International
Dispute Resolution
PROCEDURES
(Including Mediation and Arbitration Rules)
Amended and Effective 1 May, 2006
TABLE OF CONTENTS
INTERNATIONAL DISPUTE RESOLUTION PROCEDURES
The international business community uses arbitration to resolve
commercial disputes arising in the global marketplace. Supportive laws are in
place. The New York Convention of 1958 has been widely adopted, providing a
favorable legislative climate that enables the enforcement of arbitration
clauses. International commercial arbitration awards are recognized by national
courts in most parts of the world, even more than foreign court judgments. A
key component to the successful resolution of an international commercial
dispute is the role played by the administrative institution. The International
Centre for Dispute Resolution ® (ICDR) is the international division of the American
Arbitration Association (AAA) charged with the exclusive administration of all
of the AAA's international matters. The ICDR's experience,
international expertise and multilingual staff forms an integral part of the
dispute resolution process. The ICDR's international
system is premised on its ability to move the matter forward, facilitate
communications, ensure that qualified arbitrators and mediators are appointed,
control costs, understand cultural sensitivities, resolve procedural impasses
and properly interpret and apply its International Arbitration and Mediation
Rules. Additionally, the ICDR has many cooperative agreements with arbitral
institutions around the world for facilitating the administration of its
international cases.
The parties might wish to submit their dispute to an international
mediation prior to arbitration. In mediation, an impartial and independent
mediator assists the parties in reaching a settlement but does not have the
authority to make a binding decision or award. International Mediation is
administered by the ICDR in accordance with its International Mediation Rules.
There is no additional administrative fee where
parties to a pending arbitration attempt to mediate their dispute under the ICDR's auspices.
If the parties want to adopt mediation as a part of their contractual
dispute settlement procedure, they can insert the following mediation clause
into their contract in conjunction with a standard arbitration provision:
If a dispute arises out of or
relates to this contract, or the breach thereof, and if the dispute cannot be
settled through negotiation, the parties agree first to try in good faith to
settle the dispute by mediation in accordance with the International Mediation
Rules of the International Centre for Dispute Resolution before resorting to
arbitration, litigation, or some other dispute resolution procedure.
If the parties want to use a mediator to resolve an existing dispute,
they can enter into the following submission:
The parties hereby submit the
following dispute to mediation administered by the International Centre for
Dispute Resolution in accordance with its International Mediation Rules. (The
clause may also provide for the qualifications of the mediator(s), method of
payment, locale of meetings, and any other item of concern to the parties.)
The ICDR can schedule the mediation anywhere in the world and will
propose a list of specialized international mediators.
As the ICDR is a division of the AAA, parties can arbitrate future
disputes under these rules by inserting either of the following clauses into
their contracts:
"Any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
determined by arbitration administered by the International Centre for Dispute
Resolution in accordance with its International Arbitration Rules."
or
"Any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
determined by arbitration administered by the American Arbitration Association
in accordance with its International Arbitration Rules."
The parties may wish to
consider adding:
(a) "The number of
arbitrators shall be (one or three)";
(b) "The place of
arbitration shall be (city and/or country)"; or
(c) "The language(s) of
the arbitration shall be ________________."
Parties are encouraged, when writing their contracts or when a dispute
arises, to request a conference, in person or by telephone, with the ICDR, to
discuss an appropriate method for selection of arbitrators or any other matter
that might facilitate efficient arbitration of the dispute. Under these rules,
the parties are free to adopt any mutually agreeable procedure for appointing
arbitrators, or may designate arbitrators upon whom they agree. Parties can
reach agreements concerning appointing arbitrators either when writing their
contracts or after a dispute has arisen. This flexible procedure permits
parties to utilize whatever method they consider best suits their needs. For
example, parties may choose to have a sole arbitrator or a tribunal of three or
more. They may agree that arbitrators shall be appointed by the ICDR, or that
each side shall designate one arbitrator and those two shall name a third, with
the ICDR making appointments if the tribunal is not promptly formed by that
procedure. Parties may mutually request the ICDR to submit to them a list of
arbitrators from which each can delete names not acceptable to it, or the
parties may instruct the ICDR to appoint arbitrators without the submission of
lists, or may leave that matter to the sole discretion of the ICDR. Parties
also may agree on a variety of other methods for establishing the tribunal. In
any event, if parties are unable to agree on a procedure for appointing
arbitrators or on the designation of arbitrators, the ICDR, after inviting
consultation by the parties, will appoint the arbitrators. The rules thus
provide for the fullest exercise of party autonomy, while assuring that the
ICDR is available to act if the parties cannot reach mutual agreement. By
providing for arbitration under these rules, parties can avoid the uncertainty
of having to petition a local court to resolve procedural impasses. These
rules, as administered by the IDCR, are intended to provide prompt, effective
and economical arbitration services to the global business community.
