2. Commencing an Arbitration at the SIAC
“The supreme art of war is to subdue the enemy without fighting.” – Sun Tzu
Before going into any battle, preparation is key. If you are going to file a claim at the SIAC, there are some things you should know.
Arbitration is a last resort. Prior to commencing proceedings, parties should explore every possible manner of amicable resolution. This can mean exchange of correspondence, meetings between key personnel and even informal mediation. But if all else fails and you are left with no choice but to proceed to the SIAC for arbitration, you need to know the procedure. This article goes into some things you must know before commencing an arbitration at the SIAC.
If your company has decided to proceed to arbitration at the SIAC, you need to file with the Registrar of the SIAC a Notice of Arbitration. As set out in Rule 3 of the SIAC Rules 2016, a Notice of Arbitration shall include:
a. A demand or request to the Registrar that the present dispute be referred to arbitration;
b. Particulars of parties to the arbitration and those of their representatives. This will include names, addresses, facsimile numbers, telephone numbers, email addresses etc;
c. A reference to and copy of the arbitration agreement;
d. A reference to and where possible, copy of the contract/ agreement/ treaty out of which the dispute arises;
e. A brief of the dispute, setting out the essential faces and circumstances. The relief claimed should also be specified and where possible, a quantification of the amount;
f. If parties have previously agreed; a statement of matters or manner of conduct of the arbitration. The Claimant can also include their proposal;
g. If not set out in the agreement, the Claimant’s proposal on the number of arbitrators;
h. If not already agreed, a nomination for an arbitrator or if the arbitration agreement specifies that there be a sole arbitrator, then the Claimant’s proposal of arbitrator;
i. The Claimant’s comment(s) as to the rules of law to be applied;
j. The Claimant’s comment(s) as to the language of the arbitration; and
k. Payment to the SIAC of the filing fee as set out under the Rules.
If the Claimant so chooses, they can include a Statement of Claim with the Notice of Arbitration. A Statement of Claim, as set out in Rule 20.2 will set out the essentials of the Claim, being:
a. A statement of facts which support the Claim;
b. The legal grounds or arguments which the Claimant puts forward to support the Claim; and
c. The relief the Claimant is seeking which will include but need not be limited to the quantifiable claims.
At the same time that the Claimant sends the Notice of Arbitration to the Registrar, the Claimant shall also send a copy of the same to the Respondent. The Claimant shall inform the Registrar that the Notice of Arbitration has been served on the Respondent, letting the Registrar know the manner of service employed and the date on which the Notice of Arbitration was served on the Respondent.
The date on which the Registrar receives the Notice of Arbitration is taken as the date of commencement of the Arbitration.
What if you are the Respondent and have received a Notice of Arbitration? What do you do?
A Respondent has to file a Response with the Registrar. This has to be done within 14 days of service of the Notice of Arbitration. The Response must include:
a. The Respondent’s response to all or part of the claims, be they a confirmation or denial of the same. If the Respondent wishes to claim that the Tribunal lacks jurisdiction, this has to be stated as well;
b. If the Respondent wishes to make a counterclaim, the Respondent should briefly set out the nature and circumstances of the same, the relief claimed and if it is possible, a quantification of the amount;
c. The Respondent’s comments to the Notice of Arbitration;
d. As with the Claimant, a nomination for an arbitrator or if the arbitration agreement specifies that there be a sole arbitrator, then the Respondent’s counter-proposal of arbitrator;
e. Payment to the SIAC of the filing fee for the counterclaim as set out under the Rules.
As set out above, the Claimant can include a Statement of Claim with the Notice of Arbitration. Likewise, the Respondent can include a Statement of Defence and also a Statement of Counterclaim.
Also mirroring the obligations of the Claimant above, the Respondent shall also send a copy of the Response to the Claimant. The Respondent shall inform the Registrar the manner of service employed and the date on which the Response was served on the Claimant.
* From the SIAC Rules, 6th Edition
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