apcam arbitration rules

APCAM ARBITRATION RULES

WITHARBITRATION FEE SCHEDULE

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NOTES

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APCAM ARBITRATION RULESTABLE OF CONTENTS


Preamble 9

PART I – ARBITRATION

Rule 1 Scope and application 13Rule 2 Commencement of Arbitration 14Rule 3 Response to Request & Decision 15Rule 4 Notice and Calculation of

Periods of Time 17Rule 5 Number of Arbitrators 18Rule 6 Appointment of Sole Arbitrator 19Rule 7 Appointment of Three Arbitrators 20Rule 8 Challenge to the Arbitrators 22Rule 9 Seat, Venue and Language of

Arbitration 23Rule 10 Notifications; Time Limits and

Representation 24Rule 11 Case Management Procedure 25Rule 12 Interim Arbitral Tribunal

and Arb-Med-Arb Procedure 26Rule 13 Interim and Preliminary Reliefs 27Rule 14 Expedited Fast-track Procedure 29Rule 15 Consolidation of Proceedings and

Concurrent Hearings 30Rule 16 Facilities 31Rule 17 Arbitration Procedure 32Rule 18 Consultation on Evidentiary Issues 34Rule 19 Early Dismissal of Claims and

Defences 38Rule 20 Awards 39

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Rule 21 Interpretation, Correction orAdditional Award 40

Rule 22 Scrutiny of the Award 41Rule 23 Costs 42Rule 24 Fee and Deposits 42Rule 25 Mediation to Arbitration 43Rule 26 Confidentiality 43Rule 27 Exclusion of Liability and Waiver 44Rule 28 General Provisions 44Rule 29 Relationship with UNCITRAL

Arbitration Rules 46

PART II – UNCITRAL ARBITRATION RULES

Section I. Introductory Rules

Article 1 Scope of Application 49Article 2 Notice and Calculation of

Periods of Time 50Article 3 Notice of Arbitration 51Article 4 Response to the Notice of Arbitration 52Article 5 Representation and Assistance 54Article 6 Designating and Appointing Authorities54

Section II. Composition of the Arbitral Tribunal

Article 7 Number of Arbitrators 56Article 8 Appointment of Arbitrators

(Articles 8 to 10) 56Article 11 Disclosures by and Challenge of

Arbitrators (Articles 11 to 13) 59Article 14 Replacement of an Arbitrator 60Article 15 Repetition of Hearings in the event of

the Replacement of an Arbitrator 61Article 16 Exclusion of Liability 61

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Section III. Arbitral Proceedings

Article 17 General Provisions 62Article 18 Place of Arbitration 63Article 19 Language 63Article 20 Statement of Claim 64Article 21 Statement of Defence 65Article 22 Amendments to the Claim or Defence 66Article 23 Pleas as to the Jurisdiction of the

Arbitral Tribunal 66Article 24 Further Written Statements 67Article 25 Periods of Time 67Article 26 Interim Measures 68Article 27 Evidence 70Article 28 Hearings 70Article 29 Experts appointed by the

Arbitral Tribunal 71Article 30 Default 72Article 31 Closure of Hearings 73Article 32 Waiver of Right to Object 73

Section IV. The Award

Article 33 Decisions 74Article 34 Form and Effect of the Award 74Article 35 Applicable Law, Amiable Compositeur 75Article 36 Settlement or Other Grounds for

Termination 75Article 37 Interpretation of the Award 76Article 38 Correction of the Award 76Article 39 Additional Award 77Article 40 Definition of Costs 77Article 41 Fees and Expenses of Arbitrators 78Article 42 Allocation of Costs 80Article 43 Deposit of Costs 81Annex 82

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PART III – SCHEDULES

Schedule 1 Definitions 87Schedule 2 Emergency Arbitration 92Schedule 3 Arb-Med-Arb Procedure 99Schedule 4 Protocol on Online Arbitration 102Schedule 5 Seoul Protocol on Video Conferencing

in International Arbitration 107Schedule 6 IBA Guidelines on Conflicts of Interest

in International Arbitration 2014 117Schedule 7 International Arbitration Fee Schedule 148Schedule 8 Model Arbitration Clauses 153

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APCAM ARBITRATION RULESPREAMBLE

PREAMBLE

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ASIA-PACIFIC CENTRE FORARBITRATION AND MEDIATION (APCAM)

ARBITRATION RULES[w.e.f. 06 August 2020]

Preamble

APCAM Arbitration is based on the Arbitration Rulespublished by the Asia-Pacific Centre for Arbitration &Mediation (“APCAM”), which is intended to providemaximum flexibility to parties and ensure maximumefficacy in arbitration proceedings, aiding resolution ofdisputes quickly and economically through internationalarbitration.

APCAM Arbitration Rules are intended to provide effectivearbitration services through the use of administeredarbitration on global standards. The Rules attempts tobalance institutionalisation with party autonomy, so thatissues which deal with the legality and integrity ofproceedings are integrated within the Rules andconducted in a systematic way with efficientadministrative control. Being an international ADR centrehaving arbitration centres in various Asia-Pacificcountries, the APCAM Arbitration Rules aims to help thebusiness community to resolve their internationalcommercial and business disputes by arbitration under

ARBITRATION RULES - PREAMBLE

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a single set of Arbitration Rules governed by a uniformfee structure in all the constituent countries. The Rulesreflect the best practices and latest developments ininternational arbitration, which allow the procedure tobe as short and provides a cost structure andmanagement to keep the services cost-effective.UNCITRAL Arbitration Rules 2010 shall supplementthese Rules in relation to any issues not covered underthese Rules. If there is any discrepancy between theseRules and UNCITRAL Rules, these Rules shall prevail.The costs and expenses of arbitration will be governedby the Fee Schedule under the APCAM Arbitration Rules.

For administered arbitration by APCAM, there should bean APCAM arbitration clause in their contract or in theabsence of any such clause there should be anagreement between the parties to arbitrate under therespective arbitration clauses of the constituentinstitutional members of APCAM, as under theirarbitration rules.

Further information about APCAM services, rules andprocedures, please see the website www.apcam.asia.

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APCAM ARBITRATION RULESPART I

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Part - IARBITRATION

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APCAM ARBITRATION RULESPART I

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APCAM ARBITRATION RULESPART I | RULE 1

Part IARBITRATION

Rule 1Scope and application

(1) Where parties have agreed in writing to arbitratetheir disputes between them in respect of adefined legal relationship, whether contractual ornot, by the Asia-Pacific Centre For Arbitration AndMediation (hereinafter referred to as “APCAM”) orunder the Arbitration Rules of the Asia-PacificCentre For Arbitration And Mediation (hereinafterreferred to as “APCAM Arbitration Rules”), then —

(a) It is deemed that the parties have madethese Rules as part of their arbitrationagreement and such disputes shall besettled or resolved by arbitration inaccordance with the Rules and partiesshall be legally bound to comply with theseRules; and

(b) The arbitration shall be conducted andadministered by the APCAM in accordancewith the Rules.

(2) The Rules applicable to the arbitration shall bethose in force at the time of commencement ofthe arbitration unless the parties have agreedotherwise.

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(3) These Rules shall govern the arbitration exceptthat where any of these Rules are in conflict witha provision of the law applicable to the arbitrationfrom which the parties cannot derogate, thatprovision shall prevail.

(4) Nothing in these Rules shall prevent the partiesto a dispute or arbitration agreement from namingAPCAM as appointing authority, or from requestingcertain administrative services from APCAM,without subjecting the arbitration to these Rules.

(5) Definitions of specific terms used under the Rulesmay be referred to in Schedule-1.

Rule 2Commencement of Arbitration

(1) The party or parties initiating recourse toarbitration under the Rules shall be required tomake a Request for Arbitration to APCAM, whichshall include the following —

(a) The names, addresses, telephonenumbers and e-mail addresses of theparties and their counsel;

(b) The brief facts in dispute relied on bythe Claimant;

(c) The relief sought, including anestimate of the monetary value of theclaims;

(d) Copy or description of the arbitrationagreement or clause under which thedispute is to be resolved and Notice ofArbitration served on the Respondentand the Reply to the Notice ofArbitration received from theRespondent, if any;

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(e) Comments on the number ofarbitrators and the seat of arbitration;and

(f) If applicable, the name, address,telephone number and e-mailaddress of the arbitrator appointed bythe Claimant.

(2) Upon filing the Request for Arbitration, theClaimant shall pay the appropriate registration/filing fee as provided in the APCAM ArbitrationFee Schedule, in force on the date of filing ofthe Request.

(3) If the registration/ filing fee is not paid uponfiling the Request for Arbitration, APCAM shallset a time period within which the Claimant shallpay the fee. If the fee is not paid within this timeperiod, APCAM shall dismiss the Request forArbitration.

(4) The date of receipt of Notice of Arbitration by theRespondent shall be deemed to be thecommencement of arbitration.

(5) The date of acceptance by APCAM of theRequest for Arbitration, complete with all theaccompanying documentation and theappropriate filing fee and verification that thesubmission is proper, shall be treated as thedate on which the institutional arbitration hascommenced for all purposes under theseRules.

Rule 3Response to Request and Decision

(1) APCAM shall send a copy of the Request forArbitration and any attached documents to the

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Respondent. APCAM shall set a time period offifteen days within which the Respondent shallsubmit a Response to the Request to APCAM.

(2) The Response to the Request, shall includethe following —

(a) Any objections concerning theexistence, validity or applicability of thearbitration agreement; however, failureto object shall not preclude theRespondent from raising suchobjections at any time up to andincluding the submission of theStatement of Defence;

(b) A preliminary statement of anycounterclaim or set-off and thegrounds on which it is based,including an estimate of the monetaryvalue thereof;

(c) Comments on the number ofarbitrators and the seat of arbitration;and

(d) If applicable, the name, address,telephone number and e-mailaddress of the arbitrator appointed bythe Respondent.

(3) If APCAM receives a Response as per sub-rule(2), it shall be sent to the Claimant and theClaimant may be given an opportunity to submitcomments on the Response, having regard tothe circum-stances of the case, within a periodof seven days.

(4) APCAM may request further details from eitherparty regarding the Request or Response,having regard to the circum-stances of the case.

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(5) If the Claimant fails to comply with a request forfurther details, APCAM may dismiss the case.

(6) Failure by the Respondent to submit aResponse as per sub-rule (2) or (4) shall notprevent the arbitration from proceeding.

(7) Based on the Request, Response or any furtherdetails, APCAM shall take a decision to proceedwith arbitration or if APCAM manifestly lacksjurisdiction over the dispute, dismiss theRequest.

Rule 4Notice and Calculation of Periods of Time

(1) A notice, including a notification, communicationor proposal, may be transmitted by any means ofcommunication including electroniccommunications that provides or allows for arecord of its transmission.

(2) If an address has been designated by a partyspecifically for this purpose or authorized by thearbitral tribunal, any notice shall be delivered tothat party at that address, and if so delivered shallbe deemed to have been received. Delivery byelectronic means such as facsimile or e-mail orother similar means may only be made to anaddress so designated or authorized.

(3) In the absence of such designation orauthorization, a notice is —

(a) Received if it is physically delivered to theaddressee; or

(b) Deemed to have been received if it isdelivered at the place of business, habitualresidence or mailing address of theaddressee.

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(4) If, after reasonable efforts, delivery cannot beeffected in accordance with sub-rules (2) or (3), anotice is deemed to have been received if it issent to the addressee’s last-known place ofbusiness, habitual residence or mailing addressby registered letter or any other means thatprovides a record of delivery or of attempteddelivery.

(5) A notice shall be deemed to have been receivedon the day it is delivered in accordance with sub-rules (2), (3) or (4), or attempted to be delivered inaccordance with sub-rule (4). A notice transmittedby electronic means is deemed to have beenreceived on the day it is sent, except that a noticeof arbitration so transmitted is only deemed tohave been received on the day when it reachesthe addressee’s electronic address.

(6) For the purpose of calculating a period of timeunder these Rules, such period shall begin torun on the day following the day when a notice isreceived. If the last day of such period is an officialholiday or a non-business day at the residenceor place of business of the addressee, the periodis extended until the first business day whichfollows. Official holidays or non-business daysoccurring during the running of the period of timeare included in calculating the period.

Rule 5Number of Arbitrators

(1) Where the parties have agreed to the Rules,APCAM shall be the Appointing Authority.

(2) Parties are free to determine the number ofarbitrators (either one or three) subject to the lawgoverning the arbitration.

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(3) In general, the dispute under these Rules shallbe decided by a sole arbitrator unless, otherwiseagreed by the parties.

(4) A dispute shall be decided by three arbitrators ifthe parties have agreed to do so or APCAM, in theabsence of an agreement between the parties,taking into account the parties’ intentions, theamount in question, the complexity or otherrelevant factors of the dispute, considers itappropriate to appoint three arbitrators.

(5) Notwithstanding sub-rule (4), if no other partieshave responded to a party’s proposal to appointan arbitrator in accordance with Rules 5 and 6,APCAM may, at the request of a party, appoint asole arbitrator pursuant to the procedure providedfor in Rule 5, if it determines that, in view of thecircumstances of the case, that would be moreappropriate.

Rule 6Appointment of Sole Arbitrator

(1) If the parties have agreed that a sole arbitrator isto be appointed and if within twenty-one days afterreceipt by all other parties of a proposal for theappointment of a sole arbitrator the parties havenot reached agreement thereon, a sole arbitratorshall, at the request of a party, be appointed byAPCAM.

(2) APCAM shall appoint the sole arbitrator aspromptly as possible and at any rate within aperiod of twenty-one days. In making theappointment, APCAM shall use the following list-procedure, unless the parties agree that the list-procedure should not be used or unless APCAMdetermines in its discretion that the use of thelist-procedure is not appropriate for the case:

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(a) APCAM shall communicate to each of theparties an identical list containing at leastthree names;

(b) Within fourteen days after the receipt of thislist, each party may return the list to APCAMafter having deleted the name or names towhich it objects and number the remainingnames on the list in the order of itspreference;

(c) After the expiration of the above period oftime APCAM shall appoint the sole arbitratorfrom among the names approved on thelists returned to it and in accordance withthe order of preference indicated by theparties;

(d) If for any reason the appointment cannotbe made according to this procedure,APCAM may exercise its discretion inappointing the sole arbitrator however thesole arbitrator shall not be a national ofany party to the dispute.

Rule 7Appointment of Three Arbitrators

(1) If three arbitrators are to be appointed, each partyshall appoint, in the Notice of Arbitration and theReply to the Notice of Arbitration, respectively, onearbitrator.

(2) If within twenty-one days after the receipt of aparty’s notification of the appointment of anarbitrator the other party has not notified the first

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party of the arbitrator it has appointed, the firstparty may request APCAM to appoint the secondarbitrator and APCAM shall appoint the secondarbitrator by exercising its discretion, withinfourteen days.

(3) After appointment of the two arbitrators, thepresiding arbitrator shall be appointed by APCAMin consultation with the two arbitrators, and if noconsensus is reached within twenty-one days, thepresiding arbitrator shall be appointed in thesame way as a sole arbitrator would be appointedunder Rule 5.

(4) Where three arbitrators are to be appointed andthere are multiple parties as Claimant or asRespondent, unless the parties have agreed toanother method of appointment of arbitrators, themultiple parties jointly, whether as Claimant oras Respondent, shall appoint one arbitrator each.

(5) If the parties have agreed that the arbitral tribunalis to be composed of a number of arbitrators otherthan one or three, the arbitrators shall beappointed according to the method agreed uponby the parties.

(6) In the event of any failure to constitute the arbitraltribunal as agreed by the parties, APCAM shall, atthe request of any party, constitute the arbitraltribunal and, in doing so, may revoke anyappointment already made and appoint orreappoint each of the arbitrators and designateone of them as the presiding arbitrator.

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Rule 8Challenge to the Arbitrators

(1) When a person is approached in connection withhis or her possible appointment as an arbitrator,he or she shall disclose any circumstances likelyto give rise to justifiable doubts as to his or herimpartiality or independence. An arbitrator, fromthe time of his or her appointment and throughoutthe arbitral proceedings, shall without delaydisclose any such circumstances to the partiesand the other arbitrators unless they have alreadybeen informed by him or her of thesecircumstances.

(2) Any arbitrator may be challenged if circumstancesexist that give rise to justifiable doubts as to thearbitrator’s impartiality or independence.

Explanation — The grounds given in the “IBAGuidelines on Conflicts of Interest in InternationalArbitration” shall guide in determining whethercircumstances exist which give rise to justifiabledoubts as to the independence or impartiality ofan arbitrator or whether such person is ineligibleto become an arbitrator.