Whenever a singular term is used in the rules, such as
"party," "claimant" or "arbitrator," that term
shall include the plural if there is more than one such entity.
Parties filing an international case with the International Centre for
Dispute Resolution, or the AAA, may do so by directly contacting the ICDR in
Further information about these rules can be secured by contacting the
International Centre for Dispute Resolution at 888-855-9575 or by visiting the ICDR's Web site at www.icdr.org.
Whenever parties have agreed in writing to mediate disputes under these
International Mediation Rules, or have provided for mediation or conciliation
of existing or future international disputes under the auspices of the
International Centre for Dispute Resolution, the international division of the
American Arbitration Association, or the American Arbitration Association
without designating particular rules, they shall be deemed to have made these
rules, as amended and in effect as of the date of the submission of the
dispute, a part of their agreement.
Any party or parties to a dispute may initiate mediation by filing with
the ICDR a submission to mediation or a written request for mediation pursuant
to these rules, together with the appropriate fee (see below). Where there is
no submission to mediation or contract providing for mediation, a party may
request the ICDR to invite another party to join in a submission to mediation.
Upon receipt of such a request, the ICDR will contact the other parties
involved in the dispute and attempt to obtain a submission to mediation.
A request for mediation shall contain a brief statement of the nature of
the dispute and the names, addresses and telephone numbers of all parties to
the dispute and those who will represent them, if any, in the mediation. The
initiating party shall simultaneously file two copies of the request with the
ICDR and one copy with every other party to the dispute.
M-4. Appointment of the Mediator
Upon receipt of a request for mediation, the ICDR will appoint a
qualified mediator to serve. Normally, a single mediator will be appointed
unless the parties agree otherwise or the ICDR determines otherwise. If the
agreement of the parties names a mediator or specifies a method of appointing a
mediator, that designation or method shall be followed.
M-5. Qualifications of the Mediator
No person shall serve as a mediator in any dispute in which that person
has any financial or personal interest in the result of the mediation, except
by the written consent of all parties. Prior to accepting an appointment, the
prospective mediator shall disclose any circumstance likely to create a
presumption of bias or prevent a prompt meeting with the parties. Upon receipt
of such information, the ICDR shall either replace the mediator or immediately
communicate the information to the parties for their comments. In the event
that the parties disagree as to whether the mediator shall serve, the ICDR will
appoint another mediator. The ICDR is authorized to appoint another mediator if
the appointed mediator is unable to serve promptly.
If any mediator shall become unwilling or unable to serve, the ICDR will
appoint another mediator, unless the parties agree otherwise.
Any party may be represented by persons of the party's choice. The names
and addresses of such persons shall be communicated in writing to all parties
and to the ICDR.
M-8. Date, Time and Place of Mediation
The mediator shall fix the date and the time of each mediation session.
The mediation shall be held at the appropriate regional office of the ICDR, or at any other convenient location agreeable to the
mediator and the parties, as the mediator shall determine.
M-9. Identification of Matters in Dispute
At least ten days prior to the first scheduled mediation session, each
party shall provide the mediator with a brief memorandum setting forth their
position with regard to the issues that need to be resolved. At the discretion
of the mediator, such memoranda may be mutually exchanged by the parties.
At the first session, the parties will be expected to produce all
information reasonably required for the mediator to understand the issues
presented.
The mediator may require any party to supplement such information.
M-10. Authority of the Mediator
The mediator does not have the authority to impose a settlement on the
parties but will attempt to help them reach a satisfactory resolution of their
dispute. The mediator is authorized to conduct joint and separate meetings with
the parties and to make oral and written recommendations for settlement.
Whenever necessary, the mediator may also obtain expert advice concerning
technical aspects of the dispute, provided that the parties agree and assume
the expenses of obtaining such advice. Arrangements for obtaining such advice
shall be made by the mediator or the parties, as the mediator shall determine.
The mediator is authorized to end the mediation whenever, in the
judgment of the mediator, further efforts at mediation would not contribute to
a resolution of the dispute between the parties.
Mediation sessions are private. The parties and their representatives
may attend mediation sessions. Other persons may attend only with the
permission of the parties and with the consent of the mediator.
Confidential information disclosed to a mediator by the parties or by
witnesses in the course of the mediation shall not be divulged by the mediator.
All records, reports or other documents received by a mediator while
serving in that capacity shall be confidential. The mediator shall not be
compelled to divulge such records or to testify in regard to the mediation in
any adversary proceeding or judicial forum.
The parties shall maintain the confidentiality of the mediation and
shall not rely on, or introduce as evidence in any arbitral, judicial or other
proceeding:
(a) views expressed or suggestions made by another party with
respect to a possible settlement of the dispute;
(b) admissions made by another party in the course of the
mediation proceedings;
(c) proposals made or views expressed by the mediator; or
(d) the fact that another party had or had not indicated
willingness to accept a proposal for settlement made by the mediator.
There shall be no stenographic record of the mediation process.
