In these Rules, the following terms shall have the following meanings:
“ADR Chambers” means the ADR services division of ADR Chambers Inc.
“Appointing Committee” means the Committee established by ADR Chambers to exercise the powers of an appointing authority.
“Arbitral Tribunal” means a sole arbitrator or a tribunal of arbitrators.
“Arbitration Agreement” means an agreement between or among two or more Parties to submit to arbitration any dispute, controversy or claim and unless expressly limited, shall be deemed to include any question regarding the existence, interpretation, validity, breach or termination of a contract.
“Business Day” means a day between Monday and Friday inclusive, excluding statutory or official holidays in the place of arbitration.
“Co-ordinator” means the person or persons at ADR Chambers responsible for administration of arbitrations.
“Law of the Arbitration” means the law the Parties have chosen to apply to the arbitration proceedings or, in the absence of such a choice, the arbitration law of the place where the arbitration is held.
“Notice of Arbitration” means the notice referred to in Rule 4.1.
“Party” or “Parties” means a party or parties to an Arbitration Agreement.
“Representative” means legal counsel for or an authorized representative of a Party.
“Rules” means the ADR Chambers Arbitration Rules in force at the time of the commencement of the arbitration.
1.2 Where appropriate in these Rules, words importing the singular shall include the plural and words importing the masculine gender shall include the feminine gender and vice versa.
2. AGREEMENT OF PARTIES AND APPLICATION OF THE RULES
2.1 These Rules shall, subject to such modification as the Parties may agree upon, be deemed to have been made a part of any Arbitration Agreement which provides for arbitration to be administered by ADR Chambers, under these Rules or under the rules of ADR Chambers, or any similar expression,.
2.2 The arbitration shall be conducted under the Law of the Arbitration. In the event that any provision of these Rules or the agreement of the Parties with respect to the conduct of the arbitration is in conflict with any provisions of the Law of the Arbitration from which the Parties cannot derogate, the provisions of the Law of the Arbitration shall prevail.
2.3 The Rules and any procedures set out in the Arbitration Agreement shall be interpreted liberally with the object that (a) all disputes that could be covered by the Arbitration Agreement are subject to arbitration; and (b) the arbitration will be as inexpensive and expeditious as reasonably possible, consistent with a process that is fair and suitable to the circumstances of the particular case. Any procedural question or controversy on which the Parties are not agreed may be resolved by the application of the discretion of the Arbitral Tribunal in conducting the arbitration, or of the Appointing Committee in the exercise of its functions.
2.4 Where an Arbitral Tribunal consists of more than one arbitrator, the Parties may agree or the Arbitral Tribunal may decide, after hearing the submissions of the parties, to delegate the determination of some or all pre-hearing procedural matters to one member of the Arbitral Tribunal.
2.5 These Rules may be amended by ADR Chambers in its sole discretion. Amendments become effective when they are posted to the ADR Chambers website.
3. APPOINTING COMMITTEE
3.1 The Appointing Committee shall be established by ADR Chambers and shall have the authority and functions specified in these Rules or incidental thereto. The functions of the Appointing Committee may be delegated by the Appointing Committee to one or more of its members.
3.2 The current members of the Appointing Committee shall be listed on the website of ADR Chambers.
3.3 Members of the Appointing Committee are not eligible for appointment as arbitrators by the Appointing Committee but are eligible to be appointed as arbitrators by a Party or Parties or by any other method contemplated by the agreement of the parties or by these Rules.
3.4 A member of the Appointing Committee shall not be involved in the determination of any issue relating to an arbitration in which he or she has, may have or has had any personal interest or involvement.
3.5 The Parties may, in the discretion of the Appointing Committee, be charged for services provided by the Appointing Committee. Charges shall be based on the time spent on the matter by a single member of the Appointing Committee. No charge shall be made for any time spent by additional members of the Appointing Committee, unless the Parties by agreement specifically request their participation.
4. NOTICE OF ARBITRATION
4.1 The Party commencing arbitration shall deliver a Notice of Arbitration to the opposing Party and shall at the same time deliver a copy of the Notice to ADR Chambers. The Notice of Arbitration shall contain a statement of the nature of the dispute, the material facts being relied on and the issues being raised, the names and addresses of all Parties and the relief that is claimed. Arbitration proceedings shall be deemed to commence on the day on which ADR Chambers receives the Notice of Arbitration and the appropriate filing fee.
4.2 A non-refundable filing fee of $500 plus applicable taxes is payable by the claimant upon delivery to the Co-ordinator of the Notice of Arbitration.
4.3 For the purpose of facilitating the commencement of the arbitration or the establishment of the Arbitral Tribunal, the Co-ordinator or a member of the Appointing Committee may hold a telephone conference with the Parties or their Representatives to discuss the selection of arbitrators, whether any issues require action by the Appointing Committee, the timing of the proceedings, the desire to proceed with mediation, fees of the arbitrator or arbitrators to be appointed and any other matter of a preliminary or administrative nature.
