Session 2 -- Arbitration Proceedings

Session 1.B and 2

International Arbitration Procedure from the Commencement of Arbitration to the Award

Maria L. Rubert Ndanga Kamau Leyou Tameru

Addis Ababa, June 17, 2013

June 17, 2013

I. Introduction I. Introduction: Where do we Start? II. From the Arising of the Conflict to the Filing of the Request

I. Pre-Litigation Requirements II. Arbitration Agreement: KISS Principle III. Institutional vs. Ad Hoc Arbitration

III. From the Request to the Final Award I. Request: A Comparison II. Answer III. Payment of Costs: the value of the institution and chart

comparison IV. Flexibility/A ‘typical’ arbitration V. Default Proceedings VI. Final Award: Importance of the Place of Arbitration VII. Arbitration in Ethiopia

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Introduction - Where do we start? Key Elements, Flexibility and the Importance of Appointment of Arbitrators

• Arbitration Clause: – Pre-litigation requirements? – Institutional? – Where? In which country? In which language? – What do I include in my Request for Arbitration?

• Flexibility – Pre-dispute in drafting of arbitration clause; and – Upon the dispute by the Parties and in absence of Parties’ agreement

large discretion of the Tribunal subject to due process and equality of the Parties.

• Article 22.2 ICC – In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.

Introduction 2

Introduction - Where do we start? 16.1 SIAC – The Tribunal shall conduct the arbitration in such manner as it considers

appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final determination of the dispute.

17 DIAC

17.1 The proceedings before the Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Tribunal may determine.

17.2 In all cases, the Tribunal shall act fairly and impartially and ensure that each party is given a full opportunity to present its case.

17 UNCITRAL 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 an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.

Introduction 3

The Constitution of the Arbitral Tribunal

Appointment of Arbitrators:

- Appointment Methods: - 1 vs. 3 member tribunals: Better for the Parties to agree on Sole Arbitrator or to be chosen

by the institution? - 3 member tribunal: each party appoints its co-arbitrator. - Only requirement in choice of arbitrator (unless otherwise specified in arbitration clause or

rules): arbitrator must be independent of the parties and impartial. If not independent and impartial, arbitrator can be challenged and removed.

- Multiple Parties’ Appointments.

- Appointment of their co-arbitrator is probably the most important the parties make in an arbitration with choice of place of arbitration Importance at the preliminary phase of the proceedings.

- “Arbitrations are as good as their arbitrators” - Award Drafters; - Influence on conduct and/or style. Ex: retired London judge vs. relatively young civil lawyer.

Introduction 4

The Constitution of the Arbitral Tribunal

Criteria in Selecting an Arbitrator: • Someone who is independent and impartial, but because of his profile, incl. background

and experience in similar cases, is likely to be predisposed to your case theory = a subtle balance.

– familiarity with languages relevant to the dispute – familiarity with governing law

– familiarity with technical areas relevant to the dispute – experience as arbitrator seating in similar arbitrations – reputation, to command respect – expectations as to remunerations – availability – procedural approach – relationship with counsel on each side – residence – no conflict of interest

• How to conduct due diligence on a candidate: word-of-mouth; check publicly available sources of information (no database, but check their publications, awards available publically); in large cases, interview candidates.

Introduction 5

From the Arising of the Conflict to the Filing of the Request

I. Pre-Litigation Requirements 10.1 In the event of any disputes or differences arising out of or in connection

with this Agreement, including any question regarding its existence, validity or termination, the Parties shall use their best endeavors to settle such disputes or differences. To this effect they shall consult and negotiate with each other, in good faith and with understanding of their mutual interests to reach a just and equitable solution satisfactory to both Parties. If they do not reach such solution within a period of fifteen (15) calendar days, then the dispute or difference shall be finally settled by arbitration in accordance with the Rules of Commercial Conciliation and Arbitration of the Dubai International Arbitration Center (“DIAC”). […]

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II. Arbitration Agreement: KISS Principle

GOOD “Any dispute arising out of the formation, performance, interpretation, nullification, termination or invalidation of this contract or arising therefrom or related thereto in any manner whatsoever, shall be settled by arbitration in accordance with the provisions set forth under the DIAC Arbitration Rules (“the Rules”), by one or more arbitrators appointed in compliance with the Rules.” BAD (1) Any dispute or controversy arising out of this contract shall be settled by arbitration

according to the ICC Rules of Arbitration. The seat of the arbitration shall be: (i) in case a payment obligation is in dispute, Paris, France; (ii) in case of a breach of contract, Zurich, Switzerland; (iii) in case of contract interpretation, Berlin, Germany.

