KluwerArbitration
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Arbitrating under the
2012 ICC Rules
Organization
International Court of
Arbitration of the
International Chamber
of Commerce
Bibliographic
reference
'Part II: Opening Moves,
Chapter 9: Responding to a
Request for Arbitration', in
Jacob Grierson and Annet
van Hooft , Arbitrating under
the 2012 ICC Rules,
(© Kluwer Law International;
Kluwer Law International
2012) pp. 85 - 95
© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Part II: Opening Moves, Chapter 9: Responding to a
Request for Arbitration
A party receiving a Request for Arbitration (i.e., a respondent) will need to decide quickly whether to
respond to the Request for Arbitration at all (i.e., by filing an Answer) and (if so) how best to do so,
including whether to make counterclaims.
In this chapter, we will first discuss whether to respond at all, a question typically posed by parties
who object to the jurisdiction of the arbitral tribunal (section I). We will then provide guidance in
relation to the time-limit for filing the Answer and whether that time-limit can be extended (section II).
Then we will discuss how to draft an Answer (section III) and the more formal requirements relating
to the filing of the Answer (section IV). Finally, we will discuss the Reply that the claimant may file in
response to a counterclaim (if any) by the respondent (section V).
I Whether to Respond at All
Not infrequently, a respondent forms the view (rightly or wrongly) that the disputes referred to in the
Request for Arbitration are not subject to ICC arbitration. Such a respondent has an important
preliminary decision to take: whether to participate in the arbitration at all or simply to boycott the
proceedings.
In more detail, the two options are:
(1)To participate in the arbitration, making an early and clear objection to jurisdiction, in the hope
that the Court or, more likely, the arbitral tribunal will uphold the jurisdictional objection. (273) If the
jurisdictional
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objection is rejected by the arbitral tribunal, the respondent will retain the right to apply to a national
court to annul the award for lack of jurisdiction and/or, at a later stage, to object to enforcement of
the final award. (274)
(2)To boycott the proceedings, and wait for an award to be rendered on an ex parte basis. In the
event of an unfavourable award, the respondent can then try to have it annulled and/or object to
enforcement. (275)
In either case, the respondent may (depending on the applicable arbitration law) also apply to the
national courts for a decision that the arbitral tribunal does not have jurisdiction and/or for an order
that the arbitration proceedings be stopped (although the latter type of order is rarely granted). (276)
The respondent may also seek to commence parallel proceedings before the forum (national court
or alternative arbitral tribunal) that it claims does have jurisdiction over the dispute.
In most cases, we would recommend against boycotting proceedings. By refusing to participate in
arbitration proceedings, a respondent loses the possibility of influencing various important
decisions that may be taken by the Court (e.g., concerning the place of the arbitration and the
number of arbitrators). In addition, a party which simply ignores arbitral proceedings runs the risk of
sending the arbitral tribunal the message that it has no real defence to the claims made against it.
Even if this is in fact quite untrue, the arbitral tribunal may have no way of knowing that, since it will
only hear the argument and evidence presented to it by the claimant. There is therefore a real risk
that a respondent that boycotts an arbitration will end up with a final award against it, which it will
then need to try to annul and/or whose enforcement it will have to object to.
II The Time-Limit for Filing the Answer
Assuming that the decision has been taken to participate in the arbitration and therefore to respond
to the Request for Arbitration, the question then arises, what needs to be done to respond?
Article 5(1) of the 2012 ICC Rules provides that ‘Within 30 days from the receipt of the Request for
Arbitration from the Secretariat, the respondent shall submit an Answer (the “Answer”) …’
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A Extensions of the Time-Limit
This 30-day deadline, which runs from the day following the date when the Request for Arbitration is
deemed to have been received, (277) is often too short a period for a party to be able to prepare and
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 file an Answer, particularly in circumstances where it may have taken time to instruct counsel.
Accordingly, the Secretariat in practice regularly grants extensions of up to 30 days, pursuant to
Article 5(2) of the 2012 ICC Rules, which provides:

The Secretariat may grant the respondent an extension of the time for submitting
the Answer, provided the application for such an extension contains the
respondent's observations or proposals concerning the number of arbitrators
and their choice and, where required by Articles 12 and 13, the nomination of an
arbitrator. If the respondent fails to do so, the Court shall proceed in accordance
with the Rules.

