International Chamber Of Commerce Research Articles

An Evaluation of the Self-Regulation of Promotional Competitions in South Africa

Promotional competitions are competitions in which prizes are awarded by lot or chance in order to promote goods or services. In order to protect participants and consumers against abuse, these competitions are usually regulated by gambling or consumer protection legislation. However, the relevant legislation is often complemented by self-regulation, which is the focus of this contribution.
 Self-regulation entails the regulation or governing of an industry by the role players in that industry. This article commences by explaining the relevant terminology and exploring self-regulation in general, including the various forms of self-regulation and the binding force thereof. The nature of self-regulation is discussed together with the advantages and challenges associated with this form of regulation. This is followed by some examples of self-regulation on a global level in order to provide a comparative perspective on the topic. The provisions of the International Chamber of Commerce’s Consolidated Code of Advertising and Marketing Communications Practice are summarised and the European Advertising Standards Alliance’s role in self-regulation is considered. Attention is also given to the relevant industry codes in the United Kingdom in view of the comprehensive way in which promotional competitions are covered by the self-regulation in that country.
 The main part of the article centres on the self-regulatory position in South Africa. The brief overview of the role and function of the Advertising Standards Authority of South Africa (ASASA) is provided. The provisions of the ASASA’s Code of Advertising Practice are then examined and some ASASA rulings are discussed in order to illustrate the relevant principles. Thereafter, the focus shifts to the Code of Conduct of the Wireless Application Service Providers’ Association, which contains detailed provisions relating to promotional competitions. Some relevant rulings are also considered. In conclusion, comments are made regarding the current state of the self-regulation of promotional competitions in South Africa.

A Proposal for Establishing Examination Criteria of Bill of Exchange under the International Standard Banking Practice (ISBP) 745

When UCP 500 was revised to UCP 600 by the International Chamber of Commerce (ICC) in July 2007, the International Standard Banking Practice for the Examination of Documents under documentary credits (hereinafter referred to as “ISBP 681”) was duly revised by the ICC Banking Commission on April 17, 2013. The ISBP 681 was fully revised to ISBP 745 in July 2013. The ISBP 745 prescribes the examination criteria of bill of exchange along with shipping documents. The bill of exchange stated in the ISBP 745 must be presented to the issuing bank by the beneficiary. The practitioners such as bankers, buyers and sellers related to the letter of credit transaction need to know well the provisions of UCP 600 and ISBP 745. Otherwise, disputes related to letter of credit between the practitioners can happen. Therefore, the purpose of this paper is to reduce the disputes occurring in letters of credit transactions by providing a proposal establishing the examination criteria of bill of exchange provided in ISBP 745.

Akredytywa dokumentowa na gruncie UCP 600

W związku z coraz większą rolą globalizacji i handlu międzynarodowego zrodziła się potrzeba stworzenia bezpiecznych metod finansowania transakcji ponadnarodowych. Z tego powodu powstał instrument w postaci akredytywy dokumentowej, która w bezpieczny sposób umożliwia przedsiębiorcom finansowanie, przede wszystkim międzynarodowych transakcji. W artykule akredytywa dokumentowa została przedstawiona na gruncie uniwersalnego standardu, wydanego w 2007 roku przez Międzynarodową Izbę Handlową w Paryżu, UCP 600 z uwzględnieniem rodzajów akredytywy, zasad wedle jakich się ją stosuje oraz wyjątków od niej.

The 2017 ICC Expedited Rules: From Softball to Hardball?