(2) All disputes arising out of or in connection with this contract shall be decided by an

umpire. The umpire shall be a national of Switzerland who is fluent in English and Spanish, with an engineering degree, substantial experience as an international arbitrator, and at least 20 years experience as an executive of an international energy company.

From the Arising of the Conflict to the Filing of the Request 7

III. Institutional vs. Ad Hoc Arbitration

Functions of the Arbitral Institution:

– Collecting payment by parties to arbitrators; and – Appointment of Tribunal – Decide on challenges to arbitrators – Support arbitrators – Scrutinize awards (ICC, SIAC)

• UNCITRAL RULES – Appointing authority is the PCA.

• PURELY AD HOC

• Pros and Cons **Save in a limited number of instances, institutional arbitration is worth its administrative cost.

From the Arising of the Conflict to the Filing of the Request 8

III. From the Request to the Final Award

I. Request: A Comparison II. Answer III. Payment of Costs: the value of the institution and chart

comparison IV. Flexibility/A “typical” arbitration V. Particularities: Emergency Arbitrator/Interim Measures VI. Default Proceedings VII. Final Award: Importance of the Place of Arbitration VIII. Arbitration in Ethiopia

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I. Request: A Comparison International Chamber of Commerce (ICC)

1. A party wishing to have recourse to arbitration under the Rules shall submit its Request for Arbitration (the “Request”) to the Secretariat at any of the offices specified in the Internal Rules. The Secretariat shall notify the claimant and respondent of the receipt of the Request and the date of such receipt.

2. The date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the

date of the commencement of the arbitration. 3. The Request shall contain the following information:

a) the name in full, description, address and other contact details of each of the parties; b) the name in full, address and other contact details of any person(s) representing the claimant in the

arbitration; c) a description of the nature and circumstances of the dispute giving rise to the claims and of the basis

upon which the claims are made; d) a statement of the relief sought, together with the amounts of any quantified claims and, to the extent

possible, an estimate of the monetary value of any other claims; e) any relevant agreements and, in particular, the arbitration agreement(s); f) where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made; g) all relevant particulars and any observations or proposals concerning the number of arbitrators and

their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby; and

h) all relevant particulars and any observations or proposals as to the place of the arbitration, the applicable rules of law and the language of the arbitration.

From the Request to the Final Award

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I. Request: A Comparison

International Chamber of Commerce (ICC) The claimant may submit such other documents or information with the Request as it considers appropriate or as may contribute to the efficient resolution of the dispute. 4. Together with the Request, the claimant shall:

a) submit the number of copies thereof required by Article 3(1); and b) make payment of the filing fee required by Appendix III (“Arbitration Costs and

Fees”) in force on the date the Request is submitted. In the event that the claimant fails to comply with either of these requirements, the Secretariat may fix a time limit within which the claimant must comply, failing which the file shall be closed without prejudice to the claimant’s right to submit the same claims at a later date in another Request. 5. The Secretariat shall transmit a copy of the Request and the documents annexed

thereto to the respondent for its Answer to the Request once the Secretariat has sufficient copies of the Request and the required filing fee.


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I. Request: A Comparison

Singapore International Arbitration Centre (SIAC): A party wishing to commence an arbitration (the "Claimant") shall file with the Registrar a Notice of Arbitration which shall comprise:

a. a demand that the dispute be referred to arbitration; b. the names, addresses, telephone number(s), facsimile number(s)

and electronic mail address(es), if known, of the parties to the arbitration and their representatives, if any;

c. a reference to the arbitration clause or the separate arbitration agreement that is invoked and a copy of it;

d. a reference to the contract out of or in relation to which the dispute arises and where possible, a copy of it;

e. a brief statement describing the nature and circumstances of the dispute, specifying the relief claimed and, where possible, an initial quantification of the claim amount;


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I. Request: A Comparison (II) Dubai International Arbitration Centre (DIAC)

