COMMENCEMENT OF ARBITRATION
NOTICES AND COMMUNICATIONS
CONSTITUTION OF THE ARBITRAL TRIBUNAL, NUMBER
OF ARBITRATORS AND PROCEDURE FOR APPOINTMENT
QUALIFICATIONS OF ARBITRATORS
CHALLENGE OF ARBITRATORS
REPLACEMENT OF ARBITRATORS
FEES AND EXPENSES
COMMUNICATIONS BETWEEN PARTIES AND ARBITRATORS
EXCLUSION OF LIABILITY
SEAT OF ARBITRATION
LANGUAGE OF ARBITRATION
SUBSTANTIVE LAW APPLICABLE
CONDUCT OF PROCEEDINGS GENERALLY
ADDITIONAL POWERS OF ARBITRATORS
EVIDENCE, HEARINGS AND PLEADINGS
EVIDENCE OF WITNESSES
CLOSURE OF PROCEEDINGS
CORRECTION OF AWARDS AND ADDITIONAL AWARDS
Commencement of Arbitration
1:1 The party commencing
arbitration (the Claimant) shall give to the other party
(the Respondent) a Notice of Arbitration.
1:2 Arbitral proceedings
shall be deemed to commence on the date on which the
Notice of Arbitration is received by the Respondent.
1:3 The Notice of
Arbitration shall include the following:
(a) The full names
and addresses of the parties (including telephone, facsimile,
telex numbers and e-mail addresses if known).
(b) A reference
to the arbitration clause or the separate arbitration
agreement that is involved.
(c) A short statement
of the Claimant�s claim, including the nature of the
claim, the sum or sums claimed, and the Respondent�s
defense if known to the Claimant.
(d) The relief or
(e) A demand that
the matter be referred to arbitration.
(f) If the arbitration
agreement calls for each party to appoint an Arbitrator,
the name and address (and telephone, facsimile, telex
number and e-mail address if known) of the Arbitrator
nominated by the Claimant.
(g) If the arbitration
agreement does not call for each party to appoint an
Arbitrator, a proposal by the Claimant of the name of
an Arbitrator with his full name and address (and his
telephone, facsimile, telex number and e-mail address
(h) Within thirty
days after receipt of the Notice of Arbitration the
Respondent shall deliver to the Claimant a Notice of
Defense. Failure to deliver a Notice of Defense shall
not delay the arbitration. If there is such a failure
all claims set forth in the Notice of Arbitration shall
be deemed to be denied.
1:4 The Notice of
Defense shall include:-
(a) Any comment
on article 1.3(a) (b) or (e) that the Respondent considers
(b) A short statement
of the Respondent�s defense.
(c) If the arbitration
agreement calls for each party to appoint an Arbitrator
the name and address (and telephone, facsimile, telex
and e-mail address if known) of the Arbitrator nominated
by the Respondent.
(d) If the arbitration
agreement does not call for each party to appoint an
Arbitrator, then the Respondent shall intimate whether
he accepts the Arbitrator nominated by the Claimant
and, if he does not accept him, the names and addresses
of the candidates whom the Respondent proposes.
[Note: Clause number 1.5
is not used]
1:6 The Respondent
may include in the Notice of Defense any counterclaim
within the scope of the arbitration clause. If so, the
counterclaim in the Notice of Defense shall include
those matters in Article 1.3. (b)(c)(d) and (e).
1:7 If a counterclaim
is asserted in the Notice of Defense, within 30 days
after its receipt, the Claimant shall deliver to the
Respondent a reply to the counterclaim which shall include
the same matters as provided for in the Notice of Defense
in Article 1.5.
1:8 Failure by the
Respondent to include a counterclaim in the Notice of
Defense shall not preclude the Respondent from making
a counterclaim at a later stage of the proceedings,
if the arbitral tribunal in its absolute discretion
is prepared to permit it. Any such counterclaim shall
include those matters in Article 1.3. (b)(c)(d) and
1:9 If any party
has been served with a Notice of Arbitration he may,
at any time before the arbitral tribunal has been appointed,
give Notice of Arbitration in respect of any other disputes
which fall under the same arbitration agreement. All
disputes identified in such Notice of Arbitration shall
be consolidated within the same arbitral proceedings.
