A French equipment manufacturer signs a 6.2 million euro contract with a Latin American port operator. Eight months of negotiation on price, payment milestones, delay penalties and the bank guarantee. The dispute resolution clause runs to two lines copied from a template: ICC arbitration, nothing more. Twenty months later, the buyer withholds 1.55 million for throughput shortfalls, and the manufacturer discovers that its clause has already decided, without any input from him, that a sole arbitrator will resolve in six months a dispute whose technical demonstration would take twelve.
This page sets out the five decisions an ICC arbitration clause makes, whether you make them or not: the seat, the number of arbitrators, the language, the governing law and access to emergency relief. It then explains what the ICC Rules of Arbitration in force since 1 June 2026 require you to settle earlier than before, the wordings that create a dispute before the dispute, and the question that governs the other five, namely where your counterparty’s assets are.
1. The seat of the arbitration, which chooses your supervising court
The seat of the arbitration is not the place where hearings are held. It is a legal connecting factor: it designates the law governing the mandatory aspects of the arbitral procedure, the supporting judge competent to resolve difficulties in constituting the tribunal, and the court before which any challenge to the award will be brought. An arbitration may have its seat in Paris, hold its hearing in Singapore and take evidence from two witnesses by video link without the seat being affected by a single line.
Choosing a seat therefore means choosing three things at once, and a company that picks a city out of diplomatic symmetry, because it looks neutral to both sides, has in truth chosen nothing. Political neutrality and the quality of the local arbitration law are two separate questions. The first reassures the counterparty during negotiation; the second decides the fate of the award three years later.
French international arbitration law, which applies where the seat is in France, is set out in articles 1504 and following of the code of civil procedure. It has three features that companies underestimate. First, an action to set aside is open only in five exhaustively listed cases, concerning the tribunal’s jurisdiction, its constitution, compliance with its mission, due process, and the contrariety of recognition or enforcement to international public policy (article 1520 of the code of civil procedure). None of these permits a rehearing on the merits, which is precisely the point of choosing arbitration.
Second, parties none of whom is domiciled or established in France may waive the action to set aside by a specific agreement (article 1522 of the code of civil procedure). That option surprises many, and it is genuinely useful for two foreign operators who choose Paris as neutral ground and want a decision that nobody can reopen.
Third, neither the action to set aside nor an appeal against the enforcement order suspends enforcement of the award, unless enforcement would seriously prejudice the rights of a party (article 1526 of the code of civil procedure). For a company that fears delaying tactics from a well organised debtor, that provision is on its own a negotiating argument when the seat is discussed. The practical rule fits in one sentence: the seat is chosen on the arbitration law, the case law of the local courts and the speed of the supporting judge, not on the distance in kilometres between the parties.
2. The number of arbitrators, which the four million dollar threshold decides for you
The arbitral tribunal consists of a sole arbitrator or three arbitrators. The choice looks budgetary, and in part it is: three arbitrators mechanically cost more and lengthen the timetable, if only because three diaries must be reconciled. Since 1 June 2026 it has become inseparable from the expedited procedure threshold.
The ICC Rules of Arbitration that entered into force on that date raise to 4 million US dollars the threshold below which the expedited procedure applies automatically, for arbitration agreements concluded on or after 1 June 2026 (article 1(3) of Appendix V to the Rules). Agreements concluded earlier remain subject to the threshold in force at the date they were made. A company signing a silent ICC clause today therefore accepts, for most of its everyday disputes, a sole arbitrator appointed by the Court, condensed submissions and an award expected within six months of the case management conference.
That regime serves the claimant seeking payment of a balance on a simple basis. It disserves the party that must demonstrate technical non-conformity, because six months are not enough to run an adversarial expert process on a construction programme or on production throughput. The right question is therefore not whether the expedited procedure is fast, it is, but which party, in your contract, is likely to bear the burden of a technical demonstration.
A company that anticipates technical disputes below the threshold excludes the expedited procedure expressly, or requires three arbitrators. One that anticipates recurrent unpaid invoices above the threshold does the opposite and adopts the expedited regime in advance. Either way, the clause says something. It is silence that costs.
3. The language, chosen on the contract’s actual documentation
The language of the proceedings governs the submissions, the hearings, the exhibits and, in practice, the pool of available arbitrators. It is chosen on the actual documentation of the transaction, not out of national preference. Where the drawings, site minutes, inspection reports and commercial correspondence are in English, imposing French means funding the translation of several thousand pages, then opening a debate on the accuracy of those translations.
