New Procedures in the Institute of Arbitration
The Standard Dispute Rules (hereinafter referred to as ‘the rules’) are used, both nationally and internationally, to find a solution to a dispute or to obtain a verdict, quickly, simply and more cheaply, either through reconciliation or arbitration.
I. Conciliation
Either party may demand conciliation. The demand for conciliation is made by letter, fax or Internet. Within 10 workdays, and once the administrative costs have been covered, the other party (parties) is (are) advised of this demand for conciliation. The applicant is notified of any response or reaction by the other party. If the case reveals a serious difficulty the parties may, in that event, call for an expert or a mediator to be appointed, so as to avoid litigation. After one month or when the conciliation fails, either party may initiate arbitration proceedings.
II. Expertise and Mediation
All the parties may demand, together, in writing, for an expert or mediator. Within 15 workdays, and once the administrative costs have been covered, an expert or a mediator will be appointed. Each party bears the costs thereof for equal parts. Within 30 days after the appointment, the expert or mediator shall meet the parties and, within 3 months, he shall make a compromise or give a report with a clear opinion.
III. Arbitration
Before initiating arbitration in the first instance parties are obliged to make an attempt at conciliation every time the law imposes it.
Art. 1: General
Arbitration has, since 1958, been an internationally recognized procedure (convention of New York). Unless otherwise agreed between the parties, only the laws of the country of the clerk’s office of the Court shall apply. The law applies to all that is not expressly stipulated in these rules.
Art. 2: Jurisdiction
Parties who had not foreseen an arbitration clause, may, after a dispute has arisen, conclude a contract thereto. An arbitration agreement must be incorporated in a document signed by both parties or in other legally binding documents. Disputes which cannot be legally submitted for arbitration shall be inadmissible. If one party refuses to take part in the proceedings or does not present its arguments within the stipulated time limit, the dispute will be heard anyway and an award shall be pronounced.
Either party may petition the judge to seek conservatory or provisional measures. This does not imply that this party waives the arbitration agreement. Also if suddenly a dispute or a protest arises after the obtaining of an enforcement ordinance, the claim shall be settled by arbitration only.
Art. 3:
In order to begin arbitration proceedings, the requesting party is required to send a registered ‘notification of arbitration’ (a) to the opposing party, as well as a ‘request’ (b) by registered letter to the secretariat referring to the arbitration clause.
In principle, the procedure shall take place in writing. Either party is entitled to ask for an audience with debates and to be assisted by or represented by an attorney or mandatory.
a) The notification of arbitration on a formal way invites the opposite party to give its point of view within 15 workdays and contains the same dossier as sent to the secretariat.
b) The request of arbitration is sent to the secretariat together with the notification of arbitration. It contains the complete identity of the parties, an accurate description of the claim (principal, interest, damage …) and a copy of the notification of arbitration with proof of sending to the opposite party.
c) The registration of the dossier by the secretariat is sent by ordinary mail to the parties, within 15 workdays after receipt.
The claimant is invited to pay a deposit estimated by the secretariat for initial costs. If it is not paid within the time limit, the request shall be, ex officio, considered withdrawn. In cases of serious financial difficulties, the secretariat shall ask for a bank security or guarantee or shall reduce or postpone the payment of this deposit.
d) Terms
- Within 15 workdays after receipt of the notification of arbitration, the defendant has to send his point of view (counter claim) and pieces to the claimant, and two copies to the secretariat with proof of sending to the claimant.
- Unless otherwise agreed by the parties, the clerk’s office who’s indicated after expiration of the previous deadline, shall appoint the Arbitral Court and inform the parties within 20 workdays.
- Within 15 workdays after receipt of the defendant’s statement, the claimant must send his final statement and supplementary proofs to the defendant and two copies to the clerk’s office with proof of sending to the opposite party.
- Within 15 workdays after receipt of the claimant’s final statement, the defendant must send his final statement to the claimant and two copies to the clerk’s office with proof of sending to the claimant.
The claimant has no right to reply, unless the defendant submits completely new elements. Only the Arbitral Court can decide about this. Conclusions and documents presented out of the terms fixed, can be kept out of the debates.
The receipts mentioned above are considered to be done, for national sending 3 workdays after the deposit to the post office and for international sending 6 workdays after the deposit to the post office. The contrary shall be proven by the requesting party. The proof of sending is the receipt of the Post Office. The day of sending does not count to calculate the terms.
Parties may foresee or decide to replace the exchange in writing mentioned above by an immediate hearing with debates. In this case it shall take place within one month after the appointment of the Arbitral Court.