1:10 After an arbitral
tribunal has been appointed, either party may give a
further Notice of Arbitration to the other, and to the
arbitral tribunal, referring any additional dispute
which falls under the same arbitration agreement to
the arbitral tribunal proceedings and, whether or not
the other party consents to that other dispute being
referred to the proceedings, the arbitral tribunal may
in its absolute discretion order that the additional
dispute should be referred to and consolidated within
those same proceedings or that it should not be so referred
1:11 Where the same
arbitral tribunal is appointed in two or more arbitral
proceedings relating to the same project, each of which
involves some common issue whether or not involving
the same parties, the arbitral tribunal may if it considers
it appropriate order the concurrent hearing of
any such proceedings, or of any claim or issue arising
in such proceedings upon such term or terms as it considers
appropriate in all the circumstances.
Notices and Communications
2:1 All notices
or other communications between the parties and the
arbitral tribunal shall be in writing and may be delivered
by courier or by registered/recorded post, or transmitted
by facsimile, telex, e-mail or any other means of telecommunication
which provides a record of its transmission.
2:2 A party�s last
known residence or place of business during the arbitration
shall be a valid address for the purposes of any notices
or other communications in the absence of any notification
of a change of address by that party to the other party
and to the arbitral tribunal.
2:3 For the purpose
of determining the date of the commencement of a time
limit, a notice or other communication shall be treated
as having been received on the day it is delivered,
or in the case of a telecommunication, transmitted in
accordance with Article 2.1.
2:4 For the purpose
of determining compliance with a time limit, a notice
or other communication shall be treated as having been
sent made or transmitted if it is dispatched in accordance
with Article 2.1 and 2.2 prior to or on the date of
expiration of the time limit.
2:5 All correspondence
with, and other documents sent to the arbitral tribunal
by one party shall at the same time be communicated
to the other party.
Constitution of the
Arbitral Tribunal, Number of Arbitrators and Procedure
for Appointment article 3
3:1 The expression
"the Arbitral Tribunal" in this Code includes
a sole Arbitrator or all Arbitrators where more than
one. All references to an Arbitrator shall include the
masculine and the feminine, and Arbitrator shall include
3:2 The parties
are free to agree on the number of Arbitrators. If they
have not agreed, a single Arbitrator shall be appointed.
3:3 If the parties
have agreed that there shall be more than one Arbitrator
and the Claimant has nominated an Arbitrator in accordance
with Article 1.3(f) but the Respondent fails within
thirty days of receipt of the Notice of Arbitration
either to deliver a Notice of Defense at all, or to
include in the Notice of Defense the name and address
of another Arbitrator, the parties shall be deemed to
have agreed on a single Arbitrator and the Arbitrator
nominated by the Claimant shall be appointed as the
3:4 If the parties
have agreed that there shall be a single Arbitrator
and the Claimant has proposed an Arbitrator under Article
1.3(g), and the Respondent does not intimate non-acceptance
of that Arbitrator within thirty days of the Notice
of Arbitration, then the Arbitrator proposed by the
Claimant shall be appointed as the sole Arbitrator.
3:5 Where the parties
have agreed a single Arbitrator be appointed and each
has nominated an Arbitrator, they shall endeavour to
agree on the single Arbitrator within thirty days of
delivery of the Notice of Defense. If they cannot agree
within that period either party may apply, in the case
of a domestic dispute to the Chairman of the Chartered
Institute of Arbitrators (Scottish Branch), and in the
case of an international dispute to the Chairman of
the Scottish Council for International Arbitration,
to appoint the Arbitrator.
3:6 Where parties
have agreed on an arbitral tribunal of three and each
has appointed an Arbitrator then unless the parties
have agreed on another method of appointment the party-appointed
Arbitrators shall endeavour within thirty days of the
delivery of the Notice of Defense to agree upon a third
Arbitrator who shall be the chairman of the arbitral
tribunal, or if the parties have so agreed shall act
as oversman. If the party-appointed Arbitrators do not
reach agreement within that time either party may apply
in the case of a domestic dispute to the Chairman of
the Chartered Institute of Arbitrators (Scottish Branch)
and in the case of an international dispute to the Chairman
of the Scottish Council for International Arbitration,
to appoint that third Arbitrator or oversman.
3:7 Where application
has been made to the Chairman of the appropriate body
to appoint an Arbitrator and that Chairman refuses or
fails to make an appointment within thirty days of the
application, either party may apply to the Court of
Session, Scotland to appoint the Arbitrator.