5. APPOINTMENT OF ARBITRAL TRIBUNAL
5.1 The Parties shall be at liberty to select any qualified arbitrator or tribunal in accordance with the appointing provisions in or applicable to the arbitration agreement. In the event that one or more of the Parties fails to appoint an arbitrator or arbitrators within the times specified or within a reasonable period of time if no time is specified, the Appointing Committee shall appoint an arbitrator or arbitrators for them.
5.2 Where a sole arbitrator is to be appointed and the Parties have not, within three business days of the receipt of the notice of arbitration and the filing fee by ADR Chambers, agreed upon the arbitrator, ADR Chambers shall provide the Parties with a list of three potential arbitrators. If the Parties are unable to agree on an arbitrator within 7 days of receipt of the list, each side to the arbitration may within a further two Business Days delete one name from the list and the Appointing Committee shall choose the arbitrator from the remaining names. In the discretion of the Appointing Committee, the list of potential arbitrators may include more than three names, for example if more than two parties are involved in the dispute.
5.3 Where the Arbitration Agreement provides that each Party is to appoint an arbitrator to a three-person tribunal, the Appointing Committee shall, where the Parties are unable to agree, appoint the presiding arbitrator in consultation with the Party appointed arbitrators. The Appointing Committee shall follow the same procedure as set out in Rule 5.2 above.
5.4 Where the Arbitration Agreement provides for a three-person tribunal to be appointed by ADR Chambers, a list-procedure will be followed. The Appointing Committee will provide the Parties with a list of arbitrators who in the opinion of the Appointing Committee are particularly qualified for appointment to the tribunal. After the Parties have been consulted about the names on the list, the Appointing Committee will make the appointments that it considers to be appropriate.
5.5 Where the Arbitration Agreement provides for arbitration among more than two Parties and each Party has not agreed in writing to the appointment of at least one of the nominees to a three-person tribunal, the Appointing Committee shall appoint all members of the Arbitral Tribunal without regard to any Party’s nomination and shall follow the procedure set out in Rule 5.2.
5.6 The Parties and the Appointing Committee may appoint any or all of the arbitrators on the Arbitral Tribunal from current ADR Chambers panel members, but are not required to do so.
6. INDEPENDENCE AND IMPARTIALITY
Unless otherwise agreed by the Parties, an arbitrator shall be and remain at all times wholly independent.
An arbitrator shall be and remain wholly impartial and shall not act as an advocate for any Party to the arbitration.
The Parties shall, prior to the appointment of any arbitrator, disclose to ADR Chambers and to the proposed arbitrators the names of all Parties and, to the extent known, all material witnesses who will be or are reasonably likely to be involved in the arbitration.
Every arbitrator shall, before accepting an appointment, sign and deliver to the Parties and the Co-ordinator a statement declaring that he or she knows of no circumstances likely to give rise to a reasonable apprehension of bias and that he or she will avoid and, if necessary disclose to the Parties any such circumstances arising after that time and before the arbitration is concluded. No arbitrator shall be disqualified or subject to challenge by reason of the arbitrator or any Representative of a Party being a member, officer or director of ADR Chambers.
The Appointing Committee shall decide any challenge or dispute with respect to the qualifications, independence or impartiality of an arbitrator. At the request of any Party, the Appointing Committee shall appoint a person not associated with ADR Chambers to make any determination that the Appointing Committee is authorized to make respecting one or more members of ADR Chambers.
Any arbitrator who is unable to serve or continue to serve due to disqualification, death or disability shall be replaced in the same manner as his or her original appointment, failing which the replacement arbitrator shall be appointed by the Appointing Committee.
7. NOTIFICATION TO THE PARTIES
Any notification or communication from ADR Chambers or the Arbitral Tribunal to a Party or its Representative may be delivered to its last known address by delivery, registered mail, courier, facsimile transmission, e-mail, or any other means of telecommunication that provides a record of the sending thereof. Such notification or communication shall be deemed to have been delivered on the date sent.
8. COMMUNICATIONS WITH THE ARBITRAL TRIBUNAL
No Party or person acting on behalf of a Party may communicate ex parte with the Arbitral Tribunal.
9. PROCEDURAL HEARINGS
9.1 The Arbitral Tribunal may convene a procedural hearing at any time it considers appropriate to resolve procedural issues and establish a timetable. A procedural hearing agenda may include points for discussion leading to identification and clarification of the issues in dispute. The questions may include:
Are there any issues concerning the jurisdiction, appointment or qualifications of the Arbitral Tribunal?
To what extent and pursuant to what procedure will there be any disclosure and production of facts and documents or examinations for discovery?
Should time be scheduled for hearing of any questions with respect to pre-hearing disclosure?
Is an oral hearing necessary? If so, how much time will be required? Where will the hearing be held?
Should witnesses be identified and statements be delivered before the hearing?
Should the Parties jointly prepare any pleadings briefs, documents, legal authorities or other briefs for use in the arbitration?
What should be the procedure and likely length of the hearing?
Will expert evidence be required? Are any special rules required?
Is a transcript of the evidence at the hearing desirable?
Are interpreters necessary?
Should there be a timetable for delivery of written argument if required?
Is there any agreement as to the form of the award?
Will the arbitrator be required to deliver reasons?