The 2017 Rules of Arbitration of the International Chamber of Commerce (ICC), in force since 1 March 2017, have adopted new provisions for expedited procedures with the objective of having final awards issued by sole arbitrators six months after the first case management conference. These new provisions apply whenever the value of the claims in question is under USD 2 million. Users of ICC arbitration can opt in to or opt out of the expedited procedures provisions (EPP), partially or totally, regardless of the amount in dispute. The decision to institutionalize expedited procedures is an implicit admission that the objectives of the 2012 Rules have not been met when it comes to improving the time- and cost-efficiency of ICC arbitrations. The new provisions offer users dissatisfied with increased time and costs of arbitration an alternative to expedite the resolution of their disputes under the ICC Rules. While this offer is not novel in the landscape of international arbitration, it is to be welcomed, although it entails new challenges for users, arbitrators, as well as the ICC Court and its Secretariat. In practice, expedited procedures may increase due process challenges by dissatisfied litigants, before and after awards are issued. For these reasons, more than before, selecting a pro-arbitration seat will be important.

Customs Valuation and Transfer Pricing: ICC proposals

Intercompany transactions account for more than 60% of global trade value. In this article, one can easily understand that the concept of transfer pricing is a major issue in the determination of customs valuation. However, the relationship between transfer pricing and customs valuation is not easy to grasp. Basically, there is two different approaches of transfer pricing, the first one adopted by tax agencies, based on the OECD Transfer Pricing Guidelines and the second adopted by customs agencies, based on the WTO Customs valuation Agreement (CVA). From the business perspective, the divergence between the two taxation regimes is an obstacle to the liberalization of trade and inhibits international development for companies. On another hand, the International Chamber of Commerce (ICC) strongly believes that the WTO CVA and the use of OECD guidelines are enough to settle the issue of customs valuation and transfer pricing. However, ICC specifies that tax and customs approaches of intercompany transactions should converge to the same value. In this goal, ICC published a policy statement in 2012, which has been integrated in the WCO guidelines. This statement, based on the harmonization of the current rules, contains several additional options to derive customs value. Also we can regret that the Union Customs Code (UCC) does not contain any evolution from a transfer pricing perspective but contains some negatives changes regarding custom valuation. Also, the opportunity of the WCO Free Trade Agreement (FTA) should be taken to move forward on this issue.

Global Employer and Business Associations: Their Relations with Members in the Development of Mutual Capacities

Abstract Global employer and business associations at the peak level are neglected in research, but this paper argues that it is possible to develop collective action and represent interests in many policy fields through these encompassing entities, and they add to other forms of global business coordination. This study analyses all the global peak associations (International Chamber of Commerce, International Organisation of Employers, World Chambers Federation, Business and Industry Advisory Committee to the OECD, B20 Coalition, World Economic Forum and World Business Council for Sustainable Development and it shows that collective action is facilitated through multiple relations between these associations and their members (firms and national associations). Results show that firms and national associations provide important inputs into global associations, and they are active in different leadership functions, while global associations meet a variety of demands from their diverse constituencies and assist members in building capacities. These relations take many different forms, but they are important in all global associations, and the analysis of these patterns of collective action have implications for our understanding of global politics where new approaches are needed to analyse the institutionalisation of business interests. Keywords: Collective action, business, employers, peak associations, global policy, international organisations ----- Bibliography: Ronit, Karsten: Global Employer and Business Associations: Their Relations with Members in the Development of Mutual Capacities, ERIS, 1-2016, pp. 53-77. https://doi.org/10.3224/eris.v3i1.4