In other words, the Secretariat will only grant an extension where the respondent requesting it
provides the information that it needs in order to proceed with the constitution of the arbitral tribunal,
namely:
(1)the respondent's observations or proposals concerning the number of arbitrators (where the
arbitration clause does not specify the number, or the claimant has proposed a different number of
arbitrators than the number mentioned in the arbitration clause); (278)
(2)the respondents' observations or proposals concerning the choice of arbitrators. Such
observations will depend on how many arbitrators there are to be:
(a)if only one, then the respondent should not propose the name of an arbitrator, as this could be
counterproductive, (279) but may suggest the qualities that the sole arbitrator should possess;
(b)if three, then the respondent should nominate its co-arbitrator, pursuant to Article 12(4) of the
2012 ICC Rules. (280) In addition, the respondent should comment on how the president of the
arbitral tribunal should be selected (e.g., whether the co-arbitrators should be
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given an opportunity to try to reach agreement on the choice of the president); (281)
(c)if there is doubt as to whether there will be one or three arbitrators (i.e., because the arbitration
clause does not specify that), then the respondent will not need to provide any comments on the
choice of arbitrators at this stage. In the event that the Court decides that there should be a three-
member arbitral tribunal, the respondent will have an opportunity to make such comments later. (282)
Where this information is not provided with the request for an extension, the Secretariat will not
grant an extension. If, however, the information is provided, the Secretariat will normally grant an
extension of the time-limit.

B The Consequences of Failing to File an Answer Within the

Time-Limit
Nobody, least of all a lawyer, likes to miss a deadline. However, some deadlines are more
important to respect than others. In the case of the deadline for filing the Answer, the consequences
of missing it will be that:
–The respondent risks sending the ICC and the arbitral tribunal the message that it is unreliable,
which may cause the ICC and the arbitral tribunal to set it tighter time-limits in the future (i.e., on the
assumption that those time-limits will in any case be ignored) and/or to take a somewhat dim view
of it generally.
–The respondent risks missing out on the opportunity to have its comments taken into account by
the Court on the various issues on which the Court may take initial decisions (e.g., jurisdictional
objections, place of the arbitration, consolidation, constitution of the arbitral tribunal and the
advance on costs). (283) However, so long as the respondent's comments on these matters are
provided before the Court takes its decision, they will not be disregarded. (284)
However, there is no risk that the respondent will be stopped from relying on any defences that it
may wish to make to the claims made by the claimant. Nor is there any risk that it will be prevented
from making any counterclaims that it may wish to
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make, so long as these are made before the Terms of Reference are signed by the parties or
approved by the Court. (285)

III How to Draft an Answer

Article 5(1) of the 2012 ICC Rules requires the respondent to provide certain information in the
Answer:

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 (a)its name in full, description, address and other contact details;
(b)the name in full, address and other contact details of any person(s) representing the respondent
in the arbitration;
(c)its comments as to the nature and circumstances of the dispute giving rise to the claims and the
basis upon which the claims are made;
(d)its response to the relief sought;
(e)any observations or proposals concerning the number of arbitrators and their choice in light of the
proposals [by claimant] and in accordance with the provisions of Articles 12 and 13, and any
nomination of an arbitrator required thereby; and
(f)any observations or proposals as to the place of the arbitration, the applicable rules of law and the
language of the arbitration.
Article 5(5) of the 2012 ICC Rules also lists certain information and documents that must be
contained in or exhibited to the Answer in the event that a counterclaim is made. We will examine
these in section III(E) below, where we explain how to draft the counterclaim section of the Answer.
As we did in Chapter 8 above in relation to the Request for Arbitration, we will follow a slightly
different structure from Articles 5(1) and 5(5) in our discussion of how to draft an Answer and in the
model Answer that we have provided at Annex 3. (286) Again, it is good practice, once the Answer
has been drafted, to refer back to Article 5(1) and (where there is a counterclaim) Article 5(5) and
check that the Answer contains all the items listed in those provisions.
Before turning to the individual sections of the Answer, we would refer the reader to the general
comments made in Chapter 8(I) above regarding the language, paragraph numbering, font size, etc.
of the Request for Arbitration. These apply equally to the drafting of an Answer.
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A Introduction
With respect to this section, we would refer the reader to our comments in Chapter 8(I)(A) above
relating to the introduction, ‘preliminary statement’ or ‘executive summary’ of the Request for
Arbitration. These apply equally here.
The preliminary statement is particularly important in an Answer, as it may be the best opportunity
for the respondent to put forward its positive case, in circumstances where the rest of the Answer
essentially responds to the claimant's case.