The clerk’s office can postpone the proceedings at any time if the amount to cover the proceedings costs has not been paid. One party can request, by means of a well-motivated letter, the shortening or extension of terms. The clerk’s office decides sovereign about this request. The clerk’s office can also extend a term if useful for a good dispatch of the lawsuit. The Arbitral Court can also request the parties to formulate supplementary conclusions concerning one or more points, unclear to it.
e) The award
Within 10 workdays after receipt of the defendant’s final statements or before the hearing, the whole dossier shall be remitted by the clerk’s office to the Arbitral Court.
Within 20 workdays after receipt the dossier, the Arbitral Court shall give a verdict. This term can only be lengthened on motivated request by the Arbitral Court, and the clerk’s office’s approval. Without a verdict within the term and without approved longer term the proceedings are postponed, the clerk’s office will nominate, ex officio, a new Arbitral Court. In this case only Art.3e shall be applicable.
The clerk’s office informs the parties about this award. The award specifies also which party shall pay the procedure bill or in which proportion this charges are divided amongst parties and to whom they shall be paid or reimbursed.
If the defendant neither reacts in the first instance on the notification of arbitration nor responds to the notification of composition of the Arbitral Court, sent by registered letter, a verdict by default shall be pronounced. The Arbitral Court is authorized to declare, ex officio, an award provisionally enforceable and to exclude consignations. The parties undertake to execute the award. The clerk’s office lodges the original award at clerk’s office of the public Court. One party shall obtain the enforcement (exequatur) after homologation.
f) Procedural requirements
- All mailed items between parties shall be sent by registered mail, unless otherwise permitted by the parties and by law. - The documents shall be sent to the secretariat or the clerk’s office by registered mail, duly numbered and in DUPLICATE (QUADRUPLICATE in appeal).
- The clerk’s office is entitled to ask the parties for missing and/or additional copies or to impose an extra administrative charge for the inconvenience thus caused.
- The parties are exempted from the obligation to send their mailed items to the secretariat or the clerk’s office by registered mail provided they send them by e-mail and between the parties provided a mutual agreement after the dispute has arisen.
- The pleadings may, provided all parties agree thereto, be conducted via web- or videoconferencing.
g) International arbitration
The regulation-law of the United Nations (UNCITRAL, 21/06/1985), is applicable, as far as it is supplementary, and not contrary to the legislation of the country of the clerk’s office or to the present rules. If at least one of the disputing parties has its location outside of the European Union, all periods mentioned in Art. 3d) shall be doubled.
h) In case of bankruptcy or death of a party the procedure shall be postponed. On request of one party the procedure shall continue after payment of the costs and giving of the new identity of the parties.
Art. 4: Place and language
The place of the award shall be considered the place of arbitration.
Unless other agreement it shall be the place of the clerk’s office. This may be different from the place of debates which is sovereign chosen by the clerk’s office.
The parties shall choose the language of the proceedings. The proceedings may take place in two languages. In the absence of an agreement, the language(s) of the proceedings is/are that/those of the country of the clerk’s office. All charges for translations shall be paid by the party remitting documents in another language. The verdict is written in the language of the procedure, in accordance with the place of enforcement.
Art. 5: Multipartite arbitration
- Linking of controversies: If between the same parties, there are controversies that are connected or indivisible, the clerk’s office can order to link these controversies, if the parties are bound by the same arbitration clause on binding documents. The linking is not possible if already an award has been taken “before justice has been done” on its merits. - Third party intervention: The parties give to any third party the right to intervene in the proceedings. The third party shall accept by agreement the rules. It is conditional on the assent of the Arbitral Court.
Art. 6: The Arbitral Court
a) The mission: The Arbitral Court decides autonomously, even in cases where one party raises objections, on the competence and existence or validity of the arbitration agreement. The clerk’s office should be informed, at once, of any other decisions of other judicial authorities regarding the unresolved dispute.
The challenging of an arbitrator must be effected in a reasoned request (and by registered mail) to the clerk’s office within 10 days of receiving notification of the composition of the Arbitral Court. The challenged ar¬bitrator is duly advised thereof by the clerk’s office. The challenged arbitrator shall duly resign within 10 workdays or notify the objecting party that (s)he will not be withdrawing. The replacement shall be effected according to the rules governing new appointments. The Arbitral Court may decide autonomously whether to hear the parties (or their mandatory), to summon witnesses and/or to order an on-site inspection and, if appropriate, to appoint external experts whose brief shall be specified in writing. A board member, personally, a secretary, a clerk of the Court or an arbitrator cannot be held liable for their actions within the scope of, or in connection with, the rules. All disputes must be settled only by arbitration.
b) The appointment: Unless the parties have agreed otherwise, the clerk’s office in the first instance shall appoint one arbitrator and three for the appeals court. The parties are prohibited from contacting an arbitrator appointed by the clerk’s office, this under pain of absolute nullity and an order to pay damages to the other party.