Will there be any limit on the time for delivery of the award or completion of the arbitration?
9.2 Any procedural hearing may take place by conference telephone call.
9.3 The Arbitral Tribunal shall record any agreement or orders made at any procedural hearing and shall promptly send a copy of such record to each of the Parties.
9.4 The Arbitral Tribunal may dispense with an oral hearing if it determines, after hearing the submissions of the Parties, that oral evidence is not necessary given the issues in dispute or not warranted given the amount in dispute.
10. INTERIM MEASURES OF PROTECTION
10.1 At the request of any Party and on notice to all the other Parties the Arbitral Tribunal may order whatever interim measures it deems necessary, including injunctive relief, measures for the protection or conservation of property and security for costs.
10.2 Such interim measures may take the form of an interim award.
10.3 A request for interim measures addressed by a Party to a court shall not be deemed incompatible with the Agreement to Arbitrate or a waiver of the right to arbitrate.
10.4 The Tribunal may in its discretion apportion costs associated with the applications for interim relief in any interim award or in the final award.
11. PRIVACY AND CONFIDENTIALITY OF ARBITRATION
11.1 Subject to Rule 11.2, all arbitrations held under these Rules are private and confidential. The Parties and their Representatives may attend at the arbitration. Other persons may only attend with the consent of the Parties or the Arbitral Tribunal.
11.2 No information concerning the existence of the arbitration or anything which occurs or is disclosed within the arbitration shall be disclosed or used outside of the arbitration proceedings or for any other purpose by a Party except:
For the purpose of conducting the arbitration itself including, where necessary and appropriate, interviewing and preparing witnesses, obtaining document and other support services and the administration of the arbitration;
In connection with an application to a court for interim relief or to set aside, recognize or enforce an award; or
Where a Party is required to do so by law or by a court or competent regulatory body.
11.3 Where a Party makes disclosure as permitted by Rule 11.2 it shall only do so:
by disclosing no more than what is legally required,
by obtaining, where possible, an undertaking or order of confidentiality consistent with the Rules; and
by furnishing to the Arbitral Tribunal and to the other Party, if the disclosure takes place during the arbitration, or to the other Party alone, if the disclosure takes place after the termination of the arbitration, details of the disclosure and an explanation of the reason for it.
12. THE AWARD
12.1 The Arbitral Tribunal will render its award within 45 days of the close of the proceedings, provided that the Arbitral Tribunal, for good reason, may extend that time after consultation with the Parties.
12.2 The award shall not be released to the Parties until all outstanding charges of ADR Chambers for fees and disbursements relating to the arbitration and all arbitrator’s fees and expenses have been paid.
12.3 The Arbitral Tribunal may issue an award based on the consent of the parties.
12.4 The award shall set out: the nature of the claim; the decision; the relief awarded, and unless the Parties have agreed otherwise reasons including such review of the issues, the facts and the law as the Arbitral Tribunal deems necessary to explain its award.
12.5 An award or interim award made under the provisions of these Rules shall be treated as a final award for the purposes of recognition and enforcement by a judicial authority and shall not be subject to any appeal to the courts or otherwise unless the Parties have otherwise agreed.
13. AMENDMENTS AND CORRECTIONS TO THE AWARD
Within 30 days of an award being released, on the application of a Party or on its own initiative, the Arbitral Tribunal may amend an award to correct:
a clerical or typographical error,
an accidental error, slip, omission or similar mistake,
an arithmetical error made in a computation, or
a claim on which the Arbitral Tribunal failed to adjudicate.
The Arbitral Tribunal may order the payment of simple or compound interest, including pre-award and post-award interest.
15. THE COSTS OF THE ARBITRATION
The costs of the arbitration including legal fees and disbursements shall be fixed by the Arbitral Tribunal and allocated among the Parties in its award on the merits of the dispute or in a separate award after receiving further submissions from the Parties. The fees of the Arbitral Tribunal shall be stated separately for each arbitrator.
16. ARBITRATION FEES AND DEPOSITS FOR ARBITRATION
16.1 If an arbitrator has been appointed by the Appointing Committee the fees for the services of that arbitrator will be fixed on the scale of fees that accords with the agreement as to fees that was made between ADR Chambers and the arbitrator in advance of the arbitration. If an arbitrator was appointed by one or more of the Parties, the fees for the services of that arbitrator will be fixed by the Tribunal on a scale that takes into account any agreement that was made with the arbitrator prior to the appointment of the arbitrator.
16.2 All accounts of all the members of an Arbitral Tribunal shall be submitted to the Co-ordinator and shall detail the time spent and the rate charged together with any disbursements. The Co-ordinator will then divide the total amount equally between or among the Parties, subject to such order or direction that the Arbitral Tribunal may make and shall render accounts to the Parties accordingly.
16.3 The Parties shall be jointly and severally responsible for the payment of all accounts rendered by ADR Chambers unless the Parties and ADR Chambers have otherwise agreed and have confirmed those arrangements in writing with ADR Chambers.
16.4 The fees and expenses of an arbitrator are subject to deduction of an administrative charge payable to ADR Chambers and agreed upon at the time of the appointment.
