ICDPASO Commercial Arbitration Rules Interpretation Series:Article 17 "Arbitration Language"

I. Introduction

In international arbitration practice, due to the involvement of different countries and languages, the arbitration language is a significant manifestation of the conduct of arbitral proceedings. It directly affects the parties' expression of intent, presentation of evidence, rendering of the award, and the effectiveness of enforcement. In international commercial arbitration, language choice often involves balancing the rights and interests of parties from different linguistic backgrounds, procedural efficiency, and cost control. Article 17 of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) "Commercial Arbitration Rules" establishes a clear, hierarchical, flexible, and pragmatic rule system concerning "Arbitration Language." It fully respects party autonomy while clarifying the discretionary power of the Arbitration Court and the Arbitral Tribunal. It also standardizes requirements related to translation services and document translations. This clause closely connects with all aspects of the arbitral proceedings, playing a key role in ensuring procedural fairness, enhancing dispute resolution efficiency, and reducing costs for the parties, providing clear and predictable language application guidance for international commercial entities.

II. Rule Text

Article 17 Arbitration Language

(1) The parties may agree on the language(s) to be used in the arbitration.

If the parties have not agreed on the language(s) of the arbitration, prior to the constitution of the arbitral tribunal, the Arbitration Court shall decide on the language(s) to be used initially in the arbitration proceedings, taking into account factors such as the language(s) of the contract involved in the case; after the constitution of the arbitral tribunal, the arbitral tribunal shall determine the language(s) to be used in the arbitration proceedings.

If the parties agree on two or more languages for the arbitration, the arbitration proceedings may be conducted in the multiple languages agreed upon by the parties, and the relevant additional costs incurred as a result shall be borne by the parties; the arbitral tribunal may determine one of those languages to be the language to be used for written communications and hearings.

(2) During hearings, if the parties, their representatives, or witnesses require language interpretation, the parties shall either provide their own interpreter or request the Arbitration Court to provide interpretation services.*

If the parties have agreed on the allocation of interpretation costs, such agreement shall prevail; if there is no agreement or the agreement is unclear, the arbitral tribunal shall decide.*

(3) If necessary, the arbitral tribunal or the Arbitration Court may require a party to provide a translation or an extract translation in the language(s) of the arbitration of the various documents and evidentiary materials submitted by that party.

III. Article Analysis

(A) Paragraph (1)

1. Analysis of Core Features

This paragraph clarifies the basic rules for determining the arbitration language.

(1) Primacy of Party Autonomy. Establishing "party agreement" as the primary principle for determining the arbitration language not only allows parties to agree on a single arbitration language but also recognizes agreements involving two or more languages. This fully respects the parties' right to choose the procedural language autonomously and aligns with the autonomous spirit of international commercial arbitration.

(2) Hierarchical Determination Mechanism in the Absence of Agreement. For situations where the parties have not agreed on the arbitration language, this paragraph grants decision-making power to the Arbitration Court and the Arbitral Tribunal in stages, distinguishing between "prior to the constitution of the arbitral tribunal" and "after the constitution of the arbitral tribunal." The Arbitration Court determines the initial language based on "factors such as the language(s) of the contract involved in the case" to ensure orderly progress during the procedural initiation phase. After the tribunal is constituted, it ultimately determines the language based on the actual needs of the case hearing, reflecting the phased and flexible nature of procedural advancement.

(3) Balanced Handling of Agreements Involving Multiple Languages. It permits parties to agree on multiple arbitration languages while explicitly stating that "the relevant additional costs incurred as a result shall be borne by the parties" and grants the arbitral tribunal the power to determine the "language to be used" (prevailing language). In practice, conducting proceedings simultaneously in two or more agreed languages can often lead to confusion and hinder procedural progress, especially during hearings when both parties insist the tribunal use two languages concurrently, significantly impacting the fluency and efficiency of the hearing. This design respects the parties' multilingual needs while avoiding procedural chaos and inefficiency through cost-bearing rules and the prevailing language mechanism, achieving a balance between autonomy and regulation.

