Section 98, The Arbitration Act, 2022

(1) Where parties have agreed that disputes between themin respect of a defined legal relationship, whether contractual or not, shall be referred to arbitration under this Act, then such disputes shall be settled in accordance with the Rules in the First Schedule, subject to such modification as the parties may agree. (2) The Rules shall govern the arbitration, except that where any of these Rules conflicts with a provision of this Act, the Provisions of this Act shall prevail. Waiver of right to object. Extent of application of this Act to Extension of time. Rules applicable to domestic SCHEDULES FIRST SCHEDULE [Section 98(1)] Arbitration Rules SECTION I. INTRODUCTORY RULES Scope of Application Article 1 Where parties have agreed that disputes between them in respect of a defined legal relationship, whether contractual or not, shall be referred to arbitration under the Arbitration Act, then such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree. These Rules shall govern an arbitration, except that where any of these Rules is in conflict with a provision of the Act, the Provisions of the Act shall prevail. Notice, Calculation of Periods of Time Article 2 A notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission. If an address has been designated by a party specifically for this purpose or authorised by an arbitral tribunal, a notice shall be delivered to that party at that address and if so delivered shall be deemed to have been received. Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorised. In the absence of such designation or authorisation, a notice is - (a) received if it is physically delivered to the addressee; or The written communication shall include the following - (a) a demand that the dispute be referred to arbitration; (b) the names and contact details of the parties; (c) identification of an arbitration clause or the separate arbitration agreement that is invoked; (d) identification of any contract or other legal instrument out of or in relation to which the dispute arises or, in the absence of such contract or instrument, a brief description of the relevant relationship; (e) a brief description of the claim and an indication of the amount involved, if any; (f) the relief or remedy sought; (g) a proposal as to the number of arbitrators (i.e. one or three), language and seat of arbitration if the parties have not previously agreed thereon. The constitution of an arbitral tribunal shall not be hindered by any controversy with respect to the sufficiency of the written communication containing a request for the dispute to be referred to arbitration, which shall be finally resolved by an arbitral tribunal. Response to the written communication requesting arbitration Article 4 Within 30 days of the receipt of the written communication containing a request for the dispute to be referred to arbitration, the respondent shall convey to the claimant a response to the said written communication, which shall include - (a) the name and contact details of each respondent; (b) a response to the information set forth in the notice of arbitration, pursuant to Article 3, paragraphs 3 (c) to (g). (c) upon the withdrawal of all claims or the termination of an arbitration before the rendering of a final award; or (d) if an arbitral tribunal is not constituted within 90 days from the date of the Emergency Decision. This period of time may be extended by agreement of the parties. The decision of an Emergency Arbitrator shall not bind the arbitral tribunal with respect to a question, issue or dispute determined in an Emergency Decision. An arbitral tribunal may modify, terminate or annul an Emergency Decision or a modification thereto made by the Emergency Arbitrator. An arbitral tribunal shall decide upon any party's request or claim related to an Emergency relief proceedings, including the reallocation of the costs of such proceedings and a claim arising out of or in connection with the compliance or non-compliance with the order. General provisions Subject to subparagraph 15 of this Article, an Emergency Arbitrator shall have no further power to act once the arbitral tribunal is constituted. The Emergency Arbitrator procedures set out in this Article are not intended to prevent a party from seeking urgent interim or conservatory measures from a competent Court at any time. In all matters not expressly provided for in this Article, the Emergency Arbitrator shall act in the spirit of the Act and these Rules. The Emergency Arbitrator shall make every reasonable effort to ensure that an Emergency Decision is valid. The constitution of an arbitral tribunal shall not be hindered by a controversy with respect to the respondent's failure to communicate a response to the written communication requesting arbitration, or an incomplete or late response to the written communication, which shall be finally resolved by the arbitral tribunal. Representation and Assistance Article 5 A party may be represented or assisted by persons chosen by it. The names and addresses of such persons shall be communicated in writing to all parties and to the arbitral tribunal. The communication shall specify whether the appointment is being made for purposes of representation or assistance. Emergency Arbitrator Proceedings Article 6 Conduct of Emergency relief proceedings Taking into account the urgency inherent in the Emergency relief proceedings and ensuring that each party has a reasonable opportunity to be heard on the Application, the Emergency Arbitrator may conduct such proceedings in such a manner as the Emergency Arbitrator considers appropriate. The Emergency Arbitrator shall have the power to rule on objections that the Emergency Arbitrator has no jurisdiction, including any objections with respect to the existence, validity or scope of an arbitration clause(s) or of the separate arbitration agreement(s), and shall resolve any disputes over the applicability of this Article. Decisions of the Emergency