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Friday, Jan 27th 2023

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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OHADAC DRAFT RULES OF ARBITRATION AND CONCILIATION

Article 11

Rules applicable to the proceedings

1. The arbitral proceedings shall be governed by the rules agreed upon by the parties in the arbitration agreement, and by the present rules.

2. The arbitral tribunal, having previously consulted the parties, may issue orders setting out the procedural timetable, and governing any matters or circumstances not provided for herein.

3. The arbitral tribunal shall guarantee equality between the parties during the arbitration, and shall ensure the parties' right to discuss the facts giving rise to the dispute and the legal basis for it.

The arbitral tribunal shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, avoiding any unnecessary fees and expenses, and preserving the adversarial nature of the procedure.

The arbitral tribunal shall endeavor to preserve the confidentiality of the arbitration proceedings, and shall take any measures it deems necessary to protect commercial and industrial secrets and any confidential information.

At the request of either party, the arbitral tribunal may require any third party who is a party to the arbitration agreement, to participate in the proceedings.

Article 12

Place of arbitration

1. The parties shall designate place of arbitration in the arbitration agreement, or in the Terms of Reference.

2. Failing such designation by the parties, the arbitral tribunal, having consulted the parties, shall designate a place of arbitration, taking into account the circumstances of the arbitration.

3. The arbitral tribunal may hold hearings at any place it deems appropriate, unless otherwise provided by the parties.

4. The tribunal may inspect any property, premises or documents at any place it deems necessary, provided it informs the parties with sufficient advance notice to enable them to be present and witness any proceedings.

5. The tribunal may hold consultation meetings, or deliberate, where it considers appropriate.

6. The award shall be deemed to have been rendered at the place of arbitration, regardless of where it has been drafted.

Article 13

Language of arbitration

1. The language of arbitration shall be the language agreed upon in the arbitration agreement.

2. Failing such agreement, the arbitral tribunal shall determine the language of the arbitration, taking into account the language used in the contract, the language used for any communication between the parties regarding the issues in dispute, or any other relevant circumstances.

3. The statements of claim, statements of defense, and any further written statements submitted by the parties shall be drafted in the language of the arbitration.

4. The arbitral tribunal may order that any documents attached to the statements of claim or statement of defense, 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 of the arbitration.

Article 14

Statement of claim

1. The claimant shall communicate its statement of claim within thirty (30) days from the constitution of the arbitral tribunal, unless such statement was attached to the notice of arbitration.

2. The statement of claim shall be submitted directly by the claimant to the respondent and to the tribunal, with a copy provided for each of the arbitrators.

3. In the event of institutional arbitration, one copy shall also be deposited with the Secretariat of the Center.

4. The statement of claim need not reiterate the particulars contained in the notice of arbitration, but it shall include at least:

  1. a statement of all the facts supporting the claim;
  2. the points at issue;
  3. a reference to any contract or other legal instrument out of or in relation to which the dispute arises, and the legal grounds or arguments supporting the claim.
  4. The claim or remedy sought.
  5. The monetary amount claimed, specifying the currency in which any amount or indemnification is payable.
  6. An indication of the evidence that the claimant intends to rely upon.

5. The claimant may submit with the statement of claim any documents deemed relevant.

6. If the arbitral tribunal, or the Secretariat where applicable, considers that the claim has not been submitted in accordance with the requirements set out in the present article, it shall grant the claimant a ten (10) day extension to alleviate the deficiencies noted, upon expiry of which the proceedings shall be discontinued, without prejudice to the right of the party to present a new claim.

Article 15

Statement of defense

1. The respondent shall communicate its statement of defense in writing to the claimant and to each of the arbitrators, within thirty (30) days of the claim being notified to the respondent.

2. In the statement of defense the respondent shall reply to each of the particulars in the statement of claim.

3. The statement of defense may be accompanied by any document or other evidence relied upon by the respondent, or contain references to them.

4. In the statement of defense the respondent may make a counter claim arising out of the same contract or rely on a claim arising out of the same contract for the purpose of a set-off.

5. Any such counterclaim shall include the same particulars as those required for the statement of claim, as enumerated in paragraph 4 of the previous article.

Article 16

Consolidation and amendments to the claim or defense

1. Where multiple claims are presented, and such claims are in connection with a legal relationship in respect of which arbitration proceedings between the same parties are already pending under the rules herein, the arbitral tribunal may, at the request of any party, consolidate the new claim into the pending arbitration, provided the Terms of Reference has not been endorsed at the date thereof.