B The Parties
The next section should contain the names, addresses and other contact details of the respondent's
representatives. (287) The claimant will, in theory, already have given information about the parties
and about the claimant's representatives in the Request for Arbitration. If not, or if this information is
incorrect or misleading, then this will need to be corrected in this section of the Answer.
This section may also be a good opportunity to elaborate on the respondent's corporate history and
its activities, insofar as this may be relevant to the respondent's defence or to any counterclaims
that it may have.
In Chapter 8(I)(B) above, we discussed the importance of naming the right parties in the Request for
Arbitration, and in particular we mentioned the possibility of naming as respondents entities that
had not signed the arbitration agreement (non-signatories). These considerations do not apply in
the context of the drafting of an Answer, as the respondent is not entitled to add new parties to the
arbitration by way of the Answer. However, the respondent may be able to add new parties by filing
a Request for Joinder, as will be discussed in Chapter 10 below.

C Statement of Defence
As we did in relation to the Request for Arbitration, we would recommend having separate sub-
sections for the statement of the facts and the statement of the respondent's defence. It is important
to describe the facts upon which the respondent relies in as neutral and objective a way as
possible, while the statement of the respondent's defence can (of course) be much more
argumentative.
Otherwise, our comments in Chapter 8(I)(C) above relating to the drafting of the fact section of a
Request for Arbitration apply equally to the drafting of an Answer, with the following additional
comments:
–One of the most difficult decisions that a respondent will need to make is whether to retell the

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 whole story, or instead to make corrections and additions to the story told by the claimant. It is
probably more helpful for the
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respondent to tell the arbitral tribunal that it agrees with parts A and B of the claimant's statement of
facts, that it disagrees with parts C and D, and that parts E and F (which the claimant failed to
mention) should also be taken into account. However, there is generally no requirement to make
paragraph-by-paragraph responses to the statement of facts in the Request for Arbitration, as
would be done (for example) in English court pleadings. In addition, in some cases the story will
have been so unfairly told by the claimant that the respondent will have no option other than to retell
the entire story from A to F;
–The respondent will have the advantage of seeing the level of detail contained in the Request for
Arbitration, and can choose the level of detail for the Answer based on that: a relatively undetailed
Request for Arbitration may merit only an undetailed Answer, in order to force the claimant to show
its hand first; (288) a relatively detailed Request for Arbitration may merit a detailed Answer;
–As to exhibits, these should be described as ‘Respondent's Exhibit No. [ ]’, ‘RX [ ]’, ‘R [ ]’ (for
factual exhibits) and ‘Respondent's Legal Exhibit No. [ ]’, ‘RLex [ ]’ or ‘RLegal [ ]’ (for legal exhibits),
or something else which makes it clear that they have been exhibited by the respondent rather than
the claimant. There is no need to try to match the number of exhibits submitted by the claimant, and
there is no need for the respondent to resubmit as exhibits documents that have already been
submitted by the claimant.
The position is different where the respondent objects to jurisdiction. In such circumstances, it may
decide not to enter into the merits of the dispute until the arbitral tribunal either decides (as a
preliminary matter) on the jurisdictional objection or else decides to hear the jurisdictional objection
and the merits of the dispute at the same time: (289)
–If the arbitral tribunal decides (as a preliminary matter) that it does not have jurisdiction, then the
respondent will (of course) not need to enter into the merits of the dispute.
–If, however, the arbitral tribunal decides either (as a preliminary matter) to accept jurisdiction or
else to hear the jurisdictional objection and the merits of the dispute at the same time, the
respondent will have another opportunity to present its defence on the merits (in a written
submission) once the arbitral tribunal has taken one of these decisions.
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D Statement of Respondent's Counterclaim(s)