A useful clause goes further than naming a language. It provides that exhibits are produced in their original language without mandatory translation, and that only the passages actually relied upon are translated. Two lines that regularly save tens of thousands of euros in a construction file, and that avoid a procedural skirmish at the outset.
The clause that leaves the tribunal to settle the language after the dispute has arisen produces the opposite effect: cross submissions on a preliminary question, six to eight weeks lost, and a first battleground where there was only a housekeeping issue.
4. The law of the contract, and the forgotten law of the arbitration agreement
An international contract subject to arbitration is governed simultaneously by several legal systems that must stop being confused. The law of the contract governs formation, interpretation and performance of the obligations. The law of the arbitration agreement governs the validity, scope and effects of the clause itself, and therefore the question of who is bound by it. The law of the seat governs the mandatory aspects of the procedure and determines judicial review. The procedural rules, finally, are those of the ICC Rules, supplemented by the tribunal’s procedural orders.
The tribunal applies the rules of law chosen by the parties and, failing that, those it considers appropriate, taking account of the contract terms and the relevant trade usages. Leaving the question open means entrusting a tribunal not yet constituted with defining the rules of the game after the dispute has arisen. No company would accept that for price; many accept it for law.
The costliest omission concerns the law of the arbitration agreement. Where a group of companies is involved and the extension of the clause to a non signatory parent is in issue, that law commands the answer, and national laws diverge sharply. French law takes an approach favourable to extension to companies involved in the conclusion or performance of the contract; other laws require formal consent and will exclude the parent. A silent clause leaves the answer to the accidents of conflict of laws, at the very moment when the group’s solvency is at stake.
The fate of the Vienna Convention of 11 April 1980 on contracts for the international sale of goods must also be settled, since choosing a national law does not automatically exclude it. Excluding or retaining it is a decision, and then a drafting exercise.
5. Urgency, which is stipulated when things are calm
The fifth decision is the one clauses most often omit. Where relief cannot wait, three routes exist and must not be confused. The arbitral tribunal may order interim measures, but only once constituted, which rarely takes less than two months. The emergency arbitrator steps in before that constitution: appointment is in principle within two days of the application, with a decision in around fifteen days. The national judge remains competent for anything requiring coercion, conservatory attachments and measures affecting third parties.
The 2026 Rules markedly strengthen the second route. The emergency arbitrator may now issue a preliminary order without prior notice where warning the opposing party would destroy the effectiveness of the measure, which targets asset dissipation and destruction of evidence, subject to transmitting the application immediately and hearing the parties thereafter, the order being open to modification or discharge. The mechanism is further available against a non signatory party where the President of the Court considers, on the face of the application, that an arbitration agreement may bind it (Appendix IV to the Rules).
The clause must therefore expressly preserve access to the emergency arbitrator and access to the court for conservatory measures. Clumsy drafting, for example a clause reserving all disputes exclusively to arbitration, hands the opposing party an argument to challenge the jurisdiction of the court seised urgently. Anyone who discovers that difficulty on the day a vessel changes owner has already lost.
6. What the 2026 Rules force you to decide earlier
The Rules in force since 1 June 2026 apply to arbitrations commenced on or after that date, unless the parties agree to submit to an earlier version (article 1(2)). They shift the effort towards the first weeks of the case, and that shift changes how a clause is drafted as much as how proceedings are run.
The terms of reference, which for decades required claims to be crystallised two or three months after transmission of the file, cease to be mandatory. The structuring step becomes the initial case management conference, to be held within thirty days of transmission of the file to the tribunal (article 24). New claims made after that conference require the tribunal’s authorisation, assessed by reference to their nature, the stage of the proceedings, the impact on costs and the other circumstances (article 25).
The Rules also enshrine an early determination allowing a claim or defence that is manifestly without merit, or manifestly outside the tribunal’s jurisdiction, to be dismissed (article 30), and open a very expedited procedure, by agreement of all parties and without any ceiling on amount, with an award within three months of the initial case management conference (article 33 and Appendix VI). The time limit for the award is no longer uniform: it is fixed and, where appropriate, extended by the President of the Court according to the timetable of the particular case (article 34).