M-14. Termination of Mediation
The mediation shall be terminated:
(a) by the execution of a settlement agreement by the parties;
(b) by a written declaration of the mediator to the effect that
further efforts at mediation are no longer worthwhile; or
(c) by a written declaration of a party or parties to the effect
that the mediation proceedings are terminated.
Neither the ICDR nor any mediator is a necessary party in judicial
proceedings relating to the mediation.
Neither the ICDR nor any mediator shall be liable to any party for any
act or omission in connection with any mediation conducted under these rules.
M-16. Interpretation and Application of Rules
The mediator shall interpret and apply these rules insofar as they relate
to the mediator's duties and responsibilities. All other rules shall be
interpreted and applied by the ICDR.
The expenses of witnesses for either side shall be paid by the party
producing such witnesses. All other expenses of the mediation, including
required traveling and other expenses of the mediator and representatives of
the ICDR, and the expenses of any witness and the cost of any proofs or expert
advice produced at the direct request of the mediator, shall be borne equally
by the parties unless they agree otherwise.
If the parties have not agreed otherwise, the language(s) of the
mediation shall be that of the documents containing the mediation agreement.
The nonrefundable case set-up fee is $325 per party. In addition, the
parties are responsible for compensating the mediator at his or her published
rate, for conference and study time (hourly or per diem).
All expenses are generally borne equally by the parties. The parties may
adjust this arrangement by agreement.
Before the commencement of the mediation, the ICDR shall estimate
anticipated total expenses.
Each party shall pay its portion of that amount as per the agreed upon
arrangement. When the mediation has terminated, the ICDR shall render an
accounting and return any unexpended balance to the parties.
INTERNATIONAL
ARBITRATION RULES
Article 1
1. Where parties
have agreed in writing to arbitrate disputes under these International
Arbitration Rules or have provided for arbitration of an international dispute
by the International Centre for Dispute Resolution or the American Arbitration
Association without designating particular rules, the arbitration shall take
place in accordance with these rules, as in effect at the date of commencement
of the arbitration, subject to whatever modifications the parties may adopt in
writing.
2. These rules
govern the arbitration, except that, where any such rule is in conflict with
any provision of the law applicable to the arbitration from which the parties
cannot derogate, that provision shall prevail.
3. These rules
specify the duties and responsibilities of the administrator, the International
Centre for Dispute Resolution, a division of the American Arbitration
Association. The administrator may provide services through its Centre, located
in
R-1. Commencing the Arbitration
Notice
of Arbitration and Statement of Claim
Article 2
1. The party initiating
arbitration ("claimant") shall give written notice of arbitration to
the administrator and at the same time to the party against whom a claim is
being made ("respondent").
2. Arbitral
proceedings shall be deemed to commence on the date on which the administrator
receives the notice of arbitration.
3. The notice of
arbitration shall contain a statement of claim including the following:
(a) a demand that the dispute be referred to arbitration;
(b) the names, addresses and telephone numbers of the parties;
(c) a reference to the arbitration clause or agreement that is
invoked;
(d) a reference to any contract out of or in relation to which
the dispute arises;
(e) a description of the claim and an indication of the facts
supporting it;
(f) the relief or remedy sought and the amount claimed; and
(g) may include proposals as to the means of designating and the
number of arbitrators, the place of arbitration and the language(s) of the
arbitration.
4. Upon receipt of
the notice of arbitration, the administrator shall communicate with all parties
with respect to the arbitration and shall acknowledge the commencement of the
arbitration.
Statement
of Defense and Counterclaim
Article 3
1. Within 30 days
after the commencement of the arbitration, a respondent shall submit a written
statement of defense, responding to the issues raised in the notice of
arbitration, to the claimant and any other parties, and to the administrator.
2. At the time a
respondent submits its statement of defense, a respondent may make
counterclaims or assert setoffs as to any claim covered by the agreement to
arbitrate, as to which the claimant shall within 30 days submit a written
statement of defense to the respondent and any other parties and to the
administrator.
3. A respondent
shall respond to the administrator, the claimant and other parties within 30
days after the commencement of the arbitration as to any proposals the claimant
may have made as to the number of arbitrators, the place of the arbitration or
the language(s) of the arbitration, except to the extent that the parties have
previously agreed as to these matters.
4. The arbitral
tribunal, or the administrator if the arbitral tribunal has not yet been
formed, may extend any of the time limits established in this article if it
considers such an extension justified.
Article 4
During the arbitral proceedings, any party may amend or supplement its
claim, counterclaim or defense, unless the tribunal considers it inappropriate
to allow such amendment or supplement because of the party's delay in making
it, prejudice to the other parties or any other circumstances. A party may not
amend or supplement a claim or counterclaim if the amendment or supplement
would fall outside the scope of the agreement to arbitrate.
