Document-Id: 969030, Please cite as: "http://www.trans-lex.org/969030"

Principle

No. XIII.3.2 - Determination of rules of procedure

(a) Subject to the mandatory provisions of the arbitration law in force at the seat of the arbitration, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings, either by reference to a set of arbitration rules or by agreeing on specific rules for the conduct of the proceedings prior to or during the arbitration.

(b) Failing such agreement, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, taking into account the parties’ due process rights under Principle XIII.3.1 . The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

CommentaryReferencesContract ClausesDiscussion

Commentary

1 It is a particular characteristic of modern arbitration laws that they leave ample room for party autonomy and contain only very few mandatory provisions, such as the parties’ fundamental right to be heard and to be treated equally as the basis of arbitral due process and provision dealing with the competence of domestic courts. Thus, the provisions contained in the arbitration rules take precedence over the arbitration law in force at the seat of the arbitration all those cases where the arbitration law is not mandatory. Furthermore, the principle of party autonomy, as the hallmark of the arbitral process, always allows the parties to conclude ad hoc agreements on procedural issues during the arbitration. It is only absent party agreements concluded prior to or during the arbitration that the arbitrators may develop their own procedural rules.

2 This means that the hierarchy of rules in international arbitration, which forms the fundamental basis for the regulatory framework of the arbitral process, is:

1

Mandatory provisions of the arbitration law at the seat (lex loci arbitri);

2

Party agreements during the arbitration;

3

Arbitration rules (ad hoc or institutional) agreed upon by the parties;

4

Non-mandatory provisions of the arbitration law; and

5

Procedural discretion of the arbitral tribunal.



Please cite as: "Commentary to Trans-Lex Principle , http://www.trans-lex.org/969030"
 

References

 

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Arbitral AwardsArbitration RulesInternational LegislationMiscellaneousModel LawsNational Legislation

Arbitral Awards

ICC Award No. 1930, YCA 2001, at 181 et seq. 

Arbitration Rules

Camera Arbitrale di Milano - Arbitration Rules 2010Swiss Rules of International Arbitration 2006WIPO Arbitration Rules 

International Legislation

UNCITRAL Model Law on International Commercial Arbitration 

Miscellaneous

UNCITRAL Notes on Organizing Arbitral Proceedings 1996 

Model Laws

UNCITRAL Model Law on International Commercial Arbitration with Amendments, 2006 

National Legislation

Austrian Arbiration Law 2006English Arbitration Act 1996IPRG - Swiss International Private Law (Swiss PIL)US Uniform Arbitration Act 2000Zivilprozessordnung - German Code of Civil Procedure 

Contract Clauses

 

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1. Contractual Clause Determining Set of Rules ApplicableEmployment ContractSales & Purchase ContractServices ContractLoan ContractArbitration AgreementMerger AgreementChange of Control AgreementTrust Agreement2. Time Limit Relating to ArbitrationSales & Purchase ContractMerger Agreement3. Duty to NotifySales & Purchase Contract4. Location of HearingsSales & Purchase Contract5. Consolidation of ProceedingsSales & Purchase Contract
1. Contractual Clause Determining Set of Rules ApplicableEmployment ContractProcedure
I agree that any arbitration will be administered by the American Arbitration Association ("AAA") and that the neutral arbitrator will be selected in a manner consistent with AAA's national rules for the resolution of employment disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. I also agree that the arbitrator shall have the power to award attorneys' fees and costs to the prevailing party except as prohibited by law (...) I agree that the arbitrator shall administer and conduct any arbitration in a manner consistent with the rules and that to the extent that the AAA's national rules for the resolution or employment disputes conflict with the rules, the rules shall take precedence. I agree that the decision of the arbitrator shall be in writing. I agree that any arbitration under this agreement shall be conducted in Maricopa County, Arizona.
 Sales & Purchase ContractDispute Resolution Clause
(...) Upon notification of arbitration, the parties shall, upon request, make limited discovery and disclosure of all materials relevant to the subject of the dispute. Discover is limited to deposition of six persons for each party, promptly obtaining requested documents, and twenty-five interrogatories all to be completed within 120 days and subject to appeal and direction by the third-selected arbitrator. Examination of witnesses by the parties and by the arbitrators shall be permitted. A written transcript of the hearing shall be made and furnished to the parties. The cost of this transcript shall be borne equally by the parties - (International Contracting: Law and Practice - Larry A. DiMatteo - §3.17 A - S. 86).
 Services ContractSubmission to Arbitration
(...) The arbitration shall be administered pursuant to the JAMS Comprehensive Rules and Procedures then in effet (...)
2003
 Loan ContractChoice of Law, Venue and Jury Trial Waiver
(...) The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings. The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge. The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a) (...) The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.
2011
 Arbitration AgreementProcedure
Employee agrees that any arbitration will be administered by the American Arbitration Association (AAA) and that the neutral arbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. Employee agrees that the arbitrator shall have the power to decide any motions brought to any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. Employee also agrees that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. Employee understands the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that Employee shall pay the first ${X} of any filing fees associated with any arbitration initiated. Employee agrees that the arbitrator shall administer and conduct any arbitration in a manner consistent with the rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the Rules, the Rules shall take precedence. Employee agrees that the decision of the arbitrator shall be in writing.
2003
Arbitration Procedures
The Company and Executive agree that, except as provided in this Agreement, any arbitration shall be in accordance with and under the auspices and rules of the American Arbitration Association (hereinafter the "Arbitration Service") (...)
2004
 Merger AgreementDispute Resolution
(...) The Acquiror and the Stockholders' Agent (on behalf of the Company Stockholders) will bear the expense of deposits and advances required by the arbitrator in equal proportions, but either party may advance such amounts, subject to recovery as an addition or offset to any award. The arbitrator will award to the prevailing party, as determined pursuant to Section X, all costs, fees and expenses related to the arbitration, including reasonable fees and expenses of attorneys, accountants and other professionals incurred by the prevailing party. For any Dispute submitted to arbitration, the burden of proof will be as it would be if the claim were litigated in a judicial proceeding. The arbitrator chosen in accordance with the provisions of this Section X will not have the power to alter, amend or otherwise affect the provisions of this Agreement, including the terms of these arbitration provisions (...)
2013
 Change of Control AgreementDispute Resolution

