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DIAC Arbitration Rules 2007

 

 

 

 The Tribunal

 

 

Article (8)
Number of Arbitrators

8.1 

The Tribunal shall consist of such number of arbitrators as has been agreed by the parties. If there is more than one arbitrator, their number shall be uneven.

8.2 

Where the parties have not agreed on the number of arbitrators, the Tribunal shall consist of a sole arbitrator, except where the Centre in its discretion determines that, in view of all the circumstances of the dispute, a Tribunal composed of three members is appropriate.

 
 

Article (9)
Appointment of the Tribunal

9.1 

All arbitrators conducting an arbitration under these Rules shall be and remain impartial and independent of the parties; and shall not act as advocates for any party in the arbitration.

9.2 

Where the Arbitration Agreement provides that each party is to appoint an arbitrator, such agreement shall be construed as an agreement to nominate an arbitrator for appointment by the Centre under these Rules.

9.3 

Where the parties have agreed that the Claimant shall nominate an arbitrator, and the Claimant fails to do so in the Request or within any specified time limit, the Centre may proceed to appoint an arbitrator in accordance with these Rules.

9.4  Where the parties have agreed that the Respondent is to nominate an arbitrator and the Respondent fails to do so in the Answer, or within any specified time limit, the Centre may proceed and appoint an arbitrator in accordance with these Rules.
9.5 

In the case of a three-member Tribunal, each party shall nominate one arbitrator for appointment by the Centre in the manner prescribed in this article.  The following applies to the appointment of the Chairman:

 

(a) If the parties have agreed upon a mechanism for appointment of the Chairman, that procedure shall be followed, subject to confirmation and appointment by the Centre, in the manner prescribed in this article.

 

(b) In the absence of any agreed procedure, the two party nominated arbitrators shall agree upon the third arbitrator who shall act as Chairman, subject to confirmation and appointment by the Centre, as prescribed in this article.

 

(c) Should the party-nominated arbitrators fail to agree upon a third arbitrator within 15 days of appointment of the last arbitrator, the Centre shall appoint a Chairman.

9.6 

All arbitrators shall be appointed by the Centre, according due regard to any method of appointment agreed upon in writing by the parties.

9.7 

The Centre may decline to appoint any nominee proposed by a party if it considers the nominee to be lacking independence, impartiality or otherwise unsuitable. In such case, the Centre may request from that party a new nomination within 21 days from the date of receiving notification of the Centre's decision. If that party failed to nominate an arbitrator or if the Centre refused to appoint the nominated arbitrator, the Centre shall appoint the arbitrator.

9.8

Before appointment by the Centre, each prospective arbitrator shall provide to the Centre a full CV and a Statement of Independence in the form prescribed by the Centre.  By signing such form, each arbitrator shall undertake a continuing duty to disclose to the Centre, the other members of the Tribunal and to the parties any circumstances that may arise during the course of the arbitration that are likely, in the eyes of the parties, to give rise to justifiable doubts as to his independence or impartiality. 

9.9 

Before appointment by the Centre, each prospective arbitrator shall also provide written confirmation of willingness to serve on the basis of the fees included in the DIAC Table of Fees and Costs as attached to the Rules. 

9.10 

In appointing the Tribunal the Centre shall give due consideration to the nature of the transaction, the nature and circumstances of the dispute, the nationality, location and languages of the parties and (if more than two) the number of parties.

 
 

Article (10)
Nationality of Arbitrators

10.1 

Where the parties are of different nationalities, a sole arbitrator or chairman of the Tribunal shall not have the same nationality as any party unless the parties who are not of the same nationality as the proposed arbitrator all agree otherwise in writing.

10.2 

For the purpose of this Article, a person who is a citizen of two or more states shall be treated as a of each state.

 
 

Article (11)
Multiple Parties

11.1

Where there are multiple parties, whether as Claimant or Respondent, and where the dispute is to be referred to a three arbitrator Tribunal, the multiple Claimants, jointly, and the multiple Respondents, jointly, shall nominate an arbitrator for appointment by the Centre pursuant to Article 9.