Article 5
If the parties have not agreed on the number of arbitrators, one
arbitrator shall be appointed unless the administrator determines in its
discretion that three arbitrators are appropriate because of the large size,
complexity or other circumstances of the case.
Article 6
1. The parties may
mutually agree upon any procedure for appointing arbitrators and shall inform
the administrator as to such procedure.
2. The parties may
mutually designate arbitrators, with or without the assistance of the
administrator. When such designations are made, the parties shall notify the
administrator so that notice of the appointment can be communicated to the
arbitrators, together with a copy of these rules.
3. If within 45 days
after the commencement of the arbitration, all of the parties have not mutually
agreed on a procedure for appointing the arbitrator(s) or have not mutually
agreed on the designation of the arbitrator(s), the administrator shall, at the
written request of any party, appoint the arbitrator(s) and designate the
presiding arbitrator. If all of the parties have mutually agreed upon a
procedure for appointing the arbitrator(s), but all appointments have not been
made within the time limits provided in that procedure, the administrator
shall, at the written request of any party, perform all functions provided for
in that procedure that remain to be performed.
4. In making such
appointments, the administrator, after inviting consultation with the parties,
shall endeavor to select suitable arbitrators. At the request of any party or
on its own initiative, the administrator may appoint nationals of a country
other than that of any of the parties.
5. Unless the parties
have agreed otherwise no later than 45 days after the commencement of the
arbitration, if the notice of arbitration names two or more claimants or two or
more respondents, the administrator shall appoint all the arbitrators.
Impartiality and
Article 7
1. Arbitrators
acting under these rules shall be impartial and independent. Prior to accepting
appointment, a prospective arbitrator shall disclose to the administrator any
circumstance likely to give rise to justifiable doubts as to the arbitrator's
impartiality or independence. If, at any stage during the arbitration, new
circumstances arise that may give rise to such doubts, an arbitrator shall
promptly disclose such circumstances to the parties and to the administrator.
Upon receipt of such information from an arbitrator or a party, the
administrator shall communicate it to the other parties and to the tribunal.
2. No party or
anyone acting on its behalf shall have any ex parte
communication relating to the case with any arbitrator, or with any candidate
for appointment as party-appointed arbitrator except to advise the candidate of
the general nature of the controversy and of the anticipated proceedings and to
discuss the candidate's qualifications, availability or independence in
relation to the parties, or to discuss the suitability of candidates for
selection as a third arbitrator where the parties or party designated
arbitrators are to participate in that selection. No party or anyone acting on
its behalf shall have any ex parte communication
relating to the case with any candidate for presiding arbitrator.
Article 8
1. A party may
challenge any arbitrator whenever circumstances exist
that give rise to justifiable doubts as to the arbitrator's impartiality or
independence. A party wishing to challenge an arbitrator shall send notice of
the challenge to the administrator within 15 days after being notified of the
appointment of the arbitrator or within 15 days after the circumstances giving rise
to the challenge become known to that party.
2. The challenge
shall state in writing the reasons for the challenge.
3. Upon receipt of
such a challenge, the administrator shall notify the other parties of the
challenge. When an arbitrator has been challenged by one party, the other party
or parties may agree to the acceptance of the challenge and, if there is
agreement, the arbitrator shall withdraw. The challenged arbitrator may also
withdraw from office in the absence of such agreement. In neither case does
withdrawal imply acceptance of the validity of the grounds for the challenge.
Article 9
If the other party or parties do not agree to the challenge or the
challenged arbitrator does not withdraw, the administrator in its sole
discretion shall make the decision on the challenge.
Article 10
If an arbitrator withdraws after a challenge, or the administrator
sustains the challenge, or the administrator determines that there are
sufficient reasons to accept the resignation of an arbitrator, or an arbitrator
dies, a substitute arbitrator shall be appointed pursuant to the provisions of
Article 6, unless the parties otherwise agree.
Article 11
1. If an arbitrator
on a three-person tribunal fails to participate in the arbitration for reasons
other than those identified in Article 10, the two other arbitrators shall have
the power in their sole discretion to continue the arbitration and to make any
decision, ruling or award, notwithstanding the failure of the third arbitrator
to participate. In determining whether to continue the arbitration or to render
any decision, ruling or award without the participation of an arbitrator, the
two other arbitrators shall take into account the stage of the arbitration, the
reason, if any, expressed by the third arbitrator for such nonparticipation,
and such other matters as they consider appropriate in the circumstances of the
case. In the event that the two other arbitrators determine not to continue the
arbitration without the participation of the third arbitrator, the
administrator on proof satisfactory to it shall declare the office vacant, and
a substitute arbitrator shall be appointed pursuant to the provisions of
Article 6, unless the parties otherwise agree.
2. If a substitute
arbitrator is appointed under either Article 10 or Article 11, the tribunal
shall determine at its sole discretion whether all or part of any prior
hearings shall be repeated.