2. In the event of multiple claims consolidated into a single arbitration, any party may request that the arbitral tribunal allow it to amend or supplement its claim or defense, which shall be deemed admissible unless the tribunal considers it inappropriate to allow such amendment or supplement having regard to the delay in making it or prejudice to other parties or any other circumstances. However, a claim or defense may not be amended or supplemented in such a manner that the amended or supplemented claim or defense isin conflict with the arbitration agreement or fall outside its scope.

Article 17

Jurisdiction

1. The arbitral tribunal, at the request of the parties, shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

2. A plea that the arbitral tribunal does not have jurisdiction or that the arbitration agreement is not valid shall be raised no later than in the statement of defense or in the counterclaim.

3. Should the respondent fail to appear at a scheduled hearing, the arbitral tribunal shall rule on its own jurisdiction on its own initiative.

4. When ruling on the validity of the arbitration agreement, the arbitration clause shall be treated as an agreement, independent of the other terms of the contract. A decision that the contract is null shall not entail ipso jure the invalidity of the arbitration clause.

5. The validity of the arbitration agreement shall be determined according to the law chosen by the parties to the said agreement, or failing such choice, according to the law of the State in which the place of arbitration is situated, or to the law applicable to the merits of the dispute.

6. Any plea to the jurisdiction on the grounds that the 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 the arbitral proceedings.

7. The arbitral tribunal shall deal with the plea to the jurisdiction as a special preliminary question and shall issue a partial award. However, where the arbitral tribunal considers it does not have the elements necessary to do so, it may continue the arbitral proceedings, and rule on the plea to the jurisdiction in the final award.

Article 18

Terms of Reference

1. Once the arbitral tribunal has been constituted and, where necessary, the pleas to the competence of the arbitral tribunal or to the validity of the arbitration agreement have been raised by the parties, the president of the arbitral tribunal shall convene the parties to a preliminary hearing whose purpose it is to discuss and draft the Terms of Reference. Such hearing shall be held within thirty (30) days from the constitution of the arbitral tribunal, or where applicable, from the decision on its jurisdiction.

2. The Terms of Reference shall include the following particulars as a minimum requirement:

  1. the names and contact details of each party and of their representatives;
  2. the address to which notifications arising in the course of arbitration may be sent;
  3. identification of any contract or other legal instrument out of or in relation to which the dispute arises and a brief summary of the facts;
  4. a brief description of the claims and remedies sought by the parties;
  5. a list of the documents submitted by the parties;
  6. an indication of the monetary amount claimed;
  7. a list of the issues in dispute to be resolved by the arbitral tribunal;
  8. a reference to the arbitration agreement and a reference to the jurisdiction of the arbitral tribunal;
  9. the determination of the nature of the arbitration and whether the tribunal shall decide ex aequo et bono or apply the applicable rule of law. Where the decision is based on the law applicable to the merits of the dispute, such law shall be indicated. Where the decision is based on equity, the powers exercisable by the arbitral tribunal for such purpose shall be specified;
  10. the place and language of arbitration;
  11. the rules applicable to the proceedings;
  12. the constitution of the arbitral tribunal;
  13. any precautionary measures that may have been requested, where applicable;
  14. any other decisions that the parties may have requested or the tribunal may deem necessary.

3. At the preliminary hearing the parties and the arbitral tribunal shall agree on the contents of a procedural order setting out the timetable for further proceedings.

4. At the commencement of the preliminary hearing, the tribunal shall issue to the parties a draft Terms of Reference. In the course of the hearing, the President shall invite the parties to express their remarks concerning the draft Terms of Reference, drawing their attention to the possibility of modifying by agreement any of the items thereof. After hearing the parties, the arbitral tribunal shall draw up the final Terms of Reference to be subscribed by the parties and by the arbitrators.

Article 19

Further written statements (replication and rejoinder)

1. The procedural order shall set out the dates for the presentation by the claimant of the replication to the statement of defense, and for the presentation of the response to the replication (rejoinder) by the respondent. Unless the tribunal decides otherwise, the said statements shall be submitted within thirty (30) days from the notification of the procedural order as respects the first statement, and within thirty (30) days from the receipt of the replication as respects the second statement.

2. The parties may supplement the replication or rejoinder, respectively, using any legal arguments or case-law references they deem relevant, stating the grounds for their claims in accordance with the law applicable to the merits of the dispute and requesting the taking of any additional evidence they may deem necessary.

3. The parties shall not submit any further statements seeking to amend existing claims or to submit new claims, unless the tribunal deems relevant for them to do so owing to exceptional circumstances.

Article 20

Precautionary measures

1. At the request of any party, the arbitral tribunal may grant any interim measures that may be necessary with regard to the issues in dispute, such as prohibitions, measures intended to protect or preserve assets, or the appointment of a third-party custodian for the assets.

2. Such interim measures may be adopted by means of an interim award and the arbitral tribunal may require the party requesting an interim measure to provide appropriate security in order to cover any costs which may result from the said measure.

