the parties a shorter or longer time period. Similarly, although the evaluation of a request for an additional award would not normally require obtaining additional evidence, the arbitral tribunal may permit the submission of additional evidence as appropriate. 213. Paragraphs 197-199, 202 and 203 shall apply mutatis mutandis. 214. Where the relevant national legislation or judicial practice provides for specific circumstances in which an arbitral tribunal may make certain decisions other than correction or interpretation of an award that has already been approved and notified or additional awards, such situations shall be handled in the spirit of the Rules and this Note. XIX - International Sanctions Regulations 215. International sanctions regulations may apply to an arbitration. The parties and arbitrators should consult the Note to the Parties and Arbitral Tribunals on ICC Compliance, available on the ICC website. XX - Administrative Secretaries 216. This section sets out the Court's policy and practice regarding the appointment, duties and remuneration of administrative secretaries of the arbitral tribunal and other assistants ("administrative secretaries") appointed as of August 1, 2012. 217. Administrative secretaries may provide a useful service to the parties and the arbitral tribunal in ICC arbitrations. Although designated primarily to assist three-member arbitral tribunals, an administrative secretary may also assist a sole arbitrator. Administrative secretaries may be appointed at any time during the arbitration.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 33 A Appointment 218. If an arbitral tribunal contemplates the appointment of an administrative secretary, it must carefully consider whether in the particular circumstances of the arbitration such appointment would be appropriate. 219. Administrative secretaries must satisfy the same independence and impartiality requirements as those applicable to arbitrators under the Rules. ICC personnel cannot act as administrative secretaries. 220. There is no formal process for the appointment of an administrative secretary. Nevertheless, before taking any steps towards the appointment of an administrative secretary, the arbitral tribunal must inform the parties of its intention to do so. To this end, the arbitral tribunal must submit to the parties the curriculum vitae of the proposed administrative secretary, together with a statement of independence and impartiality, a commitment by the administrative secretary to act in accordance with this Note and a commitment by the arbitral tribunal to ensure that this obligation of the administrative secretary will be fulfilled. 221. The arbitral tribunal must indicate to the parties that they have the opportunity to object to such proposal, and that an administrative secretary may not be appointed if any party objects to the proposal. B - Duties 222. Administrative secretaries act in accordance with the instructions of the arbitral tribunal and under its strict and continuous supervision. The arbitral tribunal is responsible at all times for the conduct of the administrative secretary during the arbitration. 223. Under no circumstances may the arbitral tribunal delegate its decision-making functions to the administrative secretary or rely on an administrative secretary to perform on its behalf any of the essential obligations of an arbitrator. Similarly, the functions assigned to an administrative secretary, such as the preparation of written notes or memoranda, shall not relieve the arbitral tribunal of its obligation to personally review the file and/or draft itself any decision of the arbitral tribunal. 224. An administrative secretary may, consistently with the foregoing, perform organizational and administrative tasks such as: • transmitting documents and communications on behalf of the arbitral tribunal; • organizing and maintaining the arbitral tribunal's file and locating documents; • organizing hearings and meetings and assisting the parties in this regard; • drafting correspondence to the parties and sending it on behalf of the arbitral tribunal; • preparing, for examination by the arbitral tribunal, drafts of procedural orders, as well as sections on factual matters of an award, such as the summary of the proceedings, chronology of facts and summary of the parties' positions, provided that such procedural orders and award sections are subsequently reviewed by the arbitral tribunal itself; • assisting at hearings, meetings and deliberations; taking notes or minutes, or timekeeping; • conducting legal or similar research;