The operational consequence is plain. A claim forgotten at the outset can no longer be quietly added along the way, and a case built during the proceedings is a case lost. For the clause, that means two things: consenting in advance to the very expedited procedure if you want to be able to use it, because agreement from the opposing party after the dispute has arisen is improbable, and checking that the company’s internal timetable allows a complete file to be produced in six weeks.
7. The three wordings that create a dispute before the dispute
The first is the hybrid clause, which submits disputes to arbitration while reserving the exclusive jurisdiction of a national court, or which reserves to one party alone the choice between the two. Its validity varies from one legal system to another and it generates a preliminary debate on jurisdiction lasting several months, a debate a bad faith opponent will not fail to open.
The second is the badly calibrated pre arbitration mediation clause, which imposes an attempt at conciliation without fixing its duration, its starting point or how failure is to be recorded. It offers the respondent a ground of inadmissibility, and it turns a good faith requirement into a delaying tool. A useful clause fixes a short period, thirty or forty five days, and states that its expiry opens arbitration without further formality.
The third is the badly articulated contractual set. Framework agreement, implementing contracts, subcontracts and guarantees carry different dispute resolution clauses, sometimes an arbitration clause on one side and a jurisdiction clause on the other. The result is familiar: inability to bring inseparable questions before a single tribunal, parallel proceedings, risk of contradictory decisions. Consistency between the clauses within one transaction is worth more than perfection in any one of them.
8. The question that precedes the other five: where are the assets
An award has economic value only if it can be enforced against an identified asset. The method therefore consists in reversing the usual order of questions and starting from enforcement. Where does the counterparty hold attachable assets, in which States will attachment be feasible, what is the quality of the enforcement judge in those States, and is there an instrument, a first demand guarantee, a standby letter of credit, a parent company guarantee, that would avoid the detour through enforcement altogether.
In France the answer is predictable: awards are recognised or enforced if their existence is established by the party relying on them and if such recognition or enforcement is not manifestly contrary to international public policy (article 1514 of the code of civil procedure), enforcement of an award made abroad falling to the judicial court of Paris (article 1516). Elsewhere, everything depends on the New York Convention of 10 June 1958, to which 172 States are parties, and on how local courts apply it.
A debtor whose assets sit in a State where enforcement takes two years and attracts systematic appeals is not defeated with a good arbitration clause, but with a bank guarantee issued by a bank located elsewhere. The arbitration clause comes next. That reversal of method is the one this firm advocates, and it is the only one that turns a favourable decision into money collected.
Frequently asked questions
Can an arbitration clause be amended after the contract is signed
Yes, by an amendment, and that is sometimes the only way to repair a dangerous clause. In practice the counterparty will agree to reopen the question only if it sees an interest in doing so, for instance on an extension, a volume increase or a price renegotiation. Once the dispute has arisen, agreement on a new arbitration agreement remains possible but becomes rare, each side then assessing what the existing clause gives it. The right moment is while the commercial relationship is still good.
What happens if the clause does not designate the seat
The proceedings are not paralysed: the International Court of Arbitration fixes the seat if the parties do not agree. But the company loses control of a decisive choice, that of the arbitration law and the supervising court, and it loses it just when it most needs predictability. Add to that a delay while the question is dealt with, and often a debate between the parties that postpones constitution of the tribunal. An unstipulated seat is a delegated decision, not an avoided one.
Do three arbitrators cost exactly three times more
Not exactly, but that is the order of magnitude for the arbitrators’ share. Fees are calculated on a scale based on the amount in dispute, applied to each arbitrator, and a three member tribunal lengthens the timetable, which mechanically increases counsel time. In return it brings collegiate deliberation and allows each party to take part in constituting the tribunal. The calculation is made against the stakes: a high value or strategically exposed dispute often justifies the extra cost.
Is the ICC standard clause enough
It secures the essentials, the institution’s jurisdiction and the application of its rules, and it is better than a badly drafted clause. It settles neither the seat, nor the language, nor the number of arbitrators, nor the governing law, nor access to emergency relief, that is to say precisely what determines how the dispute will unfold. In a significant contract the standard clause is a starting point, completed decision by decision, in the light of the transaction and of where the assets are.
Does an ICC clause bind non signatory group companies
The answer depends on the law applicable to the arbitration agreement, and national laws diverge. French law broadly admits extension to companies that took part in the conclusion or performance of the contract, where their situation reflects a common intention to submit to arbitration. Other laws require a signature. For a company contracting with the subsidiary of a solvent group, the question is not theoretical: it decides against whom the award can be enforced.