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DIAC Arbitration Rules 2007

 

 

 

  The Proceedings

 

 

Article (17)
General Provisions

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.

 
 

Article (18)
Transmission of the File to the Tribunal

 

The Centre shall transmit a copy of the file to the Tribunal as soon as it has been constituted, provided always that any advance on costs requested by the Centre at this stage has been paid.

 
 

Article (19)
Modification of Time Limits

19.1 

The parties may agree to shorten the time limits set out in the Arbitration Agreement or these Rules. Any such agreement entered into subsequent to the constitution of the Tribunal shall become effective only upon the approval of the Tribunal.

19.2 

The Tribunal shall have the power, on the application of any party or of its own motion, to extend any time-limit provided by the Arbitration Agreement or these Rules for the conduct of the arbitration or the Tribunal's own orders, so long as it has given both parties a reasonable opportunity to state their views.

19.3 

The Executive Committee, on its own initiative, may extend any time limit if it decides that it is necessary to do so in order that the Tribunal or the Executive Committee may fulfil their responsibilities in accordance with these Rules.

 
 

Article (20)
Place of Arbitration

20.1 

The parties may agree in writing on the seat of the arbitration. In the absence of such a choice, the seat of arbitration shall be Dubai, unless the Executive Committee determines in view of all the circumstances, and after having given the parties an opportunity to make written comment, that another seat is more appropriate.

20.2 

The Tribunal may, after consultation with the parties, conduct hearings or meetings at any place that it considers appropriate. The Tribunal may deliberate wherever it considers appropriate.

20.3 

The award shall be deemed to have been made at the seat of the arbitration.

 
 

Article (21)
Language

21.1 

Unless otherwise agreed by the parties, the initial language of the arbitration shall be the language of the Arbitration Agreement.

21.2 

In the event that the Arbitration Agreement is written in more than one language, the Executive Committee may, unless the Arbitration Agreement provides that the arbitration proceedings shall be conducted in more than one language, decide which of those languages shall be the initial language of the arbitration.

21.3 

Upon its formation, the Tribunal shall have the power to determine the language or languages of the arbitration having regard to any observations of the parties and all relevant circumstances of the case.

21.4 

The Tribunal may order that any documents submitted in languages other than the language of the arbitration be accompanied by a translation in whole or in part into the language of arbitration.

 
 

Article (22)
Preliminary Meeting

 

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.  

 
 

Article (23)
Statement of Claim

23.1 

Unless the Statement of Claim was submitted with the Request, the Claimant shall, within 30 days of receipt of notification from the Centre of the establishment of the Tribunal or such later time limit as the Tribunal may allow, submit its Statement of Claim to the Respondent and to the Tribunal with a copy to the Centre.

23.2 

The Statement of Claim shall contain a comprehensive statement of the facts and legal arguments supporting the claim, including a statement of the relief sought.

23.3 

The Statement of Claim shall be accompanied by the documentary evidence upon which the Claimant intends to rely, together with a schedule of such documents.

 
 

Article (24)
Statement of Defence

24.1 

The Respondent shall, within 30 days of receipt of the Statement of Claim or within 30 days of receipt of notification from the Centre of the establishment of the Tribunal, whichever occurs later, submit its Statement of Defence to the Claimant and to the Tribunal with a copy to the Centre.

24.2 

The Statement of Defence shall be accompanied by the documentary evidence upon which the Respondent intends to rely together with a schedule of such documents.

24.3 

Any counter-claim by the Respondent shall be made or asserted in the Statement of Defence or, in exceptional circumstances, at a later stage in the arbitral proceedings if so determined by the Tribunal. Any such counter-claim shall contain the same particulars and documentary evidence as those specified in Article 23 (2) and (3).

 
 

Article (25)
Further Written Statements

25.1 

The Tribunal may, in its discretion, allow or require further written statements in addition to the Statement of Claim and Statement of Defence and shall fix the periods of time for submission of such statements.

25.2 

In the event that a counter-claim has been made or asserted, the Claimant shall reply to the particulars thereof. The time limits set out in Article 24 (1) shall apply to such reply.

25.3 

The periods of time fixed by the Tribunal for the communication of written statements (including the Statement of Claim and Statement of Defence) should not exceed forty-five days. However, the Tribunal may extend the time-limits if it concludes that an extension is justified.

 
 

Article (26)
New Claims and Amendments to the Statements of Claim or Defence

26.1 

Subject to any contrary agreement by the parties, either party may amend or supplement its claim, counter-claim, defence during the course of the arbitration, unless the Tribunal considers it inappropriate to allow such amendment having regard to its nature, the delay in making it, the prejudice that may be caused to the other party any other relevant circumstances.

26.2 

After the submission of the Statement of Claim and Defence and Counterclaim, no party shall make new claims or counterclaims, unless authorised to do so by the Tribunal, which shall consider the nature of such new claims or counterclaims, the stage of the arbitration and any other relevant circumstances.

 

 

Article (27)
Burden of Proof and Evidence

27.1

Each party shall have the burden of proving the facts relied on to support its claim or defence.

27.2 

The Tribunal shall have the power to decide on the rules of evidence to be applied including the admissibility, relevance or weight of any material tendered by a party on any matter of fact or expert opinion; and to determine the time, manner and form in which such material should be exchanged between the parties and presented to the Tribunal.

27.3 

At any time during the arbitration, the Tribunal may, at the request of a party or on its own motion, order a party to produce such documents or other evidence within such a period of time as the Tribunal 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 any property in its possession or control for inspection or testing.

27.4 

The Tribunal may, at the request of a party or on its own motion, inspect or require the inspection of any site or property, as it deems appropriate.