Arbitrator A decision of an Emergency Arbitrator shall take the form of an Order (the "Emergency Decision") shall be made within 14 days from the date on which the file is received by the Emergency Arbitrator. This period of time may be extended by agreement of the parties. An Emergency Decision may be made even if in the meantime the file has been transmitted to the arbitral tribunal. An Emergency Decision shall - (a) be made in writing; (b) state the date when it was made and summary reasons upon which the Emergency Order is based (including a determination on whether the Emergency Arbitrator has jurisdiction to grant the Emergency relief); (c) be signed by the Emergency Arbitrator. An Emergency Decision shall fix the costs of the Emergency relief proceedings and decide which of the parties shall bear them or in what proportion they shall be borne by the parties, subject always to the power of the arbitral tribunal to determine finally the apportionment of such costs. The costs of the Emergency relief proceedings include the Emergency Arbitrator's fees and expenses and the reasonable and other legal costs incurred by the parties for the Emergency relief Any Emergency Decision shall be recognised and enforced in the same manner as an interim measure and shall be binding on the parties when rendered. By agreeing to arbitration under these Rules, the parties undertake to comply with any Emergency Decision without delay. The Emergency Arbitrator shall be entitled to order the provision of appropriate security by the party seeking Emergency relief. An Emergency Decision may, upon a reasoned request by a party, be modified, suspended or terminated by the Emergency Arbitrator or the arbitral tribunal (once constituted). An Emergency Decision ceases to be binding - (a) if the Emergency Arbitrator or the arbitral tribunal so decides; (b) upon the arbitral tribunal rendering a final award, unless the arbitral tribunal expressly decides otherwise; 74 75 SECTION II. COMPOSITION OFAN ARBITRAL TRIBUNAL Number of Arbitrators Article 7 If the parties have not previously agreed on the number of arbitrators, and if within 30 days after the receipt by the respondent of the written communication containing a request for the dispute to be referred to arbitration the parties have not agreed that there shall be only one arbitrator, one arbitrator shall be appointed. Notwithstanding paragraph 1, if no other parties have responded to a party's proposal to appoint a sole arbitrator within the time limit provided for in paragraph 1 and the party or parties concerned have failed to appoint a second arbitrator in accordance with Article 9 or 10, the appointing authority may, at the request of a party, appoint a sole arbitrator pursuant to the procedure provided for in Article 8, paragraph 2, if it determines that, in view of the circumstances of the case, this is more appropriate. Appointment of Arbitrators (Articles 8 to 10) Article 8 If the parties have agreed that a sole arbitrator is to be appointed and if within 30 days after receipt by all other parties of a proposal for the appointment of a sole arbitrator the parties have not reached agreement thereon, a sole arbitrator shall, at the request of a party, be appointed by the appointing authority. The appointing authority shall appoint the sole arbitrator as promptly as possible. In making the appointment, the appointing authority shall use the following listprocedure, unless the parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the listprocedure is not appropriate for the case - (a) The appointing authority shall communicate to each of the parties an identical list containing at least 3 names; The notice of challenge shall be communicated to all other parties, to the arbitrator who is challenged and to the other arbitrators. The notice of challenge shall state the reasons for the challenge. When an arbitrator has been challenged by a party, all parties may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his or her office. In neither case does this imply acceptance of the validity of the grounds for the challenge. If, within 15 days from the date of the notice of challenge, all parties do not agree to the challenge or the challenged arbitrator does not withdraw, the party making the challenge may elect to pursue it further and in that case, within 30 days from the date of the notice of challenge, it shall seek a decision on the challenge by - (a) the appointing authority, arbitral institution or the Court (as the case may be) that appointed the arbitrator; or (b) where a party appointed the arbitrator, the Court. Replacement of an Arbitrator Article 14 Subject to paragraph 2, in any event where an arbitrator has to be replaced during the course of an arbitral proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided for in Articles 8 to 10 that was applicable to the appointment or choice of the arbitrator being replaced. This procedure shall apply even if during the process of appointing the arbitrator to be replaced, a party had failed to exercise its right to appoint or to participate in the appointment. If, at the request of a party, the appointing authority determines that, in view of the exceptional circumstances of the case, it would be justified for a party to be deprived of its right to appoint a substitute arbitrator, the appointing authority may, after giving an opportunity to the parties and the remaining arbitrators to express their views: (a) appoint the substitute arbitrator; or (b) after the closure of the hearings, authorize the other arbitrators to proceed with an arbitration and make any decision or award. (b) Within 15 days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which it objects and numbered the remaining names on the list in the order of its preference; (c) After the expiration of the above period of time the appointing authority shall appoint the sole arbitrator from among the names approved on the lists returned to it and in accordance with the order