Arbitration at the SIAC – The Proceedings II

 

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.” – Mahatma Gandhi

 

 

Rule 26 – Tribunal-Appointed Experts

Unless agreed otherwise by parties, the Tribunal has the discretion to appoint an expert to assist the Tribunal on specific issues and direct that a party provide information, documents etc to the said expert so appointed by the Tribunal.

The expert appointed by the Tribual is required to submit a written report to the Tribunal. This report will also be delivered to each of the parties and they will be invited by the Tribunal to submit their written comments on the said report.

The expert appointed by the Tribunal can participate in the hearing. at this hearing, the parties will be given the opportunity to examine the Expert.

 

Rule 27 – Additional Powers of the Tribunal

Unless agreed otherwise by parties, the Tribunal, on top of the powers set out in the Rules, shall have the power to:

a. Direct the correction/rectification of any contract;
b. Extend/ abbreviate time limits set out in these Rules;
c. Conduct enquiries which the Tribunal feels necessary/ expedient;
d. Order the inspection of any property or item which the parties may have in their possession or control;
e. Order the preservation of any property or item;
f. Order the production of any document or copies thereof which the parties may have in their possession or control;
g. Make an Award directing the reimbursement of unpaid deposits which goes towards the costs of arbitration;
h. Direct any party/person to give evidence be it by affidavit or other form;
i. Make a direction prohibiting a party from doing anything, such as dissipating assets, which may render the Tribunal’s Award ineffectual;
j. Order security for costs;
k. Order security for the amount in dispute;
l. Proceed with the arbitration even if a party fails to comply with the Rules/ directions of the Tribunal and impose such sanctions as deemed appropriate by the Tribunal;
m. Decide on an issue which was not expressly/impliedly raised by a party on the premise that the said issue had been adequately brought to the attention of the other party and the party was given ample opportunity to respond to the issue;
n. Decide on the law to be applies to the arbitral proceedings; and
o. Determine any claim whether it be of legal or other privilege.

 

Rule 28 – Jurisdiction of the Tribunal

Prior to the constitution of the Tribunal, a party can object to the either the existence/ validity of the arbitration agreement or even to the competence of the SIAC to be able to administer the arbitration. In such case, it is up to the Registrar to determine if the said objection should be referred to the Court.

If the Registrar decides that the said objection should be referred to the Court, it will then be up to the Court to decide if it is satisfied that, prima facie, the arbitration should proceed. If the Court is not satisfied that, prima facie, the arbitration should proceed, the arbitration will be terminated. The Tribunal, once constituted, can rule on its own jurisdiction.

The Tribunal can rule on its own jurisdiction. It can also rule on any objections regarding the existence, the validity or the scope of the said arbitration agreement.

It should be noted that if the said arbitration is part of a contract, the agreement will be treated as an independent agreement from the other terms of the contract.

Objections regarding the jurisdiction of the Tribunal must be raised by the Respondent in the Statement of Defence or by the Claimant in the Statement of Defence to a Counterclaim.

If the objection is that the Tribunal is exceeding the scope of the Tribunal’s jurisdiction, this must be raised within 14 days of the incident/ circumstance substantiating the allegation that the Tribunal is exceeding the scope of the Tribunal’s jurisdiction, arises in the course of the arbitral proceedings.

The Tribunal has the discretion of admitting the objection even if the objection is not raised within the timelines described above is the Tribunal is of the view that the delay was justified.

Such ruling by the Tribunal on the objection can be made by way of a preliminary question or by way of the Award on the merits of the case.


* 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 have any queries or require legal advice, please contact us at walter@silvesterlegal.com.