Article 12
Any party may be represented in the arbitration. The names, addresses
and telephone numbers of representatives shall be communicated in writing to
the other parties and to the administrator. Once the tribunal has been
established, the parties or their representatives may communicate in writing
directly with the tribunal.
Article 13
1. If the parties
disagree as to the place of arbitration, the administrator may initially
determine the place of arbitration, subject to the power of the tribunal to
determine finally the place of arbitration within 60 days after its
constitution. All such determinations shall be made having regard for the
contentions of the parties and the circumstances of the arbitration.
2. The tribunal may
hold conferences or hear witnesses or inspect property or documents at any
place it deems appropriate. The parties shall be given sufficient written
notice to enable them to be present at any such proceedings.
Article 14
If the parties have not agreed otherwise, the language(s) of the
arbitration shall be that of the documents containing the arbitration
agreement, subject to the power of the tribunal to determine otherwise based
upon the contentions of the parties and the circumstances of the arbitration.
The tribunal may order that any documents delivered in another language shall
be accompanied by a translation into the language(s) of the arbitration.
Article 15
1. The tribunal
shall have the power to rule on its own jurisdiction, including any objections with
respect to the existence, scope or validity of the arbitration agreement.
2. The tribunal
shall have the power to determine the existence or validity of a contract of
which an arbitration clause forms a part. Such an arbitration clause shall be
treated as an agreement independent of the other terms of the contract. A
decision by the tribunal that the contract is null and void shall not for that
reason alone render invalid the arbitration clause.
3. A party must
object to the jurisdiction of the tribunal or to the arbitrability
of a claim or counterclaim no later than the filing of the statement of
defense, as provided in Article 3, to the claim or counterclaim that gives rise
to the objection. The tribunal may rule on such objections as a preliminary matter
or as part of the final award.
Article 16
1. Subject to these
rules, the tribunal may conduct the arbitration in whatever manner it considers
appropriate, provided that the parties are treated with equality and that each
party has the right to be heard and is given a fair opportunity to present its
case.
2. The tribunal,
exercising its discretion, shall conduct the proceedings with a view to
expediting the resolution of the dispute. It may conduct a preparatory conference
with the parties for the purpose of organizing, scheduling and agreeing to
procedures to expedite the subsequent proceedings.
3. The tribunal may
in its discretion direct the order of proof, bifurcate proceedings, exclude
cumulative or irrelevant testimony or other evidence, and direct the parties to
focus their presentations on issues the decision of which could dispose of all
or part of the case.
4. Documents or
information supplied to the tribunal by one party shall at the same time be
communicated by that party to the other party or parties.
Article 17
1. The tribunal may
decide whether the parties shall present any written statements in addition to
statements of claims and counterclaims and statements of defense, and it shall
fix the periods of time for submitting any such statements.
2. The periods of
time fixed by the tribunal for the communication of such written statements
should not exceed 45 days. However, the tribunal may extend such time limits if
it considers such an extension justified.
Article 18
1. Unless otherwise
agreed by the parties or ordered by the tribunal, all notices, statements and
written communications may be served on a party by air mail, air courier,
facsimile transmission, telex, telegram or other written forms of electronic
communication addressed to the party or its representative at its last known
address or by personal service.
2. For the purpose
of calculating a period of time under these rules, such period shall begin to
run on the day following the day when a notice, statement or written
communication is received. If the last day of such period is an official
holiday at the place received, the period is extended until the first business
day which follows. Official holidays occurring during the running of the period
of time are included in calculating the period.
Article 19
1. Each party shall
have the burden of proving the facts relied on to support its claim or defense.
2. The tribunal may
order a party to deliver to the tribunal and to the other parties a summary of
the documents and other evidence which that party intends to present in support
of its claim, counterclaim or defense.
3. At any time
during the proceedings, the tribunal may order parties to produce other
documents, exhibits or other evidence it deems necessary or appropriate.
Article 20
1. The tribunal
shall give the parties at least 30 days advance notice of the date, time and
place of the initial oral hearing. The tribunal shall give reasonable notice of
subsequent hearings.
2. At least 15 days
before the hearings, each party shall give the tribunal and the other parties
the names and addresses of any witnesses it intends to present, the subject of
their testimony and the languages in which such witnesses will give their
testimony.
3. At the request of
the tribunal or pursuant to mutual agreement of the parties, the administrator
shall make arrangements for the interpretation of oral testimony or for a
record of the hearing.
4. Hearings are
private unless the parties agree otherwise or the law provides to the contrary.
The tribunal may require any witness or witnesses to retire during the
testimony of other witnesses. The tribunal may determine the manner in which
witnesses are examined.
5. Evidence of
witnesses may also be presented in the form of written statements signed by
them.
6. The tribunal
shall determine the admissibility, relevance, materiality and weight of the
evidence offered by any party. The tribunal shall take into account applicable
principles of legal privilege, such as those involving the confidentiality of
communications between a lawyer and client.