2. Comparative Law Perspective

The Singapore International Arbitration Centre (SIAC) Rules (Rule 37) stipulate that parties may agree on the arbitration language; failing agreement, the tribunal determines it. They do not explicitly address rules for handling agreements on multiple languages.1

The Hong Kong International Arbitration Centre (HKIAC) Rules (Article 15) stipulate that if the parties have not previously agreed on the arbitration language, they shall communicate in English or Chinese before the tribunal decides.2

The International Chamber of Commerce (ICC) Rules of Arbitration (Article 20) stipulate that if the parties have not agreed on the arbitration language, the arbitral tribunal shall determine the language(s) to be used in the arbitration, taking into consideration all relevant circumstances, including the language of the contract.3

The London Court of International Arbitration (LCIA) Rules (Article 17) stipulate that the initial language of the arbitration (until the formation of the Arbitral Tribunal) shall be the language or prevailing language of the Arbitration Agreement, unless the parties have agreed otherwise in writing. If the Arbitration Agreement is written in more than one language of equal standing, the LCIA Court may determine which of those languages shall be the initial language of the arbitration, unless the Arbitration Agreement provides that the arbitration proceedings shall be conducted from the outset in more than one language.4

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Rules (Article 26) stipulate that, unless otherwise agreed by the parties, the arbitral tribunal shall determine the language(s) of the arbitration. In doing so, the tribunal shall have due regard to all relevant circumstances and shall give the parties an opportunity to submit comments.5

The advantage of ICDPASO's provision lies in establishing a hierarchical mechanism of "party agreement --- Arbitration Court's initial determination --- Arbitral Tribunal's final determination," which ensures efficiency at the procedural initiation stage while granting the tribunal ultimate discretion based on the actual conduct of the hearing. Furthermore, by regulating the application of multiple language agreements through the prevailing language system, it offers greater practicality and balance.

3. Jurisprudential Analysis

(1) Core Embodiment of the Principle of Party Autonomy. Allowing parties to autonomously agree on the arbitration language is a direct application of the principle of party autonomy to the choice of procedural medium. The parties understand their own language abilities and communication needs best. Agreeing on the language autonomously ensures they can fully express their claims and understand the procedural content, enhancing their trust in and engagement with the arbitration process.

(2) Dual Guarantee of Procedural Efficiency and Fairness. The hierarchical determination mechanism avoids language disputes during the procedural initiation phase when parties have not agreed, while ensuring the arbitral tribunal can determine the most suitable language based on the actual hearing context (e.g., language of evidence, witnesses), guaranteeing efficient procedure advancement. The prevailing language system in cases of multiple language agreements prevents procedural confusion during hearings and ambiguities in documents arising from linguistic diversity, thereby upholding procedural fairness.

(3) Balance between Procedural Fairness and Economic Efficiency. Permitting the use of multiple arbitration languages ensures the participation of all parties in multilingual disputes. Requiring the parties to bear the additional costs incurred reflects the "beneficiary pays" principle, avoiding the transfer of unreasonable costs to the Arbitration Court or other parties to accommodate one party's convenience, thus ensuring the fair allocation of procedural resources.

(B) Paragraph (2)

1. Analysis of Core Features

This paragraph regulates matters related to interpretation services during hearings.

(1) Methods of Providing Interpretation Services. It clarifies two avenues: parties "providing their own interpreter" and "requesting the Arbitration Court to provide" services. This grants parties the right to choose their own interpretation resources independently while also offering an institutional support option as an alternative, meeting the practical needs of different parties.

(2) Rules for Bearing Interpretation Costs. It adheres to the "agreement prevails" principle. If parties have agreed on the allocation of costs, that agreement is followed. In the absence of agreement or if the agreement is unclear, the arbitral tribunal decides, ensuring fair and reasonable cost allocation and preventing cost disputes from hindering procedural progress.

2. Comparative Law Perspective

The rules of most international arbitration institutions do not explicitly regulate the method of providing oral interpretation services during hearings or the allocation of costs. The HKIAC Rules (Article 22) state that, if it considers it necessary, the arbitral tribunal may order the provision of interpretation of oral statements made during a hearing and the making of a hearing record.6

A distinctive feature of ICDPASO's provision is explicitly granting parties the right to request interpretation services from the Arbitration Court, concretizing the institution's supportive role. It provides multiple avenues for obtaining interpretation services and achieves fairness through cost rules prioritizing "party agreement with the tribunal as a fallback," making it more practical.

3. Jurisprudential Analysis

(1) Guarantee of Equal Participation Rights. Providing interpretation channels for a party, representative, or witness who does not understand the procedural language is a prerequisite for ensuring they can effectively present arguments, debate, and submit evidence. It is a core manifestation of the equality principle during hearings. The right to request interpretation from the Arbitration Court provides substantial procedural protection for the linguistically weaker party.

(2) Combination of Party Autonomy and Institutional Support. Allowing parties to provide their own interpretation services and agree on cost allocation reflects the principle of party autonomy. Simultaneously, granting parties the right to request services from the Arbitration Court leverages the institution's resource advantages, providing convenient support for the parties and achieving complementarity between autonomy and support.