(3) A party may challenge the arbitrator appointed byit only for reasons of which it becomes aware afterthe appointment has been made.

(4) In the event that an arbitrator fails to act or in theevent of the de jure or de facto impossibility of hisor her performing his or her functions, theprocedure in respect of the challenge of anarbitrator as provided in sub-rules (1), (2) and (3)shall apply.

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(5) A party that intends to challenge an arbitrator shallsend notice of its challenge within fifteen daysafter it has been notified of the appointment of thechallenged arbitrator, or within fifteen days afterthe circumstances mentioned in sub-rules (1),(2) and (3) became known to that party.

(6) The notice of challenge shall be communicatedto all other parties, to the arbitrator who ischallenged and to the other arbitrators. The noticeof challenge shall state the reasons for thechallenge.

(7) When an arbitrator has been challenged by a party,all parties may agree to the challenge. Thearbitrator may also, after the challenge, withdrawfrom his or her office. In neither case does thisimply acceptance of the validity of the grounds forthe challenge.

(8) If, within fifteen days from the date of the notice ofchallenge, all parties do not agree to the challengeor the challenged arbitrator does not withdraw,the party making the challenge may elect topursue it. In that case, within twenty-one days fromthe date of the notice of challenge, it shall seek adecision on the challenge by the APCAM.

(9) Upon such withdrawal or sustainment of thechallenge, the substitute arbitrator shall beappointed in accordance with the procedureprovided in Rules 6 and 7, as the case may be.

Rule 9Seat, Venue and Language of Arbitration

(1) The parties may agree on the seat of arbitration.Failing such agreement, the seat of arbitrationshall be determined by the arbitral tribunal having

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regard to the circumstances of the case. Theaward shall be deemed to have been made at theseat of arbitration.

(2) The parties may agree on the applicable law tobe applied by the arbitral tribunal in the resolutionof the dispute. Failing such agreement, theapplicable law shall be determined by the arbitraltribunal having regard to the seat of arbitrationand circumstances of the case.

(3) The venue of arbitration may be fixed by APCAM,as it considers appropriate for deliberations andhearings. The arbitration shall nonetheless beconsidered for all purposes as an arbitrationconducted at the seat.

(4) The parties may agree on the language ofarbitration. Failing such agreement, the arbitraltribunal or APCAM shall determine the languageor languages of the arbitration and its conduct,having due regard to all relevant circumstancesof the case, including the language of theagreement and the language suitable to theparties to the agreement.

Rule 10Notifications; Time Limits and Representation

(1) All pleadings and other written communicationssubmitted by any party, as well as all documentsannexed thereto, shall be filed in sufficientnumbers to provide one copy for each arbitrator(s),and to all other parties and one for APCAM. If theparty has served the copy to the other parties, thenthe party shall file such documents/confirmationto APCAM that the copies have been served on allother parties to the arbitration by such means ofservice to be identified in such confirmation.

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(2) A copy of any communication to or from the ArbitralTribunal by or to the parties shall be sent toAPCAM.

(3) If the circumstances of the case so justify and forsufficient reasons, APCAM may amend the timelimits provided for in these Rules, as well as anytime limits that it has set. APCAM shall not amendany time limits set by the Arbitral Tribunal unlessit directs otherwise.

(4) The time periods established in this Rules are tobe strictly enforced and a Party’s untimely Claim,Response, Request, Demand, Notice orSubmission may be denied solely because it isuntimely.

(5) The parties may be represented or assisted by acounsel/ consultant/ adviser of their choice. Theparties shall confer upon such advisers thenecessary authority to represent them in thearbitral proceedings and file such authority beforeAPCAM.

Provided, the arbitral tribunal or APCAM, may atany time after the commencement of thearbitration, require proof of authority of any party’scounsel/ consultant/ adviser or any participant, ifit deems fit.

(6) If any of the parties are not able to be presentpersonally, they can be represented through theirauthorised persons or power of attorney holders.

Rule 11Case Management Procedure

(1) After the constitution of the arbitral tribunal, APCAMshall notify the arbitral tribunal about itsconstitution.

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(2) A meeting would be convened by APCAM or thesole arbitrator or the President of the arbitraltribunal as the case may be to discuss proceduralmatters.

(3) The Case Management Procedure will befinalised, in consultation with the parties. Thenormal time-frame would be as follows —

(a) For filing Claim statement by the claimant:Twenty-one days

(b) For filing Statement of defence and counterclaim, if any by the respondent: Twenty-onedays

(c) For filing Reply and statement of defence,if any by the claimant: Fifteen days

(d) For filing Rejoinder, if any by the respondent:Fifteen days

The case management time frame shall beextended only in exceptional circumstances.

Rule 12Interim Arbitral Tribunal(“Emergency Arbitrator”) and Arb-Med-ArbProcedure (“AMA Procedure”)

(1) A party in need of emergency interim relief mayappoint an Emergency Arbitrator pursuant to theprocedures set forth in Schedule-2. TheApplication under Schedule-2 may, in addition toemergency interim relief, include a request tosubmit the case to mediation according to theAMA Procedure under Schedule-3.

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(2) Where a party invokes the AMA Procedure underSchedule-3 of the Rules, an Emergency Arbitratorshall be appointed to commence with theprocedure so provided under said Schedule.

Rule 13Interim and Preliminary Reliefs

(1) A party may anytime during the arbitrationproceedings, apply to the Emergency Arbitrator orthe arbitral tribunal for any interim relief, by which,at any time prior to the issuance of the award bywhich the dispute is finally decided, the arbitraltribunal orders a party to —

(a) Maintain or restore the status quo pendingdetermination of the dispute;

(b) Take action that would prevent, or refrainfrom taking action that is likely to cause,current or imminent harm or prejudice tothe arbitral process itself;

(c) Provide a means of preserving assets outof which a subsequent award may besatisfied; or

(d) Preserve evidence that may be relevant andmaterial to the resolution of the dispute.

(2) A party may, without notice to any other party, makea request for an interim measure as under sub-rule (1), together with an application for apreliminary order directing a party not to frustratethe purpose of the interim measure requested.

(3) The emergency arbitrator or the arbitral tribunalmay grant a preliminary order only if it considers

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that prior disclosure of the request for the interimmeasure to the party against whom it is directedrisks frustrating the purpose of the measure.

Provided, the emergency arbitrator or the arbitraltribunal shall require the party applying for apreliminary order to provide security in connectionwith the order unless the emergency arbitrator orthe arbitral tribunal considers it inappropriate orunnecessary to do so.

Provided further that, immediately after theemergency arbitrator or the arbitral tribunalpasses a preliminary order, the emergencyarbitrator or the arbitral tribunal shall give noticeto all parties of the request for the interim measure,along with the copy of the application for thepreliminary order, the preliminary order, if any, andall other communications, between any party andthe emergency arbitrator or the arbitral tribunal inrelation thereto.

(4) If an order is passed under sub-rule (3), theemergency arbitrator or the arbitral tribunal shallgive an opportunity to any party against whom apreliminary order is directed to present its caseat the earliest practicable time and shall decidepromptly on any objection to the preliminary order.

(5) A preliminary order passed under sub-rule (3)shall expire after twenty days from the date onwhich it was issued. However, the emergencyarbitrator or the arbitral tribunal may issue aninterim measure adopting or modifying thepreliminary order, after the party against whomthe preliminary order is directed has been givennotice and an opportunity to present its case.

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Rule 14Expedited Fast-track Procedure

(1) Prior to the full constitution of the arbitral tribunal,a party may apply to APCAM in writing for the arbitralproceedings to be conducted in accordance withthe Expedited Fast-track Procedure under thisRule, where any of the following criteria is satisfied—

(a) The amount in the dispute does not exceedthe equivalent of US$ One million only,representing the aggregate of the claim,counterclaim and any set-off defence; or

(b) The parties so agree.

(2) When a party has applied to APCAM under sub-rule (1), and when APCAM determines, afterconsidering the views of the parties, that thearbitral proceedings shall be conducted inaccordance with the Expedited Fast-trackProcedures, the following procedures shall apply—

(a) APCAM may abridge any time limits underthese Rules;

(b) The case shall be referred to a solearbitrator, unless APCAM determinesotherwise;

(c) Unless the parties agree that the disputeshall be decided on the basis ofdocumentary evidence only, the arbitraltribunal shall hold a hearing for theexamination of all witnesses as well as forany argument;

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(d) APCAM shall determine the time for makingthe award, considering the case at handbut, not exceeding 6 months, unless, inexceptional circumstances, APCAMextends the time for a period not exceedinga further period of 3 months; and

(e) The arbitral tribunal shall state the reasonsupon which the award is based in summaryform, unless the parties have agreed thatno reasons are to be given.

Rule 15Consolidation of Proceedings and ConcurrentHearings

(1) At the request of a party, APCAM may decide toconsolidate a newly commenced arbitrationwith a pending arbitration, if:

(a) The parties agree to consolidate;

(b) All the claims are made under thesame arbitration agreement; or

(c) Where the claims are made undermore than one arbitration agreement,the relief sought arises out of the sametransaction or series of transactionsand APCAM considers the arbitrationagreements to be compatible.

(2) In deciding whether to consolidate, APCAM shallconsult with the parties and the Arbitral Tribunaland shall have regard to:

(a) The stage of the pending arbitration;

(b) The efficiency and expeditiousness ofthe proceedings; and

(c) Any other relevant circumstances.

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(3) Where APCAM decides to consolidate, APCAMmay release any Arbitrator already appointed.

(4) The parties may agree to have concurrenthearings of different arbitration proceedings, if:

(a) If the Arbitral Tribunal of differentarbitration proceedings are the same;

(b) If the claims made in the differentarbitration proceedings arise underthe same arbitration agreement; or

(c) If the claims are made under more thanone arbitration agreement, the reliefsought arises out of the sametransaction or series of transactions.

(5) In deciding whether to have concurrenthearings, the Arbitral Tribunal shall consult withthe parties and APCAM and shall have regardto:

(a) The stage of the pending arbitrationsin different proceedings;

(b) The efficiency and expeditiousness ofconcurrent hearing; and

(c) Any other relevant circumstances.

Rule 16Facilities

APCAM shall, at the request of the emergency arbitratoror the arbitral tribunal or either party, make available, orarrange for, such facilities and assistance for the conductof the arbitral proceedings as may be required, includingsuitable accommodation for sittings of the arbitraltribunal, secretarial assistance, transcription services,video conferencing and interpretation facilities.

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Rule 17Arbitration Procedure

(1) The arbitral tribunal may conduct the arbitrationin such manner as it considers appropriateprovided that the parties are treated with equalityand that at an appropriate stage of theproceedings each party is given a reasonableopportunity of presenting its case. The arbitraltribunal, in exercising its discretion, shall conductthe proceedings so as to avoid unnecessary delayand expense and to provide a fair and efficientprocess for resolving the parties’ dispute.

(2) If at an appropriate stage of the proceedings anyparty so requests, the arbitral tribunal shall holdhearings for the presentation of evidence bywitnesses, including expert witnesses, or for oralargument. In the absence of such a request, thearbitral tribunal shall decide whether to hold suchhearings or whether the proceedings shall beconducted on the basis of documents and othermaterials.

(3) At the end of evidentiary hearings and/or as thecase may be, oral submissions, the arbitraltribunal may inquire of the parties if they have anyfurther proof to offer or witnesses, includingexperts whether appointed by parties or thearbitral tribunal as the case may be, to be heardor submissions to make and, if there are none, itmay declare the hearings closed.

Explanation – The arbitral tribunal may, if itconsiders it necessary owing to exceptionalcircumstances, decide, on its own initiative orupon application of a party, to reopen the hearingsat any time before the award is made.

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(4) Except in the case of fast-track arbitration, thearbitral tribunal shall complete the arbitralprocess, within 9 months from the date ofreference, unless, in exceptional circumstances,APCAM extends the time for a period not exceedinga further period of 3 months.

(5) If an arbitrator is replaced, the proceedings shallresume at the stage where the arbitrator who wasreplaced ceased to perform his or her functions,unless the arbitral tribunal decides otherwise.

(6) A party can opt to initiate and/or conduct thearbitration process in the following matters, inconsultation with APCAM —

(a) In the case of Emergency Arbitration orArbitration under the AMA Procedure, interimor preliminary measures, fi l ings andconducting of sessions; or

(b) In the case of Fast-track arbitration, forcommencement of arbitration,appointment of arbitrators and filing ofapplications. For other processes, theparties can agree with the consent of thearbitral tribunal, at any stage of anarbitration proceedings to opt procedurescomprising both online and offl ineelements; or

(c) In the case of regular arbitration, forcommencement of arbitration and filing ofapplications. For other processes, theparties can agree with the consent of thearbitral tribunal, at any stage of anarbitration proceedings to opt procedurescomprising both online and offl ineelements.

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(7) In case the parties or the arbitral tribunal deemsfit, hearing may be conducted via videoconferencing or other electronic means and insuch cases the arbitral tribunal shall adopt theprotocol as under Schedule 4 and as under theSeoul Protocol on Video Conferencing.

Rule 18Consultation on Evidentiary Issues

(1) Each party shall have the burden of proving thefacts relied on to support its claim or defence.

(2) The arbitral tribunal shall consult the parties atthe earliest appropriate time in the arbitralproceedings and invite them to consult each otherwith a view to agreeing on an efficient, economicaland fair process for the taking of evidence.

(3) The consultation on evidentiary issues mayaddress the scope, timing and manner of thetaking of evidence, including —

(a) The preparation and submission ofwitness statements and expert reports;

(b) The taking of oral testimony at anyevidentiary hearing;

(c) The requirements, procedure and formatapplicable to the production of documents;

(d) The level of confidentiality protection to beafforded to evidence in the arbitration; and

(e) The promotion of efficiency, economy andconservation of resources in connectionwith the taking of evidence.

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(4) The arbitral tribunal is encouraged to identify tothe parties, as soon as it considers it to beappropriate, any issues:

(a) That the arbitral tribunal may regard asrelevant to the case and material to itsoutcome; and / or

(b) For which a preliminary determination maybe appropriate.

(5) Within the time ordered by the arbitral tribunal,each party shall identify the witnesses on whosetestimony it intends to rely and the subject matterof that testimony.

(6) Any person may present evidence as a witness,including a party or a party’s officer, employee orother representative.

(7) The arbitral tribunal may order each party tosubmit within a specified time to the arbitraltribunal and to the other party’s witnessstatements by each witness on whose testimonyit intends to rely.

(8) Each witness statement shall contain —

(a) The full name and address of the witness,a statement regarding his or her presentand past relationship (if any) with any ofthe parties, and a description of his or herbackground, qualifications, training andexperience, if such a description may berelevant to the dispute or to the contents ofthe statement;

(b) A full and detailed description of the facts,and the source of the witness’s information

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as to those facts, sufficient to serve as thatwitness’s evidence in the matter in dispute.Documents on which the witness relies thathave not already been submitted shall beprovided;

(c) A statement as to the language in whichthe witness statement was originallyprepared and the language in which thewitness anticipates giving testimony at theevidentiary hearing;

(d) An affirmation of the truth of the witnessstatement; and

(e) The signature of the witness and its dateand place.

(9) A party may rely on an expert appointed by it (“party-appointed expert”) as a means of evidence onspecific issues. Within the time ordered by thearbitral tribunal —

(a) Each party shall identify any party-appointedexpert on whose testimony it intends to relyand the subject-matter of such testimony;and

(b) The party-appointed expert shall submit anexpert report.

(10) Any party may, with the prior approval of the arbitraltribunal. submit to the arbitral tribunal and to theother parties revised or additional witnessstatements, including statements from personsnot previously named as witnesses or experts.

(11) Within the time ordered by the arbitral tribunal,each party shall inform the arbitral tribunal and

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the other parties of the witnesses or expertswhose appearance it requests. Each witness orexpert shall appear for testimony at the evidentiaryhearing if such person’s appearance has beenrequested by any party or by the arbitral tribunal.

(12) The arbitral tribunal may request any person togive oral or written evidence on any issue that thearbitral tribunal considers to be relevant to thecase and material to its outcome. Any witness orexpert called and questioned by the arbitral tribunalmay also be questioned by the parties.

(13) If a witness or expert whose appearance has beenrequested pursuant to sub-rule (11) fails withouta valid reason to appear for testimony at anevidentiary hearing, the arbitral tribunal shalldisregard any witness statement or expert reportrelated to that evidentiary hearing by that witnessunless, in exceptional circumstances, the arbitraltribunal decides otherwise.

