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Sunday, Jul 14th 2024

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 27

Time limit for the delivery of the final award

1. The arbitral tribunal shall deliberate on, and render its final award within a period of two months from the closure of the arbitral proceedings.

2. Owing to exceptional circumstances, the arbitral tribunal may extend such period for an additional period of thirty (30) days, provided that the award states the reasons for such extension.

Article 28

Decisions

1. Where the arbitral tribunal is composed of three arbitrators, any decision of the arbitral tribunal shall be made by a majority of all members of the arbitrators.

2. In the absence of a majority, the presiding arbitrator shall make any decisions regarding the proceedings or the award.

3. Any arbitrator disagreeing with a majority award, or an award rendered by the president, may render a dissenting opinion or award.

Article 29

Form and effects of award

1. In addition to the final award, the arbitral tribunal may render provisional, partial or interlocutory awards.

2. The award shall be made in writing and shall constitute a definitive settlement of the dispute. The award shall be final and binding on the parties. The parties shall undertake to carry out the award without delay.

3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons need be given.

4. The award shall be signed by the arbitrators and shall include the date and place where rendered. In arbitrations with three arbitrators, if one arbitrator fails to sign, the reason for the omitted signature shall be stated in the award.

5. The award may be made public only with the consent of both parties.

6. After the award is made, a copy signed by the arbitrators shall be delivered to each party.

7. Should the laws of the State in which the award has been rendered require the arbitral tribunal to deposit or register the award, the arbitral tribunal shall comply with the requirement thereto within the time limit prescribed by the said laws.

Article 30

Applicable law

1. The arbitral tribunal may, if it has been expressly authorized to do so by agreement between the two parties to the arbitration, adjudicate the merits of the dispute in conformity with the rules of equity and fairness (ex aequo et bono), without prejudice to the law applicable to the arbitration.

2. With respect to the law applicable to the merits of the dispute, the arbitral tribunal shall apply the governing law expressly chosen by the parties. Failing any designation by the parties, the tribunal shall apply the law determined by the conflict-of-laws rules which it considers applicable, stating the reasons for its decision.

3. In any event, the arbitral tribunal shall decide in accordance with the terms of the contract between the parties, and shall take into account the usages of the trade applicable to the said contract.

4. The arbitral tribunal may take into account the peremptory rules of a State which is closely related to the contract out of which the dispute arises, where the parties are to perform their obligations in the said State, and provided that the content of such rules is in accordance with generally-acknowledged public interests.

Article 31

Settlement by agreement of the parties

1. At any time prior to the rendering of the award, the two parties may agree on a settlement that terminates the dispute and may request that the terms of the settlement be recorded by the arbitral tribunal in the form of an arbitral award on agreed terms.

2. In accordance with the will of the parties, the arbitral tribunal shall render the award on the agreed terms, stating the request of the parties and the clauses of the written agreement.

3. The award on agreed terms shall be signed by the parties and by the arbitrators.

Article 32

Interpretation and correction of award

1. Within thirty (30) days of rendering the award, the arbitral tribunal may, on its own initiative, correct in the award any clerical or typographical errors, or any errors in calculation.

2. A party may request the arbitral tribunal to correct such errors within ten (10) days from the receipt of the award. The request for correction shall be communicated to the other party and that party shall have the opportunity to comment within ten (10) days therefrom.

3. The tribunal shall correct any errors within a maximum period of fifteen (15) days. A decision to correct the award shall take the form of an additional award or an addendum constituting part of the final award.

4. The parties may request, within the same period of time and following the same procedure as specified in paragraph 2 of the present article, an interpretation of any specific point or part of the award they consider to be imprecise or unclear.

5. The parties may, within the same period of time and following the same procedure as specified in the present article, request the arbitral tribunal to decide on claims omitted from the final award.

Article 33

Additional award

1. Within ten (10) days from the notification of the award, any party may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.

2. The arbitral tribunal shall communicate such request to the other party, so that the said party may, within ten (10) days, either accept or reject the request for additional award.

3. If the arbitral tribunal considers that the request is justified, and if it considers that the failure to decide a point may be amended without providing additional evidence or holding further hearings, it shall make its additional award within twenty (20) days from the request.