3:8 Where the Chairman
of the appropriate body is unavailable or unable to
act, a Vice-Chairman may act in his place.
3:9 For the purposes
of this Article the parties prorogate the exclusive
jurisdiction of the Court of Session, Scotland.
Qualifications of Arbitrators
4:1 Any natural
person of whatever nationality who is of full age and
capacity may be an Arbitrator.
4:2 Each Arbitrator
shall be and remain at all times independent and impartial.
4:3 Before nominating
or proposing an Arbitrator the party seeking to nominate
or propose that Arbitrator shall ascertain that that
person is willing and able to accept appointment.
4:4 On being approached
to act as Arbitrator, the prospective Arbitrator shall
disclose in writing to the parties any circumstances
likely to give rise to justifiable doubts as to the
Arbitrator�s impartiality or independence or confirm
in writing that no such circumstances exist. If at any
stage in the arbitration circumstances arise that may
give rise to such doubts, the Arbitrator shall promptly
disclose those circumstances to the parties. Such circumstances
include but are not limited to bias, interest in the
result of the arbitration and past or present relationships
with a party.
4:5 By accepting
appointment the Arbitrator shall be deemed to have undertaken
to make available sufficient time to enable the arbitration
to be conducted and completed expeditiously.
4:6 Where parties
are of different nationality a sole Arbitrator (or chairman
or oversman) shall not have the same nationality as
any of the parties unless they agree otherwise in writing.
The nationality of a party shall be understood to include
that of controlling shareholders or interests. Citizens
of the European Union shall be treated for this purpose
as nationals of the different Member States and shall
not be treated as having the same nationality.
4:7 Article 4.6
shall not apply in the case of an Arbitrator appointed
as sole Arbitrator under Article 3.3.
4:8 By accepting
appointment the Arbitrator shall be deemed to be bound
by this Code.
Challenge of Arbitrators
5:1 A party may
challenge an Arbitrator if circumstances exist or arise
giving rise to justifiable doubts as to the Arbitrator�s
impartiality or independence.
5:2 Such challenge
may only be made within fifteen days after the party
challenging became aware of the circumstances it considers
give rise to justifiable doubt as to an Arbitrator�s
impartiality or independence.
5:3 The challenge
shall be in writing and shall be delivered to the other
party and to the arbitral tribunal.
5:4 The other party
may agree to the challenge (in which case the Arbitrator
shall withdraw from the arbitration) or the challenged
Arbitrator may decide to withdraw. In neither case does
the withdrawal imply acceptance by the Arbitrator of
the validity of the grounds stated for the challenge.
5:5 If the challenged
Arbitrator does not withdraw, the arbitral tribunal
shall in the first instance decide upon the challenge.
In the event that it rejects the challenge the party
making the challenge shall have the right to apply to
a tribunal of three persons to be selected by the Chairman
of the Scottish Council for International Arbitration
and the Chairman of the Chartered Institute of Arbitrators
(Scottish Branch) acting jointly to decide the challenge,
and the decision of that tribunal shall be final.
5:6 If the challenge
is upheld by either the arbitral tribunal or the tribunal
referred to in Article 5.5 the challenged Arbitrator
shall be deemed to have resigned upon the date of the
decision upholding the challenge.
5:7 Pending the
decision of such a tribunal the arbitral tribunal may
in its discretion continue with the arbitration.
Replacement of Arbitrators
6:1 An Arbitrator
shall not be entitled to resign or withdraw (except
under Article 5) without the consent in writing of the
parties, except upon the provision of a certificate
from a registered doctor justifying resignation upon
grounds of health.
6:2 When an Arbitrator
has died, withdrawn, resigned or been removed from office
the position left vacant shall be filled, unless the
parties otherwise agree, by appointment by the Chairman
of the body designated in Article 3.5.
6:3 When a replacement
Arbitrator is appointed in the course of an arbitration,
it shall be for the arbitral tribunal to determine in
its discretion whether any hearings held previously
shall be repeated.
6:4 If in the view
of a party an Arbitrator becomes incapacitated or unable
to perform the duties of his office the procedure in
respect of Challenge of Arbitrators set out in Article
5 shall apply.
6:5 Pending replacement
of an Arbitrator, the arbitral proceedings shall be
suspended unless otherwise agreed by the parties.