16.5 When the Arbitral Tribunal or the Co-ordinator requests a deposit of costs that deposit when received shall be paid to ADR Chambers. After the award has been made, ADR Chambers shall render an accounting to the Parties of the deposits received and return any unexpended balance to the Parties.
16.6 A deposit on account of fees, ADR Chambers’ administrative fees, and applicable taxes will be required for each day reserved for the arbitration and the time estimated by the Arbitral Tribunal for preparation for the hearing and the writing of the award. The amount and timing of deposits will be communicated to the Parties by the Co-ordinator. The Appointing Committee shall determine any disputes regarding the amount or timing of deposits.
16.7 Arbitration hearing days are booked as full days with a minimum charge of eight hours per day plus preparation time.
17. VENUE EXPENSES
17.1 Arbitration hearings held at the Head Office of ADR Chambers in Toronto are subject to a minimum venue charge of $450.00 ( CDN ) plus applicable taxes per day for the use of the facilities and that charge will increase according to the number of Parties and the size of the hearing room and necessary consulting rooms required. Faxes received during the hearing days and local telephone use and administrative assistance of ADR chambers are included. Outgoing faxes other than local and any courier costs will be charged at actual third party cost. If the arbitration is held at ADR Chambers in Toronto, there will be a catering charge for lunches or other meals and refreshments provided. If the arbitration is held at another venue, arranged for the Parties by ADR Chambers, then catering charges will be at third party cost.
17.2 If arbitrations are held at other than the Head Office of ADR Chambers in Toronto, the Parties may make their own arrangements and are responsible for any charges in connection therewith. If the Parties request that the Co-ordinator of ADR Chambers make such venue arrangements, then a separate administration fee of $ 150.00 will be charged. The Parties agree that the Co-ordinator is acting solely as an agent of the Parties who are jointly and severally liable to the third party venue provider for its charges. ADR Chambers will require a deposit in the appropriate amount to cover such venue arrangements. The final account of ADR Chambers will account for such deposit and may include additional charges of the third party venue provider.
18. ADJOURNMENT, CANCELLATION OR SETTLEMENT
18.1 If an arbitration is adjourned, cancelled, or settled more than thirty (30) days prior to the commencement of the arbitration, or any rescheduled date, the deposit shall be returned to the Party or Parties who made it, less the amount of any expenses that may have been incurred and less any fees owing to the arbitrator or arbitrators for time incurred.
18.2 If an arbitration is adjourned, cancelled or settled within thirty (30) days prior to the commencement of the arbitration, or any adjournment date, the deposit is subject to forfeiture in the discretion of ADR Chambers or the Arbitral Tribunal. A decision with respect to forfeiture shall not be made until the unused hearing dates have passed. The ability of ADR Chambers and members of the Arbitral Tribunal whose fees are secured by the deposit to rebook the dates will be a factor considered with respect to the forfeiture of some or all of the deposit.
18.3 Arbitrations with scheduled hearings longer than two weeks may be subject to special arrangements regarding deposits. Such arrangements will be made at the time the hearing dates are booked.
18.4 Notification of any cancellation, request for adjournment or settlement, shall be made by telephone and also confirmed in writing by fax or e-mail to the attention of the Co-ordinator.
Neither ADR Chambers nor any member of the Arbitral Tribunal shall be liable to any Party or any counsel, officer, director, employee or witness for any Party for any act or omission in connection with any arbitration. The Parties shall jointly and severally indemnify and hold harmless ADR Chambers in respect of all such claims. The members of the Arbitral Tribunal and ADR Chambers shall have the same protections and immunities as a judge of the superior court of the province, territory or state of the place where the arbitration is held.
20. MODEL DISPUTE RESOLUTION CLAUSE
The following model dispute resolution clause is recommended for arbitrations to be conducted under these Rules.
Any dispute, controversy or claim arising out of or relating to this contract including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the ADR Chambers Arbitration Rules. The place of the arbitration shall be ______________________________________.
The Parties may wish to consider adding one or all of the following options:
1. There shall be ________ arbitrators (1 or 3). [If 3, state whether each party may nominate an arbitrator and how the third arbitrator is to be selected.] (See Rule 5.4.)
2. The language of the arbitration shall be_________________.
3. The Arbitral Tribunal must select its award from the final offers to settle made by each of the Parties.
4. The Arbitral Tribunal need not provide detailed reasons for its award. (See Rule 12.3.)
5. Whether an oral hearing must be held. (See Rule 9.4.)
6. Specifications as to what rules will apply with respect to pre-hearing disclosure of documents and examinations for discovery, especially where Parties from more than one country or province are involved.
7. Whether any rights of appeal to an appellate arbitration tribunal or to the courts will be allowed. (See Rule 12.4.)
THESE RULES ARE EFFECTIVE AS OF SEPTEMBER 7, 2007 AND ARE SUBJECT TO CHANGE WITHOUT NOTICE.
* These Rules are in effect for arbitrations commencing on or after September 7, 2007 and replace all prior rules of arbitration promulgated by ADR Chambers. Copies of ADR Chambers rules which were in effect prior to the date of these current rules, may be obtained from the Co-ordinator. These Rules are subject to change at the discretion of ADR Chambers: See Rule 2.5.