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 34 • making corrections and verifying citations, dates and cross-references in procedural orders and awards, as well as correcting typographical, grammatical or computational errors. 225. The administrative secretary shall not act, and shall not be asked to act, in such a manner as to impede or discourage direct communication between arbitrators, between the arbitral tribunal and the parties, or between the arbitral tribunal and the Secretariat. 226. In case of doubt as to the tasks that may be performed by an administrative secretary, the arbitral tribunal or the administrative secretary should consult the Secretariat. C - Expenses 227. The arbitral tribunal may request the parties to reimburse the reasonable justified expenses of the administrative secretary incurred in connection with hearings and meetings. D - Remuneration 228. With the exception of reasonable justified expenses of the administrative secretary, the appointment of an administrative secretary shall not generate an additional financial burden for the parties. 229. The arbitral tribunal shall pay any remuneration due to the administrative secretary from the total fees paid to all arbitrators, so that the administrative secretary's fees do not increase the total cost of the arbitration. 230. The arbitral tribunal shall not request any form of remuneration from the parties for the activities of the administrative secretary. Any direct agreement between the arbitral tribunal and the parties regarding administrative secretary fees is strictly prohibited. Since arbitrator fees are set on an ad valorem basis, any remuneration to be paid to the administrative secretary is considered included in the arbitrators' fees. XXI - Arbitrator Expenses A - How to Submit a Request for Reimbursement of Expenses 231. The Secretariat shall reimburse expenses upon receipt of a request to that effect. Requests for reimbursement of expenses must be accompanied by original receipts to enable the Secretariat to fulfill its accounting obligations, and where appropriate, facilitate the provision of complete statements of expenses incurred by arbitrators to the parties. B - When to Submit a Request for Reimbursement of Expenses 232. Arbitrators must submit their requests for reimbursement of expenses and/or payment of daily allowances, together with all necessary supporting documentation, as specified below, as soon as possible after incurring such expenses. This will help ensure that the provision for expenses paid by the parties is adequate to cover the costs of the arbitration.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 35 233. All requests for reimbursement of expenses and/or payment of daily allowances for any period prior to submission of the final draft award must be submitted no later than when the final draft award is submitted to the Secretariat. Three-member arbitral tribunals must coordinate submission of their requests for reimbursement of expenses and/or payment of daily allowances to ensure they reach the Secretariat on or before submission of the final draft award. Requests for reimbursement of expenses and/or payment of daily allowances submitted after the Court has approved the final award will not be considered by the Court when fixing the costs of the arbitration and will not be paid except in exceptional circumstances at the discretion of the Secretary General. 234. In the event that all claims are withdrawn or the arbitration concludes before the final award is rendered, all requests for reimbursement of expenses and/or payment of daily allowances must be submitted within the time period granted by the Secretariat. Requests for reimbursement of expenses and/or payment of daily allowances that are submitted after the Court has fixed the costs of the arbitration will not be considered by the Court and will not be paid. C - Travel Expenses 235. In the event that travel is necessary in the course of an ICC arbitration, arbitrators shall be reimbursed for actual travel expenses incurred in traveling to and from their professional address as stated in the curriculum vitae submitted for the relevant ICC arbitration. Travel expenses shall be reimbursed in accordance with paragraphs 236-238. 236. Requests for reimbursement of travel expenses must be accompanied by originals of all receipts claimed or other appropriate proof if receipts are not available. Travel expenses that are not fully and clearly substantiated will not be reimbursed. 237. Reimbursement of travel expenses is subject to the following strict limits: a. Air travel: the cost of a ticket equivalent to the standard airfare applicable in business class. b. Rail travel: the applicable first-class rail fare. c. Travel to and from airport(s) and/or train station(s): the applicable standard taxi fare. d. Travel by private automobile: a fixed rate per kilometer traveled plus all parking fees and toll charges incurred and necessary. The fixed rate is US$ 0.80 per kilometer. 238. Except in relation to expenses claimed pursuant to paragraph 237(d), travel expenses shall be reimbursed, where possible, in the currency in which they were incurred. Alternatively, arbitrators may request reimbursement in United States dollars provided that the request is accompanied by a statement of the amount in United States dollars and certification of the exchange rate used (for example, a printed copy from www.oanda.com). The date of currency conversion shall be the date the expense was incurred.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 36 D - Daily Allowances 239. In addition to travel expenses, each arbitrator shall be paid a fixed daily amount as per diem for each day of ICC arbitration that the arbitrator is required to spend away from his or her usual professional address as stated in the curriculum vitae submitted for the relevant ICC arbitration. It is not necessary for the arbitrator to submit receipts to claim the per diem, but simply proof of travel undertaken for purposes of the arbitration. 240. If the arbitrator does not require hotel accommodation for overnight stay, the fixed daily rate shall be US$ 400. 241. If the arbitrator requires hotel accommodation for overnight stay, the fixed daily rate shall be US$ 1,200. 242. The applicable daily per diem is considered to fully cover all personal maintenance expenses of any nature and actual amount (except travel expenses) incurred by an arbitrator. Specifically, the applicable daily per diem is considered to cover the full cost of, among others: • Accommodation • Meals • Laundry/ironing/dry cleaning and other cleaning or similar services • Travel within the city • Telephone calls, faxes, emails and other forms of communication • Tips 243. To avoid confusion, daily per diem shall not be paid for time spent by an arbitrator traveling to or from the relevant destination. 