Resolving disputes without reference to national laws: analysis of the nature and practice of Documentary Instruments Dispute Resolution Expertise (DOCDEX)

The International Chamber of Commerce (ICC) has played an important role in the development of various instruments to regulate the trade finance field as well as any adjacent areas in the sphere of international trade. Therefore, it is not surprising that the initiative to establish a specialised international trade finance dispute resolution forum – Documentary Instruments Dispute Resolution Expertise (DOCDEX) – was taken under the aegis of the ICC. In fact, until 2015, DOCDEX was limited exclusively to disputes arising out of the instruments subject to ICC banking rules. Obviously, this ensured that the interpretation and application of soft law instruments developed by the ICC is done in the way intended by the ICC when such instruments were designed. However, the scope of the system was significantly expanded in 2015 which allows it to deal with any trade finance disputes, even with those which are not covered by any ICC-developed soft law. In this article the author will discuss the nature, scope, benefits and limitations of DOCDEX for resolving trade finance disputes. Furthermore, unique procedural features of DOCDEX will be analysed along with case law generated by this dispute resolution forum as well as the attitude of courts towards DOCDEX Decisions. Lastly, the author will analyse the current problematic aspects of the system which need to be addressed by the ICC in the next revision of DOCDEX Rules. Possible solutions that would rectify the shortcomings of DOCDEX will be provided.