Article 5(5) of the 2012 ICC Rules provides that ‘Any counterclaims made by the respondent shall
be submitted with the Answer….’ In other words, if the respondent wishes to make a counterclaim
against the respondent, then the place for it to do so is in the Answer. (290)
A respondent is therefore faced, at the time it drafts its Answer, with the decision whether to make a
counterclaim. Obviously, the answer to this will depend on the strength of the respondent's
counterclaim and the costs of making the claim (including the consequences for the advance on
costs). (291) It is always tempting for a respondent to make a counterclaim in order to try to
intimidate the claimant, but it may ultimately be counter-productive to do so. A weak counterclaim
can prove not only expensive for the respondent but also damaging for its credibility.
However, where the respondent has a genuine claim against the claimant, there may be
advantages to making this by way of counterclaim in the existing arbitration instead of commencing
a new arbitration (assuming of course that the arbitral tribunal has jurisdiction over the respondent's
claim). (292) These advantages include the fact that, in light of the ICC's regressive costs scale, it is
cheaper to bring the same claim by way of counterclaim than in a new arbitration. (293)
In the event that the respondent does decide to make a counterclaim, it will need to comply with
Article 5(5) of the 2012 ICC Rules, which lists certain information and documents that must be
contained in or exhibited to the Answer in the event that a counterclaim is made:
(a)a description of the nature and circumstances of the dispute giving rise to the counterclaims and
of the basis upon which the counterclaims are made;
(b)a statement of the relief sought together with the amounts of any quantified counterclaims and, to
the extent possible, an estimate of the monetary value of any other counterclaims;
(c)any relevant agreements and, in particular, the arbitration agreement(s); and
(d)where counterclaims are made under more than one arbitration agreement, an indication of the
arbitration agreement under which each counterclaim is made.
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 These requirements reflect the requirements imposed by Article 4(3)(c)-(f) in respect of Requests
for Arbitration. We have discussed these in Chapter 8(I) above.
The section on the respondent's counterclaim(s) will often be relatively short, as it will often arise out
of the same dispute that has given rise to the claimant's claims (e.g., where the claimant claims a
declaration that a contract is terminated and the respondent counterclaims for damages arising out
of the unlawful termination of the contract). In such circumstances, the merits of the dispute will
already have been discussed in the section on the respondent's defence, and there will of course be
no need to repeat in the counterclaim section the arguments already made.

E Statement of Respondent's Cross-Claim against a Co-

Respondent
Article 8(1) of the 2012 ICC Rules provides:

In an arbitration with multiple parties, claims may be made by any party against
any other party, subject to the provisions of Articles 6(3)-6(7) and 9 and
provided that no new claims may be made after the Terms of Reference are
signed or approved by the Court without the authorization of the arbitral tribunal
pursuant to Article 23(4).

In other words, where there is more than one respondent, and a respondent wishes to make a
cross-claim against one of its co-respondents, it may do so, subject to the rules on multi-party and
multi-contract disputes discussed in Chapters 8(I)(E)(1) above and 11(II) below. The obvious place
to make such a claim would be in the Answer, although (as specifically provided by Article 8(1))
such claims may be made at any time up until the Terms of Reference have been signed or
approved and (with the permission of the arbitral tribunal) even after that.
Cross-claims can, however, only be made against parties that are already joined in the arbitration.
As explained in section III(B) above, the Answer is not the place for a respondent to join new parties
to the arbitration. If it wishes to do that, it will need to file a Request for Joinder, which we will
discuss in Chapter 10 below.

F Respondent's Requests for Relief

This section should contain an itemized list of the relief sought by the respondent, including (of
course) a request that the claimant's claims be rejected. We refer in this respect to our comments
on the claimant's requests for relief in the Request, in Chapter 8(I)(D) above.
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G Procedural Matters
This section should contain comments on the various procedural matters discussed by the claimant
in its Request for Arbitration, and any others that the respondent may wish to draw attention to.
These may include: the arbitration agreement; the law, the language and place of the arbitration;the
constitution of the arbitral tribunal; notices; the amount in dispute; and the submission and
notification of the Answer. We refer to our comments on these various matters in Chapter 8(I)(E)
above, which apply equally here, to which we would add one important comment which applies
specifically to the Answer: the respondent has the significant advantage of knowing who has been
nominated by the claimant as co-arbitrator and should take this information into account when
choosing its own co-arbitrator. Sometimes, a claimant is delayed in nominating its co-arbitrator. In
that case, the respondent should delay nominating its co-arbitrator, in order not to forego this
tactical advantage.

IV Submitting the Answer

With respect to the submission of the Answer, we refer to our comments in Chapter 8(II) above: like
the Request for Arbitration, the Answer must be filed with the Secretariat in sufficient copies so that
the Secretariat, all the members of the arbitral tribunal and the other parties to the dispute will all
have one copy. (294) The Secretariat will then send the Answer to all other parties involved and, once
the arbitral tribunal is constituted, will send a copy to the members of the arbitral tribunal. (295)
However, there is one significant difference compared with the filing of the Request for Arbitration:
the respondent is not required to pay a filing fee when filing its Answer.

