IRR 9285 Reporting

7/30/2019 IRR 9285 Reporting

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CHAPTER 5

DOMESTIC ARBITRATION

RULE 5 - Conduct of Arbitral Proceedings


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Article 5.23

Hearing and WrittenProceedings.


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a) In ad hoc arbitration, the procedure determined by theARBITRATOR, with the agreement of the parties, shall befollowed.

In institutional arbitration, the applicable rules ofprocedure of the ARBITRATION INSTITUTION shall befollowed.

In default of agreement of the parties, the arbitrationprocedure shall be as provided in this Chapter.


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Within thirty (30) days from the appointment of thearbitrator or the constitution of an arbitral tribunal,

the arbitral tribunal shall call the parties and theirrespective counsels to a pre-hearing conference todiscuss the following matters:

1) The venue or place/s

2) The manner of recording the proceedings3) The periods for the communication of the

statement of claims ; counterclaims


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4) The definition of the issues submitted to thearbitral tribunal for determination and thesummary of the claims and counterclaims of theparties

5) The manner by which evidence may be offered6)The delivery of certain types of communicationssuch as pleadings, final award, etc.

(if made by electronic or similar means,

shall require further confirmation in theform of a hard copy or hard copies deliveredpersonally or by registered post; )


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7) The issuance of a subpoena or a subpoenaduces tecum (if either party shall or is likely torequest it )

8) The manner by which expert testimony will bereceived

9) The possibility of either party applying for anorder granting interim relief either with the

arbitral tribunal or with the court10) The possibility of a site or ocular inspection,the purpose of such inspection


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11) The amount to be paid to the arbitral tribunalas fees and the associated costs

12) Such other relevant matters as the parties andthe arbitral tribunal may consider necessary toprovide for a speedy and efficient arbitration of

the dispute


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c) To the extent possible, the arbitral tribunal and the

parties shall agree upon any such matters

In default of agreement - the arbitral tribunal shallhave the discretion and authority to make thedecision

(d) The arbitral tribunal shall, in consultation with theparties, fix the date/s and the time of hearing,authority to make the decision


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(e) The hearing set shall not be postponed except withthe conformity of the arbitrator and the parties andonly for a good and sufficient cause

(f) A party may, during the proceedings, representhimself/herself/itself or be represented or assisted by arepresentative

(g) The hearing may proceed in the absence of a party

who fails to obtain an adjournment thereof or who,despite due notice, fails to be present


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(h) Only parties, their respective representatives, thewitnesses and the administrative staff of the arbitraltribunal shall have the right to be present during thehearing.

- Any other person may be allowed by thearbitrator to be present if the parties, upon beinginformed of the presence of such person and thereason for his/her presence, interpose no objectionthereto.


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i) Issues raised during the arbitration proceedingrelating to:

(a) the jurisdiction of the arbitral tribunal overone or more of the claims or counter-claims, or

(b) the arbitrability of a particular claim orcounter-claim, shall be resolved by the arbitraltribunal as threshold issues

j) Each witness shall, before giving testimony, berequired to take an oath/affirmation before the arbitraltribunal


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k) The arbitral tribunal shall arrange for thetranscription of the recorded testimony of eachwitness and require each party to share the cost ofrecording and transcription

l) Each party shall provide the other party with a copyof each statement or document submitted to thearbitral tribunal and shall have an opportunity to replyin writing to the other partys statements and proofs.

m) The arbitral tribunal may require the parties toproduce such other documents


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n) The arbitral tribunal shall receive as evidence allexhibits submitted

o) At the close of the hearing, the arbitral tribunal

shall specifically inquire of all parties whether theyhave further proof or witnesses to present; uponreceiving a negative reply, the arbitral tribunal shalldeclare the hearing closed.

p) After a hearing is declared closed, no furthermotion or manifestation or submission may be allowed


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Except: post-hearing briefs and reply briefs that theparties have agreed to submit within a fixedperiod after the hearing is declared closed, orwhen the arbitral tribunal, motu proprio or uponrequest of a party, allows the reopening of thehearing.

(q) Decisions on interlocutory matters shall be made bythe sole arbitrator or by the majority of the arbitraltribunal.