(14) If a party wishes to present evidence from a personwho will not appear voluntarily at its request, theparty may, within the time ordered by the arbitraltribunal, ask it to take whatever steps are legallyavailable to obtain the testimony of that person,or seek leave from the arbitral tribunal to take suchsteps itself. The arbitral tribunal shall decide onthis request and shall take, authorize therequesting party to take or order any other party totake, such steps as the arbitral tribunal considersappropriate.

Explanation —This Rules is applicable on expertsappointed by the arbitral tribunal as well as the parties.

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Rule 19Early Dismissal of Claims and Defences

(1) A party may apply to the Arbitral Tribunal to decideby way of summary procedure, withoutnecessarily undertaking every procedural stepthat might otherwise be adopted for the arbitration,on the basis that —

(a) A claim or defence is manifestly withoutlegal merit; or

(b) A claim or defence is manifestlyoutside the jurisdiction of the arbitraltribunal.

Explanation – An application under sub-rule (1)can be filed on the same grounds raised by anyparty, in spite of a decision already rendered byAPCAM under Rule 3(7).

(2) An application for the early dismissal of a claimor defence under sub-rule (1) shall state in detailthe facts and legal basis supporting theapplication. The party applying for early dismissalshall, at the same time as it files the applicationwith the arbitral tribunal, send a copy of theapplication to the other party, and shall notify thearbitral tribunal that it has done so, specifying themode of service employed and the date of service.

(3) The arbitral tribunal may, in its discretion, allowthe application for the early dismissal of a claimor defence under sub-rule (1) to proceed. If theapplication is allowed to proceed, the arbitraltribunal shall, after giving the parties theopportunity to be heard, decide whether to grant,in whole or in part, the application for earlydismissal under sub-rule (1).

(4) In determining whether to grant a request forsummary procedure, the arbitral tribunal shall

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have regard to all relevant circumstances,including the extent to which the summaryprocedure contributes to a more efficient andexpeditious resolution of the dispute.

(5) If the application is allowed to proceed, the arbitraltribunal shall make an order or Award on theapplication, with reasons, which may be insummary form. The order or Award shall be madewithin sixty days of the date of filing of theapplication, unless, in exceptional circumstances,APCAM extends the time.

Rule 20Awards

(1) The arbitral tribunal shall render its final awardwithin a period which is limited to forty-five days.Such time limit shall start to run from the date ofthe closing of final oral or written submissions.The arbitral tribunal shall inform APCAM of suchdate.

(2) Such time limit may be extended by the arbitraltribunal with the consent of the parties and uponconsultation with APCAM, in exceptionalcircumstances, but not exceeding a further periodof forty-five days.

(3) The arbitral tribunal shall deliver the completedaward to APCAM. The award shall only bereleased to the parties upon full settlement of thecosts of arbitration.

(4) APCAM shall notify the parties of its receipt of theaward from the arbitral tribunal. The award shallbe deemed to have been received by the partiesupon collection by hand by an authorisedrepresentative or upon delivery by registered mailor by secure electronic means.

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(5) In the event the parties reach a settlement afterthe commencement of the arbitration, the arbitraltribunal shall, if so requested by the parties, recordthe settlement in the form of an award made byconsent of the parties. If the parties do not requirea consent award, the parties shall inform APCAMthat a settlement has been reached. Thearbitration shall only be deemed to be concluded,and the arbitral tribunal to be discharged, onlyupon full payment of the costs of arbitration.

(6) By agreeing to arbitration under these Rules, it isagreed that the award shall be final and bindingon the parties from the date it is made. The partiesundertake to carry out the award immediately andwithout delay.

(7) Unless the parties have agreed otherwise, thearbitral tribunal may —

(a) Award interest on any sum of moneyordered to be paid by the award on thewhole or any part of the period between thedate on which the cause of action aroseand to the date of realisation of the award;and

(b) Determine the rate of interest.

Rule 21Interpretation, Correction or Additional Award

(1) Within fifteen days after the receipt of the award, aparty, with notice to the other parties, may requestthat the arbitral tribunal give an interpretation ofthe award. The interpretation shall be given inwriting that shall form part of the award.

(2) Within fifteen days after the receipt of the award, aparty, with notice to the other parties, may requestthe arbitral tribunal to correct in the award anyerror in computation, any clerical or typographical

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error, or any error or omission of a similar nature.The arbitral tribunal may also make suchcorrections on its own initiative. Such correctionsshall be in writing and shall form part of the award.

(3) Within fifteen days after the receipt of the award, aparty, with notice to the other parties, may requestthe arbitral tribunal to make an additional awardas to claims presented in the arbitral proceedingsbut not decided by the arbitral tribunal. Suchadditional award shall be in writing and shall formpart of the award.

(4) The arbitral tribunal shall make the interpretationor correction or additional award, if so justified,within a period of thirty days after the receipt ofsuch request.

Rule 22Scrutiny of the Award

(1) If so agreed by the parties, APCAM shall notify aScrutiny Board, consisting of one or more legalexperts or senior arbitrators and before signingany award, the arbitral tribunal shall submit theaward in draft form to APCAM.

Explanation — In case the parties cannot agreein the number of members of the Scrutiny Board,the number shall be one.

(2) The draft award would be submitted to the ScrutinyBoard and they may lay down modifications as tothe form of the award and, without affecting thearbitral tribunal’s liberty of decision, may also drawits attention to points of substance.

(3) The Scrutiny Board shall return the award withcomments within fifteen days from the date ofsubmission to APCAM and APCAM shallimmediately forward the same to the arbitraltribunal.

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Rule 23Costs

(1) The arbitral tribunal shall fix the costs of arbitrationas per the APCAM Arbitration Fee Schedule.

(2) If the arbitration is abandoned, suspended orconcluded, by agreement or otherwise, before thefinal award is made, the parties shall be jointlyand severally liable to pay the costs of thearbitration as determined by the arbitral tribunal.In that event, if the costs so determined are lessthan the deposits made, there shall be a refundin such proportions as the parties may agree, orfailing agreement, in the same proportions as thedeposits were made.

Rule 24Fee and Deposits

(1) Subsequent to the commencement of arbitrationprocess, APCAM shall fix a provisional advancedeposit in an amount intended to cover the costsof the arbitration. Any such provisional advancedeposit shall be paid by the parties in equalshares and will be considered as a partialpayment by the parties of any deposits of costs.

(2) The fees of the arbitral tribunal shall be fixed byAPCAM in accordance with the APCAM ArbitrationFee Schedule, unless otherwise agreed by theparties and the arbitral tribunal and informed toAPCAM within a period of fifteen days from thedate of reference.

(3) The administrative costs of the arbitration shallbe fixed by APCAM in accordance with the APCAMArbitration Fee Schedule.

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(4) The term “costs” as specified in Rule 23 shallinclude the expenses reasonably incurred byAPCAM in connection with the arbitration, theadministrative costs, as well as the costs of thefacilities made available by APCAM under Rule16.

(5) APCAM may direct each party to deposit an equalamount as an advance of the costs referred to inRule 23, as per the payment schedule mentionedin the APCAM Arbitration Fee Schedule.

(6) During the course of the arbitration proceedings,APCAM may request supplementary depositsfrom the parties.

(7) In the event that orders under sub-rules (1), (5) or(6) are not complied with, the Tribunal may refuseto hear the claims or counterclaims by the non-complying party, although it may proceed todetermine claims or counterclaims by complyingparties.

Rule 25Mediation to Arbitration

Where the parties have referred their dispute to mediationunder APCAM Mediation Rules and they have failed toreach a settlement and thereafter proceed to arbitrationunder the Rules, then one-half of the administrative feepaid to APCAM for the mediation proceedings shall becredited towards the administrative fee of the arbitration.

Rule 26Confidentiality

(1) The arbitral tribunal, the parties, all experts, allwitnesses and the Administrator and other staffof APCAM shall keep confidential all mattersrelating to the arbitral proceedings including anyaward except where disclosure is necessary for

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purposes of implementation and enforcement orto the extent that disclosure may be required of aparty by legal duty, to protect or pursue a legalright or to challenge an award in bona fide legalproceedings before a court or other judicialauthority.

(2) For the purpose of sub-rule (1), “matters relatingto the proceedings” means the existence of theproceedings, and the pleadings, evidence andother materials in the arbitration proceedings andall other documents produced by another party inthe proceedings or the award arising from theproceedings, but excludes any matter that isotherwise in the public domain.

Rule 27Exclusion of Liability and Waiver

(1) Neither APCAM nor the arbitral tribunal shall beliable to any party for any act or omission relatedto the conduct of the arbitral proceedings.

(2) The parties and the arbitral tribunal agree thatstatements or comments whether written or oralmade in the course of the arbitral proceedingsshall not be relied upon to institute or commenceor maintain any action for defamation, libel,slander or any other complaint.

(3) A party who knows that any provision of, orrequirement under, these Rules has not beencomplied with and yet proceeds with the arbitrationwithout promptly stating its objection to such non-compliance, shall be deemed to have waived itsright to object.

Rule 28General Provisions

(1) Under these Rules a decision to be taken byAPCAM, shall be taken by the Administrator. The

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Administrator may, if required delegate such ofits duties and functions to a Registrar and theRegistrar may decide such issues so specificallyauthorized by the Administrator.

(2) The Administrator shall issue a certified copy ofany document filed in the proceedings, if a partyseeks for the same.

(3) APCAM may destroy all documents served on itpursuant to the Rules after the expiry of a periodof two years after the date of the lastcorrespondence received by APCAM relating tothe arbitration.

(4) The Fee structure under the Rules shall be feepublished by APCAM in the APCAM Arbitration FeeSchedule as on the date of submission ofarbitration. The current fee schedule of APCAM,mentioned in Schedule-7, may be modified andnotified by APCAM from time to time or publishedin its official web site.

(5) Any of the above procedures may be altered bythe Administrator, in his sole discretion, to fit thecircumstances of a particular case. Any matter notspecifically addressed by these rules, or anyconflict or ambiguity in these rules, will be decidedby the Administrator. The Administrator, in his solediscretion, has authority to prepare forms, resolveprocedural disputes, impose time limits on theparties, and otherwise require a party to take actionor refrain from taking action.

(6) In the case of arbitration referred by other ADRInstitutions or in the case of administration ofarbitration of disputes which is to be jointlyadministered by APCAM and any other institution,the rules, including the fee schedule may bedecided by APCAM jointly with the other institution.

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(7) In case of domestic arbitration, where the partieshave adopted the APCAM Rules, the parties havedeemed to agree to conduct the domesticarbitration as per the Domestic Arbitration Rulesof the APCAM constituent institution member inthe respective country.

(8) APCAM shall have the power and authority toeffectuate the purposes of these Rules, includingestablishing appropriate rules and proceduresgoverning arbitrations and altering, amending ormodifying these Rules in accordance with theapplicable law.

(9) All decisions taken by APCAM in the matter ofprima-facie jurisdiction, lack of jurisdiction,administrative matters, time-frames andinstitutional matters under these Rules are finaland binding on the parties.

(10) In all matters not expressly provided for in theseRules, APCAM, the arbitral tribunal and the partiesshall act in the spirit of these Rules and shallmake every reasonable effort to ensure that anyaward is legally enforceable.

(11) In the event a court of competent jurisdiction findsany portion of these Rules to be in violation of anylaw in force or otherwise unenforceable, thatportion shall not be effective and the remainder ofthe Rules shall remain effective.

Rule 29Relationship with UNCITRAL Arbitration Rules

UNCITRAL Arbitration Rules 2010 (Part-II) shallsupplement these Rules in relation to any issues notcovered under these Rules. If there is any discrepancybetween these Rules and UNCITRAL Rules, theseRules shall prevail.

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Part - IIUNCITRAL ARBITRATION RULES

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APCAM ARBITRATION RULESPART II

Part IIUNITRAL ARBITRATION RULES

(As revised in 2010)

Section I. Introductory Rules

Scope of ApplicationArticle 1

1. Where parties have agreed that disputes betweenthem in respect of a defined legal relationship,whether contractual or not, shall be referred toarbitration under the UNCITRAL Arbitration Rules,then such disputes shall be settled in accordancewith these Rules subject to such modification asthe parties may agree.

2. The parties to an arbitration agreement concludedafter 15 August 2010 shall be presumed to havereferred to the Rules in effect on the date ofcommencement of the arbitration, unless theparties have agreed to apply a particular versionof the Rules. That presumption does not applywhere the arbitration agreement has beenconcluded by accepting after 15 August 2010 anoffer made before that date.

3. These Rules shall govern the arbitration exceptthat where any of these Rules is in conflict with aprovision of the law applicable to the arbitrationfrom which the parties cannot derogate, thatprovision shall prevail.

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APCAM ARBITRATION RULESPART II | ARTICLE 1

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Notice and Calculation of Periods of TimeArticle 2

1. A notice, including a notification, communicationor proposal, may be transmitted by any means ofcommunication that provides or allows for a recordof its transmission.

2. If an address has been designated by a partyspecifically for this purpose or authorized by thearbitral tribunal, any notice shall be delivered tothat party at that address, and if so delivered shallbe deemed to have been received. Delivery byelectronic means such as facsimile or e-mail mayonly be made to an address so designated orauthorized.

3. In the absence of such designation orauthorization, a notice is —

(a) Received if it is physically delivered to theaddressee; or

(b) Deemed to have been received if it isdelivered at the place of business, habitualresidence or mailing address of theaddressee.

4. If, after reasonable efforts, delivery cannot beeffected in accordance with paragraphs 2 or 3, anotice is deemed to have been received if it issent to the addressee’s last-known place ofbusiness, habitual residence or mailing addressby registered letter or any other means thatprovides a record of delivery or of attempteddelivery.

5. A notice shall be deemed to have been receivedon the day it is delivered in accordance with

paragraphs 2, 3 or 4, or attempted to be deliveredin accordance with paragraph 4. A noticetransmitted by electronic means is deemed tohave been received on the day it is sent, exceptthat a notice of arbitration so transmitted is onlydeemed to have been received on the day when itreaches the addressee’s electronic address.

6. For the purpose of calculating a period of timeunder these Rules, such period shall begin torun on the day following the day when a notice isreceived. If the last day of such period is an officialholiday or a non-business day at the residenceor place of business of the addressee, the periodis extended until the first business day whichfollows. Official holidays or non-business daysoccurring during the running of the period of timeare included in calculating the period.

Notice of ArbitrationArticle 3

1. The party or parties initiating recourse toarbitration (hereinafter called the “Claimant”) shallcommunicate to the other party or parties(hereinafter called the “Respondent”) a Notice ofArbitration.

2. Arbitral proceedings shall be deemed tocommence on the date on which the Notice ofArbitration is received by the respondent.

3. The Notice of Arbitration shall include the following—

(a) A demand that the dispute be referred toarbitration;

(b) The names and contact details of theparties;

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(c) Identification of the arbitration agreementthat is invoked;

(d) Identification of any contract or other legalinstrument out of or in relation to which thedispute arises or, in the absence of suchcontract or instrument, a brief descriptionof the relevant relationship;

(e) A brief description of the claim and anindication of the amount involved, if any;

(f) The relief or remedy sought;

(g) A proposal as to the number of arbitrators,language and place of arbitration, if theparties have not previously agreed thereon.

2. The Notice of Arbitration may also include —

(a) A proposal for the designation of anappointing authority referred to in article 6,paragraph 1;

(b) A proposal for the appointment of a solearbitrator referred to in Article 8, paragraph1;

(c) Notification of the appointment of anarbitrator referred to in Article 9 or 10.

3. The constitution of the arbitral tribunal shall notbe hindered by any controversy with respect tothe sufficiency of the Notice of Arbitration, whichshall be finally resolved by the arbitral tribunal.

Response to the Notice of ArbitrationArticle 4

1. Within 30 days of the receipt of the Notice ofArbitration, the respondent shall communicate to

the claimant a Response to the Notice ofArbitration, which shall include:

(a) The name and contact details of eachrespondent;

(b) A response to the information set forth inthe notice of arbitration, pursuant to Article3, paragraphs 3 (c) to (g).

2. The Response to the Notice of Arbitration mayalso include:

(a) Any plea that an arbitral tribunal to beconstituted under these Rules lacksjurisdiction;

(b) A proposal for the designation of anappointing authority referred to in Article 6,paragraph 1;

(c) A proposal for the appointment of a solearbitrator referred to in Article 8, paragraph1;

(d) Notification of the appointment of anarbitrator referred to in Article 9 or 10;

(e) A brief description of counterclaims orclaims for the purpose of a set-off, if any,including where relevant, an indication ofthe amounts involved, and the relief orremedy sought;

(f) A Notice of Arbitration in accordance withArticle 3 in case the respondent formulatesa claim against a party to the arbitrationagreement other than the claimant.