If the parties, by mutual agreement, have themselves appointed an Arbitral Court, this Court may, in such a case, assign the duties of the clerk’s office and the appeals level to the Institute of Arbitration.
If an arbitrator dies or is legally impeded, the clerk’s office is in charge of the replacement.
Art. 7: Hoger beroep
Either party has the right to appeal against an award within the time limit of 30 calendar days after the postmarked date of the registered notification of the award of first instance, except if the parties, after the dispute arises, have expressly excluded the appeal level and in this case the award in first instance is not by default.
If the appeal period begins or ends during the legal vacations of the clerk’s office country, said appeal shall be extended until the 15th day of the new calendar year. Once this deadline has expired, it will no longer be possible to make an appeal.
The request for appeal should be sent, by registered mail, to the clerk’s office. On registered request of the clerks’ office the appellant does pay within 15 workdays the registration and the asked advance. The clerk’s office fixes sovereign this advance. If the registration fees and costs are not total paid within 15 workdays, these appeal proceedings shall be deemed to be not existed.
The appeals procedure and terms are the same as the proceedings in first instance (III.Art.3), with the difference that the notification of arbitration is given by the clerk’s office after the registration fees and costs have been paid and that this notification does duty for registration of the arbitration. The Arbitral Appeals Court is composed of three arbitrators.
IV. Costs
The administrative cost for each dossier is maximum 50 EUR (15 EUR if the request is introduced by Internet).
a) Conciliation: For a financial claim the cost is max. 100 EUR. For other disputes see IV b.
b) Expertise or mediation: The cost is limited to half of the arbitration (see IV.c.).
c) Arbitration:
For the registration of the request and the appointment of the Arbitral Court the costs per party for the first instance is 75 EUR and 200 EUR for the appeal level.
The cost for arbitration (clerk’s office & fees) is 100 EUR per hour (min. 1 hour) with a maximum fixed according to the amount of the value of the litigation (main issue and counterclaim, if any): On the:
1st range up to 6.000 EUR: 10%
2nd range from 6.000 EUR up to 12.000 EUR: 8 %
3rd range from 12.000 EUR up to 25.000 EUR: 6 %
4th range from 25.000 EUR up to 125.000 EUR: 3 %
5th range from 125.000 EUR up to 250.000 EUR: 1,5 %
6th range from 250.000 EUR up to 625.000 EUR: 1 %
7th range from 625.000 EUR up to 1.250.000 EUR: 0,5 %
8th range from 1.250.000 EUR and more: 0,25 %
The costs of an award by default about a not contested money claim in the first instance are not due but doubled in appeal or when the Arbitral Court is composed by three arbitrators.
Exceptional expenses.
The Arbitral Court will be condemned, ex officio, to pay an indemnification for the lawyer’s intervention in the procedure, of 400 EUR for the first instance and 800 EUR for the appeal. The expenses provided for audiences, hearing of witnesses, appearing, visits to the scene of the occurrence, translations, supplementary copies, research, corrections and rejection are not included and are estimated separately by the Arbitral Court, and shall be paid by one or more parties. If the value of the controversy cannot be determinate, the clerk’s office will fix the amount needed to cover the retainers and the operating expenses.
Only in cases where the arbitration was stopped before the notification to the parties of the Arbitral Court the costs shall be reduced to the administrative charge.
All travelling expenses and costs resulting from a deviation from these rules are exceptional expenses. All amounts are exclusive of taxes, duties or charges.
V. Standard Dispute Rules
Unless otherwise agreed between the parties, the Institute of Arbitration non-profit organization of Brussels, shall designate the arbitration committee or chamber and the clerk’s office of the Court, which shall be tasked with organizing the arbitration proceedings and monitoring the progress thereof, according to the rules. The clerk’s office means the secretariat of an Arbitration Committee or Chamber.
These Rules are subject to modification at any time. The modifications do not apply to an arbitration which is already pending (‘lis pendens’). The interpretation of the Standard Dispute Rules and of the correct application thereof falls within the competence of the Institute of Arbitration non-profit organisation, Drève Sainte Anne 68b, in 1020 Brussels, +32-(0)70-233.620.
In application from 1 January 2006
Institute of Arbitration Legal registration 1998, 2001, 2004 & D/2004/6878/1
More Information:
Institute of Arbitration
Drève Sainte Anne 68 b
1020 Brussels
E-Mail: info(at)euro-arbitration.org
Tel: +32-(0)70-233.620 (9h-12h)
Fax: +32-(0)70-233.620