Truncated Tribunal article
7:1 If an Arbitrator
in a three person tribunal, although duly notified fails
without good cause to participate in the work of the
tribunal, the two other Arbitrators shall have the power
in their sole discretion to continue the arbitration
and to make any award, order or other decision despite
the failure of the third Arbitrator to participate.
In making this decision the two other Arbitrators shall
have regard to all matters they consider appropriate
in the circumstances of the case. The two Arbitrators
shall notify the parties and the third Arbitrator that
the arbitral tribunal has become a tribunal of two and
that the arbitration shall continue to its conclusion.
7:2 If the two other
Arbitrators determine that the arbitration should not
proceed without the participation of a third Arbitrator,
they shall declare in writing that the office of the
third Arbitrator has been vacated, and the procedure
for replacing that Arbitrator shall be carried through
as if he had resigned in accordance with Article 6.2.
7:3 Upon the appointment
of a replacement Arbitrator in the circumstances of
Article 7.2 the provision of Article 6.3 shall apply
in relation to the repetition of previous proceedings.
Fees and Expenses article
8.1 Each Arbitrator
shall be compensated on a reasonable basis determined
at the time of appointment for serving as an Arbitrator,
and shall be reimbursed for his time, travelling and
other expenses incurred in the course of the arbitration.
8.2 Provided there
is agreement in writing in advance by the parties the
Arbitrator�s fees may include a charge for time reserved
but not used as a result of late postponement or cancellation.
8.3 In the event
of failure to agree at the time of appointment on an
arbitrator�s fees, they shall be fixed upon the application
of a party or the Arbitrator by the Auditor of the Court
of Session, Scotland.
8.4 Where the arbitral
tribunal has appointed a clerk, the fees and expenses
of the clerk, if not agreed, shall be fixed by the Auditor
of the Court of Session upon the application of a party
or the arbitral tribunal.
Parties article 9
9.1 Except as otherwise
provided in these Articles or permitted by the arbitral
tribunal no party or anyone acting on its behalf shall
have any ex parte communications with any Arbitrator
with regard to any matter of substance relating to the
Exclusion of Liability
10.1 No Arbitrator,
clerk or nominating body shall be liable to any party
for any act or omission in connection with any arbitration
conducted under these Articles, except that he may be
liable for the consequences of conscious and deliberate
Preliminary Issues article
11.1 The Tribunal
shall have the power to hear and determine challenges
to its own jurisdiction, including any objections with
regard to the existence or validity of the arbitration
clause or of the separate arbitration agreement.
11.2 The Tribunal
shall have the power to determine the existence, validity
and scope of the contract of which an arbitration clause
forms part. For the purposes of this Article an arbitration
clause which forms part of a contract shall be treated
as an agreement independent of the other terms of the
contract. A decision by the tribunal that the arbitration
clause is null and void shall not for that reason alone
render the arbitration clause invalid.
11.3 Any challenge
to the jurisdiction of the tribunal or as to the arbitrability
of a claim or counterclaim must be made to the tribunal
not later than the date of issue of the Notice of Defense
or reply to the counterclaim as the case may be, provided
that if a claim or counterclaim is later amended such
a challenge may be made in relation to the amended matter
not later than the date of reply to such amended claims
or counterclaim. If no such challenge is made then the
right to make it shall be treated as having been irrevocably
Seat of Arbitration
12:1 Unless the
parties have agreed upon the seat of the arbitration
the tribunal shall fix the seat of arbitration. Any
award by the tribunal shall be deemed made at such place.
Notwithstanding the above the tribunal may hold hearings
whenever it deems appropriate. In addition it may hold
meetings with or without the parties being present wherever
it deems appropriate.
Language of Arbitration
13:1 In the absence
of an agreement by the parties the arbitral tribunal
shall determine the language or languages of the arbitration,
due regard being given to all relevant circumstances
including the language of the contract.
13:2 If any document
is expressed in a language other than the language(s)
of the arbitration and no translation is provided by
the party seeking to rely upon the document the tribunal
may order that party to submit a translation in the
language of the arbitration.
Substantive Law Applicable
14.1 The tribunal
shall apply the substantive law agreed by the parties
as applicable to the dispute. Failing such agreement,
the tribunal shall apply such law or laws as it determines
to be appropriate.
14.2 In all cases
the tribunal shall take account of the provisions of
the contract and usage of the trade applicable to the
14.3 The tribunal
shall not decide as amiable compositeur nor ex bono
et aequo unless the parties have expressly authorized
it to do so.