Nowa forma rozliczeń międzynarodowych – bankowe zobowiązanie płatnicze

Najczęściej wykorzystywaną formą płatności w handlu zagranicznym jest płatność w rachunku otwartym, a istotny udział w rozliczaniu handlu międzynarodowego ma też akredytywa dokumentowa. Pierwsza z nich, choć jest nieskomplikowana w obsłudze, wiąże się z ryzykiem braku lub opóźniania zapłaty, druga, choć ryzyko to ogranicza, postrzegana jest jako skomplikowana i kosztowna, co związane jest m.in. z koniecznością prezentowania przez eksportera w banku dokumentów handlowych w formie papierowej, będących podstawą zapłaty. W artykule przedstawiono nową formę rozliczeń, która – zgodnie z ideą jej inicjatorów – ma łączyć i zawierać w sobie zalety obu tych form, a jednocześnie prowadzić do digitalizacji dokumentów handlowych w obrocie międzynarodowym. Jest nią bankowe zobowiązanie płatnicze – BPO, Bank Payment Obligation, będące nieodwołalnym zobowiązaniem banku importera wobec banku eksportera do zapłaty, po elektronicznej prezentacji odpowiednich danych, sprawdzanych automatycznie. Celem artykułu jest przedstawienie istoty BPO, przesłanek jego wprowadzenia oraz przebiegu płatności, a także krótkiej charakterystyki regulacji opublikowanych w 2013 r. przez Międzynarodową Izbę Handlową (ICC – International Chamber of Commerce), dotyczących tej formy płatności, Jednolitych reguł dla bankowych zobowiązań płatniczych – Uniform Rules for Bank Payment Obligations – URBPO. Celem jest też transfer wiedzy na temat nowych rozwiązań w zakresie rozliczeń, przyjętych przez znaczącą dla ujednolicania praktyki obrotu gospodarczego organizację – Międzynarodową Izbę Handlową – do polskiej literatury i praktyki, gdyż nie ma opracowań na ten temat, a do polskiej praktyki bankowej nie zostały jeszcze wdrożone. Jako metodę badawczą zastosowano jakościową analizę uwarunkowań i regulacji w odniesieniu do dematerializacji dokumentów związanych z wykorzystaniem nowej w handlu zagranicznym formy płatności. Jako tezę pracy przyjęto, że w akredytywie dokumentowej przesyłanie dokumentów handlowych w formie elektronicznej występuje na niewielką skalę, a zaproponowanie przez ICC we współpracy z SWIFT (Society for Worldwide Interbank Financial Telecommunication) nowej formy płatności będzie umożliwiać i sprzyjać ich dematerializacji w relacjach międzybankowych.

The ILO, social partners and the G20: New prospects for social dialogue at the global level?

Since 2011, new fora have emerged such as the Labour 20 (L20) and the Business 20 (B20) which claim to represent social partners at the G20 level. This article shows that these new fora actually derive from three older institutions: the International Labour Organization (ILO), the International Trade Union Confederation (ITUC) and the International Organization of Employers (IOE) which aim at reaffirming their role in the framing of contemporary global social policies as well as reactivating a century-old tradition of social dialogue at the global level. Challenging conventional wisdom on the unity of business interests, the article also insists upon the competition between the IOE, the International Chamber of Commerce and the Davos Forum to represent the voice of Business at the G20. The article ends with an assessment of the representative and democratic character of the G20, B20 and L20 meetings in comparison to the existing structures of social dialogue such as the ILO.

Validity and Effects of the Arbitration Agreement in Domestic and International Law of Iran and Arbitration Rules of the International Chamber of Commerce

By more familiarity of people to the positive aspects of arbitration, the tendency to the dispute of arbitration has been more, but every time this issue is not possible simply because the parties may not have the required qualifications to adjust the arbitration agreement or the law that parties have considered ruling on the arbitration agreement, is invalid or if the agreement is adjusted in Iran due to the explicit opposition of law ruling to Iran's law, agreement loses its validity; Which this issue can follow the effects such as competent of judicial authorities in handling disputes. So the familiarity of parties can be important with the conditions of validity and effects of arbitration agreement. In this article, it is tried to be investigated and analyzed the validity conditions and the effects of arbitration agreements in domestic and international law of Iran and the rules of arbitration of the International Chamber of commerce separately and ruled procedure.