 
 

Article (28)
Hearings

28.1 

If either party so requests, the Tribunal shall hold a hearing for the presentation of evidence by witnesses, including expert witnesses, or for oral argument or for both. In the absence of a request, the Tribunal shall decide whether to hold such a hearing or hearings and establish the time limits thereof. If no hearings are held, the proceedings shall be conducted on the basis of documents and other materials alone.

28.2 

In the event of a hearing, the Tribunal shall give the parties adequate advance notice of the date, time and place thereof.

28.3 

Unless the parties agree otherwise in writing or the Tribunal directs otherwise, all meetings and hearings shall be held in private.

28.4 

The Tribunal shall determine whether and, if so, in what form a record shall be made of any hearing.

28.5 

If any of the parties, although duly summoned, fails to appear without valid excuse, the Tribunal shall have the power to proceed with the hearing.

 
 

Article (29)
Witnesses

29.1 

If witnesses are to be heard, at least fifteen days before the hearing each party shall communicate to the Tribunal and to the other party the identities and addresses of the witnesses he intends to call, the subject matter of their testimonies and its relevance to the issues in arbitration, and the languages in which such witnesses will give their testimony.

29.2 

The Tribunal has discretion, on the grounds of avoiding duplication or lack of relevance, to limit the appearance of any witness, whether witness of fact or expert witness.

29.3 

Any witness who gives oral evidence may be questioned, by each of the parties under the control of the Tribunal. The Tribunal may put questions at any stage of the examination of the witnesses.

29.4 

The testimony of witnesses may, either at the choice of a party or as directed by the Tribunal, be submitted in written form, whether by way of signed statements, sworn affidavits or otherwise, in which case the Tribunal may make the admissibility of the testimony conditional upon the witnesses being made available for oral testimony.

29.5 

A party shall be responsible for the practical arrangements, cost and availability of any witness it calls.

29.6 

The Tribunal shall determine whether any witness shall retire during any part of the proceedings, particularly during the testimony of other witnesses.

 29.7 

The Tribunal shall require witnesses to swear an oath before the Tribunal before giving evidence in accordance with any mandatory provisions of the applicable procedural law.

 
 

Article (30)
Experts Appointed by the Tribunal

30.1 

The Tribunal may, after consultation with the parties, appoint one or more independent experts to report to it on specific issues designated by the Tribunal. A copy of the expert's terms of reference, established by the Tribunal, having regard to any observations of the parties, shall be communicated to the parties. Any such expert shall be required to sign an appropriate confidentiality undertaking.

30.2 

The Tribunal may require a party to give any such expert any relevant information, documents, or provide access to goods, property or site for inspection by the expert. Any dispute between a party and the expert as to the relevance of the requested information or goods shall be referred to the Tribunal for decision.

30.3 

Upon receipt of the expert's report, the Tribunal shall provide a copy of the report to the parties, who shall be given the opportunity to express, in writing, their opinion on the report. A party may examine any document on which the expert has relied in such a report.

30.4 

At the request of a party, the parties shall be given the opportunity to question the expert at a hearing. At this hearing, the parties may present expert witnesses to testify on the points at issue.

30.5 

The opinion of any expert on the issue or issues submitted to the Tribunal expert shall be subject to the Tribunal's power of assessment of those issues in the context of all the circumstances of the case, unless the parties have agreed that the Tribunal Appointed expert's determination shall be conclusive in respect of any specific issue.

30.6 

The fees and expenses of any expert appointed by the Tribunal under this Article shall be paid out by the parties in accordance with the Appendix - Cost of Arbitration.

 
 

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.

 
 

Article (32)
Default

32.1 

If the Claimant, without showing good cause, fails to submit its Statement of Claim in accordance with Article 23, the Tribunal may refuse to proceed with the claim.  This will not, however, prevent the Tribunal from proceeding to determine any counterclaim raised by the Respondent in the Answer.

32.2 

If the Respondent, without showing good cause, fails to submit its Statement of Defence in accordance with Article 24, the Tribunal may nevertheless proceed with the arbitration and make the award.

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.

32.4 

If a party, without showing good cause, fails to comply with any provision of, or requirement under, these Rules or any direction given by the Tribunal, the Tribunal may draw the inferences therefrom that it considers appropriate.

 
 

Article (33)
Rules of Law Applicable to the Merits

33.1 

The Tribunal shall decide the dispute in accordance with the law(s) or rules of law chosen by the parties as applicable to the merits of their dispute. If and to the extent that the Tribunal determines that the parties have made no such choice, the Tribunal shall apply the law(s) or rules of law which it considers to be most appropriate.

33.2 

Any designation of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

33.3 

In all cases, the Tribunal shall decide the dispute having due regard to the terms of any relevant contract and taking into account applicable trade usages.

33.4 

The Tribunal shall assume the powers of an amiable compositeur or decide ex aequo et bono only if the parties have expressly agreed in writing to give it such powers.

 
 

Article (34)
Closure of Proceedings

34.1 

The Tribunal shall declare the proceedings closed when it is satisfied that the parties have had adequate opportunity to present submissions and evidence.

34.2 

The Tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to re-open the proceedings it declared to be closed at any time before the award is made.

34.3 

Following closure of the proceedings, the Tribunal shall proceed to make its award.

 
 

Article (35)
Waiver

 

A party which knows that any provision of, or requirement under, these Rules, or other rules applicable to the proceedings, or any direction given by the Tribunal, has not been complied with, and yet proceeds with the arbitration without promptly raising an objection to such non-compliance, shall be deemed to have irrevocably waived its right to object.

 
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