3. The arbitral tribunal shall, in the final award or in any interim award, determine the amount that each party shall have to pay as a result of the decision on allocation of costs.

4. The arbitral tribunal may modify, suspend or terminate any interim measure it has granted upon application of any party or on the tribunal's own initiative. The parties shall promptly disclose any material change in the circumstances on the basis of which the interim measure was requested or granted, where such change may affect the relevancy or execution of the measure.

5. It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim or precautionary measure, and for the court to grant such measure. The parties shall communicate the adoption of such measures to the arbitral tribunal.

6. Should the adoption of interim measures of protection be a matter of urgency for one of the parties, prior to the constitution of the arbitral tribunal, that party may request from the CCA the appointment of an emergency arbitrator, in accordance with the rules set out in Part II herein.

Article 21

Evidence

1. Each party shall assume the burden of proof in order to establish the veracity of the facts substantiating the claim, the counterclaim or the statement of defense.

2. The tribunal may require a party to deliver to the other parties and to the tribunal itself a summary of the documentary evidence and any other evidence it intends to present in support of its claim, its counterclaim or its statement of defense.

3. At any point during arbitration proceedings the arbitral tribunal may order the parties to submit further documentary evidence or any other evidence it may deem necessary or appropriate.

4. The arbitral tribunal shall rule on the receivability and the relevancy of the evidence, the taking thereof, and shall use its discretionary powers to determine the admissibility of such evidence with regard to its decision on the facts in dispute.

Article 22

Experts

1. Although a party may rely on a party-appointed expert, the arbitral tribunal may appoint one or several experts to report to it in writing on specific issues in the dispute or related to the dispute.

2. The arbitral tribunal shall communicate to the parties a copy of the mandate assigned to the expert. The parties shall give the expert any relevant information or produce, or provide access to, any relevant documents, goods or other property for inspection. The court shall decide on any controversy arising between a party and the expert in respect of the relevancy of the information or property required for inspection.

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

4. If a party so requests the expert may, after delivery of the report, participate in a hearing where the parties shall have the opportunity to put questions to him and to present other experts in order to testify on and contest the points at issue.

Article 23

Hearings

1. The tribunal may, on its own initiative or at the request of a party, hold oral hearings for the taking of evidence or for oral arguments. After hearing the parties the tribunal shall decide on the date, time and place of the hearings and shall give the parties sufficient advance notice thereof.

2. Within the period prescribed under the procedural order, or required by the arbitral tribunal, each party shall inform the tribunal and the other parties of the identity and place of residence of any witnesses it intends to call, of the subject matter of their testimonies and of the language to be used in therein.

3. The arbitral tribunal shall make any necessary arrangements for the translation of oral arguments or the transcription of the hearing.

4. The hearings shall be held in camera unless the parties have agreed otherwise. The arbitral tribunal may require any witness or witnesses to retire during the testimony of other witnesses. The tribunal may also determine the time, manner and form in which the witnesses are to be examined.

5. Testimonial evidence may also be given in the form of a written statement signed by the witnesses and the experts, without prejudice to the right of the other party to cross-examine the said witnesses and experts.

Article 24

Default of a party

1. The arbitral proceedings may be continued where the respondent fails to submit its statement of defense within the prescribed period without showing sufficient cause for the failure. This rule shall apply to the failure to submit any other relevant written statements (response to the counterclaim, replication and rejoinder where applicable).

2. The arbitral tribunal may also continue the proceedings where a party, duly notified, fails to appear without showing sufficient cause for the failure.

3. If a party fails to produce evidence or to adopt any measure it may have been required to adopt in the course of the proceedings within the period of time prescribed by the arbitral tribunal and without showing sufficient cause for such failure, the tribunal may make an award on the basis of the evidence presented before it.

4. A party's default does not imply any acknowledgment by the tribunal of the facts alleged by the claimant, or of the legal grounds for the claim.

Article 25

Closure of proceedings

1. After the parties have submitted their documentary evidence and any other evidence has been taken, the tribunal may close the proceedings and inform the parties thereof. For this purpose, it may require the parties to produce their closing statements, or, with the agreement of the parties, provide for such statements to be presented orally at the last hearing.

2. The arbitral tribunal may, on its own initiative or at the request of a party, owing to exceptional circumstances, decide to re-open the proceedings before the expiry of the period prescribed for making the award.

Article 26

Waiver of right to object

A party which knows that any provision or requirement under the arbitration agreement has not been complied with, and yet proceeds with the arbitration without stating its objection to such non-compliance, shall be deemed to have waived its right to object.

Downloads

EXPLANATORY NOTE.pdf

OHADAC draft rules of arbitration and conciliation.pdf