The UCP 600 Rules In Letter Of Credit (LC): Selected Issues

The Uniform Customs and Practice (UCP) is the primary source for letter of credit (LC) transaction. Prior to the publication of the UCP, the rules in LC originating from trade customs and practices were not unanimously applied by traders. The International Chamber of Commerce (ICC) whose function is to harmonize the various trade customs practiced in LC, had initiated to compile those rules and published them under one specific reference and named it as the UCP. The UCP is always been updated in order to serve current market needs in regards to LC issues. Thus far, there is no specific statute regulated for LC. The UCP, though customary in nature and has no legal effect, has been adopted by more than 175 countries. Currently, it is unlikely to find the LC transactions, which is not governed by the UCP. Compared to the previous versions, the latest version of the UCP 600 is claimed to be comprehensive and offers modification to the preceding LC rules. This paper discusses the rules provided by the latest UCP 600 focusing on the significant issues in LC such as bankers’ autonomy, revocable and irrevocable LC, strict compliance, notice of refusal and fraud. Comparisons are scrutinized with the previous versions of the UCP and reviews are highlighted wherever necessary. In addition, reference is sought to case-law to illustrate certain issues. Furthermore, this paper examines the improvements contributed by these latest rules. Last but not least, it seeks to submit proposals for future improvement of the current UCP 600. Keywords: UCP 600; Letter of Credit; autonomy; strict compliance; notice of refusal, fraud.

New mediation rules of the International Chamber of Commerce of 2014

New mediation rules of the International Chamber of Commerce of 2014

The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?

Emergency procedures are becoming increasingly popular in international arbitration. Their effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator—and the enforceability of his decisions. This contribution aims at shedding light on the above-mentioned issues. To this end, it first describes the general procedural framework in which emergency procedures are carried out. It then delves into the questions of what the proper status of an emergency arbitrator is and whether emergency decisions are capable of being enforced by state courts, suggesting that the emergency arbitrator is a full-fledged arbitrator rendering decisions that may enjoy (at least a certain degree of) enforceability. Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness. (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Hong Kong Arbitration Ordinance (2013) Singapore International Arbitration Act (2012) ICC (International Chamber of Commerce) Arbitration Rules (2012) LCIA (London Court of International Arbitration) Arbitration Rules (2014) ICDR (International Centre for Dispute Resolution) Arbitration Rules (2009) SCC (Stockholm Chamber of Commerce) Arbitration Rules (2010) SIAC (Singapore International Arbitration Centre) Arbitration Rules (2013) HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules (2013) NAI (Netherlands Arbitration Institute) Arbitration Rules (2010) Yahoo! v Microsoft, US District Court (SDNY) (2013) Total Fina Elf E&P Congo c Société Nationale des Pétroles du Congo et République du Congo, Cour d’appel de Paris (2003) Swiss Code of Private International Law (1987) English Arbitration Act (1996) Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [Wetboek van Burgerlijke Rechtsvordering]

Disqualifying Counsel for Conflict of Interest in International Arbitration: Tribunals’ Powers and Limits

ABSTRACT: Ethical issues in connection with the parties' legal representatives may arise in the course of arbitration proceedings in particular matters of conflict of interest. This article examines the specific question of whether arbitral institutions and arbitrators have power to sanction counsel's misconduct especially in the event of conflict of interest. Such power is weighed against parties' fundamental right to choose legal representation and the absence of express provisions granting arbitrators such power in most of the major international arbitration rules and arbitration legislations. International "soft law" instruments which may provide for such powers do not have a binding effect unless embedded in parties' agreement. The article also looks at the very few cases where international arbitral tribunals have dealt with the subject under the arbitration rules of the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC) and UNCITRAL. The arbitrators in these cases have applied different set of international and national rules and have reached different outcomes to the issue. Therefore, developing "truly transnational" ethical rules and an independent body with power to enforce might be needed. Meanwhile, it is submitted that arbitrators have no other choice than determining these matters based on "soft law" instruments and other professional guidelines which remain the widely accepted international standards in the industry.

The Use of CIF Incoterms in Indonesia’s Import Declarations

The World Trade Organization (WTO) General Agreement on Tariffs and Trade (GATT) 1994 (WTO Valuation Agreement) and the International Chamber of Commerce’s (ICC) International Commercial Terms (Incoterms®) are two quite separate instruments. In Indonesia, however, reference to ‘customs value’ in some regulations is confused by the use of the Cost, Insurance and Freight (CIF) Incoterm in the same regulation. This paper identifies several areas of confusion and identifies changes that, if made to some Indonesian regulations related to the determination of customs value and the use of the import declaration form, would clarify the methods used to calculate that value.