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APCAM ARBITRATION RULES3PART II | ARTICLE 5

3. The constitution of the arbitral tribunal shall notbe hindered by any controversy with respect tothe respondent’s failure to communicate aResponse to the Notice of Arbitration, or anincomplete or late response to the Notice ofArbitration, which shall be finally resolved by thearbitral tribunal.

Representation and AssistanceArticle 5

Each party may be represented or assisted by personschosen by it. The names and addresses of such personsmust be communicated to all parties and to the arbitraltribunal. Such communication must specify whether theappointment is being made for purposes ofrepresentation or assistance. Where a person is to actas a representative of a party, the arbitral tribunal, on itsown initiative or at the request of any party, may at anytime require proof of authority granted to therepresentative in such a form as the arbitral tribunal maydetermine.

Designating and Appointing AuthoritiesArticle 6

1. Unless the parties have already agreed on thechoice of an appointing authority, a party may atany time propose the name or names of one ormore institutions or persons, including theSecretary-General of the Permanent Court ofArbitration at The Hague (hereinafter called the“PCA”), one of whom would serve as appointingauthority.

2. If all parties have not agreed on the choice of anappointing authority within 30 days after a proposalmade in accordance with paragraph 1 has beenreceived by all other parties, any party may requestthe Secretary-General of the PCA to designate theappointing authority.

3. Where these Rules provide for a period of timewithin which a party must refer a matter to anappointing authority and no appointing authorityhas been agreed on or designated, the period issuspended from the date on which a party initiatesthe procedure for agreeing on or designating anappointing authority until the date of suchagreement or designation.

4. Except as referred to in Article 41, paragraph 4, ifthe appointing authority refuses to act, or if it failsto appoint an arbitrator within 30 days after itreceives a party’s request to do so, fails to actwithin any other period provided by these Rules,or fails to decide on a challenge to an arbitratorwithin a reasonable time after receiving a party’srequest to do so, any party may request theSecretary General of the PCA to designate asubstitute appointing authority.

5. In exercising their functions under these Rules,the appointing authority and the Secretary-Generalof the PCA may require from any party and thearbitrators the information they deem necessaryand they shall give the parties and, whereappropriate, the arbitrators, an opportunity topresent their views in any manner they considerappropriate. All such communications to and fromthe appointing authority and the Secretary-Generalof the PCA shall also be provided by the sender toall other parties.

6. When the appointing authority is requested toappoint an arbitrator pursuant to Articles 8, 9, 10or 14, the party making the request shall send tothe appointing authority copies of the Notice ofArbitration and, if it exists, any Response to theNotice of Arbitration.

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7. The appointing authority shall have regard to suchconsiderations as are likely to secure theappointment of an independent and impartialarbitrator and shall take into account theadvisability of appointing an arbitrator of anationality other than the nationalities of theparties.

Section II. Composition of the Arbitral Tribunal

Number of ArbitratorsArticle 7

1. If the parties have not previously agreed on thenumber of arbitrators, and if within 30 days afterthe receipt by the respondent of the notice ofarbitration the parties have not agreed that thereshall be only one arbitrator, three arbitrators shallbe appointed.

2. Notwithstanding paragraph 1, if no other partieshave responded to a party’s proposal to appointa sole arbitrator within the time limit provided forin paragraph 1 and the party or parties concernedhave failed to appoint a second arbitrator inaccordance with Article 9 or 10, the appointingauthority may, at the request of a party, appoint asole arbitrator pursuant to the procedure providedfor in Article 8, paragraph 2, if it determines that, inview of the circumstances of the case, this is moreappropriate.

Appointment of Arbitrators (Articles 8 to 10)Article 8

1. If the parties have agreed that a sole arbitrator isto be appointed and if within 30 days after receipt

by all other parties of a proposal for theappointment of a sole arbitrator the parties havenot reached agreement thereon, a sole arbitratorshall, at the request of a party, be appointed bythe appointing authority.

2. The appointing authority shall appoint the solearbitrator as promptly as possible. In making theappointment, the appointing authority shall usethe following list-procedure, unless the partiesagree that the list-procedure should not be usedor unless the appointing authority determines inits discretion that the use of the list-procedure isnot appropriate for the case —

(a) The appointing authority shallcommunicate to each of the parties anidentical list containing at least threenames;

(b) Within 15 days after the receipt of this list,each party may return the list to theappointing authority after having deleted thename or names to which it objects andnumbered the remaining names on the listin the order of its preference;

(c) After the expiration of the above period oftime the appointing authority shall appointthe sole arbitrator from among the namesapproved on the lists returned to it and inaccordance with the order of preferenceindicated by the parties;

(d) If for any reason the appointment cannotbe made according to this procedure, theappointing authority may exercise itsdiscretion in appointing the sole arbitrator.

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Article 9

1. If three arbitrators are to be appointed, each partyshall appoint one arbitrator. The two arbitratorsthus appointed shall choose the third arbitratorwho will act as the presiding arbitrator of thearbitral tribunal.

2. If within 30 days after the receipt of a party’snotification of the appointment of an arbitrator theother party has not notified the first party of thearbitrator it has appointed, the first party mayrequest the appointing authority to appoint thesecond arbitrator.

3. If within 30 days after the appointment of thesecond arbitrator the two arbitrators have notagreed on the choice of the presiding arbitrator,the presiding arbitrator shall be appointed by theappointing authority in the same way as a solearbitrator would be appointed under Article 8.

Article 10

1. For the purposes of Article 9, paragraph 1, wherethree arbitrators are to be appointed and thereare multiple parties as claimant or as respondent,unless the parties have agreed to another methodof appointment of arbitrators, the multiple partiesjointly, whether as claimant or as respondent,shall appoint an arbitrator.

2. If the parties have agreed that the arbitral tribunalis to be composed of a number of arbitrators otherthan one or three, the arbitrators shall beappointed according to the method agreed uponby the parties.

3. In the event of any failure to constitute the arbitraltribunal under these Rules, the appointingauthority shall, at the request of any party,constitute the arbitral tribunal and, in doing so,may revoke any appointment already made andappoint or reappoint each of the arbitrators anddesignate one of them as the presiding arbitrator.

Disclosures by and Challenge of Arbitrators1

(Articles 11 to 13)Article 11

When a person is approached in connection with his orher possible appointment as an arbitrator, he or sheshall disclose any circumstances likely to give rise tojustifiable doubts as to his or her impartiality orindependence. An arbitrator, from the time of his or herappointment and throughout the arbitral proceedings,shall without delay disclose any such circumstances tothe parties and the other arbitrators unless they havealready been informed by him or her of thesecircumstances.

Article 12

1. Any arbitrator may be challenged if circumstancesexist that give rise to justifiable doubts as to thearbitrator’s impartiality or independence.

2. A party may challenge the arbitrator appointed byit only for reasons of which it becomes aware afterthe appointment has been made.

3. In the event that an arbitrator fails to act or in theevent of the de jure or de facto impossibility of hisor her performing his or her functions, theprocedure in respect of the challenge of anarbitrator as provided in Article 13 shall apply.

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1 Model statements of independence pursuant to Article 11 can be foundin the annex to the Rules

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Article 13

1. A party that intends to challenge an arbitrator shallsend notice of its challenge within 15 days after ithas been notified of the appointment of thechallenged arbitrator, or within 15 days after thecircumstances mentioned in Articles 11 and 12became known to that party.

2. The notice of challenge shall be communicatedto all other parties, to the arbitrator who ischallenged and to the other arbitrators. The noticeof challenge shall state the reasons for thechallenge.

3. When an arbitrator has been challenged by a party,all parties may agree to the challenge. Thearbitrator may also, after the challenge, withdrawfrom his or her office. In neither case does thisimply acceptance of the validity of the grounds forthe challenge.

4. If, within 15 days from the date of the notice ofchallenge, all parties do not agree to the challengeor the challenged arbitrator does not withdraw,the party making the challenge may elect topursue it. In that case, within 30 days from thedate of the notice of challenge, it shall seek adecision on the challenge by the appointingauthority.

Replacement of an ArbitratorArticle 14

1. Subject to paragraph 2, in any event where anarbitrator has to be replaced during the course ofthe arbitral proceedings, a substitute arbitratorshall be appointed or chosen pursuant to theprocedure provided for in Articles 8 to 11 that was

applicable to the appointment or choice of thearbitrator being replaced. This procedure shallapply even if during the process of appointing thearbitrator to be replaced, a party had failed toexercise its right to appoint or to participate in theappointment.

2. If, at the request of a party, the appointing authoritydetermines that, in view of the exceptionalcircumstances of the case, it would be justifiedfor a party to be deprived of its right to appoint asubstitute arbitrator, the appointing authority may,after giving an opportunity to the parties and theremaining arbitrators to express their views: (a)appoint the substitute arbitrator; or (b) after theclosure of the hearings, authorize the otherarbitrators to proceed with the arbitration andmake any decision or award.

Repetition of Hearings in the event of theReplacement of an ArbitratorArticle 15

If an arbitrator is replaced, the proceedings shall resumeat the stage where the arbitrator who was replacedceased to perform his or her functions, unless the arbitraltribunal decides otherwise.

Exclusion of LiabilityArticle 16

Save for intentional wrongdoing, the parties waive, tothe fullest extent permitted under the applicable law, anyclaim against the arbitrators, the appointing authorityand any person appointed by the arbitral tribunal basedon any act or omission in connection with the arbitration.

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Section III. Arbitral Proceedings

General ProvisionsArticle 17

1. Subject to these Rules, the arbitral tribunal mayconduct the arbitration in such manner as itconsiders appropriate, provided that the partiesare treated with equality and that at an appropriatestage of the proceedings each party is given areasonable opportunity of presenting its case. Thearbitral tribunal, in exercising its discretion, shallconduct the proceedings so as to avoidunnecessary delay and expense and to provide afair and efficient process for resolving the parties’dispute.

2. As soon as practicable after its constitution andafter inviting the parties to express their views,the arbitral tribunal shall establish the provisionaltimetable of the arbitration. The arbitral tribunalmay, at any time, after inviting the parties to expresstheir views, extend or abridge any period of timeprescribed under these Rules or agreed by theparties.

3. If at an appropriate stage of the proceedings anyparty so requests, the arbitral tribunal shall holdhearings for the presentation of evidence bywitnesses, including expert witnesses, or for oralargument. In the absence of such a request, thearbitral tribunal shall decide whether to hold suchhearings or whether the proceedings shall beconducted on the basis of documents and othermaterials.

4. All communications to the arbitral tribunal by oneparty shall be communicated by that party to all

other parties. Such communications shall bemade at the same time, except as otherwisepermitted by the arbitral tribunal if it may do sounder applicable law.

2. The arbitral tribunal may, at the request of anyparty, allow one or more third persons to be joinedin the arbitration as a party provided such personis a party to the arbitration agreement, unless thearbitral tribunal finds, after giving all parties,including the person or persons to be joined, theopportunity to be heard, that joinder should notbe permitted because of prejudice to any of thoseparties. The arbitral tribunal may make a singleaward or several awards in respect of all partiesso involved in the arbitration.

Place of ArbitrationArticle 18

1. If the parties have not previously agreed on theplace of arbitration, the place of arbitration shallbe determined by the arbitral tribunal havingregard to the circumstances of the case. Theaward shall be deemed to have been made at theplace of arbitration.

2. The arbitral tribunal may meet at any location itconsiders appropriate for deliberations. Unlessotherwise agreed by the parties, the arbitraltribunal may also meet at any location it considersappropriate for any other purpose, includinghearings.

LanguageArticle 19

1. Subject to an agreement by the parties, the arbitraltribunal shall, promptly after its appointment,determine the language or languages to be used

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in the proceedings. This determination shall applyto the statement of claim, the statement ofdefence, and any further written statements and,if oral hearings take place, to the language orlanguages to be used in such hearings.

2. The arbitral tribunal may order that any documentsannexed to the statement of claim or statement ofdefence, and any supplementary documents orexhibits submitted in the course of theproceedings, delivered in their original language,shall be accompanied by a translation into thelanguage or languages agreed upon by theparties or determined by the arbitral tribunal.

Statement of ClaimArticle 20

1. The claimant shall communicate its Statement ofClaim in writing to the respondent and to each ofthe arbitrators within a period of time to bedetermined by the arbitral tribunal. The claimantmay elect to treat its Notice of Arbitration referredto in Article 3 as a statement of claim, providedthat the Notice of Arbitration also complies withthe requirements of paragraphs 2 to 4 of thisArticle.

2. The Statement of Claim shall include the followingparticulars —

(a) The names and contact details of theparties;

(b) A statement of the facts supporting theclaim;

(c) The points at issue;

(d) The relief or remedy sought;

(e) The legal grounds or argumentssupporting the claim.

3. A copy of any contract or other legal instrumentout of or in relation to which the dispute arisesand of the arbitration agreement shall be annexedto the Statement of Claim.

4. The Statement of Claim should, as far as possible,be accompanied by all documents and otherevidence relied upon by the claimant, or containreferences to them.

Statement of DefenceArticle 21

1. The respondent shall communicate its Statementof Defence in writing to the claimant and to eachof the arbitrators within a period of time to bedetermined by the arbitral tribunal. The respondentmay elect to treat its Response to the Notice ofArbitration referred to in Article 4 as a Statement ofDefence, provided that the response to the noticeof arbitration also complies with the requirementsof paragraph 2 of this Article.

2. The Statement of Defence shall reply to theparticulars (b) to (e) of the Statement of Claim(art. 20, para. 2). The Statement of Defenceshould, as far as possible, be accompanied byall documents and other evidence relied upon bythe respondent, or contain references to them.

3. In its Statement of Defence, or at a later stage inthe arbitral proceedings if the arbitral tribunaldecides that the delay was justified under thecircumstances, the respondent may make aCounterclaim or rely on a claim for the purpose ofa set-off provided that the arbitral tribunal hasjurisdiction over it.

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4. The provisions of Article 20, paragraphs 2 to 4,shall apply to a counterclaim, a claim under Article4, paragraph 2 (f), and a claim relied on for thepurpose of a set-off.

Amendments to the Claim or DefenceArticle 22

During the course of the arbitral proceedings, a partymay amend or supplement its claim or defence,including a counterclaim or a claim for the purpose of aset-off, unless the arbitral tribunal considers itinappropriate to allow such amendment or supplementhaving regard to the delay in making it or prejudice toother parties or any other circumstances. However, aclaim or defence, including a counterclaim or a claim forthe purpose of a set-off, may not be amended orsupplemented in such a manner that the amended orsupplemented claim or defence falls outside thejurisdiction of the arbitral tribunal.

Pleas as to the Jurisdiction of the Arbitral TribunalArticle 23

1. The arbitral tribunal shall have the power to ruleon its own jurisdiction, including any objectionswith respect to the existence or validity of thearbitration agreement. For that purpose, anarbitration clause that forms part of a contract shallbe treated as an agreement independent of theother terms of the contract. A decision by the arbitraltribunal that the contract is null shall not entailautomatically the invalidity of the arbitration clause.

2. A plea that the arbitral tribunal does not havejurisdiction shall be raised no later than in thestatement of defence or, with respect to acounterclaim or a claim for the purpose of a set-

off, in the reply to the counterclaim or to the claimfor the purpose of a set-off. A party is not precludedfrom raising such a plea by the fact that it hasappointed, or participated in the appointment of,an arbitrator. A plea that the arbitral tribunal isexceeding the scope of its authority shall beraised as soon as the matter alleged to be beyondthe scope of its authority is raised during thearbitral proceedings. The arbitral tribunal may, ineither case, admit a later plea if it considers thedelay justified.

2. The arbitral tribunal may rule on a plea referred toin paragraph 2 either as a preliminary questionor in an award on the merits. The arbitral tribunalmay continue the arbitral proceedings and makean award, notwithstanding any pending challengeto its jurisdiction before a court.

Further Written StatementsArticle 24

The arbitral tribunal shall decide which further writtenstatements, in addition to the statement of claim and thestatement of defence, shall be required from the partiesor may be presented by them and shall fix the periods oftime for communicating such statements.

Periods of TimeArticle 25

The periods of time fixed by the arbitral tribunal for thecommunication of written statements (including thestatement of claim and statement of defence) shouldnot exceed 45 days. However, the arbitral tribunal mayextend the time limits if it concludes that an extension isjustified.

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Interim MeasuresArticle 26

1. The arbitral tribunal may, at the request of a party,grant interim measures.

2. An interim measure is any temporary measure bywhich, at any time prior to the issuance of theaward by which the dispute is finally decided, thearbitral tribunal orders a party, for example andwithout limitation, to —

(a) Maintain or restore the status quo pendingdetermination of the dispute;

(b) Take action that would prevent, or refrainfrom taking action that is likely to cause, (i)current or imminent harm or (ii) prejudiceto the arbitral process itself;

(c) Provide a means of preserving assets outof which a subsequent award may besatisfied; or

(d) Preserve evidence that may be relevant andmaterial to the resolution of the dispute.