Conduct of Proceedings
Generally article 15
15.1 Subject to
this Code, the tribunal may conduct the arbitration
in whatever manner it considers appropriate, provided
that the parties are treated with equality and that
each party is given a fair opportunity to present its
15.2 Unless the
parties have agreed otherwise the tribunal shall determine
to what extent, if any, written pleadings are to be
provided by the parties in addition to those contained
in the Notice of Arbitration and Notice of Defense,
and shall set out the timetable according to which such
pleadings shall be prepared and lodged with the tribunal.
15.3 The tribunal
in the exercise of the widest discretion shall conduct
the proceedings with a view to the fair, speedy, and
efficient resolution of the dispute. It may conduct
preliminary conference(s) with the parties for the purpose
of organizing, scheduling and agreeing procedures to
expedite the subsequent proceedings.
15.4 The tribunal
may in its discretion direct the order of proof, split
proceedings, exclude cumulative or irrelevant witness
testimony or other evidence and direct parties to focus
their presentation on issues the decision of which may
dispose of all or part of the case.
15.5 In the case
of a three member tribunal the chairman may after consulting
the other members make procedural rulings which need
only be signed by the chairman.
Additional Powers of
Arbitrators article 16
16.1 In addition
to the powers conferred generally or specifically on
Arbitrators elsewhere in this Code, the Arbitrator shall
have the following powers (unless the parties otherwise
16.2 power to make
interim or partial awards;
16.3 power to award
16.4 power to rectify
the terms of any contract to the extent permitted by
the law applicable to that contract;
16.5 power to order
that simple or compound interest shall be paid by any
party on any sum awarded at such rate or rates as the
Arbitrator determines to be appropriate without being
bound by legal rates of interest imposed by any state,
court or any agreement between the parties in respect
of any period which the Arbitrator determines to be
appropriate including a date prior to the appointment
of the Arbitrator and ending not later than the date
upon which the award is complied with;
16.6 power to vary
time limits whether imposed by the Arbitrator or this
Code or the parties whenever it seems appropriate to
16.7 power in the
event that a party is unduly dilatory in presenting
its claim, counterclaim or defense to the prejudice
of the other party to dismiss the claim or counterclaim
or exclude the defenses as the case may be;
16.8 power to appoint
a clerk, whose fees, outlays and expenses shall be included
in the expenses of the arbitration
Evidence, Hearings and
Pleadings article 17
17.1 The tribunal
shall determine the manner in which the parties shall
present their cases. Unless otherwise agreed by the
parties or determined by the tribunal under Article
15, the presentation of a party�s case shall include
the submission of a pre-hearing memorandum including
the following matters:
(a) A statement
(b) A statement
of each claim being asserted.
(c) A statement
of the applicable law on which the party relies.
(d) A statement
of the relief requested, including the basis for any
damages claimed and;
(e) An outline of
the evidence to be presented including the name, capacity
and subject of testimony of any witness proposed to
be called, the language in which the witness will testify
and an estimate of the amount of time required for that
witness�s direct testimony if it were to be given orally.
17.2 In order to
define the issues to be heard and determined the tribunal
may make pre-hearing orders in relation to the arbitration
and instruct parties within such time limits as it thinks
fit to file more detailed statements of claim and defense
and pre-hearing memoranda.
17.3 The tribunal
may impose such time limits as it considers reasonable
for each stage of the proceedings including the time
allocated to each party for presentation of its case
or for rebuttal.
17.4 At any time
during the arbitration the tribunal may at the request
of a party or of its own motion order a party to deliver
to the tribunal and to the other party such documents
or other evidence as it considers necessary or appropriate
and may order a party to make available to the tribunal
(or to an expert appointed by it) or to the other party
or its expert any property in its control for inspection
17.5 Any party which
expresses a desire to that effect in reasonable time
shall be heard orally before the tribunal unless the
parties have agreed in writing on a documents only arbitration.
17.6 The tribunal
shall fix the date, times and place of any meetings
and hearings in the arbitration and shall give the parties
reasonable notice thereof.
17.7 The tribunal
may in advance of any hearing submit to the parties
a list of questions which it wishes them to answer with
17.8 If any of the
parties although duly notified in accordance with Article
16.6 fails to appear at a meeting or hearing without
valid excuse the tribunal shall have the power to proceed
with the hearing in its absence.