of preference indicated by the parties; (d) If for any reason the appointment cannot be made according to this procedure, the appointing authority may exercise its discretion in appointing the sole arbitrator. Article 9 If 3 arbitrators are to be appointed, each party shall appoint one arbitrator. The 2 arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the arbitral tribunal. If within 30 days after the receipt of a party's notification of the appointment of an arbitrator the other party has not notified the first party of the arbitrator it has appointed, the first party may request the appointing authority to appoint the second arbitrator. If within 30 days after the appointment of the second arbitrator the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by the appointing authority in the same way as a sole arbitrator would be appointed under Article 8. Article 10 For the purposes of Article 9, paragraph 1, where 3 arbitrators are to be appointed and there are multiple parties as claimant or as respondent, unless the parties have agreed to another method of appointment of arbitrators, the multiple parties jointly, whether as claimant or as respondent, shall appoint an arbitrator. If the parties have agreed that an arbitral tribunal is to be composed of a number of arbitrators other than one or three, the arbitrators shall be appointed according to the method agreed upon by the parties. In the event of any failure to constitute an arbitral tribunal under these Rules, the appointing authority shall, at the request of any party, constitute the arbitral tribunal and, in doing so, may revoke any appointment already made and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator. Disclosures by and challenge of arbitrators Article 11 When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall confirm their availability and disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances. Article 12 Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. A party may challenge the arbitrator appointed by it only for reasons of which it becomes aware after the appointment has been made. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his or her performing his or her functions, the procedure in respect of the challenge of an arbitrator as provided in Article 13 shall apply. Article 13 A party that intends to challenge an arbitrator shall send notice of its challenge within 15 days after it has been notified of the appointment of the challenged arbitrator, or within 15 days after the circumstances mentioned in Articles 11 and 12 became known to that party. 78 79 Repetition of hearings in the event of the replacement of an Arbitrator Article 15 If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions, unless the parties decides otherwise. Exclusion of liability Article 16 Save for intentional wrongdoing, the parties waive, to the fullest extent permitted under the applicable law, any claim against the arbitrators, the emergency arbitrator, the appointing authority and a person appointed by the arbitral tribunal based on any act or omission in connection with the arbitration. SECTION III. ARBITRAL PROCEEDINGS General Provisions Article 17 Subject to the Rules, an arbitral tribunal may conduct an arbitration in such manner as it considers appropriate, provided that, the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case. An arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' dispute. As soon as practicable after its constitution and after inviting the parties to express their views, an arbitral tribunal shall establish the provisional timetable of the arbitration. An arbitral tribunal may, at any time, after inviting the parties to express their views, extend or abridge a period of time prescribed under these Rules or agreed by the parties. If at an appropriate stage of the proceedings any party so requests, an arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including Points of Defence Article 21 Unless the points of defence was contained in response to the written communication containing a request for the dispute to be referred to arbitration, the respondent shall, within a period of time to be determined by an arbitral tribunal, communicate its points of claim in writing to the respondent and to each of the The points of defence shall reply to the particulars (b), (c), (d) and (e) of the points of claim (Article 20, paragraph 2). The statement of defence should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them. In its points of defence, or at a later stage in the arbitral proceedings, if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it. The provisions of Article 20, paragraphs 2 to 4, shall apply to a counterclaim, a claim under Article 4, paragraph 2(f), and a claim relied on for the purpose of set-off. Amendments to the claim or defence Article 22 During the course of the arbitral proceedings, either party may amend or supplement its claim or defence, including a counterclaim or a claim for the purpose of a set-off, unless the arbitral tribunal considers it inappropriate to allow such amendment or supplement having regard to the delay in making it or prejudice to the other parties or any other circumstances. A claim or defence, including a counterclaim or a claim for the purpose of a set-off, may not be amended or supplemented in such a manner that the amended or supplemented claim or defence falls outside the jurisdiction of the arbitral tribunal. expert witnesses, or for oral argument. In the absence of such a request, an arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials. All communications to an arbitral tribunal by one party shall be communicated by that party to all other parties. The communications shall be made at the same time, except as otherwise permitted by the arbitral tribunal if it may do so under applicable law. An arbitral tribunal may, at the request of a party, allow one or more third persons to be joined in the arbitration as a party, provided such person is a