3. The party requesting an interim measure underparagraphs 2 (a) to (c) shall satisfy the arbitraltribunal that —

(a) Harm not adequately reparable by anaward of damages is likely to result if themeasure is not ordered, and such harmsubstantially outweighs the harm that islikely to result to the party against whomthe measure is directed if the measure isgranted; and

(b) There is a reasonable possibility that therequesting party will succeed on the meritsof the claim. The determination on thispossibility shall not affect the discretion ofthe arbitral tribunal in making anysubsequent determination.

4. With regard to a request for an interim measureunder paragraph 2 (d), the requirements inparagraphs 3 (a) and (b) shall apply only to theextent the arbitral tribunal considers appropriate.

5. The arbitral tribunal may modify, suspend orterminate an interim measure it has granted, uponapplication of any party or, in exceptionalcircumstances and upon prior notice to the parties,on the arbitral tribunal’s own initiative.

6. The arbitral tribunal may require the partyrequesting an interim measure to provideappropriate security in connection with themeasure.

7. The arbitral tribunal may require any party promptlyto disclose any material change in thecircumstances on the basis of which the interimmeasure was requested or granted.

8. The party requesting an interim measure may beliable for any costs and damages caused by themeasure to any party if the arbitral tribunal laterdetermines that, in the circumstances thenprevailing, the measure should not have beengranted. The arbitral tribunal may award suchcosts and damages at any point during theproceedings.

9. A request for interim measures addressed by anyparty to a judicial authority shall not be deemedincompatible with the agreement to arbitrate, oras a waiver of that agreement.

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EvidenceArticle 27

1. Each party shall have the burden of proving thefacts relied on to support its claim or defence.

2. Witnesses, including expert witnesses, who arepresented by the parties to testify to the arbitraltribunal on any issue of fact or expertise may beany individual, notwithstanding that the individualis a party to the arbitration or in any way related toa party. Unless otherwise directed by the arbitraltribunal, statements by witnesses, includingexpert witnesses, may be presented in writing andsigned by them.

3. At any time during the arbitral proceedings thearbitral tribunal may require the parties to producedocuments, exhibits or other evidence within sucha period of time as the arbitral tribunal shalldetermine.

4. The arbitral tribunal shall determine theadmissibility, relevance, materiality and weight ofthe evidence offered.

HearingsArticle 28

1. In the event of an oral hearing, the arbitral tribunalshall give the parties adequate advance notice ofthe date, time and place thereof.

2. Witnesses, including expert witnesses, may beheard under the conditions and examined in themanner set by the arbitral tribunal.

3. Hearings shall be held in camera unless theparties agree otherwise. The arbitral tribunal mayrequire the retirement of any witness or witnesses,

including expert witnesses, during the testimonyof such other witnesses, except that a witness,including an expert witness, who is a party to thearbitration shall not, in principle, be asked to retire.

4. The arbitral tribunal may direct that witnesses,including expert witnesses, be examined throughmeans of telecommunication that do not requiretheir physical presence at the hearing (such asvideoconference).

Experts appointed by the Arbitral TribunalArticle 29

1. After consultation with the parties, the arbitraltribunal may appoint one or more independentexperts to report to it, in writing, on specific issuesto be determined by the arbitral tribunal. A copy ofthe expert’s terms of reference, established bythe arbitral tribunal, shall be communicated to theparties.

2. The expert shall, in principle before acceptingappointment, submit to the arbitral tribunal and tothe parties a description of his or her qualificationsand a statement of his or her impartiality andindependence. Within the time ordered by thearbitral tribunal, the parties shall inform the arbitraltribunal whether they have any objections as tothe expert’s qualif ications, impartiality orindependence. The arbitral tribunal shall decidepromptly whether to accept any such objections.After an expert’s appointment, a party may objectto the expert’s qualifications, impartiality orindependence only if the objection is for reasonsof which the party becomes aware after theappointment has been made. The arbitral tribunalshall decide promptly what, if any, action to take.

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3. The parties shall give the expert any relevantinformation or produce for his or her inspectionany relevant documents or goods that he or shemay require of them. Any dispute between a partyand such expert as to the relevance of the requiredinformation or production shall be referred to thearbitral tribunal for decision.

4. Upon receipt of the expert’s report, the arbitraltribunal shall communicate a copy of the report tothe parties, which shall be given the opportunityto express, in writing, their opinion on the report. Aparty shall be entitled to examine any documenton which the expert has relied in his or her report.

5. At the request of any party, the expert, after deliveryof the report, may be heard at a hearing where theparties shall have the opportunity to be presentand to interrogate the expert. At this hearing, anyparty may present expert witnesses in order totestify on the points at issue. The provisions ofArticle 28 shall be applicable to such proceedings.

DefaultArticle 30

1. If, within the period of time fixed by these Rules orthe arbitral tribunal, without showing sufficientcause —

(a) The claimant has failed to communicateits statement of claim, the arbitral tribunalshall issue an order for the termination ofthe arbitral proceedings, unless there areremaining matters that may need to bedecided and the arbitral tribunal considersit appropriate to do so;

(b) The respondent has failed to communicateits response to the notice of arbitration orits statement of defence, the arbitraltribunal shall order that the proceedings

continue, without treating such failure initself as an admission of the claimant’sallegations; the provisions of thissubparagraph also apply to a claimant’sfailure to submit a defence to a counterclaimor to a claim for the purpose of a set-off.

2. If a party, duly notified under these Rules, fails toappear at a hearing, without showing sufficientcause for such failure, the arbitral tribunal mayproceed with the arbitration.

3. If a party, duly invited by the arbitral tribunal toproduce documents, exhibits or other evidence,fails to do so within the established period of time,without showing sufficient cause for such failure,the arbitral tribunal may make the award on theevidence before it.

Closure of HearingsArticle 31

1. The arbitral tribunal may inquire of the parties ifthey have any further proof to offer or witnesses tobe heard or submissions to make and, if thereare none, it may declare the hearings closed.

2. The arbitral tribunal may, if it considers itnecessary owing to exceptional circumstances,decide, on its own initiative or upon application ofa party, to reopen the hearings at any time beforethe award is made.

Waiver of Right to ObjectArticle 32

A failure by any party to object promptly to any non-compliance with these Rules or with any requirement ofthe arbitration agreement shall be deemed to be a waiverof the right of such party to make such an objection,unless such party can show that, under thecircumstances, its failure to object was justified.

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Section IV. The Award

DecisionsArticle 33

1. When there is more than one arbitrator, any awardor other decision of the arbitral tribunal shall bemade by a majority of the arbitrators.

2. In the case of questions of procedure, when thereis no majority or when the arbitral tribunal soauthorizes, the presiding arbitrator may decidealone, subject to revision, if any, by the arbitraltribunal.

Form and Effect of the AwardArticle 34

1. The arbitral tribunal may make separate awardson different issues at different times.

2. All awards shall be made in writing and shall befinal and binding on the parties. The parties shallcarry out all awards without delay.

3. The arbitral tribunal shall state the reasons uponwhich the award is based, unless the parties haveagreed that no reasons are to be given.

4. An award shall be signed by the arbitrators and itshall contain the date on which the award wasmade and indicate the place of arbitration. Wherethere is more than one arbitrator and any of themfails to sign, the award shall state the reason forthe absence of the signature.

5. An award may be made public with the consent ofall parties or where and to the extent disclosureis required of a party by legal duty, to protect orpursue a legal right or in relation to legalproceedings before a court or other competentauthority.

6. Copies of the award signed by the arbitrators shallbe communicated to the parties by the arbitraltribunal.

Applicable Law, Amiable CompositeurArticle 35

1. The arbitral tribunal shall apply the rules of lawdesignated by the parties as applicable to thesubstance of the dispute. Failing suchdesignation by the parties, the arbitral tribunalshall apply the law which it determines to beappropriate.

2. The arbitral tribunal shall decide as amiablecompositeur or ex aequo et bono only if the partieshave expressly authorized the arbitral tribunal todo so.

3. In all cases, the arbitral tribunal shall decide inaccordance with the terms of the contract, if any,and shall take into account any usage of tradeapplicable to the transaction.

Settlement or Other Grounds for TerminationArticle 36

1. If, before the award is made, the parties agree ona settlement of the dispute, the arbitral tribunalshall either issue an order for the termination ofthe arbitral proceedings or, if requested by theparties and accepted by the arbitral tribunal,record the settlement in the form of an arbitralaward on agreed terms. The arbitral tribunal isnot obliged to give reasons for such an award.

2. If, before the award is made, the continuation ofthe arbitral proceedings becomes unnecessaryor impossible for any reason not mentioned inparagraph 1, the arbitral tribunal shall inform the

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parties of its intention to issue an order for thetermination of the proceedings. The arbitraltribunal shall have the power to issue such anorder unless there are remaining matters that mayneed to be decided and the arbitral tribunalconsiders it appropriate to do so.

3. Copies of the order for termination of the arbitralproceedings or of the arbitral award on agreedterms, signed by the arbitrators, shall becommunicated by the arbitral tribunal to theparties. Where an arbitral award on agreed termsis made, the provisions of Article 34, paragraphs2, 4 and 5, shall apply.

Interpretation of the AwardArticle 37

1. Within 30 days after the receipt of the award, aparty, with notice to the other parties, may requestthat the arbitral tribunal give an interpretation ofthe award.

2. The interpretation shall be given in writing within45 days after the receipt of the request. Theinterpretation shall form part of the award and theprovisions of Article 34, paragraphs 2 to 6, shallapply.

Correction of the AwardArticle 38

1. Within 30 days after the receipt of the award, aparty, with notice to the other parties, may requestthe arbitral tribunal to correct in the award anyerror in computation, any clerical or typographicalerror, or any error or omission of a similar nature.If the arbitral tribunal considers that the requestis justified, it shall make the correction within 45days of receipt of the request.

2. The arbitral tribunal may within 30 days after thecommunication of the award make suchcorrections on its own initiative.

3. Such corrections shall be in writing and shall formpart of the award. The provisions of Article 34,paragraphs 2 to 6, shall apply.

Additional AwardArticle 39

1. Within 30 days after the receipt of the terminationorder or the award, a party, with notice to the otherparties, may request the arbitral tribunal to makean award or an additional award as to claimspresented in the arbitral proceedings but notdecided by the arbitral tribunal.

2. If the arbitral tribunal considers the request for anaward or additional award to be justified, it shallrender or complete its award within 60 days afterthe receipt of the request. The arbitral tribunal mayextend, if necessary, the period of time within whichit shall make the award.

3. When such an award or additional award is made,the provisions of Article 34, paragraphs 2 to 6,shall apply.

Definition of CostsArticle 40

1. The arbitral tribunal shall fix the costs of arbitrationin the final award and, if it deems appropriate, inanother decision.

2. The term “costs” includes only —

(a) The fees of the arbitral tribunal to be statedseparately as to each arbitrator and to be

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fixed by the tribunal itself in accordance withArticle 41;

(b) The reasonable travel and other expensesincurred by the arbitrators;

(c) The reasonable costs of expert advice andof other assistance required by the arbitraltribunal;

(d) The reasonable travel and other expensesof witnesses to the extent such expensesare approved by the arbitral tribunal;

(e) The legal and other costs incurred by theparties in relation to the arbitration to theextent that the arbitral tribunal determinesthat the amount of such costs isreasonable;

(f) Any fees and expenses of the appointingauthority as well as the fees and expensesof the Secretary-General of the PCA.

2. In relation to interpretation, correction orcompletion of any award under Articles 37 to 39,the arbitral tribunal may charge the costs referredto in paragraphs 2 (b) to (f), but no additional fees.

Fees and Expenses of ArbitratorsArticle 41

1. The fees and expenses of the arbitrators shall bereasonable in amount, taking into account theamount in dispute, the complexity of the subjectmatter, the time spent by the arbitrators and anyother relevant circumstances of the case.

2. If there is an appointing authority and it applies orhas stated that it will apply a schedule or particular

method for determining the fees for arbitrators ininternational cases, the arbitral tribunal in fixingits fees shall take that schedule or method intoaccount to the extent that it considers appropriatein the circumstances of the case.

3. Promptly after its constitution, the arbitral tribunalshall inform the parties as to how it proposes todetermine its fees and expenses, including anyrates it intends to apply. Within 15 days of receivingthat proposal, any party may refer the proposal tothe appointing authority for review. If, within 45days of receipt of such a referral, the appointingauthority finds that the proposal of the arbitraltribunal is inconsistent with paragraph 1, it shallmake any necessary adjustments thereto, whichshall be binding upon the arbitral tribunal.

4. (a) When informing the parties of thearbitrators’ fees and expenses that havebeen fixed pursuant to article 40,paragraphs 2 (a) and (b), the arbitraltribunal shall also explain the manner inwhich the corresponding amounts havebeen calculated;

(b) Within 15 days of receiving the arbitraltribunal’s determination of fees andexpenses, any party may refer for reviewsuch determination to the appointingauthority. If no appointing authority has beenagreed upon or designated, or if theappointing authority fails to act within thetime specified in these Rules, then thereview shall be made by the Secretary-General of the PCA;

(c) If the appointing authority or the Secretary-General of the PCA finds that the arbitral

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tribunal’s determination is inconsistent withthe arbitral tribunal’s proposal (and anyadjustment thereto) under paragraph 3 oris otherwise manifestly excessive, it shall,within 45 days of receiving such a referral,make any adjustments to the arbitraltribunal’s determination that are necessaryto satisfy the criteria in paragraph 1. Anysuch adjustments shall be binding uponthe arbitral tribunal;

(d) Any such adjustments shall either beincluded by the arbitral tribunal in its awardor, if the award has already been issued,be implemented in a correction to the award,to which the procedure of article 38,paragraph 3, shall apply.

5. Throughout the procedure under paragraphs 3and 4, the arbitral tribunal shall proceed with thearbitration, in accordance with article 17,paragraph 1.

6. A referral under paragraph 4 shall not affect anydetermination in the award other than the arbitraltribunal’s fees and expenses; nor shall it delaythe recognition and enforcement of all parts ofthe award other than those relating to thedetermination of the arbitral tribunal’s fees andexpenses.

Allocation of CostsArticle 42

1. The costs of the arbitration shall in principle beborne by the unsuccessful party or parties.However, the arbitral tribunal may apportion eachof such costs between the parties if it determinesthat apportionment is reasonable, taking intoaccount the circumstances of the case.

2. The arbitral tribunal shall in the final award or, if itdeems appropriate, in any other award, determineany amount that a party may have to pay to anotherparty as a result of the decision on allocation ofcosts.

Deposit of CostsArticle 43

1. The arbitral tribunal, on its establishment, mayrequest the parties to deposit an equal amountas an advance for the costs referred to in Article40, paragraphs 2(a) to (c).

2. During the course of the arbitral proceedings thearbitral tribunal may request supplementarydeposits from the parties.

3. If an appointing authority has been agreed uponor designated, and when a party so requests andthe appointing authority consents to perform thefunction, the arbitral tribunal shall fix the amountsof any deposits or supplementary deposits onlyafter consultation with the appointing authority,which may make any comments to the arbitraltribunal that it deems appropriate concerning theamount of such deposits and supplementarydeposits.

4. If the required deposits are not paid in full within30 days after the receipt of the request, the arbitraltribunal shall so inform the parties in order thatone or more of them may make the requiredpayment. If such payment is not made, the arbitraltribunal may order the suspension or terminationof the arbitral proceedings.

5. After a termination order or final award has beenmade, the arbitral tribunal shall render anaccounting to the parties of the deposits receivedand return any unexpended balance to the parties.

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APCAM ARBITRATION RULES3PART II | ANNEX

Annex

Possible Waiver Statement

Note. If the parties wish to exclude recourse against thearbitral award that may be available under the applicablelaw, they may consider adding a provision to that effectas suggested below, considering, however, that theeffectiveness and conditions of such an exclusiondepend on the applicable law.

Waiver

The parties hereby waive their right to any form ofrecourse against an award to any court or othercompetent authority, insofar as such waiver can validlybe made under the applicable law.

Model Statements of Independence pursuant to Article11 of the Rules

No Circumstances to Disclose

I am impartial and independent of each of the partiesand intend to remain so. To the best of my knowledge,there are no circumstances, past or present, likely togive rise to justifiable doubts as to my impartiality orindependence. I shall promptly notify the parties and theother arbitrators of any such circumstances that maysubsequently come to my attention during this arbitration.

