Unit 4 Flashcards
When have arbitral proceedings commencement
Section 33(1) ACA contains provisions governing procedural matters. And as a general rule Arbitral Proceedings shall be deemed to commence on the date on which the written communication is received by the respondent. (Art 33 AMA, Art 3(2) Arbitration Rules)
How is notice given
Notices given require (Art. 3 Arbitration Rules):
Notices given require (Art. 3 Arbitration Rules):
Administrative staff: clerk & stenographer
Conducive venue, including a waiting area for
Demand that the dispute be referred to arbitration
Names and addresses of the parties
Reference to arbitration clause separate arbitration agreement
1590 1700
Reference to the contract in dispute
General nature of the claim & indication of amount involved. if any
Relief or remedy sought
What are the consequences of defective notice
Notices in law are fundamental to initiate any process. Where there is a defective notice, it may serve as a ground to nullify the proceedings. Please note that notice is issued for a dispute implying that a notice is issued pursuant to a particular agreement and dispute. An article written by Nadia Hubbuck, a senior associate, International Arbitration at Bran Cave Leighton Paisner (see Thomson Reuters, Practical Law Arbitration Blog.
The case of Agarwal Corporation Pte Ltd v Harmony innovation Shipping Pte Ltd, where the court had to consider whether a notice of arbitration sent to two parties had the effect of commencing one tri-partite arbitration or two separate arbitrations against two parties. The English court while considering section 14(4) of the AA 1996, the court decided that the section is to be interpreted broadly and flexibly, not strictly or technically.
What is the Legal Capacity of an agreement
The capacity of the parties to an arbitration agreement is governed by the same rules of contractual capacity in the jurisdiction.
THIRD PARTIES:
Arbitration agreement usually bind those that consented to the agreement. (consent to be in writing).
Note that parent companies of an affiliate or group of companies may join the affiliate in an arbitration. This is the decision in the case of The Dow Chemical Case (ICC 4131/1982 (Interim Award) in Dow Chemical France et al v. Isover Saint
What is the Checklist of Issues to be considered before commencement
Administrative staff: Clerk, Registrar, Secretary and Stenographer.
Procuring a conducive venue, including a waiting area for witnesses.
Proper sitting positions (comfortable to parties).
Effective communication system.
Adequate lightning and atmospheric conditioning.
Security
Refreshments.
Stationery and reproduction facilities.
Competent secretarial services.
Efficient mail delivery/courier services.
Conduct of arbitral proceedings
5.5. Conduct of Arbitral Proceedings
Upon acceptance of the appointment to arbilrate a matter, the arbitrator may call for a preliminary session by a notice to all parties where procedures for the main arbitral orders for direction may be issued.
•proceedings wil be agreed on by all l parties involved including the arbitrator, and thereafter IThe Arbitrator shall at all time ensure that the parties are accorded equal treatment and that each partyis given filopporunty prpresenting hisiher case (Section 14 ACA). arbitration rsection 15 ortho Act, the acura in the rules, the arbitral tribunal may subject to By virtue of section 15 of the Act, the arbitral proceedings shall be in accordance with the the Act conduct the proceedings in such manner as it is considered appropriately so as to ensure fair hearing. [S. 15(2)]
30 J
3 12) + AmA
In pursuance of section 15(2), the tribunal is empowered to determine the admissibility, relevance, materiality and weight of any evidence placed before it (Section 15(3) ACA).
The place of the arbitral proceedings unless otherwise agreed by the parties is to be determined by the arbitral tribunal, having regard to the circumstances of the case including the convenience of the parties (Section 16 ACA).
Jehin
32$ 35 AMA
Also, the parties may by agreement determine the language or languages to be used in the arbitral proceedings but where they did not do so, the arbitral tribunal shall determine the language or languages to be used bearing in mind the relevant circumstances of the case (Section 18 ACA).
What is hearing panelists checklist
Each member of the panel to ensure that he or she can be impartial; where in doubt due to previous relationship then it is honourable to step aside.
2.
3.
Each member to read all of the hearing materials carefully.
If you are unable to serve as a panellist on the day of the hearing, provide the board with as much advance notice as possible.
Prior to service on any panel, become familiar with the Code of Ethics and appropriate sections of the Code of Ethics and Arbitration Manual.
As a panellist, you are required to maintain confidentiality regarding the proceedings and deliberations of the tribunal before, during, and after the hearing. Do not discuss member of the panel to ensure that he or she can be impartial; where in doubt due to previous relationship then it is honourable to step aside.
2. Each member to read all of the hearing materials carefully.
- If you are unable to serve as a panellist on the day of the hearing, provide the board with as much advance notice as possible.
- Prior to service on any panel, become familiar with the Code of Ethics and appropriate sections of the Code of Ethics and Arbitration Manual.
- As a panellist, you are required to maintain confidentiality regarding the proceedings and deliberations of the tribunal before, during, and after the hearing. Do not discuss the case with any person(e) except as required by the board of directors, the bylaws of the board, or by law
- Turn cell phones and pagers off during the hearing
- Do not leave the hearing to take calls: if you need a break, ask the chair to call for a
brief recess. - Watch your body language. Look alert and attentive during the hearing, and be conscious of movements such as shaking your head (in agreement or disbelief), rolling your eyes, raising your eyebrows, or slouching in your seat.