Executive agrees that any arbitration will be administered by the Judicial Arbitration & Mediation Services, Inc. ("JAMS"), pursuant to its Employment Arbitration Rules & Procedures (the "JAMS Rules"). The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys' fees and costs to the prevailing party, except as prohibited by law. The Company will pay for any administrative or hearing fees charged by the administrator or JAMS, and all arbitrator's fees, except that Executive shall pay any filing fees associated with any arbitration that Executive initiates, but only so much of the filing fee as Executive would have instead paid had Executive filed a complaint in a court of law. Executive agrees that the arbitrator shall administer and conduct any arbitration in accordance with New York law, and that the arbitrator shall apply substantive and procedural New York law to any dispute or claim, without reference to the rules of conflict of law. To the extent that the JAMS Rules conflict with New York law, New York law shall take precedence. The decision of the arbitrator shall be in writing. Any arbitration under this Agreement shall be conducted in New York County, New York. 


2012
 Trust AgreementResolution of Disputes
(...) Any arbitration commenced pursuant to this Section X shall be conducted in Miami, Florida, unless otherwise mutually agreed by the Majority Sellers and the Buyer Parent (...) 
2007
 2. Time Limit Relating to ArbitrationSales & Purchase ContractArbitration
The Tribunal shall endeavor to complete the arbitration and render an arbitral award expeditiously, if practicable, within 150 days of the constitution of the Tribunal. The Tribunal shall be authorized, either in its discretion or upon application by a Party, to extend any time limit relating to the arbitration.
2012
Arbitration
The Tribunal shall endeavor to complete the arbitration and render an arbitral award expeditiously, if practicable, within 150 days of the constitution of the Tribunal. The Tribunal shall be authorized, either in its discretion or upon application by a Party, to extend any time limit relating to the arbitration.
2012
 Merger AgreementResolution of Conflicts
(...) The parties agree to use commercially reasonable efforts to cause the arbitration hearing to be conducted within seventy-five (75) days after the appointment of the arbitrator, and to use commercially reasonable efforts to cause the decision of the arbitrator to be furnished within fifteen (15) days after the conclusion of the arbitration hearing (...)
2014
 3. Duty to NotifySales & Purchase ContractNotice of Dispute
Except for any Dispute that may be submitted directly to the CEOs of each party or to Arbitration pursuant to Section X, the party raising the Dispute shall give written notice to the other party's Relationship Manager setting forth the details of the Dispute and any proposed solution or compromise. Any such notice will reference this Section X. As soon as reasonably possible following receipt of such notice, the Relationship Managers will discuss such issue.
2009
 4. Location of HearingsSales & Purchase ContractArbitration
(...) Notwithstanding that the seat of the arbitration is Singapore, the arbitrators and parties to the arbitration may participate in hearings at a location other than Singapore that is deemed by the arbitrators to be most convenient and efficient for the Parties (...)
2012
 5. Consolidation of ProceedingsSales & Purchase ContractArbitration
In order to facilitate the comprehensive resolution of related disputes, and upon request of any Party to the arbitration proceeding, the International Court of Arbitration of the ICC (the "Court") may consolidate the arbitration proceeding with any other arbitration proceeding involving any of the Parties relating to this Agreement or the Transaction Documents. The Court shall not consolidate such arbitrations unless it determines that (i) there are issues of fact or law common to the proceedings, so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) no Party would be prejudiced as a result of such consolidation through undue delay or otherwise.
2012
 

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