17.9 At any hearing
each party shall be entitled to be present. All meetings
and hearings shall be in private unless the tribunal
decides otherwise. Except with the approval of the tribunal
and the parties, persons not involved in the proceedings
shall not be admitted. The tribunal may require the
retirement of any witness during the testimony of other
17.10 The parties
may appear in person or through duly authorized representatives.
In addition they may be assisted by advisers.
Evidence of Witnesses
18.1 The tribunal
is not required to apply rules of evidence used in judicial
proceedings. It shall determine the applicability of
any privilege or immunity, and the admissibility, relevance,
materiality and weight of the evidence offered.
18.2 Before any
hearing the tribunal may require any party to give notice
of the identity of each witness that party wishes to
call as well as the subject matter of that witness�
testimony, its contents and relevance to the issues
in the arbitration.
18.3 The tribunal
may also determine the times, manner and form in which
such material should be exchanged between parties and
presented to the tribunal. It has discretion to allow
refuse or limit the appearances of witnesses.
18.4 If the tribunal
so determines, the evidence of witnesses may be presented
in the form of witness statements signed by them.
18.5 Any party may
request that a witness on whose witness testimony another
party seeks to rely should attend for oral questioning
at a hearing before the tribunal. If the tribunal orders
this other party to produce the witness, and the witness
fails to attend the hearing without good cause, the
tribunal may place such weight on the witness testimony
(or exclude it altogether) as it considers appropriate
in the circumstances of the case.
Experts article 19
19.1 The 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 draft terms of reference shall
be communicated to the parties and they be given a period
of time to comment thereon before the terms of the reference
are finally established by the tribunal, and copied
to the parties.
19.2 The parties
shall give the expert any relevant information or produce
for inspection any property that the expert may require.
In the event of disputes between the expert and a party
as to the material to be produced or inspected the tribunal
shall determine the issue.
19.3 Upon receipt
of the expert�s report the tribunal shall communicate
a copy to the parties who shall be entitled to express
in writing their opinion on that report. A party shall
be entitled to examine any material upon which the expert
has relied in the report.
19.4 Upon receipt
of the expert�s report a party may request a hearing
thereon which the tribunal shall be bound to grant.
At such a hearing the expert shall be present and may
be questioned on his report on behalf of a party, and
expert witnesses may testify on behalf of a party on
the points at issue.
19.5 The fees and
expenses of such tribunal appointed experts shall be
part of the costs and expenses of the arbitration.
20.1 At the request
of a party the tribunal may take such interim measures
as it deems necessary:-
(a) To order any
respondent party to a claim or counterclaim to provide
security for all or part of the amount in dispute in
such manner and upon such terms as it considers appropriate.
Such terms may include the provision by the party claiming
security of a cross indemnity itself secured in whichever
manner the tribunal considers appropriate for any expenses
or losses incurred by the party ordered to provide security
in doing so. The amount of such expenses or losses may
be determined by the tribunal in one or more awards.
(b) To order the
preservation, storage, sale or other disposal of any
property or thing under the control of a party and relating
to the subject matter of the arbitration.
(c) To order, on
a provisional basis, subject to final determination
in an award any relief which the tribunal would have
power to grant in an award including interdicts and
provisional orders for the payment of money or the disposition
of property as between any parties.
20.2 The tribunal
shall have power at the request of a party to order
any other party to provide security for the expenses
of that party in such manner and on such terms and for
such amount as the tribunal considers appropriate.
20.3 In the event
that a party does not comply with an interim measure
ordered by the tribunal under Article 20.1 or 20.2 within
a time limit fixed by the tribunal, the tribunal may
sist or dismiss any claim or counterclaim made by that
party, or refuse to allow it to present a defense as
may seem appropriate.
20.4 The power of
the tribunal under Article 20.1 shall not prejudice
any party�s right to apply to any state court for interim
or conservatory measures either before or after the
tribunal has been constituted.
Closure of Proceedings
21.1 The tribunal
shall declare the proceedings closed when it is satisfied
that the parties have had adequate opportunity to present
their cases. Once it has done so the parties may not
present any further material to the tribunal.
21.2 The tribunal
may in its discretion on its own motion or on the application
of a party re-open the hearing at any time before the
award is made.