party to the arbitration agreement, unless an arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. An arbitral tribunal may make a single award or several awards in respect of all parties so involved in an arbitration. Seat and Venue of Arbitration Article 18 If the parties have not previously agreed on the seat of the arbitration, the seat of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the arbitration. The Award shall be deemed to have been made at the seat of arbitration. An arbitral tribunal may meet at any location (venue) it considers appropriate for deliberations. Unless otherwise agreed by the parties, the arbitral tribunal may also meet at any location it considers appropriate for any other purpose, including hearings. Language Article 19 Subject to an agreement by the parties, an arbitral tribunal shall promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to the points of claim, the points of defence, and any further written statements and, if oral hearings take place, to the language or languages to be used at such hearings. An arbitral tribunal may order that any documents annexed to the points of claim or points of defence, and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal. Points of Claim Article 20 Unless the points of claim was contained in the written communication containing a request for the dispute to be referred to arbitration, the claimant shall, within a period of time to be determined by an arbitral tribunal, communicate its points of claim in writing to the respondent and to each of the arbitrators. The points of claim shall include the following particulars - (a) the names and addresses of the parties; (b) a statement of the facts supporting the claim; (c) the point at issue; (d) the relief or remedy sought; (e) the legal grounds or arguments supporting the claim. A copy of any contract or other legal instrument out of which or in relation to which the dispute arises and of the arbitration agreement, if not contained in the contract or other legal instrument, shall be annexed to the points of claim. The points of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant or contain references to them. 82 83 Pleas as to the jurisdiction of an Arbitral Tribunal Article 23 An arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by an arbitral tribunal that the contract is null shall not entail automatically the invalidity of the arbitration clause. A plea that an arbitral tribunal does not have jurisdiction shall be raised not later than in the points of defence, or with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that an arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during an arbitral proceedings. An arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. An arbitral tribunal may rule on a plea referred to in paragraph 2 either as a preliminary question or in an award on the merits. An arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court. Further written statements Article 24 An arbitral tribunal shall decide which further written statements, in addition to the points of claim and the points of defence, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements. notwithstanding that the individual is a party to the arbitration or in any way related to a party. Unless otherwise directed by the arbitral tribunal, statements by witnesses, including expert witnesses, may be presented in writing and signed by them. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his points of claim or points of defence. At any time during the arbitral proceedings, the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the arbitral tribunal shall determine. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered. Oral and Virtual Hearings Article 28 Where a physical hearing is impracticable due to health, safety, cost, or other considerations, tribunals shall conduct proceedings virtually. In conducting virtual hearings, tribunals shall have regard to the Africa Arbitration Academy Protocol on Virtual Hearings in Africa 2020, which is incorporated and forms part of these Rules. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof. Witnesses, including expert witnesses, may be heard under the conditions and examined in the manner set by the arbitral tribunal. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses, including expert witnesses, during the testimony of such other witnesses, except that a witness, Periods of time Article 25 The periods of time fixed by an arbitral tribunal for the communication of written statements (including the points of claim and points of defence) should not exceed 45 days. An arbitral tribunal may however extend the time limits if it concludes that an extension is justified. Interim measures Article 26 An arbitral tribunal may, at the request of a party, grant interim measures. An interim measure is a temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to - (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that - (a) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of an arbitral tribunal in making a subsequent determination. With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate. The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal's own initiative. The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted. The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement. Evidence Article 27 Each party shall have the burden of proving the facts relied on to support his claim or defence. Witnesses, including expert witnesses, who are presented by the parties to testify to the arbitral tribunal on any issue of fact or expertise may be any individual, 86 87 including an expert witness, who is a party to the arbitration shall not, in principle, be asked to retire. The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference). Experts appointed by the Arbitral Tribunal Article 29 After consultation with the parties, the arbitral tribunal may appoint one or more independent experts to report to it in writing, on