(3) Self-Assumption of Risk and Equitable Allocation. The principle that parties should generally "provide their own interpreter" establishes the basic rule that they bear the fundamental responsibility for their own linguistic convenience. Cost-bearing follows party agreement first, with the tribunal's decision as a supplement, adhering to the general principle of agreement priority, with adjudicator discretion based on fairness principles when there is no agreement, ensuring the reasonableness of cost allocation and the controllability of procedural expenses.

(C) Paragraph (3)

1. Analysis of Core Features

This paragraph specifies requirements for translations of documents and evidentiary materials.

(1) Dual Authority to Request. It grants the authority to request translations to both the arbitral tribunal and the Arbitration Court. The Arbitration Court can request translations based on the initially determined arbitration language during the procedural initiation stage, while the arbitral tribunal can make requests during the hearing process based on evidence review needs. This reflects the phased and coherent nature of procedural advancement.

(2) Flexibility in Applicable Circumstances. Using "if necessary" as a precondition, it does not mandate translations for all documents. It grants discretion to the arbitral tribunal and the Arbitration Court based on the actual circumstances of the case (e.g., importance of the document, existence of language barriers), avoiding unnecessary procedural burdens.

(3) Inclusivity in Translation Format. Allowing "a translation or an extract translation" satisfies the need for accurate transmission of key information while avoiding the time and cost waste associated with full translations, balancing procedural fairness and efficiency.

2. Comparative Law Perspective

SIAC Rules (Rule 37) stipulate that if a party submits a document written in a language other than the language of the arbitration, the Registrar or the Tribunal, as appropriate, may order that party to submit a translation in a form to be determined.

HKIAC Rules (Article 15) stipulate that the arbitral tribunal may order that any supporting documents submitted in the original language shall be accompanied by a translation into the language of the arbitration, in whole or in part, as agreed by the parties or determined by the tribunal.

LCIA Rules (Article 17) stipulate that if any document is expressed in a language other than the language(s) of the arbitration and no translation of such document is submitted by the party relying upon the document, the Arbitral Tribunal may order or (if the Arbitral Tribunal has not been formed) the Registrar may request that party to submit a translation of all or any part of that document in any language(s) of the arbitration or of the arbitral seat.7

SCC Rules (Article 26) stipulate that the arbitral tribunal may require that any documents submitted in a language other than that of the arbitration be accompanied by a translation into the language of the arbitration.

ICDPASO's provision is highly consistent with international common practice. Its distinctive features lie in granting the authority to request to both the Arbitration Court and the arbitral tribunal; the flexible provisions centered on "if necessary" and "translation or extract translation" avoid inefficiency caused by formalism while ensuring effective transmission of key information, providing more specific rule guidance for cost control.

3. Jurisprudential Analysis

(1) Guarantee of Procedural Fairness and Transparency. Requiring translations or extract translations into the arbitration language ensures that the arbitral tribunal and all parties can accurately understand the content of documents, avoiding errors in fact-finding due to language barriers, thus safeguarding the fairness and transparency of the proceedings.

(2) Embodiment of the Principle of Procedural Efficiency. The precondition of "if necessary" and the allowance of "extract translations" prevent parties from bearing excessive time and cost burdens for translating all documents completely, aligning with the principle of procedural efficiency and ensuring the arbitral process advances effectively.

(3) Reasonable Allocation of Discretion between Arbitral Tribunal and Arbitration Court. Granting both entities the authority to request based on the actual circumstances of the case not only ensures the Arbitration Court's initial regulation of document language at the procedural start but also allows the tribunal to make targeted requests based on hearing needs, achieving a reasonable distribution of discretion and orderly procedural advancement.

Furthermore, from a systematic interpretation perspective, this article is not placed in the general provisions or an appendix, as is common in many other arbitration rules. Instead, it serves as the first article in Chapter IV "Conduct of Arbitral Proceedings." This arrangement further reminds parties, from the perspective of rule structure and procedural advancement, of the special status of agreeing on the arbitration language in international arbitration.

IV. Conclusion

Article 17 of the ICDPASO "Commercial Arbitration Rules," through its three paragraphs, establishes a complete rule system covering the determination of arbitration language, interpretation services, and document translations. This system centers on party autonomy, supplemented by reasonable complementary decisions made by the Arbitration Court and the Arbitral Tribunal at different stages, and incorporates flexible interpretation and translation rules to ensure that language does not become an obstacle to arbitration fairness and efficiency. In its alignment with China's newly revised "Arbitration Law," this clause accurately echoes the core principles and value pursuits of the new law, featuring detailed and operable rule design. Moreover, its unique advantages compared to rules of other international arbitration institutions enhance its adaptability and competitiveness in international commercial arbitration practice, providing clear, convenient, and fair language application solutions for international commercial entities, further solidifying the institutional foundation of ICDPASO as an international dispute resolution platform.