United Nations Commission On International Trade Law (UNCITRAL)
UNCITRAL Arbitration Rules
GENERAL ASSEMBLY RESOLUTION 31/98
Section I. Introductory rules
Scope of application (article 1) and model arbitration clause
Notice, calculation of periods of time (article 2)
Notice of arbitration (article 3)
Representation and assistance (article 4)
Composition of the arbitral tribunal Number of arbitrators (article 5)
Appointment of arbitrators (articles 6 to 8)
Challenge of arbitrators (articles 9 to 12)
Replacement of an arbitrator (article 13)
Repetition of hearings in the event of the replacement of an arbitrator (article 14)
Arbitral proceedings General provisions (article 15)
Place of arbitration (article 16)
Language (article 17)
Statement of claim (article 18)
Statement of defence (article 19)
Amendments to the claim or defence (article 20)
Pleas as to the jurisdiction of the arbitral tribunal (article 21)
Further written statements (article 22)
Periods of time (article 23)
Evidence and hearings (articles 24 and 25)
Interim measures of protection (article 26)
Experts (article 27)
Default (article 28)
Closure of hearings (article 29)
Waiver of rules (article 30)
The award Decisions (article 31)
Form and effect of the award (article 32)
Applicable law, amiable compositeur (article 33)
Settlement or other grounds for termination (article 34)
Interpretation of the award (article 35)
Correction of the award (article 36)
Additional award (article 37)
Costs (articles 38 to 40)
Deposit of costs (article 41)
RESOLUTION 31/98 ADOPTED BY THE GENERAL ASSEMBLY ON 15 DECEMBER 1976
31/98. Arbitration Rules of the United Nations Commission on International Trade Law
The General Assembly,
Recognizing the value of arbitration as a method of settling disputes arising in the context of international commercial relations,
Being convinced that the establishment of rules for ad hoc arbitration that are acceptable in countries with different legal, social and economic systems would significantly contribute to the development of harmonious international economic relations,
Bearing in mind that the Arbitration Rules of the United Nations Commission on International Trade Law have been prepared after extensive consultation with arbitral institutions and centres of international commercial arbitration,
Noting that the Arbitration Rules were adopted by the United Nations Commission on International Trade Law at its ninth session 1/ after due deliberation,
1. Recommends the use of the Arbitration Rules of the United Nations Commission on International Trade Law in the settlement of disputes arising in the context of international commercial relations, particularly by reference to the Arbitration Rules in commercial contracts;
2. Requests the Secretary-General to arrange for the widest possible distribution of the Arbitration Rules.
1/ Official Records of the General Assembly, Thirty-first Session, Supplement No. 17 (A/31/17), chap. V, sect. C.
UNCITRAL ARBITRATION RULES
Section I. Introductory rules
SCOPE OF APPLICATION
1. Where the parties to a contract have agreed in writing* that disputes in relation to that contract shall be referred to arbitration under the UNCITRAL Arbitration Rules, then such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree in writing.
2. These Rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
*MODEL ARBITRATION CLAUSE
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.
Note – Parties may wish to consider adding:
(a) The appointing authority shall be … (name of institution or person);
(b) The number of arbitrators shall be … (one or three);
(c) The place of arbitration shall be … (town or country);
(d) The language(s) to be used in the arbitral proceedings shall be …
NOTICE, CALCULATION OF PERIODS OF TIME
1. For the purposes of these Rules, any notice, including a notification, communication or proposal, is deemed to have been received if it is physically delivered to the addressee or if it is delivered at his habitual residence, place of business or mailing address, or, if none of these can be found after making reasonable inquiry, then at the addressee=s last-known residence or place of business. Notice shall be deemed to have been received on the day it is so delivered.
2. For the purposes of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice, notification, communication or proposal is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.
NOTICE OF ARBITRATION
1. The party initiating recourse to arbitration (hereinafter called the “claimant”) shall give to the other party (hereinafter called the “respondent”) a notice of arbitration.
2. Arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the respondent.
3. The notice of arbitration shall include the following:
(a) A demand that the dispute be referred to arbitration;
(b) The names and addresses of the parties;
(c) A reference to the arbitration clause or the separate arbitration agreement that is invoked;
(d) A reference to the contract out of or in relation to which the dispute arises;
(e) The general nature of the claim and an indication of the amount involved, if any;
(f) The relief or remedy sought;
(g) A proposal as to the number of arbitrators (i.e. one or three), if the parties have not previously agreed thereon.
4. The notice of arbitration may also include:
(a) The proposals for the appointments of a sole arbitrator and an appointing authority referred to in article 6, paragraph 1;
(b) The notification of the appointment of an arbitrator referred to in article 7;
(c) The statement of claim referred to in article 18.
REPRESENTATION AND ASSISTANCE
The parties may be represented or assisted by persons of their choice. The names and addresses of such persons must be communicated in writing to the other party; such communication must specify whether the appointment is being made for purposes of representation or assistance.