4. The additional award shall be made in accordance with the provisions of the previous articles herein.

Article 34

Partial award

1. Any partial award made by the arbitral tribunal at any stage of the proceedings shall be deemed to constitute part of the final award.

2. If the terms of the partial award are in conflict with the terms of the final award, the operative part of the partial award shall be deemed to have been amended or annulled in accordance with the terms of the final award.

3. In arbitration with multiple parties, the arbitral tribunal may make a single final award or several awards in respect of all parties so involved in the arbitration.

Article 35

Decision relative to the costs of the arbitration

1. The tribunal shall fix the costs of the arbitration in its award. The costs of the arbitration shall include:

  1. The fees of each arbitrator;
  2. the expenses incurred by the arbitrators for the arbitration;
  3. the costs resulting from the assistance requested by the arbitral tribunal, including the fees and expenses of any experts, hearing transcriptions, translations and any other reasonable legal and other costs incurred for the arbitration.
  4. the costs and expenses incurred as a result of any application for precautionary measures;
  5. the fees and expenses of the emergency arbitrator, where applicable,
  6. and, where applicable, the fees and expenses of the appointing authority.

2. The arbitral tribunal may divide the costs between the parties if it considers such decision to be fair and reasonable.

3. The tribunal may also order one party to bear the costs. In this event it shall determine which party shall bear the costs or in what higher proportion they shall be borne by that party.

4. Where the tribunal orders one party to bear the costs, these may include the costs for legal representation and assistance of the successful party, if such costs were claimed during the proceedings, and only to the extent that the tribunal determines that there is sufficient cause for it.

Article 36

Advance on the arbitration costs

1. Any request for arbitration shall contain the proof of payment of a sum of two thousand United States dollars (2.000 US $), as an advance on administrative costs. Such advance shall be non-refundable, and it shall be considered as a partial payment by the claimant of its share of the advance on costs.

2. Once the arbitral tribunal has been constituted, it may order the parties to pay a provisional advance in an amount intended to cover the expected costs of the arbitration until the Terms of Reference has been drawn up, the said amount including the minimum fees of the arbitrators and any expenses related to arbitration proceedings until such date.

3. During the course of the arbitral proceedings the arbitral tribunal may request supplementary deposits from the parties.

4. The amount of the provisional advance on costs may be subject to change and readjustment by the arbitral tribunal with respect to the stage of the proceedings, taking into account fluctuations in the amount claimed, changes in the estimated expenses and fees of the arbitrator, and the evolving difficulty and complexity of arbitration proceedings.

5. The provisional advance on costs shall be payable in equal shares by the claimant and the respondent. Any payment made in advance shall be considered as a partial payment on the advance on costs.

6. If within thirty (30) days of the issuance of the order to pay, the advance on costs has not been fully complied with, the arbitral tribunal shall inform the parties thereof so that each party may make the required payment. Failing such payment, the arbitral tribunal may suspend or terminate the arbitration procedure.

7. Once an award has been made, the arbitral tribunal shall remit to the parties an account statement showing the deposits and shall reimburse the amount outstanding, where applicable.

8. A party may pay the unpaid portion of the advance owed by the other party, and the proceedings shall continue in default of that party. If the defaulting party eventually pays the said advance, it shall act as a party to the proceedings without being obligated to repeat any proceedings previously carried out.

Article 37

Fees of arbitrators

1. The arbitrators' fees shall be reasonable in amount, taking into account the amount claimed, the complexity of the subject matter, the time spent by the arbitrators and any other relevant circumstances of the case.

2. If the parties have agreed on an appointing authority, or if such authority has been appointed by the CCA and if it has stated that it will apply a schedule for determining the fees for arbitrators in the international disputes it is to administer, the arbitral tribunal in fixing its fees shall take that schedule into account to the extent that it considers appropriate in the circumstances of the case.

3. If such appointing authority has not stated that it will apply a schedule for determining the fees for arbitrators in international disputes, any party may, at any time, request the appointing authority to furnish a statement setting forth the basis for establishing fees which is customarily followed in international cases in which the authority appoints arbitrators. If the appointing authority consents to provide such a statement, the arbitral tribunal in fixing its fees shall take such information into account to the extent that it considers appropriate in the circumstances of the case.

Downloads

EXPLANATORY NOTE.pdf

OHADAC draft rules of arbitration and conciliation.pdf