11.2 

In the absence of such a  joint nomination and where all the parties are unable to agree to a method for the constitution of the Tribunal, the Centre may appoint the Tribunal and shall designate one of them to act as Chairman.  In such case the Centre shall give due consideration to any provisions of the Arbitration  Agreement concerning the number of arbitrators to be appointed.

 
 

Article (12)
Expedited Formation

12.1 

On or after the commencement of the arbitration, any party may apply to the Centre for the expedited formation of the Tribunal, including the appointment of any replacement arbitrator where appropriate.

12.2 

Any such application shall be made to the Centre in writing, copied to all other parties to the arbitration and shall set out the specific grounds for exceptional urgency in establishing the Tribunal.

12.3 

The Centre may, in its complete discretion, adjust any time-limit under these Rules for formation of the Tribunal, including service of the Answer and of any matters or documents adjudged to be missing from the Request.

 
 

Article (13)
Revocation of Arbitrator's Appointment

13.1 

If an arbitrator gives written notice of his desire to resign as arbitrator to the Centre or if any arbitrator dies, becomes unable or unfit to serve, the Centre may revoke that arbitrator's appointment.  The Centre shall decide upon the amount of fees and expenses (if any) to be paid for the former arbitrator's services as it may consider appropriate in all the circumstances.

13.2 

If any arbitrator acts in deliberate violation of the Arbitration Agreement (including these Rules) or does not act fairly and impartially as between the parties or does not conduct or participate in the arbitration with reasonable diligence, avoiding unnecessary delay or expense the Centre may deem that the arbitrator is unfit to serve. 

13.3 

An arbitrator may be challenged by any party if circumstances exist that give rise to justifiable doubts as to his impartiality or independence. A party may challenge an arbitrator it has nominated, or in whose appointment procedures it has participated, only for reasons of which it becomes aware after the appointment has been made. 

13.4 

A party who intends to challenge an arbitrator shall, within 15 days of the formation of the Tribunal or (if later) within 15 days of becoming aware of any circumstances referred to in paragraphs 2 and 3 above send a written statement of the reasons for its challenge to the Centre, the Tribunal and all other parties. Unless the challenged arbitrator withdraws or all other parties agree to the challenge within 15 days of receipt of the written statement, the Centre shall decide on the challenge. 

 
 

Article (14)
Replacement of Arbitrators

14.1

If an appointed arbitrator is to be replaced for any reason, the Centre shall have a complete discretion to decide whether or not to follow the appointment process prescribed in Article 9 above. 

14.2 

If the Centre should so decide, any opportunity given to a party to make a re-nomination shall be waived if not exercised within 21 days from the date of notification of that decision, after which the Centre shall appoint the replacement arbitrator. 

14.3 

Once reconstituted, and having invited the parties to comment, the reconstituted Tribunal shall determine if and to what extent prior proceedings shall be repeated. 

 
 

Article (15)
Power of Majority to Continue Proceedings
 

15.1 

If any member of a Tribunal refuses or persistently fails to participate in the deliberations, the other arbitrators shall have the power, upon having given written notice of such refusal or failure to the Centre, the parties and the defaulting arbitrator, to continue the deliberations and make any decision, ruling or award, notwithstanding the absence of the remaining arbitrator. 

15.2 

In determining whether to continue the arbitration, the other arbitrators shall take into account the stage of the arbitration, any explanation given by the defaulting arbitrator for his non-participation and such other matters as they consider appropriate in the circumstances. The reasons for such determination shall be stated in any decision, ruling or award made by the other arbitrators without the participation of the defaulting arbitrator. 

15.3   

In the event that the other arbitrators determine at any time not to continue the arbitration without the participation of the defaulting arbitrator, the other arbitrators shall notify in writing the parties and the Centre of such determination; and in that event, the other arbitrators or any party may refer the matter to the Centre for the revocation of the appointment of that arbitrator and the appointment of a replacement arbitrator under Article 14 above. 

 
 

Article (16)
Functions of the Centre
 

 

In appointing the Tribunal under Articles (8), (9), (11), (12), (13), (14) and (15), the function of the Centre shall be performed by the Executive Committee. 

 
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