Circumstances to Disclose

I am impartial and independent of each of the partiesand intend to remain so. Attached is a statement madepursuant to Article 11 of the UNCITRAL Arbitration Rulesof (a) my past and present professional, business andother relationships with the parties and (b) any other

relevant circumstances. [Include statement.] I confirmthat those circumstances do not affect my independenceand impartiality. I shall promptly notify the parties andthe other arbitrators of any such further relationships orcircumstances that may subsequently come to myattention during this arbitration.

Note. Any party may consider requesting from thearbitrator the following addition to the statement ofindependence:

I confirm, on the basis of the information presentlyavailable to me, that I can devote the time necessary toconduct this arbitration diligently, efficiently and inaccordance with the time limits in the Rules.

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APCAM ARBITRATION RULESPART II | ANNEX

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APCAM ARBITRATION RULESPART III

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Part - IIISCHEDULES


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Schedule-1DEFINITIONS

In this Rules, unless the context otherwise requires —

(a) “Administrator” means the APCAM officialassigned under these Rules who shall performall the functions to be done by APCAM as requiredunder these Rules.

(b) “AMA Procedure” means a hybrid procedure ofArbitration-Mediation-Arbitration Procedure underthese Rules, where a party submits disputes forresolution for arbitration under the “Arb-Med-ArbClause” or “AMA Clause”.

(c) “Appointing Authority” means an institution orperson and agreed upon and designated by theparties to appoint the arbitrators and under theseRules shall mean APCAM.

(d) “Arbitral Tribunal” means a sole arbitrator or panelof arbitrators appointed for the purpose ofresolving a referred dispute by way of arbitration.

Arbitral Tribunal shall also include Interim ArbitralTribunal or Emergency Arbitrator as appointedunder Rule 12, wherever the context so requires.

(e) “Arbitration Agreement” means an agreement bythe parties to submit to arbitration all or certaindisputes which have arisen or which may arisebetween them to arbitration, which can also be in

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APCAM ARBITRATION RULESPART III | SCHEDULE 1

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the form of a separate agreement or in the form ofa clause in the contract between them. Underthese Rules, Arbitration Agreement means anagreement wherein the parties have agreed toresolve their disputes under the APCAM ArbitrationRules.

(f) “Arbitration session” means a meeting arrangedas under these Rules, between the arbitraltribunal or APCAM and one or more of the partiesto the dispute and includes any activity undertakento arrange or prepare for such a meeting, whetheror not the meeting takes place; and includes anyfollow up on any matter or issue raised in such ameeting.

Meeting includes a meeting conducted byelectronic communication, video conferencing orother electronic or digital means.

(g) “Award” includes, inter alia, an interim, partial orfinal Award, including a Fast-track arbitrationaward, interpretation, correction or additionalaward and consent award.

(h) “Commencement of Arbitration” means the dateon which a party receives a Notice of Arbitrationissued by the other party.

(i) “Commencement of Institutional ArbitrationProcess” means the date on which a completedand proper Request for Arbitration is accepted byAPCAM.

(j) “Communication” means anything said or doneor any document or report prepared or anyinformation provided, for the purposes of or in thecourse of arbitration, and includescommunication by arbitral tribunal, APCAM andparties.

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Communication includes electronic, online ordigital communication.

(k) “Date of Reference” means the date on which thearbitral tribunal receives the intimation about itsconstitution and it will be deemed to be the datewhen the arbitral tribunal enters upon reference.

(l) “Emergency Arbitrator” means an interim arbitraltribunal appointed under Schedule-2 or Schedule-3.

(m) “International arbitration” or “Cross-borderarbitration” means an arbitration if —

(1) the parties to an arbitration agreementhave, at the time of the conclusion of thatagreement, their places of business indifferent States; or

(2) one of the following places is situatedoutside the State in which the parties havetheir places of business —

(i) the place of arbitration if determinedin, or pursuant to, the arbitrationagreement;

(ii) any place where a substantial partof the obligations of the commercialrelationship is to be performed orthe place with which the subject-matter of the dispute is most closelyconnected; or

(3) the parties have expressly agreed that thesubject matter of the arbitration agreementrelates to more than one country.

Explanation — For the purposes of above —

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(i) if a party has more than one place ofbusiness, the place of business is thatwhich has the closest relationship to thearbitration agreement;

(ii) if a party does not have a place of business,reference is to be made to his habitualresidence.

(n) “Notice of Arbitration” means a notice issued by aparty to the other, invoking the arbitrationagreement and referring the disputes toarbitration.

(o) “Online Arbitration” means arbitration initiated and/or conducted using the electronic platform asagreed by the parties, to be conducted as per theprotocol mentioned in Schedule-4.

(p) “Online meeting” or “Virtual meeting” means ameeting arranged as under these Rules, betweenthe arbitral tribunal or APCAM and one or more ofthe parties for conducting arbitration proceedingsby audio-conference, video-conference, or othersimilar means of communication. The Onlinemeeting has to be conducted as per the protocolsmentioned in Schedule-4.

(q) “Party to Arbitration” means any party to anarbitration agreement.

Party may include multiple parties, which includesclaimants as well as respondents.

“Claimant” means the party who initiate therecourse to arbitration under these Rules.

“Respondent” means the party against whom theclaimant initiates arbitration under these Rules.

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(r) “Registrar” means the APCAM official assignedunder these Rules who shall perform all thefunctions to be done by APCAM, as delegated bythe Administrator.

(s) “Reply to the Notice of Arbitration” means a replyissued by a party in response to the Notice ofArbitration.

(t) “Request for Arbitration” means the filing of arequest to initiate recourse to arbitration underthe Rules by the Claimant.

(u) “Response to Request” means a reply issued bythe Respondent to the Request of Arbitration.

(v) “Seat/ Place of Arbitration” means the place agreedupon by the parties, which is designated as thejurisdictional place for the arbitration proceedings.

(w) “Venue of Arbitration” means the place agreedupon by the parties for conducting the physicalmeetings for arbitration proceedings.

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Schedule-2EMERGENCY ARBITRATION

Section 1Emergency Arbitrator

(1) In the case of exceptional urgency, any partyrequiring an emergency interim relief may,concurrent with or following the filing of Requestfor Arbitration but prior to the constitution of thearbitral tribunal, submit the Application forEmergency Arbitration along with an Applicationfor Emergency Arbitrator, to the APCAM for anexpedited appointment of an interim arbitraltribunal of an Emergency Arbitrator to conductemergency proceedings.

(2) An Emergency Arbitrator shall be a sole arbitrator,even if the arbitration agreement of the parties,stipulates more number of arbitrators forarbitration.

Section 2Application for Emergency Arbitrator

(1) The Application for Emergency Arbitrator shall besubmitted in accordance with any meansspecified in Rule 2. The application shall includethe following information —

(a) The names and (in so far as known) theaddress, telephone and email addresses

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of the parties to the Application and of theircounsel or legal representative.

(b) A description of circumstances giving riseto the application and of the underlyingdisputes referred to arbitration.

(c) A statement of the emergency relief sought.

(d) The reasons why the Applicant is entitledto such emergency relief.

(e) Any relevant agreement(s) and, inparticular, the arbitration agreement(s).

(f) Comments on the language, the seat ofthe emergency relief proceedings, and theapplicable law.

(g) Confirmation of payment of the amountreferred to in the APCAM Arbitration FeeSchedule.

(h) Confirmation that copies of the Applicationand any exhibits included therewith havebeen or are being served simultaneouslyon all other parties to the arbitration by oneor more means of service, includingelectronic means, to be identified in suchconfirmation.

(2) The Application may contain such otherdocuments or information as the Applicantconsiders appropriate or as may contribute to theefficient examination of the application.

(3) The Application may, in addition to request foremergency interim relief, include a request toinvoke the AMA Procedure under Schedule-3 orpreliminary measures as under Rule 13.

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(4) The Application shall be filed in sufficient numbersto provide one copy for the arbitrator, plus sufficientcopies for serving to all other parties and one forAPCAM. If the party has served the copy to theother parties, then the party shall file suchdocuments/confirmation to APCAM that the copieshave been served on all other parties to thearbitration by such means of service, includingelectronic means to be identified in suchconfirmation.

Section 3Appointment of Emergency Arbitrator

(1) If APCAM determines that it should accept theApplication, APCAM shall seek to appoint anEmergency Arbitrator within three days after thereceipt of a duly filed Application.

(2) Once the Emergency Arbitrator has beenappointed, APCAM shall so notify the parties tothe Application and shall transmit the file to theEmergency Arbitrator. Thereafter, all writtencommunications from the parties shall besubmitted directly to the Emergency Arbitrator witha copy to the other party to the Application andAPCAM. A copy of any written communication fromthe Emergency Arbitrator to the parties shall alsobe copied to APCAM.

(3) For the purpose of challenging an EmergencyArbitrator, Rule 8 shall apply to the EmergencyArbitrator, except that all the time periods set outin Rule 8 shall be abridged to three days.

Section 4Replacement of Emergency Arbitrator

(1) Where an Emergency Arbitrator is unable toperform or has been successfully challenged or

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otherwise removed or has resigned, APCAM shallseek to appoint a substitute Emergency Arbitratorwithin three days.

(2) If the Emergency Arbitrator is replaced, theemergency relief proceedings shall resume at thestage where the Emergency Arbitrator wasreplaced or ceased to perform his or herfunctions, unless the substitute EmergencyArbitrator decides otherwise.

Section 5Seat and Venue of Emergency Relief

(1) If the parties have agreed on the seat of thearbitration, such seat shall be the seat of theemergency relief proceedings. Where the partieshave not agreed on the seat of arbitration, andwithout prejudice to the reconstituted arbitraltribunal’s determination of the seat of arbitrationpursuant to Rule 9, the seat of the emergencyrelief shall be seat of APCAM.

(2) The venue of emergency relief proceedings maybe fixed by APCAM, as it considers appropriate.The emergency relief proceedings shallnonetheless be considered for all purposes asan arbitration conducted at the seat.

(3) Any Emergency Decision shall have the sameeffect as an interim measure and shall be bindingon the parties when rendered. By agreeing toarbitration under these Rules, the partiesundertake to comply with the Emergency Decisionwithout delay.

(4) The Emergency Arbitrator shall be entitled to orderthe provision of appropriate security by the partyseeking Emergency Relief.

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(5) Any Emergency Decision may, upon a reasonedrequest by a party, be modified, suspended orterminated by the Emergency Arbitrator or thereconstituted arbitral tribunal.

(6) Any Emergency Decision ceases to be binding —

(a) If the Emergency Arbitrator (i.e. the interimarbitral tribunal) or the final arbitral tribunalso decides; or

(b) Upon the final arbitral tribunal rendering afinal award unless the arbitral expresslydecides otherwise; or

(c) Upon the withdrawal of all claims or thetermination of the arbitration before therendering of a final award.

Section 6Costs

(1) Any Emergency Decision shall fix the costs of theemergency relief proceedings and decide whichof the parties shall bear them or in what proportionthey shall be borne by the parties, subject alwaysto the power of the final arbitral tribunal todetermine finally the apportionment of such costsin accordance with Rule 23.

(2) The costs of the emergency relief proceedingsinclude APCAM’s administrative expenses, theEmergency Arbitrator’s fees and expenses andthe reasonable and other legal costs incurred bythe parties for the emergency relief proceedings.

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Section 7Fees

(1) The fees of the Emergency Arbitrator and theadministrative costs of the Emergency ReliefProceedings shall be fixed by APCAM inaccordance with the APCAM Arbitration FeeSchedule.

(2) APCAM shall fix a provisional advance deposit asper the APCAM Arbitration Fee Schedule.

Section 8Termination of Emergency Arbitrator andReconstitution of Arbitral Tribunal

(1) The mandate of the Emergency Arbitrator shallnot terminate till it undergoes reconstitution intothe final arbitral tribunal.

(2) When the final arbitral tribunal is ready tosubstitute the Emergency Arbitrator, thereon, theEmergency Arbitrator ’s mandate shall beterminated and it will have no further power to act.

(3) The process of constituting the final arbitraltribunal shall run parallel to emergencyproceedings, initiated under Schedule-2,according to the regular procedure providedunder Rules 6 and 7, except that APCAM mayabridge any period of time under the Rules toconstitute the final arbitral tribunal as expeditiouslyas possible in the circumstances.

Section 9Miscellaneous

(1) The Emergency Arbitrator may not act as arbitratorin any arbitration relating to the dispute that gave

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rise to the Application and in respect of which theEmergency Arbitrator has acted, unless otherwiseagreed by the parties to the arbitration.

(2) The Emergency Arbitrator Procedures are notintended to prevent any party from seeking urgentinterim or conservatory measures from acompetent judicial authority at any time.

(3) In all matters not expressly provided for in thisSchedule, the Emergency Arbitrator shall act inthe spirit of the Rules.

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Schedule-3APCAM ARB-MED-ARB PROCEDURE

(AMA Procedure)

(1) Under this AMA Procedure, parties agree that anydispute settled in the course of mediation atAPCAM shall fall within the scope of theirarbitration agreement.

(2) A party requiring to commence an arbitration underthe AMA Procedure or a party invoking an AMAClause shall file an Application for EmergencyArbitration with APCAM requesting the EmergencyArbitrator to submit the case to mediation underthe AMA Procedure.

(3) The Emergency Arbitrator shall be appointed byAPCAM in accordance with the provisions ofSchedule-2 and/or the parties’ arbitrationagreement.

(4) The Emergency Arbitrator shall stay the arbitrationand inform APCAM that the case be submitted formediation. APCAM will initiate mediation pursuantto the APCAM Mediation Rules or as per any otherMediation Rules adopted by the parties. Allsubsequent steps in the arbitration shall bestayed, subject to paragraph 7, pending theoutcome of mediation.

(5) The mediation conducted under APCAM shall becompleted within 8 weeks from the Mediation

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Commencement Date, unless, APCAM considersit appropriate to extend the time. For the purposesof calculating any time period in the arbitrationproceeding, the time period will stop running atthe Mediation Commencement Date and resumeupon notification of APCAM to the Tribunal of thetermination of the mediation proceeding.

(6) After the commencement of the AMA Procedure,in the event —

(a) The dispute has not been settled bymediation either partially or entirely, APCAMwill inform the emergency arbitrator or thefinal arbitral tribunal, as the case may be,that the arbitration proceedings shallresume, unless otherwise agreed by theparties. Upon the date of APCAM’snotification to the arbitral tribunal, thearbitration proceeding in respect of thedispute or remaining part of the dispute(as the case may be) shall resume inaccordance with the APCAM ArbitrationRules;

(b) The dispute has been settled by mediationbetween the parties, APCAM will make aformal note that a settlement has beenreached. If the parties request the arbitraltribunal to record their settlement in the formof a consent award, the parties or APCAMshall refer the settlement agreement to thearbitral tribunal and the arbitral tribunal mayrender a consent award on the termsagreed to by the parties.

(7) Notwithstanding the continuation of the mediationproceedings initiated under paragraph 4, the

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process of constituting the final arbitral tribunal toreplace the Emergency Arbitrator can be initiatedby APCAM, if the parties so require, as per theregular procedure provided under Rules 6 and 7,except that APCAM may abridge any period of timeunder the Rules to constitute the final arbitraltribunal as expeditiously as possible in thecircumstances.

(8) The fees of the Emergency Arbitrator and theadministrative costs of the AMA Procedure shallbe fixed by APCAM in accordance with Section 9of Schedule-2 and mediation, as per the APCAMMediation Fee Schedule.

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Schedule-4PROTOCOL ON ONLINE ARBITRATION

Section 1Virtual Hearing

(1) In case of regular arbitration, if the parties agree,and/or the arbitral tribunal determines, thatconvening of a physical arbitration session is notpossible or feasible, they can opt for virtual hearingin consultation with APCAM.

(2) While fixing virtual hearing, the arbitral tribunalshall consider and discuss with the parties thefollowing —

(a) Logistics of the location of participants,total number of participants, number ofremote locations, extent to which anyparticipants will be in the same physicalvenue, extent to which members of thearbitral tribunal may be in the same physicalvenue as one another and/or any otherparticipants, availability and control of breakout rooms.

(b) If the Witness is located in the RemoteVenue and is giving testimony through aweb-based video conferencing solution,the audio output device in the HearingVenue should be of sufficient quality andvolume so as to ensure that the testimonycan be accurately transcribed or recordedin the Hearing Venue.

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(c) Procedures for the taking of evidence fromwitnesses and experts to ensure that theintegrity of any oral testimonial evidence ispreserved.

(d) Procedures for hearing and exchange ofdocuments, ensuring that agreeddocuments are shared online well inadvance of the hearing date, so that theyare shared to the arbitral tribunal and allthe parties.

