DOCDEX – soon to be reborn?


This week in Portugal I became part of the group to revise the DOCDEX Rules. I am really honoured and happy about this. I am a huge fan of DOCDEX; I think they are good and effective – and a real bargain! And now they are up for a change. Why? And what is the purpose?

 

Do you know DOCDEX? If not – read this page first:

http://www.iccwbo.org/products-and-services/arbitration-and-adr/docdex/

 

Read and understood? Okay – let’s proceed:

 

I guess the “trigger” for the revision of DOCDEX is simple: There are surprisingly few cases running through the system. I heard something like 2 cases over the last 6 months. This is being dealt with by (first) a revision of the rules.

 

When looking at DOCDEX there are some key issues – that must be considered:

 

Scope

Is the current scope right? By scope I simply refer to which cases can be handled under DOCDEX. Currently DOCDEX is (only) available in connection with a dispute related to:

 

 

[source: Rule 1.1 ICC Rules for Documentary Instruments Dispute Resolution Expertise (DOCDEX) – in force 15 March 2002]

 

For any revised version of DOCDEX the scope may be expanded to include more products / rules (like URBPO or URF) and/or it may go beyond the rules; e.g. to also include a demand guarantee not subject to the URDG. And why would you do that? Well; there have been cases that have been refused by DOCDEX, because it was outside the scope (i.e. not subject to any of the covered ICC rules) – but the answer was so simple and straightforward that any person working with trade finance for 1 year could answer easily. To me it is wrong to refuse such case!

 

I accept that widening the scope beyond ICC rules is somewhat controversial. Many trade finance commentators have noted that any case outside the rules is a legal case, subject to the applicable legal regime. Following that argument it would be impossible for any DOCDEX expert to provide an authoritative answer to – as an example – a demand guarantee subject to Indian Law.

My view is that this argument is correct – and not correct! There will be many trade finance cases (I would think mainly guarantee cases) that can be solved by a guarantee expert – based on “international practice.”

In essence I support such expanded scope. What must be carefully considered are the following two issues:

1: How to limit the scope, so that the market has confidence that there is a “perfect match” between the case in question and the appointed experts.

2: How to appoint the “correct” experts (what if legal experts – or transportation experts are required?)

 

Electronic

Today DOCDEX is a very paper based system. For example the case is forwarded to the experts by courier. Somehow technology now allows for better ways of doing things.

This is more an “internal” issue (i.e. how the experts and the Centre works together), but I personally think that every part of the process must be made as electronic as possible; e.g. the possibility to apply online; an intranet to share the files; a google-drive-like way of working with the decision.

 

Model forms

Today everything is more or less “free style” e.g. there is no standard form for submitting the case. Of course standard model forms are preferred. To me this is essential – and these should be considered very carefully – even with fields to “key words” and references to rulers and other practices – allowing for better search possibilities.

 

Availability

Today the DOCDEX cases are available at the DC-Pro and in books … surely it is preferable that they are available on the free internet!

 

 

However – the above is merely the “foundation” for a successful DOCDEX system. What is equally important is the following:

 

Governance

E.g. How are the experts Select^ed? How to make sure that they are real experts? How to make sure that an expert that do not “deliver” in a specific case can be replaced?

 

Guidance

Rules may be complex to read. There must be material available that explains how DOCDEX works – in a good and easy way. DOCDEX is in fact a simple model: You present a case – and receive an answer! This must be explained better.

 

Marketing

Rules are not sexy! Rules do not sell a service. Rules are the basis that must be there; but there must also be marketing that explains the value of the service. E.g. that DOCDEX often prevents court cases; that it is cheap compared to legal action; that it is “fast” compared to legal action…

 

Select^ion

Last but not least – the whole of the ICC must support the DOCDEX system. This means (for example) that the different models must be “aligned.” For example so that a query for an ICC Opinion that “should” have been a DOCDEX case is rejected – referring to the DOCDEX system.

I recently heard that a query was being submitted to the ICC Banking Commission containing 15 attachments. Such should simply not be considered for an ICC Opinion!

 

The above is my initial thoughts on the DOCDEX revision. If you have experiences with DOCDEX – good or bad – please take a few minutes and write me. That would be appreciated indeed.

 

Take care of each other and the LC!

 

Kim

 

 



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