How many copies of the Request for Arbitration and annexed documents must be handed in?
The Request for Arbitration and any annexed documents shall be supplied in a number of copies sufficient to provide one copy for each arbitrator and one for the Secretariat.
Provided that the advance on Arbitration costs has been fully paid, the Secretariat shall transmit the file to the Arbitral Tribunal as soon as its nomination is approved. One copy of the complete file for the Secretariat enables it to follow step by step the course of the procedure.
How can you prove that the Request for Arbitration and its annexed documents have been sent and how important is this proof?
The proof that the Request for Arbitration has been sent can be brought by handing in a stamped copy of the letter previously sent, a copy of the fax which indicates that it has been sent, …
It is very important to join this proof to the Request for Arbitration because it enables the Secretariat to be sure that the respondent already has the Request for Arbitration and its annexed documents. Within one month from the date in which the Respondent has been notified of the Request for Arbitration and the annexed documents, the Respondent must send its answer to the Secretariat. Therefore, a late notice to the Respondent concerning the Request for Arbitration can unnecessarily delay the procedure.
How is the advance on Arbitration costs determined?
For example: An arbitral procedure is undertaken; the sum in dispute amounts to 250.000 EUR. The parties have asked for an Arbitral Tribunal of three arbitrators to be appointed.
The advance required to cover the Arbitration costs will be determined in the following way:
The cost of arbitration scale from 100.000 to 500.000 EUR
Minimum: 3.000 EUR + 1.5 % for the amount exceeding 100.000 EUR
3.000 + 1.5 % ( 250.000 - 100.000)
3.000 + 1.5 % of 150.000
3.000 + 2.250
Maximum: 6.000 EUR + 1.5 % for the amount exceeding 100.000 EUR
6.000 + 1.5 % (250.000 - 100.000)
6.000 + 1.5 % de 150.000
6.000 + 2.250
The advance kept for the fees and costs of the arbitrators: 6.750 EUR
The administrative costs are 10 % of the fees and costs of the arbitrators as mentioned above 672 EUR + (21 % of VAT)141,25 EUR
Total amount of the advance required: 7.566,25 EUR
When a tribunal of three arbitrators has been appointed, the rates of costs and fees mentioned above shall be multiplied by 2.5.
Total: 18.915,625 EUR
When does the Appointments Committee or the Chairman proceed to the appointment of the Arbitral Tribunal?
The Appointments Committee or the Chairman appoints or approves the nomination of the Arbitral Tribunal once the advance on Arbitration costs has been fully paid by the parties or by one of them. If one party refuses to pay its part of the advance on Arbitration costs, the other party can settle the payment. In this way, the arbitral procedure can be quickened. The advance on Arbitration costs is a down payment meaning that the Arbitral Tribunal decides in the award itself how to distribute the costs of the Arbitration.
If the Respondent has formulated an answer to the Request for Arbitration, is it still possible to respond to that answer? Within what time limit?
The parties are not supposed to forward their complete argumentation in the Request for Arbitration nor in the answer to the Request for Arbitration. The parties must only forward a brief summary of the grounds of the claim and counterclaim.
The Rules regarding the Arbitration do not prescribe a time limit for the Claimant. However, once the parties have completely paid the advance on Arbitration costs within the time limit of one month, and once the counterclaim has reached the Secretariat of the Cepani, an Arbitral Tribunal will be appointed. One of the first tasks the Arbitral Tribunal must handle is the establishment of a procedural work schedule. This work schedule must settle the question of the exchange of pleadings.
If the parties neglect to pay the advance on Arbitration costs, the Arbitral Tribunal is not appointed. The Arbitral Tribunal is not appointed until the payment is done. However, the Claimant can very well formulate an answer to the Respondent’s answer, without having to respect any strict time limit.
Once appointed, what is the first task of the Arbitral Tribunal?
On one hand, one of the first tasks of the Arbitral Tribunal consists in drawing up, with the parties, the Terms of Reference. On the other hand, a procedural work schedule has to be drafted. The Arbitral Tribunal will usually submit a project to both parties and organize a first meeting with them in order for the parties to sign both the Terms of Reference and the work schedule.
What are the Terms of Reference and why are they useful?
In the Terms of Reference the Arbitral Tribunal describes precisely the claims of the parties, the addresses where the mail can be sent, the language and seat of arbitration and a list of the issues that are in dispute.
The advantage being, that it enables the Arbitral Tribunal and the parties to have a description of the frame in which the Arbitration will take place.
The list of the issues in dispute helps the Arbitral Tribunal not to “forget” or neglect to pronounce itself on one question or another. This is useful for the juridical security.