4.1 Any party wishing to commence an arbitration under the DIAC Rules shall send to the Centre a written request for arbitration ("the Request") which shall include

a. A demand that the dispute be referred to arbitration under the DIAC Rules; b. The name in full, description and address, including telephone, fax number, email address and

other communication references of each of the parties to the arbitration and of the representative of the Claimant;

c. A copy of the Arbitration Agreement invoked by the Claimant, together with a copy of the contractual documentation in which the Arbitration Agreement is contained or in respect of which the arbitration arises; d. A brief description of the nature and circumstances of the dispute giving rise to the claim; e. A preliminary statement of the relief sought and, to the extent possible, an indication of any

amount(s) claimed; and f. All relevant particulars concerning the number of arbitrators and their choice in accordance with

Articles 8, 9, 10, 11, and 12, and if the Arbitration Agreement calls for party nomination of arbitrators, the name, address, telephone and facsimile numbers and email address (if known) of the Claimant's nominee.

4.2 The Request may also include:

a. The Statement of Claim referred to in Article 23; b. A proposal as to the place of arbitration and the language of the arbitration; and c. Any comments as to the applicable rules of law.


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I. Request: A Comparison (II)

2010 UNCITRAL The party or parties initiating recourse to arbitration (hereinafter called the “claimant”) shall communicate to the other party or parties (hereinafter called the “respondent”) a notice of arbitration. 2. Arbitral proceedings shall be deemed to commence on the date In which the notice of arbitration is received by the respondent. The notice of arbitration shall include the following:

(a) A demand that the dispute be referred to arbitration; (b) The names and contact details of the parties; (c) Identification of the arbitration agreement that is invoked; (d) Identification of any contract or other legal instrument out of or in relation to which the dispute

arises or, in the absence of such contract or instrument, a brief description of the relevant relationship;

(e) A brief description 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, language and place of arbitration, if the parties have

not previously agreed thereon. 4. The notice of arbitration may also include:

(a) A proposal for the designation of an appointing authority referred to in article 6, paragraph 1; (b) A Proposal for the appointment of a sole arbitrator referred to in article 8, paragraph 1; (c) Notification of the appointment of an arbitrator referred to in article 9 or 10.


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II. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$100K

One Arbitrator Three Arbitrators

DIAC US $ 9,387 US $ 22,760 SIAC US $ 10,781 US $ 23,439 Swiss US $ 13,000 US $ 25,000 ICC US $ 15,425 US $ 35,544


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III. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$1 M One Arbitrator Three Arbitrators

DIAC US $39,683 US $ 97,449 SIAC US $47,084 US $124,364 Swiss US $60,834 US $ 144,584 ICC US $61,094 US $139,851

From the Request to the Final Award 16

III. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$10 M One Arbitrator Three Arbitrators

DIAC US $105,887 US $ 204,850 SIAC US $114,801 US $263,103 Swiss US $183,112 US $ 417,778 ICC US $170,799 US $397,366

From the Request to the Final Award 17

How can you control costs and time in Arbitration?

• Arbitration Agreement: – Keeping clauses simple to avoid ambiguities, minimizing the risk to spend time and

sources on clarifying the arbitration clause; – Selection and Appointment of Arbitrators: 1 vs. 3 members tribunals; specifications

may delay tracking the right candidates; – Fast-Track/Expedited procedures: pros and cons. [Better to be agreed upon the

registration of the arbitration. **The SIAC Expedited Procedure can be applied if requested by one party without the agreement of the other one;

– Time-Limits for rendering the Final Award: pros and cons; • Once the dispute has arisen:

- Selection of Counsel with experience and time. - Sole Arbitrator if appropriate given nature of case (with time and case- management skills!)


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Request for Arbitration (Article 4)

Answer to Request for Arbitration

(Article 5)

Payment of Costs / Constitution

Arbitral Tribunal (A. 12-13)

Transmission of File – Article 16 Rules

Parties’ Additional Exchange of Submissions

Statement of Defense

Statement of Claim

Case Management Conference

(timetable to be agreed) A. 24

Hearing – A. 26

Post Hearing Submissions

Closing of Proceedings (A. 27)

Final Award – Articles 30-35

30 days

?

?

Terms of Reference

– A. 23

Civil vs. Common

IV. Flexibility/Typical ICC Arbitration (The Rules say…)

2 months

? When Award to be made?