Interim
Measures of Protection
Article 21
1. At the request of
any party, the tribunal may take whatever interim measures it deems necessary,
including injunctive relief and measures for the protection or conservation of
property.
2. Such interim
measures may take the form of an interim award, and the tribunal may require
security for the costs of such measures.
3. A request for
interim measures addressed by a party to a judicial authority shall not be
deemed incompatible with the agreement to arbitrate or a waiver of the right to
arbitrate.
4. The tribunal may
in its discretion apportion costs associated with applications for interim
relief in any interim award or in the final award.
Article 22
1. The tribunal may
appoint one or more independent experts to report to it, in writing, on
specific issues designated by the tribunal and communicated to the parties.
2. The parties shall
provide such an expert with any relevant information or produce for inspection
any relevant documents or goods that the expert may require. 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.
3. Upon receipt of
an expert's report, the tribunal shall send a copy of the report to all parties
and shall give the parties an 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.
4. At the request of
any party, the tribunal shall give the parties an opportunity to question the
expert at a hearing. At this hearing, parties may present expert witnesses to
testify on the points at issue.
Article 23
1. If a party fails
to file a statement of defense within the time established by the tribunal
without showing sufficient cause for such failure, as determined by the
tribunal, the tribunal may proceed with the arbitration.
2. If a party, duly
notified under these rules, fails to appear at a hearing without showing
sufficient cause for such failure, as determined by the tribunal, the tribunal
may proceed with the arbitration.
3. If a party, duly
invited to produce evidence or take any other steps in the proceedings, fails
to do so within the time established by the tribunal without showing sufficient
cause for such failure, as determined by the tribunal, the tribunal may make
the award on the evidence before it.
Article 24
1. After asking the
parties if they have any further testimony or evidentiary submissions and upon
receiving negative replies or if satisfied that the record is complete, the
tribunal may declare the hearings closed.
2. The tribunal in
its discretion, on its own motion or upon application of a party, may reopen
the hearings at any time before the award is made.
Article 25
A party who knows that any provision of the rules or requirement under the
rules has not been complied with, but proceeds with the arbitration without
promptly stating an objection in writing thereto, shall be deemed to have
waived the right to object.
Article 26
1. When there is
more than one arbitrator, any award, decision or ruling of the arbitral
tribunal shall be made by a majority of the arbitrators. If any arbitrator
fails to sign the award, it shall be accompanied by a statement of the reason
for the absence of such signature.
2. When the parties
or the tribunal so authorize, the presiding arbitrator may make decisions or
rulings on questions of procedure, subject to revision by the tribunal.
Article 27
1. Awards shall be
made in writing, promptly by the tribunal, and shall be final and binding on
the parties. The parties undertake to carry out any such award without delay.
2. The tribunal
shall state the reasons upon which the award is based, unless the parties have
agreed that no reasons need be given.
3. The award shall
contain the date and the place where the award was made, which shall be the
place designated pursuant to Article 13.
4. An award may be
made public only with the consent of all parties or as required by law.
5. Copies of the
award shall be communicated to the parties by the administrator.
6. If the
arbitration law of the country where the award is made requires the award to be
filed or registered, the tribunal shall comply with such requirement.
7. In addition to
making a final award, the tribunal may make interim, interlocutory or partial
orders and awards.
8. Unless otherwise
agreed by the parties, the administrator may publish or otherwise make publicly
available selected awards, decisions and rulings that have been edited to conceal
the names of the parties and other identifying details or that have been made
publicly available in the course of enforcement or otherwise.
Article 28
1. The tribunal
shall apply the substantive law(s) or rules of law designated by the parties as
applicable to the dispute. Failing such a designation by the parties, the
tribunal shall apply such law(s) or rules of law as it determines to be
appropriate.
2. In arbitrations
involving the application of contracts, the tribunal shall decide in accordance
with the terms of the contract and shall take into account usages of the trade
applicable to the contract.
3. The tribunal
shall not decide as amiable compositeur or ex aequo et bono unless the parties
have expressly authorized it to do so.
4. A monetary award
shall be in the currency or currencies of the contract unless the tribunal
considers another currency more appropriate, and the
tribunal may award such pre-award and post-award interest, simple or compound,
as it considers appropriate, taking into consideration the contract and
applicable law.
5. Unless the
parties agree otherwise, the parties expressly waive and forego any right to
punitive, exemplary or similar damages unless a statute requires that
compensatory damages be increased in a specified manner. This provision shall
not apply to any award of arbitration costs to a party to compensate for
dilatory or bad faith conduct in the arbitration.
Settlement or
Other Reasons for Termination
Article 29
1. If the parties
settle the dispute before an award is made, the tribunal shall terminate the
arbitration and, if requested by all parties, may record the settlement in the
form of an award on agreed terms. The tribunal is not obliged to give reasons
for such an award.
