Arbitration at the SIAC – The Proceedings III
“The truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.” – Winston Churchill
Rule 29 – Early Dismissal of Claims and Defences
Much like the proceedings in Court, parties in arbitration can apply for summary judgment and/or striking out. Parties can make the application to the Tribunal. The basis of such application should be that the claim or defence has no merit or it is outside the jurisdiction of the Tribunal. The application is required to state with particulars the facts and legal basis which support the said application. The Tribunal will then decide if it will allow the application to proceed and once the application is heard, the Tribunal may grant the application, in whole or in part. The short timelines governing this application should be noted; the Award by the Tribunal (with reasons) on the application should be made within 60 days that the application is filed.
Rule 30 – Interim & Emergency Relief
A party to and arbitration can also apply for interim and emergency relief from the Tribunal. An application for emergency interim relief can even be done before the Tribunal is constituted. Do note that the application before the Tribunal is constituted can only be done in emergency cases.
Rule 31 – Applicable Law, Amiable Compositeur and Ex Aequo et Bono
If the parties cannot agree on the law to be applied, the Tribunal will decide which is the most appropriate law to be applied. The two Latin phrases above are similar in meaning. In arbitration, they mean the power of the tribunal to decide the arbitration solely on the basis on what the Tribunal considers to be fair and equitable. The Tribunal can decide on the basis of Amiable Compositeur and/or Ex Aequo et Bono only if the parties to the arbitration have expressly authorised the Tribunal to do so. The Tribunal is not given the authority to decide in any way it feels just. There are parameters to such a decision. Even in such cases, the Tribunal is obliged to determine the matter in accordance with the applicable contract and usage of trade.
Rule 32 – Award
Once the Tribunal is satisfied that there are no further submissions or relevant and material evidence which will affect its decision, the Tribunal is to declare the proceedings closed. The decision to declare the proceedings closed must be communicated to the Registrar as well as to the parties. Do note though that the Tribunal has the discretion to re-open proceedings.
Once the proceedings are closed, the Tribunal has 45 days to submit a draft Award to the Registrar. The Registrar is allowed input into the Award but this cannot detract from the Tribunal’s liberty to decide on the dispute. Unless parties have agreed that no reasons need be given, the Award should state the reasons on which the Award is based. Unless parties have otherwise agreed, the Tribunal is at liberty to give separate Awards, on different issues and at different times. If for any reason an arbitrator does not cooperate in the making of the Award, the other arbitrators can proceed to make the award and explain why they are doing so without that one arbitrator. If a majority cannot be reached, the presiding arbitrator shall make the Award which will then be delivered to the Registrar.
The Registrar will then send certified true copies to all parties once they have settled the costs of the arbitration. If there is settlement, the Tribunal may, on request of the parties, record the settlement in the form of a consent Award. If a consent award is not required, the settlement will be made known to the Registrar. The Tribunal will then be discharged and the arbitration deemed concluded once there is full settlement of the arbitration costs. Parties may agree that the Award is to be final and binding on parties from the date the Award is made.
Parties may also agree to carry out the Award without delay. Parties may also agree to waive their rights to appeal, reform or review of the award to any Court. The Award may be published by the SIAC with the consent of the parties. In such circumstance, the named of parties and other information which may identify the parties will be redacted.
Rule 33 – Correction and Interpretation of Awards & Additional Awards
By way of written notice within 30 days of receiving the Award, parties can apply to correct the Award. If the Tribunal deems the request justified, the correction shall be done within 30 days of receiving the request. By way of written notice within 30 days of receiving the Award, parties can apply to the Tribunal that an additional Award be made. If the Tribunal deems the request justified, the correction shall be done within 45 days of receiving the request. By way of written notice within 30 days of receiving the Award, parties can apply to the Tribunal for an interpretation of the Award. If the Tribunal deems the request justified, the interpretation in writing shall be provided within 45 days of receiving the request.
* From the SIAC Rules, 6th Edition
Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact me at walter@silvesterlegal.com.