Explanation — Agreed Documents shallmean the indexed documents filed in theproceedings submitted to the arbitraltribunal for the purposes of the hearing.

(e) Use of virtual transcription and the use ofstenographers, translators and interpretersthat are capable and able to deliver thenecessary level of service in a virtualenvironment.

Explanation — The parties or the arbitraltribunal shall inform APCAM at-least threedays in advance for availing the aboveservice.

(f) Confirming the parties’ agreement onproceeding with a virtual hearing orrecording the reason for proceeding with avirtual hearing absent such agreement bythe parties.

(3) Once the above procedures are finalised, thearbitral tribunal shall issue a procedural order,recording the details as under sub-section (b) andconsult with APCAM about the scheduling of thevirtual hearing.

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Section 2Examination of Witness

(1) In case of giving evidence by witnesses in anonline arbitration session —

(a) Only those persons present in the RemoteVenue shall be the Witness giving evidence(with his/her counsel, if applicable) andinterpreters, if any. Each Party shall providethe identities of every individual in the roomto the other Party/Parties and to the arbitraltribunal prior to the video conference andthe tribunal shall take steps to verify theidentity of each individual present at thestart of the video conference.

(b) The Witness shall give his/her evidencesitting at an empty desk and the Witness’sface shall be clearly visible.

(2) The arbitral tribunal may terminate the videoconference at any time if the tribunal deems thevideo conference so unsatisfactory that it is unfairto either Party to continue.

(3) No recordings of the video conference shall betaken without leave of the arbitral tribunal.

Provided, if allowed, any recordings of the videoconference shall be circulated to the arbitraltribunal and the Parties within 24 hours of theend of the video conference.

Section 3Online Security and Presumptions

(1) The digital platform used for online arbitrationshould ensure the following features and safetymeasures —

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(a) Allow the parties to opt for textualcommunications – chat rooms, audioconferencing or video conferencing.

(b) Allow the parties facilities for online waitingrooms and general discussion rooms.

(c) The entry to the rooms is restricted toregistered parties only, with l ist ofparticipants issued to all participatingparties and password protected.

(d) Ensure that communications are privateand confidential and recording of anycommunication whatsoever, is notpermitted.

(e) In case of video conferencing, allparticipants shall keep their videos on atall times and will be required to provide a360-degree view of their location so as tomake sure there is no other participant orillicit recording device present at thelocation so as to maintain the confidentialityof the online arbitration proceedings.

(2) During online arbitration, if a party is not able toget connectivity or if loses connectivity or facesinterruptions during the arbitration session, allthe parties and the arbitral tribunal shall benotified of the said fact by the Digital Administratorand the Sole Arbitrator/ Presiding Arbitrator or theDigital Administrator shall notify the disconnectedparty through SMS or digital notification onregistered mobile phones or on their registeredemail address and seek clarification from suchdisconnected party.

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Provided that if a party, without intimation, getsdisconnected from an ongoing mediation sessionfor fifteen continuous minutes or more, it shall bedeemed as a connectivity issue.

(3) If a party has not attended the arbitration sessionas per the sitting schedule on the online platform,it shall not prima-facie be considered as anabsence, but shall be presumed as a disruptionor interruption in connectivity. The Sole Arbitrator/Presiding Arbitrator shall contact the non-appeared party through email, notification,telephone or any other recognized medium ofcommunication and clarify the position. In casethe party does not respond to such email, withina period of three days, it shall be considered as afailure of the party to attend the proceedings.

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Schedule-5SEOUL PROTOCOL ON VIDEO CONFERENCING

IN INTERNATIONAL ARBITRATION

Introduction.

This Protocol on Video Conferencing in InternationalArbitration (Protocol) is intended to serve as a guide tobest practice for planning, testing and conducting videoconferences in international arbitration.

Definitions.

Agreed Bundle of Documents — shall mean the agreedand indexed documents submitted to the Tribunal forthe purposes of the hearing.

Hearing Venue — shall mean the site of the hearing,being the site of the requesting authority, typically wherethe majority of the participants are located.

Observer — shall mean any individual who is present inthe Venue other than the Parties, Tribunal, Witness,interpreter, as described in Article 3.

Party / Parties — shall mean the party or parties to thearbitration.

Remote Venue — shall mean the site where the remoteWitness is located to provide his/her evidence (i.e. notthe Hearing Venue), typically where a minority of theparticipants are located.

Tribunal — shall mean the arbitral tribunal.

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Venue — shall mean a video conferencing location,including the Hearing Venue and the Remote Venue(s).

Witness — shall mean the individual who is the subjectof the examination by video, including fact witnessesand experts.

Article 1 – Witness Examination Generally

1.1 The Parties shall ensure that any and all Venuesmeet the logistical and technologicalrequirements as stated in this Protocol.

1.2 The video conferencing system at the Venue shallallow a reasonable part of the interior of the roomin which the Witness is located to be shown onscreen, while retaining sufficient proximity toclearly depict the Witness.

1.3 The Witness shall give his/her evidence sitting atan empty desk or standing at a lectern, and theWitness’s face shall be clearly visible.

1.4 As a general principle, the Witness shall give his/her evidence during the course of the hearingunder the direction of the Tribunal. Only underexceptional circumstances and subject to thedirection of the Tribunal would evidence from aWitness be given/conducted outside of thehearing.

1.5 A computer with email facilities and a printershould be located at all Venues.

1.6 The parties shall ensure that an agreedtranslation of the oath to be administered isplaced before the Witness in the remote hearingroom.

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1.7 The Tribunal may terminate the video conferenceat any time if the Tribunal deems the videoconference so unsatisfactory that it is unfair toeither Party to continue.

Article 2 –Video Conferencing Venue

2.1 To the extent possible, and as may be agreed toby the Parties or ordered by the Tribunal, the videoconference shall occur at a Venue which meetsthe following minimum standards:

a. The Parties shall use best efforts to ensurethat the connection between the HearingVenue and the Remote Venue is as smoothas possible, with sounds and imagesbeing accurately and properly aligned soas to minimize any delays. This principleapplies equally to situations where thereis more than one Remote Venue. Where aconnection between additional Venues isrequired (for example when an interpreteris connected from a third location), theconnection may be established through theuse of a third party video conferencingbridge service, such as multi-point controlunits or third party router vendors thatinterlink and connect multiple videoconferencing systems together in a singleconference.

b. The Venue shall have at least one on-callindividual with adequate technicalknowledge to assist in planning, testingand conducting the video conference.

c. The Venue shall be in a location thatprovides for fair, equal and reasonable rightof access to the Parties and their related

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persons, as appropriate. Similarly, cross-border connections should be adequatelysafeguarded so as to prevent unlawfulinterception by third parties, for example,by IP-to-IP encryption.

2.2 The Parties shall use their best efforts to ensurethe security of the participants of the videoconferencing, including the Witnesses,Observers, interpreters, and experts, amongothers.

Article 3 – Observers

3.1 During the course of the video conference, theonly persons present in the Remote Venue shallbe the Witness giving evidence (with his/hercounsel, if applicable), interpreters, paralegalsto assist with the documents, and representativesfrom each Party’s legal team on a watching brief.Each Party shall provide the identities of everyindividual in the room to the other Party/Partiesand to the Tribunal prior to the video conferenceand the Tribunal shall take steps to verify theidentity of each individual present at the start ofthe video conference.

Article 4 – Documents

4.1 All documents on the record which the Witnesswill refer to during the course of his/her evidencemust be clearly identified, paginated and madeavailable to the Witness.

4.2 The Party whose Witness is giving evidence byvideo conference shall provide an unmarked copy(without any annotations, notes or mark-ups) ofthe Agreed Bundle of Documents (or such volumesof the Agreed Bundle of Documents as the Partiesagree or are required) at the start of theexamination of the Witness.

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4.3 The Parties may agree on utilizing a shared virtualdocument repository (i.e. document server) to bemade available via computers at all Venues,provided that the Parties use best efforts to ensurethe security of the documents (i.e. from unlawfulinterception or retention by third parties).

4.4 If available, a separate display screen/window(other than the screen/window used to displaythe video transmission) shall be used to showthe relevant documents to the Witness during thecourse of questioning.

Article 5 – Technical Requirements

5.1 The video conference shall be of sufficient qualityso as to allow for clear video and audiotransmission of the Witness, the Tribunal and theParties, and there shall be compatibility betweenthe hardware and software used at the Venues.While the Parties and the Tribunal may agree onthe technical requirements for the videoconferencing, as a guide, minimum transmissionspeeds should not be less than 256 kbs/second,30 frames/second, and the minimum resolutionshould be HD standard. The Hearing Venueshould also be equipped with both ISDN and IPcommunication line capabilities and all Venuesshould be equipped with appropriate portableequipment in the event of unforeseen technicalcomplications.

5.2 For any individual participating in the videoconference, there shall be sufficient microphonesto allow for the amplification of the individual’svoice, as well as sufficient microphones to allowfor the transcription of the individual’s testimonyas appropriate. There shall also be adequateplacement and control of the cameras to ensurethat all participants can be seen.

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5.3 Article 5.2 shall apply to interpreters or otherparticipants referred to in Article 3.1, asappropriate.

5.4 There shall be appropriate microphones andconnections to allow for the amplification of therelevant persons at the Hearing Venue so that theWitness and Observers may adequately hear therelevant individual(s) at the Hearing Venue.

5.5 Under appropriate circumstances, Parties mayagree to use web-based video conferencingsolutions instead of ISDN or IP communicationlines. When using a web-based videoconferencing solution, the Venue should providefor a sufficiently large screen that can project thevideo transmission displayed through the videoconferencing solution and ensure that the Ethernetor wireless internet connection is secure andstable throughout the proceedings.

5.6 If the Witness is located in the Remote Venueand is giving testimony through a web-basedvideo conferencing solution, the audio outputdevice in the Hearing Venue should be of sufficientquality and volume so as to ensure that thetestimony can be accurately transcribed orrecorded in the Hearing Venue.

5.7 For additional detail on technical specifications,please refer to Annex I.

Article 6 – Test Conferencing and Audio-Conferencing Backup

6.1 As a general principle, testing of all videoconferencing equipment shall be conducted atleast twice: once in advance of thecommencement of the hearing, and onceimmediately prior to the video conference itself.

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6.2 The Parties shall ensure that there are adequatebackups in place in the event that the videoconference fails. At a minimum, these shouldinclude cable back-ups, teleconferencing, oralternative methods of video/audio conferencing.

Article 7 – Interpretation

7.1 The Parties shall ensure that interpretationservices are made available to the Witness, ifapplicable.

7.2 As a general principle, consecutive interpretationshall be preferred to simultaneous interpretation.

Article 8 - Recordings

8.1 No recordings of the video conference shall betaken without leave of the Tribunal.

8.2 Any recordings of the video conference shall becirculated to the Tribunal and the Parties within24 hours of the end of the video conference.

Article 9 - Preparatory Arrangements

9.1 To the extent possible, the Parties should makethe request to the Tribunal to use videoconferencing at the hearing at least 72 hoursbefore the commencement of hearing. The Partywho requests the use of video conferencing (the“Requesting Party”) should liaise with theappropriate individuals to ensure the videoconferencing can be conducted smoothly. Thisincludes the booking of video conferencingfacilities and notifying all participants of the videoconferencing arrangements. The RequestingParty shall bear the extra costs of the videoconferencing facilities, if any.

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9.2 The Parties shall endeavour to agree on theseating plan so as to allow each participant to beable to see the participants with whom they willbe speaking to during the video conference.

9.3 Where an interpreter is required during the videoconference, the interpreter shall be briefed by theappointing Party before the commencement of thehearing, including in relation to this Protocol andthe arrangements for video conferencing that mayimpact or require adjustment of their interpretationservice.

9.4 Before the commencement of the hearing, theParties shall inform the participants of any backupplans in case of communication or technologicalbreakdowns.

Annex 1 Technical Specifications

Video conferencing equipment used should meetminimum industry standards in order to ensure theefficient and smooth operation of each hearing. Thecommon industry standards recommended by theInternational Telecommunications Union - the UnitedNations specialized agency in the field oftelecommunications, are listed below, and is intendedto serve as a guideline as to the technical specificationsthat each Venue adopting video conferencing shouldentail.

Video

For ISDN-based networks:

• H.320 Standard (umbrellarecommendation for narrow-band videoconferencing over circuit-switchednetworks i.e. N-ISDN, SW56, dedicatednetworks); and

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• H.310 Standard (wide-band (MPEG-2)video conferencing over ATM and B-ISDN)

For video over Internet/LAN-conferencing:

• H.323 Standard (narrow-band videoconferencing over non-guaranteed quality-of-service packet networks (Internet, LAN,etc.))

Data Conference / Data Collaboration

T.120 Standard.

Audio

Standards for audio coding:

• G.711 (3kHZ audio-coding within 64 kbit/s)• G.722 (7kHZ audio-coding within 48 or 56

kbit/s)

Echo-cancellation microphones with a frequencyrange of 100-7,000 Hz, audio muting, on/off switchand full-duplex audio.

H.281 (umbrella standard for local and far-endcamera control protocol for ISDN (H.320) videoconferencing calls, with camera(s) that have theability to pan, tilt and zoom, both manually andusing pre-sets).

Picture

H.263 (video coding for low bitrate communicationi.e. less than 64 Kbps);

H.264 (new video codec standard that offersmajor improvements to image quality. Picture

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quality standard of 30 frames per secondCommon Intermediate Format (CIF) at between336 and 384 kbps); or

H.239 (Picture-in-picture (PIP) or DuoVideo H.239.H.239 defines the role management andadditional media channels for H.300-seriesmultimedia terminals, and allows endpoints thatsupport H.239 to receive and transmit multiple,separate media streams)

Channels, bandwidth and bridging

Minimum of six channels for room video-conferencing systems using ISDN that has thecapacity to use 3 ISDN lines.

Standards for Codecs:

• H.261 (full motion video coding foraudiovisual services at p x 64 Kbps);

• H.263 (video coding for low bitratecommunication i.e. less than 64 Kbps); or

• H.264 (new video codec standard thatoffers major improvements to imagequality. Picture quality standard of 30frames per second Common IntermediateFormat (CIF) at between 336 and 384kbps).

Bandwidth on Demand Inter-Networking Group(BONDING) standards (ISDN and H.320 only) forinverse multiplexers.

H.243 (the H.320/H.323 Standard for BridgingTechnology).

H.460 (the standard for the traversing of H.323videoconferencing signals across firewalls andnetwork address translation (NAT)).

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Schedule-6IBA GUIDELINES ON CONFLICTS OF INTEREST

IN INTERNATIONAL ARBITRATION 2014

[The Guidelines were adopted by resolution of the IBACouncil on Thursday 23 October 2014. The Guidelinesare available for download at: www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx]

Introduction

1. Arbitrators and party representatives are oftenunsure about the scope of their disclosureobligations. The growth of international business,including larger corporate groups andinternational law firms, has generated moredisclosures and resulted in increased complexityin the analysis of disclosure and conflict of interestissues. Parties have more opportunities to usechallenges of arbitrators to delay arbitrations, orto deny the opposing party the arbitrator of itschoice. Disclosure of any relationship, no matterhow minor or serious, may lead to unwarrantedor frivolous challenges. At the same time, it isimportant that more information be madeavailable to the parties, so as to protect awardsagainst challenges based upon alleged failuresto disclose, and to promote a level playing fieldamong parties and among counsel engaged ininternational arbitration.

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2. Parties, arbitrators, institutions and courts facecomplex decisions about the information thatarbitrators should disclose and the standards toapply to disclosure. In addition, institutions andcourts face difficult decisions when an objectionor a challenge is made after a disclosure. Thereis a tension between, on the one hand, the parties’right to disclosure of circumstances that may callinto question an arbitrator’s impartiality orindependence in order to protect the parties’ rightto a fair hearing, and, on the other hand, the needto avoid unnecessary challenges againstarbitrators in order to protect the parties’ ability toselect arbitrators of their choosing.

3. It is in the interest of the international arbitrationcommunity that arbitration proceedings are nothindered by ill-founded challenges againstarbitrators and that the legitimacy of the processis not affected by uncertainty and a lack ofuniformity in the applicable standards fordisclosures, objections and challenges. The2004 Guidelines reflected the view that thestandards existing at the time lacked sufficientclarity and uniformity in their application. TheGuidelines, therefore, set forth some ‘GeneralStandards and Explanatory Notes on theStandards’. Moreover, in order to promote greaterconsistency and to avoid unnecessary challengesand arbitrator withdrawals and removals, theGuidelines list specific situations indicatingwhether they warrant disclosure or disqualificationof an arbitrator. Such lists, designated ‘Red’,‘Orange’ and ‘Green’ (the ‘Application Lists’), havebeen updated and appear at the end of theserevised Guidelines.