specific issues to be determined by the arbitral tribunal. A copy of the expert's terms of reference, established by the arbitral tribunal, shall be communicated to the parties. The expert shall, in principle before accepting appointment, submit to the arbitral tribunal and to the parties a description of his or her qualifications and a statement of his or her impartiality and independence. Within the time ordered by the arbitral tribunal, the parties shall inform the arbitral tribunal whether they have any objections as to the expert's qualifications, impartiality or independence. The arbitral tribunal shall decide promptly whether to accept any such objections. After an expert's appointment, a party may object to the expert's qualifications, impartiality or independence only if the objection is for reasons of which the party becomes aware after the appointment has been made. The arbitral tribunal shall decide promptly what, if any, action to take. The parties shall give the expert any relevant information or produce for his or her inspection any relevant documents or goods that he or she may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision. Upon receipt of the expert's report, the arbitral tribunal shall communicate 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 shall be entitled to examine any document on which the expert has relied in his or her report. (f) a statement of the facts supporting the Request (including, where applicable, evidence of all parties' written consent to consolidate the arbitrations); (g) the points at issue; (h) the legal arguments supporting the Request; (i) the relief or remedy sought; (j) comments on the appointment of the arbitral tribunal if the Request is granted, including whether to preserve the appointment of any already appointed or confirmed arbitrators; and (k) confirmation that copies of the Request and any exhibits included therewith have been or are being served simultaneously on all other relevant parties and any appointed or confirmed arbitrators. The Request for Consolidation shall not be rendered incompetent by any controversy with respect to the sufficiency of its contents as set out in Article 32(2). Any such controversy shall be finally resolved by the arbitral tribunal. Effect of Consolidation Article 32 Where the arbitral tribunal decides to consolidate two or more arbitral proceedings, the arbitral proceedings shall be consolidated into the arbitral proceedings that commenced first, unless all parties agree, or the arbitral tribunal decides otherwise taking into account the circumstances of the case. The consolidation of two or more arbitral proceedings is without prejudice to the validity of any act done or order made by a Court in support of the relevant arbitral proceedings before it was consolidated. Where the arbitral tribunal decides to consolidate two or more arbitrations, the parties to all such arbitrations shall appoint the arbitral tribunal in respect of the consolidated proceedings. At the request of either party, the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing, either party may present expert witnesses in order to testify on the points at issue. The provisions of Article 29 shall be applicable to such proceedings. Default Article 30 If, within the period of time fixed by these Rules or the arbitral tribunal, without showing sufficient cause- The claimant has failed to communicate its point of claim, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings, unless there are remaining matters that may need to be decided and the arbitral tribunal considers it appropriate to do so. The respondent has failed to communicate its response to the written communication containing a request for the dispute to be referred to arbitration or its points of defence, the arbitral tribunal shall order that the proceedings continue, without treating such failure in itself as an admission of the claimant's allegations; the provisions of this subparagraph also apply to a claimant's failure to submit a defence to a counterclaim or to a claim for the purpose of a set-off. If a party, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the If a party, duly invited by the arbitral tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it. Consolidation Article 31 In deciding whether to consolidate proceedings or to hold concurrent hearings, the arbitral tribunal shall take into account the circumstances of the case, which may include, but are not limited to where - (a) one or more arbitrators have been nominated or confirmed in more than one of the arbitrations, and if so, whether the same or different arbitrators have been confirmed; (b) all of the claims in the arbitrations are made under the same arbitration agreement; or (c) the claims are under more than one arbitration agreement, a common question of law or fact arises in both or all of the arbitrations, the rights to relief claimed are in respect of, or arise out of the same transaction or series of transactions, and the tribunal finds the arbitrations to be compatible. A Request for Consolidation shall include - (a) the names and addresses, telephone numbers, and email addresses of each of the parties to the arbitrations, their counsel and any arbitrators who havebeen appointed or confirmed in the arbitrations; (b) a request that the arbitrations be consolidated; (c) a copy of the arbitration agreement(s) giving rise to the arbitrations; (d) a reference to the contract(s) or other legal instrument(s) out of or in relation to which the Request arises; (e) a description of the general nature of the claim and an indication of the amount involved, if any, in each of the arbitrations; 90 91 Where any arbitrator ceases to act under this Article, it shall be without prejudice to - (a) the validity of any act done or order made by that arbitrator before his appointment ceased; (b) the arbitrator's entitlement to fees and expenses; and (c) the date when any claim or defence was raised for the purpose of applying