Request for Arbitration

Answer to Request and

Counterclaims

Extension for Answer

Reply to Counterclaims

Constitution of the tribunal

Terms of Reference Memorial

Counter Memorial

Response Rebuttal

Hearing of Witness

Hearing on the Merits Awards

IV. Flexibility/Typical ICC Arbitration (Practice tells…)

4 months Preliminary Phase

9 months Written Phase

4 months Hearing Phase

6 months Deliberation

Phase

30 days

120 days

700 days

510 days

390 days

Civil • Four rounds of submissions; • Limited or none; • Shorter hearings; • Witness Examination – Tribunal

more active; • No document production or

limited; • Likely to accept hearsay and relax

on questioning; • Inclination toward Tribunal-

appointed experts; • Witness conferencing (Tribunal’s

lead).

Common • Three rounds of submissions; • More permissive; • Longer hearings; • Witness Examination by Counsel –

Tribunal less active; • Permission of document production

requests; • Intervention to prevent leading

questions, etc. • Less inclined to tribunal-appointed

experts; • Less inclined to propose witness

conferencing (if so, Parties’ Counsel to lead).

Civil vs. Common

IBA RULES

ICC Article 23: Terms of Reference

1. As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall include the following particulars:

a. the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party in the arbitration;

b. the addresses to which notifications and communications arising in the course of the arbitration may be made; c. a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified

claims and, to the extent possible, an estimate of the monetary value of any other claims; d. unless the arbitral tribunal considers it inappropriate, a list of issues to be determined; e. the names in full, address and other contact details of each of the arbitrators; f. the place of the arbitration; and g. particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal

to act as amiable compositeur or to decide ex aequo et bono. 2. The Terms of Reference shall be signed by the parties and the arbitral tribunal. Within two months of the date on which the file has

been transmitted to it, the arbitral tribunal shall transmit to the Court the Terms of Reference signed by it and by the parties. The Court may extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is necessary to do so.

3. If any of the parties refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to the Court for approval. When the Terms of Reference have been signed in accordance with Article 23(2) or approved by the Court, the arbitration shall proceed.

4. After the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the limits of the Terms of Reference unless it has been authorized to do so by the arbitral tribunal, which shall consider the nature of such new claims, the stage of the arbitration and other relevant circumstances.

Terms of Reference and Provisional Timetable

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DIAC Article 22 + Article 216 of the UAE Code of Procedure 22 Within thirty days from the date of the transmission of the file to the Tribunal, as provided

in Article 18, the Tribunal shall, notify the parties of the date of a preliminary meeting with them and the venue thereof. The Tribunal shall fix a timetable for the submission of documents, statements and pleadings as hereinafter provided.

216 (a) If the award was issued without, or was based on invalid terms of reference or an

agreement which has expired by time prescription, or if the arbitrator has exceeded his limits under the terms of reference.

UNCITRAL 17.2 As soon as practicable after its constitution and after inviting the parties to express their views, the arbitral tribunal shall establish the provisional timetable of the arbitration. The arbitral tribunal may, at any time, after inviting the parties to express their views, extend or abridge any period of time prescribed under these Rules or agreed by the parties.

Terms of Reference and Provisional Timetable

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V. Particularities: Emergency Arbitrator/Interim Measures

Emergency Arbitrator/Procedure

DIAC ARTICLE 29 A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. Any such application shall be accepted only if it is received by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and irrespective of whether the party making the application has already submitted its Request for Arbitration. The emergency arbitrator’s decision shall take the form of an order. The parties undertake to comply with any order made by the emergency arbitrator. The emergency arbitrator’s order shall not bind the arbitral tribunal with respect to any question, issue or dispute determined in the order. The arbitral tribunal may modify, terminate or annual the order or any modification thereto made by the emergency arbitrator. The arbitral tribunal shall decide upon any party’s requests or claims related to the emergency arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or non-compliance with the order.


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Emergency Arbitrator/Procedure DIAC ARTICLE 29 Article 29(1)-29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the “Emergency Arbitrator Provisions”) shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories. The Emergency Arbitrator Provisions shall not apply if: the arbitration agreement under the Rules was concluded before the date on which the Rules came into force; the parties have agreed to opt out of the Emergency Arbitrator Provisions; or the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory interim or similar measures. The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Any such applications and any measures taken by the judicial authority must be notified without delay to the Secretariat. From the Request to the Final Award

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SIAC Article 5 Expedited Procedure 5.1 Prior to the full constitution of the Tribunal, a party may apply to the Centre in writing for the arbitral

proceedings to be conducted in accordance with the Expedited Procedure under this Rule where any of the following criteria is satisfied:

– the amount in dispute does not exceed the equivalent amount of S$5,000,000, representing the aggregate of the claim, counterclaim and any setoff defence;

– the parties so agree; or – in cases of exceptional urgency.