244. Since the daily per diem is considered to cover all personal maintenance expenses incurred by each arbitrator while working on an ICC arbitration away from his or her usual professional address, the Secretariat shall in no case reimburse expenses exceeding the amount fixed for the applicable daily per diem. E - General Office Expenses and Courier Expenses 245. Office expenses and other general expenses incurred in the ordinary course of an arbitrator's or arbitral tribunal's work in connection with an ICC arbitration shall not be reimbursed. Nevertheless, an arbitrator or arbitral tribunal may request reimbursement at cost of any courier, photocopying, fax or telephone expenses incurred in connection with an ICC arbitration, provided that such request is accompanied by detailed receipts. F - Advance Payments of Expenses 246. Arbitrators may request advance payment of travel expenses and/or applicable daily allowances. If an advance is granted, the arbitrator must subsequently submit to the Secretariat the relevant supporting documentation, including all receipts and a statement of the working days and nights spent away from his or her usual professional address while working on an ICC arbitration.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 37 XXII - Administrative Services A - Deposit of Funds Other than the Provision for Costs of Arbitration 247. The ICC may facilitate arbitrators and parties who expressly request it in writing with a funds deposit service in the course of the arbitration in an account administered by the ICC for purposes of payment of the advance on VAT payable with respect to arbitrator fees or a provision to cover the fees and expenses of any expert appointed by the arbitral tribunal, as well as for purposes of security. 248. When arbitrators and parties avail themselves of this service, and the ICC agrees to provide it, it shall act as a depositary of the funds. The ICC receives funds from one or more parties, which have been instructed to do so by an arbitrator (president or member of an arbitral tribunal on behalf of the other members of the arbitral tribunal, or sole arbitrator) and makes payments from the account at the request of the arbitrator. 249. The ICC shall act as depositary of funds relating to: a. VAT, taxes, fees and contributions applicable to arbitrator fees; b. Experts; c. Security accounts. 250. This service is available for arbitrators from any country. 251. Deposit accounts are administered only in United States dollars or euros, unless decided otherwise. 252. Deposit accounts do not generate interest for the parties or arbitrators. Step 1: Request for a Deposit Account Any arbitrator wishing to use this service must inform the Secretariat in writing and request that the ICC act as depositary of the funds that one or more parties are to pay as advance on VAT applicable to arbitrator fees or provision to cover the fees and expenses of any expert appointed by the arbitral tribunal, as well as for purposes of security. The initiative for requesting the opening of a deposit account, withdrawing deposits and making payments from the deposited funds rests solely with the arbitrators. Arbitrators are responsible for ensuring that payments are made in compliance with applicable banking laws and practices. Step 2: Estimation of Amounts to be Paid The arbitrator determines the funds that one or more parties are to deposit in the deposit account. If, in the course of the arbitration, the amount of the provision for expenses is increased pursuant to a decision by the Court to that effect, this step may be repeated. Similarly, if, in the course of the arbitration, the amount of the funds deposited to cover the fees and expenses of any expert or the amount of the funds deposited in a security account are increased pursuant to a decision by the arbitral tribunal, this step may be repeated. Step 3: Funds to be Deposited The arbitrator requests that one or more parties deposit the funds and sets a time period for this. The Secretariat shall provide the relevant parties with banking instructions. As a general rule, payments in ICC arbitral proceedings must come directly from the parties to the proceedings. The ICC shall accept payments made by duly authorized representatives, provided that the legal relationship between the third party paying and the party to the proceedings is evidenced. If the legal document is not considered satisfactory by ICC banks in accordance with their legal obligations under French law, the payment received by the ICC may be rejected and the lack of relevant information communicated to the appropriate regulatory authorities. The party making the payment must pay all applicable bank charges and/or fees for payment of the provision for expenses. However, bank transfers made within the European Economic Area (EEA) are subject to shared bank commissions. Step 4: Acknowledgment of Payments and Administration The Secretariat confirms to the arbitrator and the parties receipt of the amounts paid by the party(ies). When the Secretariat does not acknowledge receipt to the arbitrator of the payment made by the party(ies), it is the arbitrator's responsibility to renew the request for payment and set a time period for such. The ICC administers the funds on behalf of the arbitrator. Step 5: Payments The arbitrator requests that the ICC make payments from the funds deposited by the parties. The ICC makes payments within the limits of the deposited funds. Step 6: Remaining Balance in the Account At the end of the arbitration, the Secretariat shall request instructions from the arbitrator regarding closure of the deposit account. Based on the information provided by the arbitrator and in accordance with his or her instructions, the Secretariat shall close the deposit accounts and return to the party(ies) any remaining amounts of the deposited funds held in custody by the ICC. The ICC may close the deposit account if there is no remaining balance after informing the arbitrator accordingly. The account shall be closed even if there is a pending request from the arbitrator for payment of funds.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 39 B - Deposits for VAT, Taxes, Fees and Contributions on Arbitrator Fees 253. The amounts paid by the ICC to arbitrators do not include value added tax (VAT) or any other tax, fee or contribution of the same nature that may be applicable to arbitrator fees (Article 2(13) of Appendix III). The parties have the obligation to pay such VAT or similar fees or contributions under applicable legislation. Reimbursement of these is a matter exclusively between the arbitrator and the parties. This obligation of the parties does not include payment of any other tax, fee and contribution that may apply to arbitrator fees such as, among others, income or corporate tax, professional license fees, charges or withholdings applied by the arbitrator's professional association, pension or social security scheme, as well as bank charges and commissions. In case of doubt, arbitrators are advised to consult the Secretariat. 254. Arbitrators subject to VAT payment may expressly request in writing to use the service described above so that the ICC administers funds corresponding to their estimates of VAT to be paid in relation to their fees and expenses (hereinafter, the "Fees"). 255. This service is completely independent and has no effect on the advance provision payment procedure established in the Rules. In the event that the parties do not pay the VAT applicable to arbitrator fees, arbitrators may not invoke this circumstance before the Court as grounds, for example, to suspend the arbitration. 256. If the president of an arbitral tribunal requests an advance on VAT on behalf of all members of the arbitral tribunal subject to VAT payment, such president must provide to the Secretariat a breakdown by arbitrator of this advance. 