2. If the
continuation of the proceedings becomes unnecessary or impossible for any other
reason, the tribunal shall inform the parties of its intention to terminate the
proceedings. The tribunal shall thereafter issue an order terminating the
arbitration, unless a party raises justifiable grounds for objection.
Interpretation
or Correction of the Award
Article 30
1. Within 30 days
after the receipt of an award, any party, with notice to the other parties, may
request the tribunal to interpret the award or correct any clerical,
typographical or computation errors or make an additional award as to claims
presented but omitted from the award.
2. If the tribunal
considers such a request justified, after considering the contentions of the
parties, it shall comply with such a request within 30 days after the request.
Article 31
The tribunal shall fix the costs of arbitration in its award. The
tribunal may apportion such costs among the parties if it determines that such
apportionment is reasonable, taking into account the circumstances of the case.
Such costs may include:
(a) the fees and expenses of the arbitrators;
(b) the costs of assistance required by the tribunal, including
its experts;
(c) the fees and expenses of the administrator;
(d) the reasonable costs for legal representation of a
successful party; and
(e) any such costs incurred in connection with an application
for interim or emergency relief pursuant to Article 21.
Article 32
Arbitrators shall be compensated based upon their amount of service,
taking into account their stated rate of compensation and the size and
complexity of the case. The administrator shall arrange an appropriate daily or
hourly rate, based on such considerations, with the parties and with each of
the arbitrators as soon as practicable after the commencement of the
arbitration. If the parties fail to agree on the terms of compensation, the
administrator shall establish an appropriate rate and communicate it in writing
to the parties.
Article 33
1. When a party
files claims, the administrator may request the filing party to deposit
appropriate amounts as an advance for the costs referred to in Article 31,
paragraphs (a), (b) and (c).
2. During the course
of the arbitral proceedings, the tribunal may request supplementary deposits
from the parties.
3. If the deposits
requested are not paid in full within 30 days after the receipt of the request,
the administrator shall so inform the parties, in order that one or the other
of them may make the required payment. If such payments are not made, the
tribunal may order the suspension or termination of the proceedings.
4. After the award
has been made, the administrator shall render an accounting to the parties of
the deposits received and return any unexpended balance to the parties.
Article 34
Confidential information disclosed during the proceedings by the parties
or by witnesses shall not be divulged by an arbitrator or by the administrator.
Except as provided in Article 27, unless otherwise agreed by the parties, or
required by applicable law, the members of the tribunal and the administrator
shall keep confidential all matters relating to the arbitration or the award.
Article 35
The members of the tribunal and the administrator shall not be liable to
any party for any act or omission in connection with any arbitration conducted
under these rules, except that they may be liable for the consequences of
conscious and deliberate wrongdoing.
Article 36
The tribunal shall interpret and apply these rules insofar as they
relate to its powers and duties. The administrator shall interpret and apply
all other rules.
Emergency Measures of Protection
Article 37
1.
Unless the parties agree
otherwise, the provisions of this Article 37 shall apply to arbitrations
conducted under arbitration clauses or agreements entered on or after
2.
A party in need of emergency
relief prior to the constitution of the tribunal shall notify the administrator
and all other parties in writing of the nature of the relief sought and the
reasons why such relief is required on an emergency basis. The application
shall also set forth the reasons why the party is entitled to such relief. Such
notice may be given by e-mail, facsimile transmission, or other reliable means,
but must include a statement certifying that all other parties have been
notified or an explanation of the steps taken in good faith to notify other
parties.
3.
Within one business day of
receipt of notice as provided in paragraph 2, the administrator shall appoint a
single emergency arbitrator from a special panel of emergency arbitrators
designated to rule on emergency applications. Prior to accepting appointment, a
prospective emergency arbitrator shall disclose to the administrator any
circumstance likely to give rise to justifiable doubts to the arbitrator's
impartiality or independence. Any challenge to the appointment of the emergency
arbitrator must be made within one business day of the communication by the
administrator to the parties of the appointment of the emergency arbitrator and
the circumstances disclosed.
4.
The emergency arbitrator shall
as soon as possible, but in any event within two business days of appointment,
establish a schedule for consideration of the application for emergency relief.
Such schedule shall provide a reasonable opportunity to all parties to be
heard, but may provide for proceedings by telephone conference or on written
submissions as alternatives to a formal hearing. The emergency arbitrator shall
have the authority vested in the tribunal under Article 15, including the
authority to rule on her/his own jurisdiction, and shall resolve any disputes
over the applicability of this Article 37.
5.
The emergency arbitrator shall
have the power to order or award any interim or conservancy measure the
emergency arbitrator deems necessary, including injunctive relief and measures
for the protection or conservation of property. Any such measure may take the
form of an interim award or of an order. The emergency arbitrator shall give
reasons in either case. The emergency arbitrator may modify or vacate the
interim award or order for good cause shown.
6.