5.2 When a party has applied to the Centre under Rule 5.1, and when the Chairman determines, after considering

the views of the parties, that the arbitral proceedings shall be conducted in accordance with the Expedited Procedure, the following procedures shall apply:

The Registrar may shorten any time limits under these Rules; The case shall be referred to a sole arbitrator, unless the Chairman determines otherwise; Unless the parties agree that the dispute shall be decided on the basis of documentary evidence only, the Tribunal shall hold a hearing for the examination of all witnesses and expert witnesses as well as for any argument; The award shall be made within six months from the date when the Tribunal is constituted unless, in exceptional circumstances, the Registrar extends the time; and The Tribunal shall state the reasons upon which the award is based in summary form, unless the parties have agreed that no reasons are to be given.



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ICC Arbitration Rules Article 28 Conservatory and Interim Measures

1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The arbitral tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an award, as the arbitral tribunal considers appropriate.

2. Before the file is transmitted to the arbitral tribunal, and in appropriate circumstances even

thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an arbitral tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitral tribunal.

Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the arbitral tribunal thereof.


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DIAC Article 31 Interim and Conservatory Measures of Protection 31.1 Subject to any mandatory rules of the applicable law, at the request of a party, the Tribunal may

issue any provisional orders or take other interim or conservatory measures it deems necessary, including injunctions and measures for the conservation of goods which form part of the subject matter in dispute, such as an order for their deposit with a third person or for the sale of perishable goods. The Tribunal may make the granting of such measures subject to appropriate security being furnished by the requesting party.

31.2 Measures and orders contemplated under this Article may take the form of an interim or

provisional award. 31.3 A request addressed by a party to a competent judicial authority for interim or conservatory

measures, or for security for the claim or counter-claim, or for the implementation of any such measures or orders granted by the Tribunal, shall not be deemed incompatible with, or a waiver of, the Arbitration Agreement.

31.4 Any such request and any measures taken by the competent judicial authority must be notified

without delay to the Centre by the party making such a request or seeking such measures. The Centre shall inform the Tribunal thereof.


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SIAC Article 26 26.1 The Tribunal may, at the request of a party, issue an order or an award granting an

injunction or any interim relief it deems appropriate. The Tribunal may order the party requesting interim relief to provide appropriate security in connection with the relief sought.

26.2 A party in need of emergency interim prior to the constitution of the Tribunal may

apply for such relief pursuant to the procedures set forth in Schedule 1. 26.3 A request for interim relief made by a party to a judicial authority prior to the

constitution of the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules.


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V. Particularities: Emergency Arbitrator/Interim Measures UNCITRAL Arbitration Rules Article 26 1. The arbitral tribunal may, at the request of a party, grant interim measures. 2. An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to:

a. Maintain or restore the status quo pending determination of the dispute;

b. Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;

c. Provide a means of preserving assets out of which a subsequent award

may be satisfied; or

d. Preserve evidence that may be relevant and material to the resolution of the dispute.


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UNCITRAL Arbitration Rules Article 26 3. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy

the arbitral tribunal that: a. Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and b. There is a reasonable possibility that the requesting party will succeed on

the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.

4. With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate. From the Request to the Final Award

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UNCITRAL Arbitration Rules Article 26

5. The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party, or in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.

6. The arbitral tribunal may require the party requesting an interim measure to provide

appropriate security in connection with the measure.

7. The arbitral tribunal may require any party promptly to disclose promptly any material change in the circumstances on the basis of which the interim measure was requested or granted.

8. The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.


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UNCITRAL Arbitration Rules Article 26

9. 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.