257. Arbitrators have the exclusive responsibility to ensure that the procedure described above complies with the tax legislation and regulations applicable to the exercise of their profession as arbitrators, including payment of their fees. Arbitrators are urged to inform themselves about how to calculate the amount of VAT to be paid. 258. The ICC acts exclusively as a depositary and is not in a position to advise arbitrators on matters of tax legislation. 259. The arbitrator determines the amount of VAT corresponding to his or her fees in accordance with the applicable regulations in the place where such arbitrator is a taxpayer. 260. Arbitrators may use the Cost Calculator available on the ICC website to estimate what arbitrator fees might amount to. Nevertheless, such amounts are only indicative of the fees that might ultimately be received, which could be higher or lower. Arbitrators should bear in mind that the breakdown of fees among arbitral tribunal members (between 40% and 50% for the president, and between 25% and 30% for each co-arbitrator), to which reference is made in this Note, is merely illustrative and may be modified by the Court. 261. Any invoice issued by an arbitrator to a party for fees and, as applicable, VAT applicable to such fees should be for the corresponding portion of fees and taxes payable by such party. In principle, the arbitrator shall not issue any invoice to the ICC, except in special circumstances to be discussed in advance with the Secretariat.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 40 262. When preparing his or her invoice, the arbitrator requests from the ICC payment of the VAT corresponding to fees to be paid by the party. This applies when the final award is rendered and also in the event that the Court decides to pay an advance of the fees of arbitrators residing in countries where, pursuant to local tax legislation, VAT must be paid to tax authorities when fees are paid in advance. XXIII - VAT Payable on ICC Administrative Expenses 263. ICC administrative expenses do not include the value added tax (VAT) applicable in France ("VAT"; Article 2(14) of Appendix III). From January 1, 2021, and to the extent VAT is applicable, ICC administrative expenses shall be subject to payment of VAT. Consequently, ICC administrative expenses may be increased by the amount corresponding to the rate in force as detailed in the Explanatory Note on VAT Applicable on ICC Administrative Expenses available on the ICC website. The rate applicable under French tax law is currently 20%. Payment requests by the Secretariat for provisions for expenses shall be made by issuing invoices that shall include all requested amounts (i.e., amounts to cover ICC administrative expenses and provision for arbitrator fees and expenses). 264. The general approach provided for in the Rules with respect to ICC administrative expenses is that the parties must bear them (together with arbitrator fees and expenses) through payments of the provisions for expenses requested by the Secretariat (see section VII(A)). Where applicable, VAT shall be charged on the advance payments requested corresponding to ICC administrative expenses. As an indication, VAT shall be charged and invoiced on: a. Registration fee (Articles 4(4)(a) of the Rules and 1(1) of Appendix III). b. The portion of the payments requested corresponding to ICC administrative expenses relating to: (i) Provisions for expenses (Articles 37 of the Rules and 1 of Appendix III); (ii) Additional provisions for expenses (Articles 36(5) of the Rules and 2(11) of Appendix III); and (iii) Costs of the emergency arbitrator procedure (Article 7(1) of Appendix V). c. Suspension fee, where applicable (Article 2(7) of Appendix III). The ICC shall not charge VAT on the portion of the provision for expenses corresponding to arbitrator fees and expenses. Invoicing and collection of VAT that parties owe to arbitrators, where applicable, is a matter that rests exclusively with the arbitrators and parties (see paragraph 253). XXIV - Assistance in the Conduct of Arbitration A - Conduct of Arbitration 265. The Secretariat may assist the parties and arbitral tribunals in the conduct of the arbitration, particularly in the following matters: a. Deposit of documents: the Secretariat may act in certain circumstances as a depositary of documents.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 41 b. Telephone conferences: the Secretariat may assist arbitral tribunals in organizing telephone conferences with the parties and, where necessary, participate in such conferences. c. Administrative secretaries: the Secretariat may assist arbitral tribunals in finding administrative secretaries for appointment as provided in section XX. d. Model documents: the Secretariat may provide arbitral tribunals with model documents relating to the conduct of the arbitration, particularly terms of reference and procedural schedules. e. Transparency: as provided in paragraph 55, the Court may, at the request of the parties, publish on its website, or make available to the public in another manner, information or documents relating to an ICC arbitration that is subject to transparency rules or regulations. f. ADR: the ICC International ADR Centre provides parties and arbitral tribunals with a range of services related to ongoing ICC arbitrations, particularly the proposal and appointment of experts (see section XXVI). g. ICC Commercial Crime Services: the Secretariat may assist the parties and arbitral tribunals in communications with the ICC Commercial Crime Services (for further information, visit: www.icc-ccs.org). B - Hearings and Meetings 266. The Secretariat may assist the parties and arbitral tribunals in the organization of hearings and meetings, particularly: a. ICC Hearing Centre in Paris (France): the ICC Hearing Centre offers flexible packages and a range of specialized facilities and services for conducting hearings and meetings. Parties and arbitral tribunals may contact the Secretariat for further information or visit the website www.icchearingcentre.org. By booking a room at the ICC Hearing Centre for purposes of an ICC arbitration, parties and arbitrators agree that their contact details may be communicated by the Secretariat to the ICC Hearing Centre solely for purposes of the booking. b. Other hearing centres: the ICC has agreements with other hearing centres around the world. Parties and arbitral tribunals may contact the Secretariat for further information. c. Stenography and translation services: the Secretariat may provide parties and arbitral tribunals with information on stenography and translation services. d. Visas and other authorizations: the Secretariat may issue letters in order to facilitate obtaining visas or other authorizations for persons participating in a hearing or meeting relating to an ICC arbitration. e. Hotels: the ICC has negotiated preferential rates with a number of hotels in Paris and other jurisdictions. Parties and arbitral tribunals may contact the Secretariat for further information. C - Sealed Offer(s) 267. The Secretariat may assist parties in submitting to an arbitral tribunal information relating to certain rejected settlement offers and related communications (commonly referred to as "Sealed Offer(s)"). The Secretariat may also assist in any counter-offer made in the form of a Sealed Offer by the person receiving the offer.