Section II. Composition of the arbitral tribunal
NUMBER OF ARBITRATORS
If the parties have not previously agreed on the number of arbitrators (i.e. one or three), and if within fifteen days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed.
APPOINTMENT OF ARBITRATORS (Articles 6 to 8)
1. If a sole arbitrator is to be appointed, either party may propose to the other:
(a) The names of one or more persons, one of whom would serve as the sole arbitrator; and
(b) If no appointing authority has been agreed upon by the parties, the name or names of one or more institutions or persons, one of whom would serve as appointing authority.
2. If within thirty days after receipt by a party of a proposal made in accordance with paragraph 1 the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the appointing authority agreed upon by the parties. If no appointing authority has been agreed upon by the parties, or if the appointing authority agreed upon refuses to act or fails to appoint the arbitrator within sixty days of the receipt of a party’s request therefor, either party may request the Secretary-General of the Permanent Court of Arbitration at The Hague to designate an appointing authority.
3. The appointing authority shall, at the request of one of the parties, appoint the sole arbitrator as promptly as possible. In making the appointment the appointing authority shall use the following list-procedure, unless both parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case:
(a) At the request of one of the parties the appointing authority shall communicate to both parties an identical list containing at least three names;
(b) Within fifteen days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which he objects and numbered the remaining names on the list in the order of his preference;
(c) After the expiration of the above period of time the appointing authority shall appoint the sole arbitrator from among the names approved on the lists returned to it and in accordance with the order of preference indicated by the parties;
(d) If for any reason the appointment cannot be made according to this procedure, the appointing authority may exercise its discretion in appointing the sole arbitrator.
4. In making the appointment, the appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.
1. If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the tribunal.
2. If within thirty days after the receipt of a party’s notification of the appointment of an arbitrator the other party has not notified the first party of the arbitrator he has appointed:
(a) The first party may request the appointing authority previously designated by the parties to appoint the second arbitrator; or
(b) If no such authority has been previously designated by the parties, or if the appointing authority previously designated refuses to act or fails to appoint the arbitrator within thirty days after receipt of a party’s request therefor, the first party may request the Secretary-General of the Permanent Court of Arbitration at The Hague to designate the appointing authority. The first party may then request the appointing authority so designated to appoint the second arbitrator. In either case, the appointing authority may exercise its discretion in appointing the arbitrator.
3. If within thirty days after the appointment of the second arbitrator the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by an appointing authority in the same way as a sole arbitrator would be appointed under article 6.
1. When an appointing authority is requested to appoint an arbitrator pursuant to article 6 or article 7, the party which makes the request shall send to the appointing authority a copy of the notice of arbitration, a copy of the contract out of or in relation to which the dispute has arisen and a copy of the arbitration agreement if it is not contained in the contract. The appointing authority may require from either party such information as it deems necessary to fulfil its function.
2. Where the names of one or more persons are proposed for appointment as arbitrators, their full names, addresses and nationalities shall be indicated, together with a description of their qualifications.
CHALLENGE OF ARBITRATORS (Articles 9 to 12)
A prospective arbitrator shall disclose to those who approach him in connexion with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such circumstances to the parties unless they have already been informed by him of these circumstances.
1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrators impartiality or independence.
2. A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made.
1. A party who intends to challenge an arbitrator shall send notice of his challenge within fifteen days after the appointment of the challenged arbitrator has been notified to the challenging party or within fifteen days after the circumstances mentioned in articles 9 and 10 became known to that party.
2. The challenge shall be notified to the other party, to the arbitrator who is challenged and to the other members of the arbitral tribunal. The notification shall be in writing and shall state the reasons for the challenge.
3. When an arbitrator has been challenged by one party, the other party may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case does this imply acceptance of the validity of the grounds for the challenge. In both cases the procedure provided in article 6 or 7 shall be used in full for the appointment of the substitute arbitrator, even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment.
1. If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made:
(a) When the initial appointment was made by an appointing authority, by that authority;
(b) When the initial appointment was not made by an appointing authority, but an appointing authority has been previously designated, by that authority;
(c) In all other cases, by the appointing authority to be designated in accordance with the procedure for designating an appointing authority as provided for in article 6.
2. If the appointing authority sustains the challenge, a substitute arbitrator shall be appointed or chosen pursuant to the procedure applicable to the appointment or choice of an arbitrator as provided in articles 6 to 9 except that, when this procedure would call for the designation of an appointing authority, the appointment of the arbitrator shall be made by the appointing authority which decided on the challenge.
REPLACEMENT OF ON ARBITRATOR
1. In the event of the death or resignation of an arbitrator during the course of the arbitral proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided for in articles 6 to 9 that was applicable to the appointment or choice of the arbitrator being replaced.
2. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his performing his functions, the procedure in respect of the challenge and replacement of an arbitrator as provided in the preceding articles shall apply.
REPETITION OF HEARINGS IN THE EVENT OF THE REPLACEMENT OF AN ARBITRATOR
If under articles 11 to 13 the sole or presiding arbitrator is replaced, any hearings held previously shall be repeated; if any other arbitrator is replaced, such prior hearings may be repeated at the discretion of the arbitral tribunal.