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VI. Default Proceedings

Most institutions expressly allow the continuation of the proceedings in the event a party fails to appear:

–ICC 6.8 if any of the Parties refuses of fails to take part in the arbitration or any stage thereof, the arbitration shall proceed notwithstanding such refusal or failure. –DIAC 32.3 The Tribunal may also proceed with the arbitration and make the award if a party, without showing good cause, fails to avail itself of the opportunity to present its case within the period of time determined by the Tribunal. –UNCITRAL 30.1 If, within the period of time fixed by these Rules or the arbitral tribunal, without showing

sufficient cause: (a) The Claimant has failed to communicate its statement of claim, the arbitral tribunal shall issue

an order for the termination of the arbitral proceedings, unless there are remaining matters that may need to be decided and the arbitral tribunal considers it appropriate to do so;

(b) The Respondent has failed to communicate its response to the notice of arbitration or its statement of defence, the arbitral tribunal shall order that the proceedings continue, without treating such failure in itself as an admission of the claimant’s allegations; the provisions of this subparagraph also apply to a claimant’s failure to submit a defence to a counterclaim or to a claim for the purpose of a set-off.


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VI. Default Proceedings

UNCITRAL

30.2 If a party, duly notified under these Rules, fails to appear at a hearing, without showing good cause for such failure, the arbitral tribunal may proceed with the arbitration.

30.3 If a party, duly invited by the arbitral tribunal to produce documents, exhibits or other 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.

• Need to document and provide reasonable periods and timings.

• Article 5 (b) of the NY Convention: “The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case”


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VII. Final Award: Importance of the Place of Arbitration

• ICC (Article 31) 1. When the arbitral tribunal is composed of more than one arbitrator, an award is

made by a majority decision. If there is no majority, the award shall be made by the president of the arbitral tribunal alone.

2. The award shall state the reasons upon which it is based. 3. The award shall be deemed to be made at the place of the arbitration and on the date

stated therein. • SIAC (Article 5.2 d)

The Tribunal shall state the reasons upon which the award is based in summary form, unless the parties have agreed that no reasons are to be given.


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DIAC (Article 37.4 to 37.7): 37.4 The award shall state the date on which it was made, as well as the seat of arbitration. 37.5 The award shall state the reasons on which it is based, unless the parties have agreed that no reasons should be stated and the law applicable to the arbitration does not require the statement of such reasons. 37.6 The award shall be signed by the Tribunal. The signature of the award by a majority of the arbitrators, or, in the case of paragraph (3), second sentence, by the Chairman, shall be sufficient. Where there is more than one arbitrator and one of them fails to sign without valid cause, the award shall state the reason for the absence of the signature. 37.7 If any arbitrator fails to comply with the mandatory provisions of any applicable law relating to the making of the award, having been given a reasonable opportunity to do so, the remaining arbitrators may proceed in his absence and state in their award the circumstances of the other arbitrator's failure to participate in the making of the award.


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2010 UNCITRAL (Article 34)

1. The arbitral tribunal may make separate awards on different issues at different times. 2. All awards shall be made in writing and shall be final and binding on the parties. The parties

shall carry out all awards 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 the award

was made and indicate the place of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature.

5. An award may be made public with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority.

6. Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.


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VIII. Arbitration in Ethiopia

Arbitral Process – Appointment of Arbitrators

• Ethiopian law recognizes party freedom and equality in appointing arbitrators (Art 3331 Civil Code)

• Default rule in Civil Code is 30 days to appoint arbitrator, otherwise court appoints upon request (Art 3334(1) Civil Code)

• Form requirements: Art 3326(2) Civil Code (i) written, (ii) signed by the parties, (iii) witnessed

• Default rule is two arbitrators (Art 3331(3) Civil Code) • Presiding arbitrator where there is an even number, parties appoint

presiding arbitrator (Art 3332 Civil Code)


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Arbitral Process – Challenge and Disqualification •Challenge arbitrator (Art 3340) •An unsuccessful challenge can be appealed to a court (Art3342(3) Civil Code) Arbitral Process Severability and Kompetenz-Kompetenz •Tribunals may not decide the validity of an arbitral agreement


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Contact Information

Maria L. Rubert Cramer-Salamian LLP PO Box 186549 Dubai, United Arab Emirates Tel: +971 4 227 74 27 Email: [email protected] Ndanga Kamau King & Spalding LLP 1100 Louisiana Street, Suite 4000 Houston, TX 77002, USA [email protected]

Leyou Tameru [email protected]

mailto:[email protected]



Documents

Session 2 -- Arbitration Proceedings