- If you catch yourself “nodding off, ask the chair to call a brief recess.
- Ask questions in a positive way. Wait to be recognized by the chair before asking a question.
- Address any procedural questions you have to the chair.
- On the day of the hearing, dress in appropriate business attire
- Clear all miscellaneous materials that may distract you including edible items etc
- During executive sessions, maintain a professional attitude. Present your opinions in a concise manner, and avoid making personal or derogatory comments about the parties, witnesses, and counsel to the parties, etc.
- Be a good listener; where you lack understanding, ask for clarification from the appropriate person.
- Watch the tone of your voice.
- Do not be afraid to disagree with other panellists during the executive session. Every panellist has the right to his or her opinion based on their interpretation of the facts presented during the hearing.
5.7
Note that though you may have been nominated as a panellist by one of the parties, however, your principal allegiance is to the law and not the nominating party.
The hearing panellist checklist
the case with any person(e) except as required by the board of directors, the bylaws of the board, or by law
Turn cell phones and pagers off during the hearing
Do not leave the hearing to take calls: if you need a break, ask the chair to call for a
brief recess.
Watch your body language. Look alert and attentive during the hearing, and be conscious of movements such as shaking your head (in agreement or disbelief), rolling your eyes, raising your eyebrows, or slouching in your seat.
9. If you catch yourself “nodding off, ask the chair to call a brief recess.
10. Ask questions in a positive way. Wait to be recognized by the chair before asking a question.
11. Address any procedural questions you have to the chair.
12. On the day of the hearing, dress in appropriate business attire
13. Clear all miscellaneous materials that may distract you including edible items etc
14. During executive sessions, maintain a professional attitude. Present your opinions in a concise manner, and avoid making personal or derogatory comments about the parties, witnesses, and counsel to the parties, etc.
15. Be a good listener; where you lack understanding, ask for clarification from the appropriate person.
16. Watch the tone of your voice.
17. Do not be afraid to disagree with other panellists during the executive session. Every panellist has the right to his or her opinion based on their interpretation of the facts presented during the hearing.
5.7
Note that though you may have been nominated as a panellist by one of the parties, however, your principal allegiance is to the law and not the nominating party.
What is the reason for point of claim and defence
The preliminary meeting witnesses the submission of point of claim, issues, relief or remedy sought. S. 36 AMA
Claims and defence may be supplemented during proceedings, if allowed by tribunal (unless parties agreed otherwise)
Pleadings are not to exceed 45 days according to Art. 25 (unless extended)
What is a point of claim
Section 36 AMA
the facts supporting the points of claim;
the points at issue; and
568 36 4) AM9
the relief or remedy sought by the claimant. iv) Names and addresses of the parties.
V)
A copy of the Contract, and of the arbitration Agreement if not contained in the vi) Al documents or evidence to be relied upon or a reference to
Point of defence
Replies to the claimant’s statement of fact, the point at issue & reliet/remedy
sougnt. Art. 21
Complying with Art. 21.3 respondents may decide to include a counter claim in his defence
The points of defence are filled within the time imposed by the tribunal or any extension that may be granted. The statement must reply to the claimant’s statement of fact, the point at issue and the relief or remedy sought. Article 19.2/
Titicle
The respondent may decide to include a counter claim in his defence, the statement must comply with Article 19.2. Note that in a court of law, a defendant may set-off any claim or counter claim in respect of any claim but in an arbitration.
How do you amend a claim or defence
Either party may apply to amend his claim or defence and the tribunal shall allow same provided it shall not be prejudicial to either party taking into consideration the time allowed and the circumstance of the case. See section 19(3) and Article 20
The tribunal can allow this and must not be prejudicial to either party. S.
36(4) & Art. 22.
What happens if one defence
Proceedings may be terminated. S. 41
Failure to submit defence does not terminate proceedings or admits anything. S.
Failure to file a claim may result in termination of proceedings but failure to file a
detense doesn’t termingte such
Failure to appear or produce evidence may still continue to award. S. 21(a)
L.S.D.P.C. V Adold/Stamm Inter. (Nig) Ltd. (1994)
If within the time provided to file the points of claim as provided in section 19(1) and Claimant without sufficient reason fails to file his point of claim, the arbitral tribunal shall issue an order of termination of proceedings as provided in section 21. This route is taken where there is no application for extension of time.
Seshen
41 848
+ Amg
On the other hand, where the respondent fails to state his defence, the proceedings shall continue without treating such failure in itself as an admission of the claimant’s allegations whereupon evidence must be adduced to support the claimant’s claim (Section 21 (b)
Hearings and Written Proceedings
Decisions on oral or written submissions are made by the tribunal. S. 38 AMA
Arbitration proceedings just like the regular courts usually involves hearing. Sections 20 to 23 of the Act covers procedure for hearing. Note that an arbitral tribunal constituted under the Act, subject to any contrary agreements by the parties shall decide whether the arbitral proceedings shall be conducted by holding oral hearings for the presentation of evidence or oral argument or on the basis of documents or other material or by both methods (Section 20 (1) ACA).
How is Evidence given
As already stated, the strict rules of evidence do not apply to arbitration, however, the parties may offer such evidence as is relevant and material to the dispute and shall produce such additional evidence as the Arbitral Tribunal may deem necessary to enable the tribunal to an understanding and determination of the dispute.