Section III. Arbitral proceedings
1. Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.
2. If either party so requests at any stage of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials.
3. All documents or information supplied to the arbitral tribunal by one party shall at the same time be communicated by that party to the other party.
PLACE OF ARBITRATION
1. Unless the parties have agreed upon the place where the arbitration is to be held, such place shall be determined by the arbitral tribunal, having regard to the circumstances of the arbitration.
2. The arbitral tribunal may determine the locale of the arbitration within the country agreed upon by the parties. It may hear witnesses and hold meetings for consultation among its members at any place it deems appropriate, having regard to the circumstances of the arbitration.
3. The arbitral tribunal may meet at any place it deems appropriate for the inspection of goods, other property or documents. The parties shall be given sufficient notice to enable them to be present at such inspection.
4. The award shall be made at the place of arbitration.
1. Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to the statement of claim, the statement of defence, and any further written statements and, if oral hearings take place, to the language or languages to be used in such hearings.
2. The arbitral tribunal may order that any documents annexed to the statement of claim or statement of defence, and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.
STATEMENT OF CLAIM
1. Unless the statement of claim was contained in the notice of arbitration, within a period of time to be determined by the arbitral tribunal, the claimant shall communicate his statement of claim in writing to the respondent and to each of the arbitrators. A copy of the contract, and of the arbitration agreement if not contained in the contract, shall be annexed thereto.
2. The statement of claim shall include the following particulars:
(a) The names and addresses of the parties;
(b) A statement of the facts supporting the claim;
(c) The points at issue;
(d) The relief or remedy sought.
The claimant may annex to his statement of claim all documents he deems relevant or may add a reference to the documents or other evidence he will submit.
STATEMENT OF DEFENCE
1. Within a period of time to be determined by the arbitral tribunal, the respondent shall communicate his statement of defence in writing to the claimant and to each of the arbitrators.
2. The statement of defence shall reply to the particulars (b), (c) and (d) of the statement of claim (article 18, para. 2). The respondent may annex to his statement the documents on which he relies for his defence or may add a reference to the documents or other evidence he will submit.
3. In his statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same contract or rely on a claim arising out of the same contract for the purpose of a set-off.
4. The provisions of article 18, paragraph 2, shall apply to a counter-claim and a claim relied on for the purpose of a set-off.
AMENDMENTS TO THE CLAIM OR DEFENCE
During the course of the arbitral proceedings either party may amend or supplement his claim or defence unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement.
PLEAS AS TO THE JURISDICTION OF THE ARBITRAL TRIBUNAL
1. The arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement.
2. The arbitral tribunal shall have the power to determine the existence or the validity of the contract of which an arbitration clause forms a part. For the purposes of article 21, an arbitration clause which forms part of a contract and which provides for arbitration under these Rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
3. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defence or, with respect to a counter-claim, in the reply to the counter-claim.
4. In general, the arbitral tribunal should rule on a plea concerning its jurisdiction as a preliminary question. However, the arbitral tribunal may proceed with the arbitration and rule on such a plea in their final award.
FURTHER WRITTEN STATEMENTS
The arbitral tribunal shall decide which further written statements, in addition to the statement of claim and the statement of defence, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.
PERIODS OF TIME
The periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defence) should not exceed forty-five days. However, the arbitral tribunal may extend the time-limits if it concludes that an extension is justified.
EVIDENCE AND HEARINGS (ARTICLES 24 AND 25)
1. Each party shall have the burden of proving the facts relied on to support his claim or defence.
2. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his statement of claim or statement of defence.
3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.
1. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.
2. If witnesses are to be heard, at least fifteen days before the hearing each party shall communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses he intends to present, the subject upon and the languages in which such witnesses will give their testimony.
3. The arbitral tribunal shall make arrangements for the translation of oral statements made at a hearing and for a record of the hearing if either is deemed necessary by the tribunal under the circumstances of the case, or if the parties have agreed thereto and have communicated such agreement to the tribunal at least fifteen days before the hearing.
4. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined.
5. Evidence of witnesses may also be presented in the form of written statements signed by them.
6. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.
INTERIM MEASURES OF PROTECTION
1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.
2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.
3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
1. The arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal, shall be communicated to the parties.
2. The parties shall give the expert any relevant information or produce for his inspection any relevant documents or goods that he may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.
3. Upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of the report to the parties who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his report.
4. At the request of either party the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing either party may present expert witnesses in order to testify on the points at issue. The provisions of article 25 shall be applicable to such proceedings.
1. If, within the period of time fixed by the arbitral tribunal, the claimant has failed to communicate his claim without showing sufficient cause for such failure, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings. If, within the period of time fixed by the arbitral tribunal, the respondent has failed to communicate his statement of defence without showing sufficient cause for such failure, the arbitral tribunal shall order that the proceedings continue.
2. If one of the parties, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.
3. If one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.
CLOSURE OF HEARINGS
1. The arbitral tribunal may inquire of the parties if they have any further proof to offer or witnesses to be heard or submissions to make and, if there are none, it may declare the hearings closed.