V The Reply
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 After the filing of the Answer, the claimant has 30 days to file a reply (hereinafter: the Reply) to any
counterclaim that may have been made by the respondent. (296) The Reply should respond to the
counterclaim only and not, as one often sees, be a second submission on the claimant's claims. If
the arbitral tribunal has not yet been constituted, the claimant may request the Secretariat to grant it
an extension for the
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filing of its Reply. (297) In practice, the Secretariat is prepared to grant up to 30 days by way of
extension.
If the claimant fails to submit a Reply, whether before the time-limit or at all, this will not preclude it
from defending against the respondent's counterclaims. However, if the claimant wishes to object to
the arbitral tribunal's jurisdiction in respect of any of the counterclaims, (298) then it must do so at this
stage. Otherwise, it may (depending on the applicable national arbitration law) find itself precluded
from doing so before the arbitral tribunal and/or national courts.
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References
273)
Provided such an objection is made at the very outset, participating in an arbitration (e.g., by
nominating an arbitrator) does normally not amount to a waiver of the objection. Derains &
Schwartz, 68, 69. A jurisdictional objection is raised where a party claims that the arbitral tribunal
does not have jurisdiction over some or all of the claims against it. For a discussion of jurisdictional
objections generally, see Ch. 11(I) below.
274)
For a discussion of applications to annul awards and/or objections to enforcement of awards, see
Chs 25 and 26 below.
275)
Ibid.
276)
For a discussion of the role of national courts in relation to jurisdictional objections, see Ch. 11(III)
below.
277)
2012 ICC Rules, Art. 3(4): ‘Periods of time specified in or fixed under the Rules shall start to run on
the day following the date a notification or communication is deemed to have been made in
accordance with Article 3(3).’ Art. 3(3) provides that ‘A notification or communication shall be
deemed to have been made on the day it was received by the party itself or by its representative, or
would have been received if made in accordance with Article 3(2).’ Article 3(2) in turn provides the
rules for notifications by the Secretariat and the arbitral tribunal.
278)
For discussion of the relative advantages of one-member and three-member arbitral tribunals, see
Ch. 4(II)(B) above.
279)
As explained in Ch. 8(I)(E)(3) above, this may lead to that person being excluded from
consideration as a candidate.
280)
For discussion of how to choose a co-arbitrator, see Ch. 8(I)(E)(3) above.
281)
For discussion of the procedure for selection of the president of the arbitral tribunal, see Ch. 14(III)
below.
282)
See Ch. 14(III)(A) below.
283)
For discussion of the initial decisions that the Court may need to take, see Part III below.
284)
Where the respondent proposes to provide late comments on any of these matters, it is advisable
to provide the Secretariat with an indication of the date by which it expects to do so. In this way,
provided the delay is not too long, the Secretariat and the Court may be able to take the late
comments into account.
285)
See 2012 ICC Rules, Art. 23(4): ‘After the Terms of Reference have been signed or approved by
the Court, no party shall make new claims which fall outside the limits of the Terms of Reference.’
For a discussion of the Terms of Reference, see Ch. 16(III) and (IV) below.
286)
Model Answer at Annex 3. This is based on the same imaginary case as the model Request for
Arbitration, which is at Annex 2.

287)

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 287)
This section can also be included in the fact section of the statement of defence, in particular if there
is little to add to the description provided by the claimant.
288)
Having said this, there may be good reasons for filing a detailed Answer even where the Request
for Arbitration is not detailed (e.g., to be the first to tell one's story to the arbitral tribunal and/or to
improve one's negotiating position).
289)
For a discussion of arbitral tribunals' treatment of jurisdictional objections, see Ch. 11(III)(A) below.
290)
The respondent will, however, not be excluded from making or adding counterclaims until the
moment the Terms of Reference are signed by the parties or approved by the Court and (with the
permission of the arbitral tribunal) even after that time. See 2012 ICC Rules, Art. 23(4).
291)
For a discussion of the advance on costs, including the possibility of separate advances being fixed
for claims and counterclaims, see Ch. 15(II) below.
292)
For a discussion of jurisdictional objections, see Ch. 11 below. A counterclaim may also raise multi-
contract issues (e.g., if the counterclaim arises out of a different contract than the contract under
which the claimant's claims were made). These issues are discussed in Ch. 11(II)(B) below.
293)
For a discussion of the ICC's costs scale, see Ch. 15(I) below.
294)
2012 ICC Rules, Art. 5(3), referring to 2012 ICC Rules, Art. 3(1).
295)
2012 ICC Rules, Arts 5(4) and 16.
296)
2012 ICC Rules, Art. 5(6).
297)
Ibid. If, however, the arbitral tribunal has been constituted, the claimant should send its request for
an extension directly to the arbitral tribunal (with, of course, a copy to the other parties and the
Secretariat), which will then decide on the request.
298)
This can happen, for example, if the respondent counterclaims under an arbitration agreement that
is different from that under which the claimant's claims have been brought.

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