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Module 3 (3 of 4) - Procedural Powers and Duties, Beware of being too…
Module 3 (3 of 4) - Procedural Powers and Duties
2 different kind of disputes:
Quality dispute
no more than assessing the quality of goods on the basis of samples submitted
Technical dispute
may be highly complicated
documentary
evidence
expert
evidence
oral hearings
(if ordered by the Tribunal)
Procedures
Standard procedure
(supported by
"A&A Rules - parts 2 and 3"
)
Arbitrators have
complete discretion to proceed with the reference to arbitration that best fit
ot the circumstances of the case
At the
Oral Hearing
(if ordered by the Tribunal)
Each party must be given
notice of the date, time and place
Each party must be allowed to
make comments
on the
other's oral submissions
New evidence
:
care to be taken
about any new evidence a party might seek to
introduce
for the
first time at the hearing
If the other party raises
no objection
, the new evidence
should be admitted
If the other party does
object
, Arbitrators have
two choices
2) to
exclude the evidence
1)
adjourn the hearing
to give the other party the
opportunity to comment
on the evidence and possibly to produce
rebutting evidence
2 more items...
At the stage of
Echange of sbmissions and evidence
Each party
must be given the opportunity
to make
written submissions
and to
place documentary evidence
before the arbitrators
FCC Secretariat
is
reponsible for receiving them and sending them
to other party and arbitrators
BUT Aribtrators have the
final responsibility
to ensure there a
no apparent irregularities
in the
paper flow
Each party must have the
opportunity to comment
on
each other's submissions and evidence
.
Non-Standard Procedures
which may be followed in appropriate cases
Arbitrators may make an
order for disclosure of documents
(=to produce particular documents)
Specific order
against either party
General order
applying to both parties
Section 34(2)d of the Act
- Arbitrators can make an order to produce documents on their
own initiative
or at the
request of either party
Arbitrators are
not obliged
to comply with the request
Arbitrators should
consider what reasons are given to justify the request
and only make the order if they are satisfied it is reasonable to. They can also decide to make a
more limited order
than the one requested
Reminder:
Section 34 is a non mandatory provision But very important
Aribtrators may make
orders
and
peremptory orders
to progress the arbitration
Peremptory order
: A final order or direction of the tribunal, which specifies a time for compliance. A peremptory order is usually made following failure by one or more parties to adhere to the tribunal's procedural orders, and may take the form of an "unless" order. Peremptory orders are recognised in English law in sections 41(5) and 82 of the Arbitration Act 1996.
If a party
fails to comply with the Rules
the arbitration must
still proceed
Therefore, Arbitrators may
make an order
directing that one party
delivers this submissions and any evidences
within a
stated time
If the party
fails to comply with the order
, the Arbitrators may make a
peremptory order
&
stating the consequences if not executed
If the party
fails to comply with the peremptory order
, the tribunal may do any of the following:
4 more items...
A&A Rule 2.15 & 3.12
: Arbitrators have power where the parties have been permitted to be legally represented, to order one or more of the paties to provide security for the costs of an FCC Arbitration, including the legal and other costs of the parties.
Beware of being too rigid
if a party fails to comply with an order or peremptory order.
If Arbitrators made on order directing that any submissions should be received at te latest by a particular date and the submissions are in fact received later, it might be unfair to refuse to consider those submissions.
If (say) the Arbitrators warned the parties that they inteded to meet to determine the case on a particular date and written submissions were received after the Arbitrators' meeting had taken place, arbitrators would be entitled to ignore submissions.
As a matter of courtesy, if arbitrators decide not to accept submissions they should inform both parties (either in the award itself or otherwise) that the submissions were received late and therefore were not considered.
Section 41(5) of the Act
Section 41(7) of the Act