Правовое регулирование трансграничного представительства

The author assesses the main international treaties in the sphere of representation: the Hague convention on the law applicable to agency 1978, the Geneva convention on agency in the international sale of goods 1983, acts of soft law (UNIDROIT Principles of international commercial contracts, Model commercial agency contract and Guide for the drawing up commercial agency contracts of International Chamber of Commerce), Directives and Regulations of the European Union, Principles of European contract law, Draft common frame of reference. The author concludes about necessity of drafting at the universal level a document of soft law (in the form of a model law) containing the substantive rules on internal and external relationships of a commercial representation.

MLATs and TorBrowser: Mutual Legal Assistance Treaties in Online Anonymity Technology and Domestic Surveillance

Since 2004, privacy-protecting, anonymous web browsers, like Tor Browser, have allowed users to hide their identities online. Law enforcement agencies (LEA) responded in contradictory ways to these technologies and tools. On the one hand, LEA have become extensive users to pursue criminals anonymously. On the other, LEAs seek to demonize the technology and break the underlying encryption, which was invented by the Navy in 1998. For example, slides Edward Snowden leaked revealed the NSA undertook a project, “Egotistical Giraffe,” to break Tor encryption and privacy protections. Tor usage significantly increased after Edward Snowden recommended its use as one of his “top tips” for whistleblowers and ordinary people to protect their privacy and anonymity online. Policymakers are becoming aware of Tor’s role in protecting online identity and anonymity, and seek to understand the role of this technology in legal cases. The documents released by Snowden reveal far greater levels of US and other government surveillance than previously known, including surveillance outside the US and across multiple country borders. This startlingly far-reaching surveillance includes online data and telecommunications, much of it culled from third party communication service providers (CSPs). It reveals that government attempts to apply pressure on CSPs now extends across US and other borders, as well. Some contend that much of this surveillance, often referred to by LEAs as “Lawful Intercept (LI), is actually “Un-”Lawful.Mutual Legal Assistance Treaties, or MLATs, are little-noticed legal instruments that enable legal pressure on CSPs worldwide, and so offer a significant vector to attempt to “break” Tor or its underlying encryption. Legal pressure on CSPs like Facebook and Google by foreign governments to locate surveillance-enabled servers in their countries, has led CSPs to seek to incorporate into MLATs the automation of remote global surveillance. Their industry groups, like the International Chamber of Commerce (ICC), seek to incorporate technical standards for automated surveillance LI into MLATs, through remote “dynamic triggering.” A multi-stakeholder group, the Global Network Initiative, announced on January 28, 2015 its public policy agenda, “Data Beyond Borders: Mutual Legal Assistance in the Internet Era,” which sets forth a public policy agenda to further shape MLAT policy. Little-noticed MLATs have eroded fundamental civil liberties both abroad and in the US. Ignored largely due to a perception that MLATs primarily affect “foreign” individuals, the MLAT “devil’s bargain” is rebounding increasingly against US citizens. In this paper, we review the quiet but dramatic expansion, both in number and in scope, of MLATs in recent years. We review recent decisions, including the September 30, 2014 and 2013 Second Circuit rulings in US v. Getto, and the September 2013 First Circuit rulings in Boston College Trustees. In these cases, the executive branch is playing out a quiet struggle to maintain MLAT supremacy over the small, but increasing pushback of the judicial branch. These cases appear to have split approaches in the different circuits, and have all the earmarks of being headed to a higher court in the near future. We review how the benefits MLATs conferred in the 1970s to combat money laundering and narcotics have impacted fundamental civil liberties, to lay the groundwork for understanding their impact on surveillance and global communications networks, and internet privacy and anonymity. Representatives of Global Intelligence Agencies (“GIAs”) have asserted since Snowden’s revelations that their activities are lawful. So far, the legal basis is unclear. We demonstrate the ways little-observed but versatile MLATs contribute to a legal basis for global surveillance. We review the international silver platter doctrine and compare it with MLAT provisions, finding a close fit, which offers further clues as to a “legal” basis for mass global surveillance. In this Article, we offer a number of new contributions, including: demonstrating a new category of attack against Tor, an attack through law; demonstrating a new (MLAT) attack against Tor in this new category, completing the first global MLAT map, using the first comprehensive MLAT database. We believe we are the first to link MLATs to increased surveillance by GIAs, the first to quantify measures of the MLAT “hostility factor,” and the first to offer and analysis of MLATs’ effect on technology, i.e. anonymous network communications.

Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014

Many international arbitration institutions have reformed their Rules within the last five years, including the International Centre for Dispute Resolution (ICDR (2009)), Stockholm Chamber of Commerce (SCC (2010)), International Chamber of Commerce (ICC (2012)), Singapore International Arbitration Centre (SIAC (2013)), Hong Kong International Arbitration Centre (HKIAC (2013)) and now the London Court of International Arbitration (LCIA (2014)).The LCIA's reform of its Rules appears to be part of an increasing convergence of the procedures of international arbitration institutions. This is particularly apparent in three aspects of the new LCIA Rules: the new availability of emergency arbitrators; the inclusion of consolidation provisions and rules on the treatment of third parties generally; and the imposition of 'soft' ethical standards on arbitrators, experts and legal representatives. This article examines this phenomenon of convergence among arbitration institutions, and assesses its desirability. Are these second generation reforms to institutional rules similar because they are addressing common user concerns and general teething problems with earlier rules? Or are other influences pushing arbitral institutions towards conformity in their procedures? This article analyses empirical data concerning the extent to which choice and flexibility in procedures are desired by users of arbitration. In light of this data, we consider the extent to which the LCIA rule reforms and other institutional rule reforms are catering to user preference and how this might be improved.

Forecasting Business Surveys Indicators: Neural Networks vs. Time Series Models

The objective of this paper is to compare different forecasting methods for the short run forecasting of Business Survey Indicators. We compare the forecasting accuracy of Artificial Neural Networks (ANN) vs. three different time series models: autoregressions (AR), autoregressive integrated moving average (ARIMA) and self-exciting threshold autoregressions (SETAR). We consider all the indicators of the question related to a country’s general situation regarding overall economy, capital expenditures and private consumption (present judgement, compared to same time last year, expected situation by the end of the next six months) of the World Economic Survey (WES) carried out by the Ifo Institute for Economic Research in co-operation with the International Chamber of Commerce. The forecast competition is undertaken for fourteen countries of the European Union. The main results of the forecast competition are offered for raw data for the period ranging from 1989 to 2008, using the last eight quarters for comparing the forecasting accuracy of the different techniques. ANN and ARIMA models outperform SETAR and AR models. Enlarging the observed time series of Business Survey Indicators is of utmost importance in order of assessing the implications of the current situation and its use as input in quantitative forecast models.

Court of Cassation of Qatar, Appeal Nos. 45 and 49 of 2014 – Civil Cassation (2nd Circuit), 25 March 2014 (English Translation)

"The arbitral award issued in application of the rules of the International Chamber of Commerce in Paris may not be invalidated on the grounds of not being issued by H.H. the Prince of the State of Qatar, because such award is not subject to provisions of the Qatari Code of Procedure, except with regard to its execution in the State of Qatar."

Court of Cassation of Qatar, Appeal Nos. 45 and 49 of 2014 – Civil Cassation (2nd Circuit), 25 March 2014 (Arabic Original)

"The arbitral award issued in application of the rules of the International Chamber of Commerce in Paris may not be invalidated on the grounds of not being issued by H.H. the Prince of the State of Qatar, because such award is not subject to provisions of the Qatari Code of Procedure, except with regard to its execution in the State of Qatar."