The emergency arbitrator shall
have no further power to act after the tribunal is constituted. Once the
tribunal has been constituted, the tribunal may reconsider, modify or vacate
the interim award or order of emergency relief issued by the emergency
arbitrator. The emergency arbitrator may not serve as a member of the tribunal
unless the parties agree otherwise.
7.
Any interim award or order of
emergency relief may be conditioned on provision by the party seeking such
relief of appropriate security.
8.
A request for interim measures
addressed by a party to a judicial authority shall not be deemed incompatible
with this Article 37 or with the agreement to arbitrate or a waiver of the
right to arbitrate. If the administrator is directed by a judicial authority to
nominate a special master to consider and report on an application for
emergency relief, the administrator shall proceed as in Paragraph 2 of this
article and the references to the emergency arbitrator shall be read to mean
the special master, except that the special master shall issue a report rather
than an interim award.
9.
The costs associated with
applications for emergency relief shall initially be apportioned by the
emergency arbitrator or special master, subject to the power of the tribunal to
determine finally the apportionment of such costs.
The administrative fees of the ICDR are based on the amount of the claim
or counterclaim. Arbitrator compensation is not included in this schedule.
Unless the parties agree otherwise, arbitrator compensation and administrative
fees are subject to allocation by the arbitrator in the award.
An initial filing fee is payable in full by a filing party when a claim,
counterclaim or additional claim is filed. A case service fee will be incurred
for all cases that proceed to their first hearing. This fee will be payable in
advance at the time that the first hearing is scheduled. This fee will be
refunded at the conclusion of the case if no hearings have occurred.
However, if the administrator is not notified at least 24 hours before
the time of the scheduled hearing, the case service fee will remain due and
will not be refunded.
These fees
will be billed in accordance with the following schedule:
|
Amount of Claim |
Initial Filing Fee |
Case Service Fee |
|
Above $0 to $10,000 |
$750 |
$200 |
|
Above $10,000 to $75,000 |
$950 |
$300 |
|
Above $75,000 to $150,000 |
$1,800 |
$750 |
|
Above $150,000 to $300,000 |
$2,750 |
$1,250 |
|
Above $300,000 to $500,000 |
$4,250 |
$1,750 |
|
Above $500,000 to $1,000,000 |
$6,000 |
$2,500 |
|
Above $1,000,000 to $5,000,000 |
$8,000 |
$3,250 |
|
Above $5,000,000 to $10,000,000 |
$10,000 |
$4,000 |
|
Above $10,000,000 * |
|
|
|
Nonmonetary Claims** |
$3,250 |
$1,250 |
Fee Schedule for Claims
in Excess of $10 Million .
The following is the fee schedule for use in disputes
involving claims in excess of $10 million. If you have any questions, please
consult your local AAA office or case management center.
|
Claim Size |
Fee |
Case Service Fee |
|
$10 million and above |
Base fee of $ 12,500 plus .01% of the amount of
claim above $ 10 million. |
$6,000 |
|
|
Filing fees capped at $65,000 |
|
** This fee is applicable only when a claim or
counterclaim is not for a monetary amount. Where a monetary claim amount is not
known, parties will be required to state a range of claims or be subject to the
highest possible filing fee.
Fees are subject to increase if the amount of a claim
or counterclaim is modified after the initial filing date. Fees are subject to
decrease if the amount of a claim or counterclaim is modified before the first
hearing.
The minimum fees for any case having three or more arbitrators are
$2,750 for the filing fee, plus a $1,250 case service fee.
Parties on cases held in abeyance for one year by agreement, will be
assessed an annual abeyance fee of $300. If a party refuses to pay the assessed
fee, the other party or parties may pay the entire fee on behalf of all
parties, otherwise the matter will be closed.
The ICDR offers a refund schedule on filing fees. For cases with claims
up to $75,000, a minimum filing fee of $300 will not be refunded. For all other
cases, a minimum fee of $500 will not be refunded. Subject to the minimum fee
requirements, refunds will be calculated as follows:
'
100% of the filing fee, above the minimum fee, will
be refunded if the case is settled or withdrawn within five calendar days of
filing.
'
50% of the filing fee will be refunded if the case
is settled or withdrawn between six and 30 calendar days of filing.
' 25% of the filing
fee will be refunded if the case is settled or withdrawn between 31 and 60
calendar days of filing. No refund will be made once an arbitrator has been
appointed (this includes one arbitrator on a three-arbitrator panel). No
refunds will be granted on awarded cases.
Note: the date of receipt of the demand for arbitration with the ICDR
will be used to calculate refunds of filing fees for both claims and
counterclaims.
If arbitrator compensation or administrative charges have not been paid
in full, the administrator may so inform the parties in order that one of them
may advance the required payment. If such payments are not made, the tribunal
may order the suspension or termination of the proceedings. If no arbitrator
has yet been appointed, the ICDR may suspend the proceedings.
The fees described above do not cover the rental of hearing rooms, which are available on a rental basis. Check with the ICDR for availability and rates.