A. v. B. Ltd [Counterclaim Against Third Parties in an ICC Arbitration in Switzerland] No. 4A_376/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ Where an arbitration agreement refers to an arbitral institution

by an imprecise, incomplete, inconsistent or erroneous name, its

validity is not thereby affected, provided that it expresses the

parties’ mutual intention to refer the resolution of their disputes to a

private arbitral body and that such body can be determined by

resort to interpretation of the agreement.

■ A reference to “the Arbitration Court of the International

Chamber of Commerce of Zurich in Lugano” was rightly

interpreted by the arbitrator to mean ICC arbitration, place of the

arbitration in Lugano.

■ An arbitrator sitting in an ICC arbitration in Switzerland has the

power and the duty to extend the arbitration to a third party sued by

a respondent by way of counterclaim under the terms of a different

contract, in spite of the fact that the counterclaimant has not

brought a second arbitration and the requirement of the identity of

the parties is not met under Art. 4(6) of the ICC Rules, provided

that:

(i) the two contracts seek to achieve one and the same purpose;

(ii) the two contracts are so intertwined that a decision confined to

one contract is not reasonably possible;

(iii) the parties to the second contract are related to the parties to

the first contract under which the arbitration was brought;

and

(iv) both contracts contain the same ICC arbitration clause.

When the arbitration is to be extended according to the rule set out

in the preceding paragraph, the arbitrator is bound to do so in spite

of a prior decision by the International Court of Arbitration

declining the extension.