any Statute of Limitation or any similar rule or provision. The parties shall not object to the validity and/or enforcement of any award made by the arbitral tribunal in the consolidated proceedings. Request to Join a Third Party Article 33 An existing party to the arbitral proceedings wishing to join an additional party to the arbitration shall submit a Request for Joinder to the arbitral tribunal. The arbitral tribunal may fix a time limit for the submission of a Request for Joinder. The Request for Joinder shall include the following - (a) the names and addresses, telephone numbers, and email addresses of each of the parties in the existing arbitration, and the additional party; (b) a request that the additional party be joined to the arbitration; (c) a reference to the contract(s) or other legal instrument(s) out of or in relation to which the request arises; (d) a statement of the facts supporting the request; (e) the points at issue; (f) the legal arguments supporting the request; (g) the relief or remedy sought; and Closure of hearings Article 38 The arbitral tribunal may inquire of the parties if they have any further proof to offer or witnesses to be heard or submissions to make and, if there are none, it may declare the hearings closed. The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own initiative or upon application of a party, to reopen the hearings at any time before the award is made. Waiver of right t o object Article 39 A failure by any party to object promptly to any non-compliance with these Rules or with any requirement of the arbitration agreement shall be deemed to be a waiver of the right of such party to make such an objection, unless such party can show that, under the circumstances, its failure to object was justified. SECTION IV - THE AWARD Decisions Article 40 When there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitral tribunal. In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorises, the presiding arbitrator may decide alone, subject to revision, if any, by the arbitral tribunal. (h) confirmation that copies of the Request for Joinder and any exhibits included therewith have been or are being served simultaneously on all other parties and the tribunal. The Request for Joinder shall not be rendered incompetent by any controversy with respect to the sufficiency of its contents as set out in Article 33(2). Any such controversy shall be finally resolved by the arbitral tribunal. Answer to Request for Joinder by a Third Party Article 34 The additional party, to whom a Request for Joinder is addressed, shall submit to the tribunal an Answer to the Request for Joinder within fifteen (15) days of the receipt of the Request for Joinder. The Answer to the Request for Joinder shall include the following - (a) the name, address, telephone numbers, and email address of the additional party and its counsel if different from the description contained in the Request for Joinder; (b) any plea that the Arbitral tribunal has been improperly constituted or lacks jurisdiction over the additional party; (c) the additional party's comments on the particulars set forth in the Request for Joinder; (d) the additional party's answer to the relief or remedy sought in theRequest for Joinder; (e) details of any claims by the additional party against any other party to the (f) confirmation that copies of the Answer to the Request for Joinder and any exhibits included therewith have been or are being served simultaneously on all other parties and the arbitral tribunal. Request by a Third Party to Join the arbitration Article 35 A third party wishing to be joined as an additional party to the arbitration shall submit a Request for Joinder to the arbitral tribunal. The provisions of Article 34 shall apply to such Request for Joinder. Comments on the Request f or Joinder by existing parties to the arbitration Article 36 The other parties to the arbitration shall submit their comments on the Request for Joinder to the arbitral tribunal within 15 days of receiving a Request for Joinder pursuant to Article 34 or 36 and such comments may include but are not limited to the following particulars - (a) any plea that the arbitral tribunal lacks jurisdiction over the additional party; (b) comments on the particulars set forth in the Request for Joinder; (c) answer to the relief or remedy sought in the Request for Joinder; (d) details of any claims against the additional party; and (e) confirmation that copies of the comments have been or are being served simultaneously on all other parties and the tribunal. General provisions on Joinder Article 37 Where an additional party is joined to the arbitration, the date on which the Request for Joinder is received by the arbitral tribunal shall be deemed to be the date on which the arbitration in respect of the additional party commences. The parties waive any objection, on basis of any decision to join an additional party to the arbitration, to the validity and/or enforcement of any award made by the arbitral tribunal in the arbitration. 94 95 Form and effect of the Award Article 41 The arbitral tribunal may make separate awards on different issues at different times. All awards shall be made in writing and shall be final and binding on the parties. The parties undertake to carry out the award without delay. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given. An award shall be signed by the arbitrators and it shall contain the date on which the award was made and indicate the seat of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature. The award may be made public only with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a Court or other competent authority. Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal. Applicable Law, Amiable Compositeur Article 42 The arbitral tribunal shall apply the rules law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate. The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorised the arbitral tribunal to do so. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction. Definition of costs Article 47 The arbitral tribunal shall fix the costs of arbitration in the final award and, if it deems appropriate, in another decision. The term "costs" includes only- (a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with Article 42; (b) The reasonable travel and other expenses incurred by the arbitrators; (c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal; (d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; (e) The legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable; (f) The cost of third-party funding; (g) Other Costs In relation to interpretation, correction or completion of any award under Articles 38 to 40, the arbitral tribunal may charge the costs referred to in paragraphs 2 (b) to (f), but no additional fees. Fees and expenses of Arbitrators Article 48 The fees and expenses of the arbitrators shall be reasonable in amount, taking into account the amount in dispute, the complexity of the subject matter, the time spent by the arbitrators and any other relevant circumstances of the case. Settlement or other grounds for termination Article 43 If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reasons not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless there are remaining matters that may need to be decided and the arbitral tribunal considers it appropriate to do so. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties. Where an arbitral award on agreed terms is made, the provisions of Article 35, paragraphs 2, 4 and 6, shall apply. Interpretation of the award Article 44 Within thirty days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation of the award. The interpretation shall be given in writing within forty-five days after the receipt of the request. The interpretation shall form part of the award and the provisions of Article 35, paragraphs 2 to 6, shall apply. Correction of the award Article 45 Within thirty days after the receipt of the award, a party, with notice to other parties, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical error, or any error of similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within forty-five days of receipt of the request. The arbitral tribunal may within thirty days after the communication of the award make such corrections on its own initiative. Such corrections shall be in writing and shall form part of the award. The provisions of Article 35, paragraphs 2 to 6, shall apply. Additional award Article 46 Within thirty days after the receipt of the termination order of the award, a party, with notice to the other parties, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal. If the arbitral tribunal considers the request for an award or additional award to be justified, it shall render or complete its awards within sixty days after the receipt of the request. The arbitral tribunal may extend, if necessary, the period of time within which it shall make the award. 3. When an award or additional award is made, the provisions of Article 35, paragraphs 2 to 6, shall apply. 98 99 If there is an appointing authority and it applies or has stated that it will apply a schedule or particular method for determining the fees for arbitrators in international cases, the arbitral tribunal in fixing its fees shall take that schedule or method into account to the extent that it considers appropriate in the circumstances of the case. Promptly after its constitution, the arbitral tribunal shall inform the parties as to how it proposes to determine its fees and expenses, including any rates it intends to apply. Within fifteen days of receiving that proposal, any party may refer the proposal to the appointing authority for review. If, within forty-five days of receipt of such a referral, the appointing authority finds that the proposal of the arbitral tribunal is inconsistent with paragraph 1, it shall make any necessary adjustments thereto, which shall be binding upon the arbitral tribunal. Allocation of costs Article 49 The costs of the arbitration shall in principle be borne by the unsuccessful party or parties. The arbitral tribunal may however apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into accountthe circumstances of the case. The arbitral tribunal shall in the final award or, if it deems appropriate, in any other award, determine any amount that a party may have to pay to another party as aresult of the decision on allocation of costs. Deposit of costs Article 50 The arbitral tribunal, on its establishment, may request the parties to deposit an equal amount as an advance for the costs referred to in Article 41, paragraphs 2 (a)to (c). During the course of the arbitral proceedings, the arbitral tribunal may request supplementary deposits from the parties. 3. The Court of a Contracting State, when seised of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Article III Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Article IV 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply - (a) the duly authenticated original award or a duly certified copy thereof; and (b) the original agreement referred to in Article II or a duly certified copy thereof. 2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that - If an appointing authority has been agreed upon or designated, and when a party so requests and the appointing authority consents to perform the function, the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the appointing authority, which may make any comments to the arbitral tribunal that it deems appropriate concerning the amount of such deposits and supplementary deposits. If the required deposits are not paid in full within thirty days after the receipt of the requests, the arbitral tribunal shall so inform the parties, in order that one or more of them may make the required payment. If such payment is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings. After the award has been made, the arbitral tribunal shall render an account to the parties of the deposits received and return any unexpended balance to the parties. SECOND SCHEDULE [Section 67] CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS JUNE 10, 1958 Article I 1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of difference between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the state where their recognition and enforcement are sought. 