21.3 The arbitral
tribunal shall use its best endeavours to make its award
within forty-five days of the closure of the proceedings
or such other period as the parties and the arbitral
tribunal shall agree.
The Award article 22
22.1 The tribunal
may make separate awards on different issues at different
times. Such awards shall have the same status and effect
as any other award made by the tribunal.
22.2 Where there
are three Arbitrators and the tribunal fails to agree
on any issue, the Arbitrators shall decide that issue
by a majority. Failing a majority decision on any issue,
the chairman of the tribunal shall decide that issue.
22.3 If any Arbitrator
refuses or fails to sign the award, the signatures of
the majority shall be sufficient provided that the reason
for the omitted signature is stated in the award. In
a case falling under Article 7.1, the signature of the
chairman alone shall suffice.
22.4 The tribunal
shall make its award in writing and unless the parties
agree otherwise shall state the reasons upon which its
award is based. The award shall also state the date
when the award was made and the seat of the arbitration
and shall be signed by the Arbitrators (or the majority
of them assenting to it).
22.5 The sole Arbitrator
or the Chairman shall be responsible for delivering
copies of the award to the parties. The tribunal shall
be entitled to withhold the delivering of the award
until the fees and expenses due to the tribunal have
been met in full.
22.6 An award may
be expressed in any currency.
22.7 Any award interim
or final shall be binding on the parties from the date
on which it is made, subject to Article 2.3. By agreeing
to arbitration under the Code, the parties undertake
to carry out any award immediately and without delay
subject to Article 23 and the parties irrevocably waive
their right to any form of appeal review or recourse
to any state court or other judicial authority.
22.8 Without prejudice
to the foregoing generality all recourse to the Court
of Session under Section 3 of the Administration of
Justice (Scotland) Act 1972 is expressly excluded.
Correction of Awards
and Additional Awards article 23
23.1 Within 30 days
of receipt of any award a party may, with notice to
the other party, request the tribunal in writing to
correct in an award any errors in computation, clerical
or typographical errors or any errors of a similar nature
or make an additional award as to claims presented but
omitted from the award. If the tribunal considers the
request justified it shall make the corrections or addition
within 30 days of receipt of the request. Any addition
or correction shall take the form of a separate memorandum
dated and signed by the tribunal (or by the majority
assenting to it) and shall become part of the award
for all purposes.
23.2 The tribunal
may likewise on its own initiative within 30 days of
the date of the award correct any error of the nature
described in Article 23.1 in the same manner and to
the same effect.
Expenses article 24
24.1 The tribunal
shall in its award and subject to any agreement between
the parties, fix the costs of the arbitration and apportion
them between the parties as it considers reasonable
in the whole circumstances.
24.2 For the purposes
of Article 24.1 costs include:-
(a) The fees and
expenses of the arbitral tribunal.
(b) The costs of
any assistance required by the tribunal in the course
of the arbitration process including the fees and expenses
of its experts.
(c) The costs of
meeting and hearing facilities.
(d) Any other costs
incurred by the arbitral tribunal in the conduct of
24.3 The tribunal
shall also have power, unless the parties otherwise
agree, to order in its award that all or part of the
legal or other expenses incurred by a party in the course
of the proceedings shall be paid by another party. The
tribunal shall have power to determine and fix the amount
of such expenses on such reasonable basis it thinks
fit or to order taxation by the Auditor of the Court
of Session. It may also make an award of expenses from
time to time in the course of the proceedings.
24.4 If the arbitration
is abandoned, suspended or concluded by agreement or
otherwise before the final award is made, the parties
shall remain jointly and severally liable to pay to
the tribunal the costs of the arbitration as fixed by
the tribunal under Article 24.1.
24.5 The Tribunal
shall have power in the course of the proceedings and
from time to time to order the parties to make payments
in advance in respect of the costs mentioned in Article
24.1 in such sums as to the tribunal appears reasonable.
Settlement article 25
25.1 In the event
of a settlement of the parties� dispute the tribunal
may render an award recording the settlement if the
parties so request in writing, provided that such an
award (which need not contain reasons) expressly states
that it is an award made by the parties� consent.
25.2 If a settlement
is reached and the parties do not require an award,
then on written confirmation to the tribunal that a
settlement has been reached, the tribunal shall be discharged
and the arbitration proceedings concluded subject to
payment by the parties of any outstanding costs of the
arbitration under Article 24.