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r) Except as provided in Section 17 (d) of the ADR Act, noarbitrator shall act as a mediator in any proceeding in

which he/she is acting as arbitrator even if requested by theparties; and all negotiations towards settlement of the

dispute must take place without the presence of thearbitrators.

s) Before assuming the duties of his/her office, anarbitrator must be sworn by any officer authorized by law

to administer an oath or be required to make an affirmationto faithfully and fairly hear and examine the matters incontroversy and to make a just award according to the bestof his/her ability and understanding


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(t) Either party may object to the commencement orcontinuation of an arbitration proceeding unless thearbitrator takes an oath or affirmation as required inthis Chapter. If the arbitrator shall refuse to take an

oath or affirmation as required by law and this Rule,he/she shall be replaced. The failure to object to theabsence of an oath or affirmation shall be deemed awaiver of such objection and the proceedings shall

continue in due course and may not later be used as aground to invalidate the proceedings.


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(u) The arbitral tribunal shall have the power toadminister oaths to, or require affirmation from, allwitnesses directing them to tell the truth, the wholetruth

(v) The arbitral tribunal shall have the power torequire any person to attend a hearing as a witness. Itshall have the power to subpoena witnesses, to testifyand/or produce documents when the relevancy andmateriality thereof has been shown to the arbitraltribunal and nothing but the truth


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Article 5.24

Power of Arbitral Tribunal toOrder Interim Measures.


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a) Unless otherwise agreed by the parties, thearbitral tribunal may, at the request of a party and inaccordance with the this Article, order any party totake such interim measures of protection as thearbitral tribunal may consider necessary in respect ofthe subject matter of the dispute or the procedure.


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Such interim measures may include, but shall not be limited to:

1) preliminary injunction directed against a party,

2) appointment of receivers or detention of property that is thesubject of the dispute in arbitration or its preservation orinspection.

(b) After the constitution of the arbitral tribunal, and during thearbitration proceedings, a request for interim measures ofprotection, or modification thereof, may be made with thearbitral tribunal.


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Question:

When is an arbitral tribunal deemed constituted?

Answer:When the sole arbitrator or the third arbitrator, whohas been nominated, has accepted the nomination andwritten communication of said nomination and

acceptance has been received by the party making therequest.


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c) The following rules on interim or provisional reliefshall be observed:

i) Any party may request that provisional orinterim relief be granted against the adverse party.

ii) Such relief may be granted:aa) To prevent irreparable loss or injury;

bb) To provide security for the performanceof an obligation;

cc) To produce or preserve evidence; ordd) To compel any other appropriate act or

omissions.


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iii) The order granting provisional relief may beconditioned upon the provision of security or any actor omission specified in the order.

iv) Interim provisional relief is requested by written

application transmitted by reasonable means to thearbitral tribunal and the party against whom relief issought, describing in appropriate detail of the preciserelief, the party against whom the relief is requested,the ground for the relief, and the evidence supportingthe request.

v) The order either granting or denying an applicationfor interim relief shall be binding upon the parties.


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vi) Either party may apply with the court for assistance inimplementing or enforcing an interim measure ordered byan arbitral tribunal.

vii) A party who does not comply with the order shall beliable for all damages, resulting from noncompliance,

including all expenses, and reasonably attorneys fees, paidin obtaining the orders judicial enforcement.

d) The arbitral tribunal shall have the power at any time,before rendering the award, without prejudice to the rights

of any party to petition the court to take measures tosafeguard and/or conserve any matter which is the subjectof the dispute in arbitration.


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Article 5.25

Default of a Party


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Unless otherwise agreed by the parties, if, withoutshowing sufficient cause,

a) the claimant fails to communicate his/her/itsstatement of claim in accordance with paragraph(a) of Article 5.22 (Statements of Claim and

Defense), the arbitral tribunal shall terminatethe proceedings;


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b) the respondent fails to communicate his/her/its

statement of defense in accordance with paragraph (a)of Article 5.22 (Statements of Claim and Defense), thearbitral tribunal shall continue the proceedings

without treating such failure in itself as an

admission of the claimants allegations;


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c) any party fails to appear at a hearing or to produce

documentary evidence, the arbitral tribunal maycontinue the proceedings and make the award basedon the evidence before it.


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Thank you for listening! ^_^

Documents

IRR 9285 Reporting