What are the consequences regarding the advance on Arbitration costs if a Claimant increases its initial claim or if a Respondent introduces a counterclaim?
When the Respondent introduces a counterclaim or when a Claimant increases its initial claim, the initial advance on arbitral costs has to be adjusted. Normally each party has to pay half of this complementary advance.
However, when the counterclaim amounts to a sum that is similar or superior to the initial claim, distinctive advances can be determined. This means that there will be an advance for the initial claim and an advance for the counterclaim. Every party pays its part of the advance corresponding to its claim. We must not forget that the Arbitral Tribunal will only pronounce itself on the claims for which the advances have been fully paid.
How can the time limits mentioned in the rules be extended?
There are two sorts of time limits: On one hand, we have the time limits that are set by the rules of the Cepani and imposed to the parties or to the Arbitral Tribunal; on the other hand, there are the deadlines that the Arbitral Tribunal and the parties agree upon.
A permission to extend a time limit will always have to be duly motivated.
To obtain the extension of a time limit by the Cepani, the Arbitral Tribunal or the party has to send a reasoned request to the Secretariat of the Cepani. This request will have to reach the Secretariat within the time limit, time limit of which the extension is requested.
The Cepani, has no competence to pronounce itself on an extension of a time limit granted by the Arbitral Tribunal. This extension has to be asked to the Tribunal itself.
How does an expertise take place during the arbitral procedure?
First of all, a distinction must be made between the expertise requested by one of the parties during the arbitral procedure and the expertise organized by the fifth section of the Rules of the Cepani.
The expertise organized by the Arbitral Tribunal is very similar to the expertise organized by the ordinary courts. The Arbitral Tribunal appoints the experts while taking into account the nature and circumstances of the mission and the specific requests of the parties.
The Cepani recommends that the Arbitral Tribunal requires from the parties a down payment for the expertise expenses, even before the expert has started his mission. This advance should be deposited on an account appointed by the Arbitral Tribunal. Unless they have decided otherwise this down payment is settled by the most diligent party.
Unless the parties have decided otherwise, the experts report has only the value of an opinion.
How is the Award notified to the parties?
Provided that the parties have entirely paid the Arbitration costs, the notification of the Arbitral Award is handled by the Secretariat of the Cepani. As long as the costs have not entirely been paid, the Arbitral Award is not transmitted to the parties. The Arbitral Award will not even be communicated to the party that has paid its part of the costs.
One party can help accelerate the notification of the Arbitral Award by paying the amount that is still due. The Arbitral Tribunal determines in the Arbitral Award itself how the costs must be allocated so that the party that has paid too much can demand to the other party the difference still remaining.
Who is in charge of the deposit of the Award?
Only if one of the parties claims it, shall the award be filed at the registry of the civil court of the seat of arbitration, within a month of the notification, by the Secretariat of the Cepani. It is not a deadline stipulated on pain of being forfeited. It remains possible for the parties to file themselves the Award if the deadline is overdue.
How can we contribute to a rapid and effective arbitral procedure?
The parties can help accelerate the arbitral procedure by paying rapidly the advance on Arbitration costs, by collaborating to the establishment and to the signature of the Terms of Reference, by fixing strict deadlines in the work schedule and respecting them, and by avoiding constant requests for useless extensions...
The Rules of the Cepani prescribe a two month time limit to establish the Terms of Reference and the work schedule. The Arbitral Tribunal then has four months to draft the Award. If the parties have agreed on longer terms than those prescribed by the Rules of the Cepani; the deadlines prescribed in the Cepani rules are extended up to the limit agreed by the parties.
Why should a copy of all the communications be sent to the Secretariat of the Cepani?
The Secretariat of the Cepani has to receive a copy of all the communications between the parties and the Arbitral Tribunal and between the Arbitral Tribunal and the parties. In this manner, the Secretariat is completely aware of the progress of the procedure and can intervene in order to assure its rapid unfolding.
What happens if the parties reach an agreement during the arbitral procedure?
If the parties reach an agreement during the arbitral procedure, two possibilities remain:
Either the parties ask the Arbitral Tribunal to take note of their settlement in an Awar; the advantage being that the parties dispose in this way of an Award that can be enforced.
Or, the parties can reckon that their agreement does not have to be taken note of in an Award. In this case, both parties have to inform the Secretariat of the Cepani that they have reached an agreement and that this settlement therefore puts an end to their dispute and to the arbitral procedure.
In both cases, the Secretariat of the Cepani will ask the arbitrators to hand in a general idea of the work that has already been done and the Cepani will also ask whether the settlement was gained with or without their help. After having gathered that information, the Secretariat fixes the cost for Arbitration and if necessary, pays back the excess payment.