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 42 268. The arbitral tribunal must consider whether to consult with the parties at an early stage (for example, at the first case management conference as provided in Article 24) and invite them to agree on a procedure that contemplates the use of Sealed Offer(s) in the arbitration. In the absence of initiative by the arbitral tribunal to this effect, any party may raise this matter. 269. The Secretariat shall keep communications relating to the Sealed Offer(s) confidential from the arbitral tribunal until all issues relating to liability and quantum have been resolved. 270. To obtain assistance from the Secretariat, the following procedure must be followed: a. At any time after the Secretariat has delivered the Statement of Claim to the respondent(s), any party to the arbitration may send to the Secretariat a copy of a settlement offer made previously to any other party to the arbitration, but which was not accepted, marked as "without prejudice except as to costs". The offer must be submitted to the Secretariat in a sealed envelope marked as "without prejudice except as to costs". The covering letter must request that the Secretariat treat the sealed envelope confidentially and not transmit it to the arbitral tribunal until the tribunal has resolved all issues relating to liability and quantum, and is ready to consider the allocation of costs. The original recipient of the offer must be copied on all communications addressed to the Secretariat relating to the Sealed Offer(s). b. Once the Secretariat receives the correspondence as set out in paragraph (a), it shall inform: (i) the submitting party (with a copy to the other party) that the sealed envelope shall be kept confidential, and (ii) the original recipient of the offer (with a copy to the other party) of the circumstances under which the sealed envelope may be presented to the arbitral tribunal and request comments, if appropriate. c. Subsequent correspondence arising from the original offer (including, for example, any counter-offer) that is sent by a party to the Secretariat in a sealed envelope marked as "without prejudice except as to costs" shall be kept by the Secretariat in the same manner as the original offer. d. At an appropriate stage of the proceedings, the Secretariat shall write to the arbitral tribunal to inform it that the Secretariat holds correspondence maintained between the parties that may be potentially relevant to its determination of costs pursuant to Article 38. The Secretariat shall request the arbitral tribunal to: (i) inform the Secretariat in writing whether it accepts receiving the Sealed Offer(s); and if so, (ii) inform the Secretariat in writing once it has completed its deliberations on all issues relating to liability and quantum, and is ready to allocate costs. e. If the arbitral tribunal accepts receiving the Sealed Offer(s), it must refrain from closing the proceedings as provided in Article 27 to the extent necessary to allow the parties to submit further submissions on costs. f. Once the arbitral tribunal has informed the Secretariat that it is ready to allocate costs pursuant to Article 38, the Secretariat shall send to the arbitral tribunal all correspondence marked as "without prejudice except as to costs" and held by the Secretariat. Once the arbitral tribunal has received this information, it shall open the sealed envelopes and provide copies of any documents included therein to the parties. g. The arbitral tribunal shall decide whether further procedural steps are necessary or whether it can proceed to allocate costs as provided in Article 38. For clarity, the arbitral tribunal shall continue to have discretion to decide what weight, if any, should

NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 43 be given to the correspondence marked as "without prejudice except as to costs" and received by the Secretariat. h. Once the arbitral tribunal has completed its deliberations on costs, it shall incorporate its decision on cost allocation into the final draft award to be submitted to the ICC Court for examination as provided in Article 34. XXV - Post-Award Services 271. In accordance with Article 35, the Secretariat shall assist the parties in fulfilling any formalities that may be necessary, particularly:

• a)

  Certified copies of awards, Terms of Reference, correspondence or any other document issued or approved by the Secretariat or the Court;

• b)

  Notarial certification by the ICC notary in Paris of signatures affixed by members of the Secretariat to certify copies of documents;

• c)

  Certificates;

• d)

  Non-certified copies of documents belonging to the file, limited in number and size;

• e)

  Reminder letters to the parties of their obligation to comply with the award. 272. Since some post-award services entail considerable time and preparation, parties should request these services from the Secretariat with sufficient advance notice. XXVI - ICC International ADR Centre A - ICC ADR Rules 273. The parties are free to resolve their dispute amicably at any time during the arbitration. The parties may consider an amicable dispute resolution procedure administered by the ICC International ADR Centre (the "Centre") as provided for in the ICC ADR Rules, which, in addition to mediation, contemplates the use of other amicable dispute resolution procedures. The Centre may also help the parties find an appropriate mediator. The appointment of a mediator by the Centre made at the joint request of all parties in an ongoing ICC arbitration is made free of charge. 274. When they deem it appropriate, arbitrators may remind the parties of the existence of the ICC ADR Rules. 275. For further information, you can contact the Centre by calling +33 1 49 53 29 03 or writing to adr@iccwbo.org. B - ICC Expert Determination Rules 276. In the event that a party requires the assistance of an expert, the Centre may, upon request, propose experts from a wide variety of specialized fields. The price of this service is US$ 5,000.

  NOTE TO THE PARTIES AND ARBITRAL TRIBUNAL ON THE CONDUCT OF ARBITRATION | 44 277. Similarly, when the arbitral tribunal requires the assistance of an expert, the Centre may, upon request, propose experts. This service is free of charge for arbitrators. 278. For further information, you can contact the Centre by calling +33 1 49 53 29 03 or writing to expertise@iccwbo.org. XXVII - Dispatch of Materials to the ICC and Customs Duties 279. Materials sent to the ICC (communications, written submissions, folders, tapes, CDs, etc.) must be sent with the description of "Documentation" only. No other description should be included on the shipping receipt or bill of lading. In general, documentation is not subject to customs duties. Other types of material may be subject to duties depending on origin, content and weight. Customs duties, if any, shall increase the costs of the arbitration.