2. The terms "arbitral awards" shall include not only awards made by arbitrator, appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. 3. When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships whether contractual or not, which are considered as commercial under the national law of the State making such declaration. Article II 1. Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 102 103 (a) the parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing an indication thereon under the law of the country where the award was made; (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that- (a) the subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) the recognition or enforcement of the award would be contrary to the public policy of that country. under the constitutional system of the federation, bound to take legislative action, the federal government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment; (c) a federal state party to this Convention shall, at the request of any other contracting state transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provisions of this Convention, showing the extent to which effect has been given to that provision by legislative or other action. Article XII 1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession. 2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession. Article XIII 1. A contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations-Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. 2. A State which has made a declaration or notification under Article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General. 3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect. Article VI If an application for the setting aside or suspension of the award has been made to a competent authority referred to in Article V paragraph (1) (e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. Article VII 1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. 2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention of the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention. Article VIII 1. This Convention shall be open until 31 December 1958 for signature on behalf of any member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialised agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations. 2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations. Article IX 1. This Convention shall be open for accession to all States referred to in Article VIII. 2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article X 1. A State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned. 2. At any time thereafter, any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later. 3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the governments of such territories. Article XI 1. In the case of a Federal or non-unitary State, the following provisions shall apply - (a) with respect to those Articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal government shall to this extent be the same as those of Contracting States which are not federal states; (b) with respect to those Articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, 106 107 Article XIV A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself, bound to apply the Convention. Article XV 1. The Secretary-General of the United Nations shall notify the States contemplated in Article VIII of the following - (a) signature and ratifications in accordance with Article VIII; (b) accessions in accordance with Article IX; (d) declarations and notifications under Articles I, X and XI; (e) the date upon which this Convention enters into force in accordance with Article XII; (f) denunciations and notifications in accordance with Article XIII. Article XVI 1. This Convention, of which the Chinese, English, French and Spanish texts should be equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in Article VIII. (c) state, as the case may require, either that the award or interim measure of protection has not been complied with or the extent to which it has not been complied with at the date of the application. Rule 6 - Case Management (1) The following rules apply unless the Court orders otherwise. (2) All Arbitration related cases shall be given expedited hearing and considered as urgent matters and can be heard by designated judges or courts. (3) A defendant who does not contest any of or all the remedies claimed may file a notice stating such fact, and a Court or Judge in chambers may grant such uncontested remedy or remedies without an oral hearing. (4) The time limit for hearing Arbitration related proceedings (Fast Track) shall be as follows - (a) Application for preservative orders or interim reliefs shall be determined within 30 days from the date of filing; (b) Application for appointment of arbitrator, where parties or party appointed arbitrators fail to agree on appointment of arbitrators or the chair of the tribunal shall be determined within 30 days; (c) Application relating to compelling witnesses, production of documents and other procedural matters shall be determined within 30 days; (d) Applications for annulment or recognition and enforcement of awards shall be determined within 60 days; (e) An appeal from a decision of the High Court to the Court of Appeal in an arbitration related matter shall be heard and determined within 45 days from the date of the judgement of the High Court; (f) An appeal from a decision of the Court of Appeal to the Supreme Court in an Arbitration related matter shall be heard and determined within 90 days from the date of the judgement of the Court of Appeal.