2. The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to reopen the hearings at any time before the award is made.
WAIVER OF RULES
A party who knows that any provision of, or requirement under, these Rules has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non-compliance, shall be deemed to have waived his right to object.
Section IV. The award
1. When there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.
2. In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide on his own, subject to revision, if any, by the arbitral tribunal.
FORM AND EFFECT OF THE AWARD
1. In addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards.
2. The award shall be made in writing and shall be final and binding on the parties. The parties undertake to carry out the award without delay.
3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given.
4. An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made. Where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature.
5. The award may be made public only with the consent of both parties.
6. Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.
7. If the arbitration law of the country where the award is made requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by law.
APPLICABLE LAW, AMIABLE COMPOSITEUR
1. The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.
2. The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration.
3. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
SETTLEMENT OR OTHER GROUNDS FOR TERMINATION
1. If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.
2. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless a party raises justifiable grounds for objection.
3. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties. Where an arbitral award on agreed terms is made, the provisions of article 32, paragraphs 2 and 4 to 7, shall apply.
INTERPRETATION OF THE AWARD
1. Within thirty days after the receipt of the award, either party, with notice to the other party, may request that the arbitral tribunal give an interpretation of the award.
2. The interpretation shall be given in writing within forty-five days after the receipt of the request. The interpretation shall form part of the award and the provisions of article 32, paragraphs 2 to 7, shall apply.
CORRECTION OF THE AWARD
1. Within thirty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature. The arbitral tribunal may within thirty days after the communication of the award make such corrections on its own initiative.
2. Such corrections shall be in writing, and the provisions of article 32, paragraphs 2 to 7, shall apply.
1. Within thirty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.
2. If the arbitral tribunal considers the request for an additional award to be justified and considers that the omission can be rectified without any further hearings or evidence, it shall complete its award within sixty days after the receipt of the request.
3. When an additional award is made, the provisions of article 32, paragraphs 2 to 7, shall apply.
COSTS (Articles 38 to 40)
The arbitral tribunal shall fix the costs of arbitration in its award. The term “costs” includes only:
(a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 39;
(b) The travel and other expenses incurred by the arbitrators;
(c) The costs of expert advice and of other assistance required by the arbitral tribunal;
(d) The travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) The costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings, and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable;
(f) Any fees and expenses of the appointing authority as well as the expenses of the Secretary-General of the Permanent Court of Arbitration at The Hague.
1. The fees of the arbitral tribunal shall be reasonable in amount, taking into account the amount in dispute, the complexity of the subject-matter, the time spent by the arbitrators and any other relevant circumstances of the case.
2. If an appointing authority has been agreed upon by the parties or designated by the Secretary-General of the Permanent Court of Arbitration at The Hague, and if that authority has issued a schedule of fees for arbitrators in international cases which it administers, the arbitral tribunal in fixing its fees shall take that schedule of fees into account to the extent that it considers appropriate in the circumstances of the case.
3. If such appointing authority has not issued a schedule of fees for arbitrators in international cases, any party may at any time request the appointing authority to furnish a statement setting forth the basis for establishing fees which is customarily followed in international cases in which the authority appoints arbitrators. If the appointing authority consents to provide such a statement, the arbitral tribunal in fixing its fees shall take such information into account to the extent that it considers appropriate in the circumstances of the case.
4. In cases referred to in paragraphs 2 and 3, when a party so requests and the appointing authority consents to perform the function, the arbitral tribunal shall fix its fees only after consultation with the appointing authority which may make any comment it deems appropriate to the arbitral tribunal concerning the fees.
1. Except as provided in paragraph 2, the costs of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.
2. With respect to the costs of legal representation and assistance referred to in article 38, paragraph (e), the arbitral tribunal, taking into account the circumstances of the case, shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that apportionment is reasonable.
3. When the arbitral tribunal issues an order for the termination of the arbitral proceedings or makes an award on agreed terms, it shall fix the costs of arbitration referred to in article 38 and article 39, paragraph 1, in the text of that order or award.
4. No additional fees may be charged by an arbitral tribunal for interpretation or correction or completion of its award under articles 35 to 37.
DEPOSIT OF COSTS
1. The arbitral tribunal, on its establishment, may request each party to deposit an equal amount as an advance for the costs referred to in article 38, paragraphs (a), (b) and (c).
2. During the course of the arbitral proceedings the arbitral tribunal may request supplementary deposits from the parties.
3. If an appointing authority has been agreed upon by the parties or designated by the Secretary-General of the Permanent Court of Arbitration at The Hague, and when a party so requests and the appointing authority consents to perform the function, the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the appointing authority which may make any comments to the arbitral tribunal which it deems appropriate concerning the amount of such deposits and supplementary deposits.
4. If the required deposits are not paid in full within thirty days after the receipt of the request, the arbitral tribunal shall so inform the parties in order that one or another of them may make the required payment. If such payment is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings.
5. After the award has been made, the arbitral tribunal shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
Further information may be obtained from:
Vienna International Centre P.O. Box 500 A-1400 Vienna, Austria
Telephone: (+43 1) 26060-4060
Telefax: (+43 1) 26060-5813