4. The Guidelines reflect the understanding of theIBA Arbitration Committee as to the best current

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international practice, firmly rooted in the principlesexpressed in the General Standards below. TheGeneral Standards and the Application Lists arebased upon statutes and case law in a cross-section of jurisdictions, and upon the judgementand experience of practitioners involved ininternational arbitration. In reviewing the 2004Guidelines, the IBA Arbitration Committee updatedits analysis of the laws and practices in a numberof jurisdictions. The Guidelines seek to balancethe various interests of parties, representatives,arbitrators and arbitration institutions, all of whomhave a responsibility for ensuring the integrity,reputation and efficiency of internationalarbitration. Both the 2004 Working Group and theSubcommittee in 2012/2014 have sought andconsidered the views of leading arbitrationinstitutions, corporate counsel and other personsinvolved in international arbitration through publicconsultations at IBA annual meetings, and atmeetings with arbitrators and practitioners. Thecomments received were reviewed in detail andmany were adopted. The IBA ArbitrationCommittee is grateful for the seriousconsideration given to its proposals by so manyinstitutions and individuals.

5. The Guidelines apply to international commercialarbitration and investment arbitration, whether therepresentation of the parties is carried out bylawyers or non-lawyers, and irrespective ofwhether or not non-legal professionals serve asarbitrators.

6. These Guidelines are not legal provisions anddo not override any applicable national law orarbitral rules chosen by the parties. However, it ishoped that, as was the case for the 2004Guidelines and other sets of rules and guidelines

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of the IBA Arbitration Committee, the revisedGuidelines will find broad acceptance within theinternational arbitration community, and that theywill assist parties, practitioners, arbitrators,institutions and courts in dealing with theseimportant questions of impartiality andindependence. The IBA Arbitration Committeetrusts that the Guidelines will be applied withrobust common sense and without undulyformalistic interpretation.

7. The Application Lists cover many of the variedsituations that commonly arise in practice, but theydo not purport to be exhaustive, nor could they be.Nevertheless, the IBA Arbitration Committee isconfident that the Application Lists provideconcrete guidance that is useful in applying theGeneral Standards. The IBA Arbitration Committeewill continue to study the actual use of theGuidelines with a view to furthering theirimprovement.

8. In 1987, the IBA published Rules of Ethics forInternational Arbitrators. Those Rules cover moretopics than these Guidelines, and they remain ineffect as to subjects that are not discussed in theGuidelines. The Guidelines supersede the Rulesof Ethics as to the matters treated here.

PART IGENERAL STANDARDS REGARDINGIMPARTIALITY, INDEPENDENCE ANDDISCLOSURE

(1) General Principle

Every arbitrator shall be impartial and independent ofthe parties at the time of accepting an appointment toserve and shall remain so until the final award has beenrendered or the proceedings have otherwise finallyterminated.

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Explanation to General Standard 1 —

A fundamental principle underlying these Guidelines isthat each arbitrator must be impartial and independentof the parties at the time he or she accepts anappointment to act as arbitrator, and must remain soduring the entire course of the arbitration proceeding,including the time period for the correction orinterpretation of a final award under the relevant rules,assuming such time period is known or readilyascertainable.

The question has arisen as to whether this obligationshould extend to the period during which the award maybe challenged before the relevant courts. The decisiontaken is that this obligation should not extend in thismanner, unless the final award may be referred back tothe original Arbitral Tribunal under the relevant applicablelaw or relevant institutional rules. Thus, the arbitrator’sobligation in this regard ends when the Arbitral Tribunalhas rendered the final award, and any correction orinterpretation as may be permitted under the relevantrules has been issued, or the time for seeking the samehas elapsed, the proceedings have been finallyterminated (for example, because of a settlement), orthe arbitrator otherwise no longer has jurisdiction. If, aftersetting aside or other proceedings, the dispute isreferred back to the same Arbitral Tribunal, a fresh roundof disclosure and review of potential conflicts of interestsmay be necessary.

(2) Conflicts of Interest

(a) An arbitrator shall decline to accept anappointment or, if the arbitration has already beencommenced, refuse to continue to act as anarbitrator, if he or she has any doubt as to his orher ability to be impartial or independent.

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(b) The same principle applies if facts orcircumstances exist, or have arisen since theappointment, which, from the point of view of areasonable third person having knowledge of therelevant facts and circumstances, would give riseto justif iable doubts as to the arbitrator’simpartiality or independence, unless the partieshave accepted the arbitrator in accordance withthe requirements set out in General Standard 4.

(c) Doubts are justifiable if a reasonable third person,having knowledge of the relevant facts andcircumstances, would reach the conclusion thatthere is a likelihood that the arbitrator may beinfluenced by factors other than the merits of thecase as presented by the parties in reaching hisor her decision.

(d) Justifiable doubts necessarily exist as to thearbitrator’s impartiality or independence in any ofthe situations described in the Non-Waivable RedList.


(a) If the arbitrator has doubts as to his or her abilityto be impartial and independent, the arbitratormust decline the appointment. This standardshould apply regardless of the stage of theproceedings. This is a basic principle that isspelled out in these Guidelines in order to avoidconfusion and to foster confidence in the arbitralprocess.

(b) In order for standards to be applied asconsistently as possible, the test fordisqualification is an objective one. The wording‘impartiality or independence’ derives from thewidely adopted Article 12 of the United NationsCommission on International Trade Law

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(UNCITRAL) Model Law, and the use of anappearance test based on justifiable doubts asto the impartiality or independence of the arbitrator,as provided in Article 12(2) of the UNCITRAL ModelLaw, is to be applied objectively (a ‘reasonablethird person test’). Again, as described in theExplanation to General Standard 3(e), thisstandard applies regardless of the stage of theproceedings.

(c) Laws and rules that rely on the standard ofjustifiable doubts often do not define that standard.This General Standard is intended to providesome context for making this determination.

(d) The Non-Waivable Red List describescircumstances that necessarily raise justifiabledoubts as to the arbitrator’s impartiality orindependence. For example, because no one isallowed to be his or her own judge, there cannotbe identity between an arbitrator and a party. Theparties, therefore, cannot waive the conflict ofinterest arising in such a situation.

(3) Disclosure by the Arbitrator

(a) If facts or circumstances exist that may, in the eyesof the parties, give rise to doubts as to thearbitrator’s impartiality or independence, thearbitrator shall disclose such facts orcircumstances to the parties, the arbitrationinstitution or other appointing authority (if any, andif so required by the applicable institutional rules)and the co arbitrators, if any, prior to accepting hisor her appointment or, if thereafter, as soon as heor she learns of them.

(b) An advance declaration or waiver in relation topossible conflicts of interest arising from facts

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and circumstances that may arise in the futuredoes not discharge the arbitrator’s ongoing dutyof disclosure under General Standard 3(a).

(c) It follows from General Standards 1 and 2(a) thatan arbitrator who has made a disclosureconsiders himself or herself to be impartial andindependent of the parties, despite the disclosedfacts, and, therefore, capable of performing his orher duties as arbitrator. Otherwise, he or shewould have declined the nomination orappointment at the outset, or resigned.

(d) Any doubt as to whether an arbitrator shoulddisclose certain facts or circumstances shouldbe resolved in favour of disclosure.

(e) When considering whether facts or circumstancesexist that should be disclosed, the arbitrator shallnot take into account whether the arbitration is atthe beginning or at a later stage.


(a) The arbitrator’s duty to disclose under GeneralStandard 3(a) rests on the principle that the partieshave an interest in being fully informed of any factsor circumstances that may be relevant in their view.Accordingly, General Standard 3(d) provides thatany doubt as to whether certain facts orcircumstances should be disclosed should beresolved in favour of disclosure. However,situations that, such as those set out in the GreenList, could never lead to disqualification underthe objective test set out in General Standard 2,need not be disclosed. As reflected in GeneralStandard 3(c), a disclosure does not imply thatthe disclosed facts are such as to disqualify thearbitrator under General Standard 2. The duty ofdisclosure under General Standard 3(a) isongoing in nature.

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(b) The IBA Arbitration Committee has considered theincreasing use by prospective arbitrators ofdeclarations in respect of facts or circumstancesthat may arise in the future, and the possibleconflicts of interest that may result, sometimesreferred to as ‘advance waivers’. Suchdeclarations do not discharge the arbitrator’songoing duty of disclosure under GeneralStandard 3(a). The Guidelines, however, do nototherwise take a position as to the validity andeffect of advance declarations or waivers, becausethe validity and effect of any advance declarationor waiver must be assessed in view of the specifictext of the advance declaration or waiver, theparticular circumstances at hand and theapplicable law.

(c) A disclosure does not imply the existence of aconflict of interest. An arbitrator who has made adisclosure to the parties considers himself orherself to be impartial and independent of theparties, despite the disclosed facts, or else he orshe would have declined the nomination, orresigned. An arbitrator making a disclosure thusfeels capable of performing his or her duties. It isthe purpose of disclosure to allow the parties tojudge whether they agree with the evaluation ofthe arbitrator and, if they so wish, to explore thesituation further. It is hoped that the promulgationof this General Standard will eliminate themisconception that disclosure itself impliesdoubts sufficient to disqualify the arbitrator, or evencreates a presumption in favour of disqualification.Instead, any challenge should only be successfulif an objective test, as set forth in General Standard2 above, is met. Under Comment 5 of the PracticalApplication of the General Standards, a failure todisclose certain facts and circumstances thatmay, in the eyes of the parties, give rise to doubts

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as to the arbitrator’s impartiality or independence,does not necessarily mean that a conflict of interestexists, or that a disqualification should ensue.

(d) In determining which facts should be disclosed,an arbitrator should take into account allcircumstances known to him or her. If the arbitratorfinds that he or she should make a disclosure,but that professional secrecy rules or other rulesof practice or professional conduct prevent suchdisclosure, he or she should not accept theappointment, or should resign.

(e) Disclosure or disqualification (as set out inGeneral Standards 2 and 3) should not dependon the particular stage of the arbitration. In orderto determine whether the arbitrator shoulddisclose, decline the appointment or refuse tocontinue to act, the facts and circumstances aloneare relevant, not the current stage of theproceedings, or the consequences of thewithdrawal. As a practical matter, arbitrationinstitutions may make a distinction depending onthe stage of the arbitration. Courts may likewiseapply different standards. Nevertheless, nodistinction is made by these Guidelinesdepending on the stage of the arbitralproceedings. While there are practical concerns,if an arbitrator must withdraw after the arbitrationhas commenced, a distinction based on the stageof the arbitration would be inconsistent with theGeneral Standards.

(4) Waiver by the Parties

(a) If, within 30 days after the receipt of any disclosureby the arbitrator, or after a party otherwise learnsof facts or circumstances that could constitute apotential conflict of interest for an arbitrator, a party

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does not raise an express objection with regardto that arbitrator, subject to paragraphs (b) and (c)of this General Standard, the party is deemed tohave waived any potential conflict of interest inrespect of the arbitrator based on such facts orcircumstances and may not raise any objectionbased on such facts or circumstances at a laterstage.

(b) However, if facts or circumstances exist asdescribed in the Non-Waivable Red List, anywaiver by a party (including any declaration oradvance waiver, such as that contemplated inGeneral Standard 3(b)), or any agreement by theparties to have such a person serve as arbitrator,shall be regarded as invalid.

(c) A person should not serve as an arbitrator whena conflict of interest, such as those exemplified inthe Waivable Red List, exists. Nevertheless, sucha person may accept appointment as arbitrator,or continue to act as an arbitrator, if the followingconditions are met —

(i) all parties, all arbitrators and the arbitrationinstitution, or other appointing authority (ifany), have full knowledge of the conflict ofinterest; and

(ii) all parties expressly agree that such aperson may serve as arbitrator, despite theconflict of interest.

(d) An arbitrator may assist the parties in reaching asettlement of the dispute, through conciliation,mediation or otherwise, at any stage of theproceedings. However, before doing so, thearbitrator should receive an express agreement

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by the parties that acting in such a manner shallnot disqualify the arbitrator from continuing toserve as arbitrator. Such express agreement shallbe considered to be an effective waiver of anypotential conflict of interest that may arise fromthe arbitrator’s participation in such a process, orfrom information that the arbitrator may learn inthe process. If the assistance by the arbitratordoes not lead to the final settlement of the case,the parties remain bound by their waiver. However,consistent with General Standard 2(a) andnotwithstanding such agreement, the arbitratorshall resign if, as a consequence of his or herinvolvement in the settlement process, thearbitrator develops doubts as to his or her abilityto remain impartial or independent in the futurecourse of the arbitration.


(a) Under General Standard 4(a), a party is deemedto have waived any potential conflict of interest, ifsuch party has not raised an objection in respectof such conflict of interest within 30 days. Thistime limit should run from the date on which theparty learns of the relevant facts or circumstances,including through the disclosure process.

(b) General Standard 4(b) serves to exclude from thescope of General Standard 4(a) the facts andcircumstances described in the Non-WaivableRed List. Some arbitrators make declarations thatseek waivers from the parties with respect to factsor circumstances that may arise in the future.Irrespective of any such waiver sought by thearbitrator, as provided in General Standard 3(b),facts and circumstances arising in the course ofthe arbitration should be disclosed to the partiesby virtue of the arbitrator’s ongoing duty ofdisclosure.

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(c) Notwithstanding a serious conflict of interest, suchas those that are described by way of example inthe Waivable Red List, the parties may wish toengage such a person as an arbitrator. Here, partyautonomy and the desire to have only impartialand independent arbitrators must be balanced.Persons with a serious conflict of interest, suchas those that are described by way of example inthe Waivable Red List, may serve as arbitratorsonly if the parties make fully informed, explicitwaivers.

(d) The concept of the Arbitral Tribunal assisting theparties in reaching a settlement of their disputein the course of the arbitration proceedings is well-established in some jurisdictions, but not inothers. Informed consent by the parties to such aprocess prior to its beginning should be regardedas an effective waiver of a potential conflict ofinterest. Certain jurisdictions may require suchconsent to be in writing and signed by the parties.Subject to any requirements of applicable law,express consent may be sufficient and may begiven at a hearing and reflected in the minutes ortranscript of the proceeding. In addition, in orderto avoid parties using an arbitrator as mediatoras a means of disqualifying the arbitrator, theGeneral Standard makes clear that the waivershould remain effective, if the mediation isunsuccessful. In giving their express consent, theparties should realise the consequences of thearbitrator assisting them in a settlement process,including the risk of the resignation of the arbitrator.

(5) Scope

(a) These Guidelines apply equally to tribunal chairs,sole arbitrators and co-arbitrators, howsoeverappointed.

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(b) Arbitral or administrative secretaries andassistants, to an individual arbitrator or the ArbitralTribunal, are bound by the same duty ofindependence and impartiality as arbitrators, andit is the responsibility of the Arbitral Tribunal toensure that such duty is respected at all stagesof the arbitration.


(a) Because each member of an Arbitral Tribunal hasan obligation to be impartial and independent,the General Standards do not distinguish betweensole arbitrators, tribunal chairs, party-appointedarbitrators or arbitrators appointed by aninstitution.

(b) Some arbitration institutions require arbitral oradministrative secretaries and assistants to signa declaration of independence and impartiality.Whether or not such a requirement exists, arbitralor administrative secretaries and assistants tothe Arbitral Tribunal are bound by the same dutyof independence and impartiality (including theduty of disclosure) as arbitrators, and it is theresponsibility of the Arbitral Tribunal to ensure thatsuch duty is respected at all stages of thearbitration. Furthermore, this duty applies toarbitral or administrative secretaries andassistants to either the Arbitral Tribunal orindividual members of the Arbitral Tribunal.

(6) Relationships

(a) The arbitrator is in principle considered to bearthe identity of his or her law firm, but whenconsidering the relevance of facts orcircumstances to determine whether a potentialconflict of interest exists, or whether disclosure

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should be made, the activities of an arbitrator’slaw firm, if any, and the relationship of the arbitratorwith the law firm, should be considered in eachindividual case. The fact that the activities of thearbitrator’s firm involve one of the parties shallnot necessarily constitute a source of suchconflict, or a reason for disclosure. Similarly, ifone of the parties is a member of a group withwhich the arbitrator’s firm has a relationship, suchfact should be considered in each individual case,but shall not necessarily constitute by itself asource of a conflict of interest, or a reason fordisclosure.

(b) If one of the parties is a legal entity, any legal orphysical person having a controlling influence onthe legal entity, or a direct economic interest in, ora duty to indemnify a party for, the award to berendered in the arbitration, may be considered tobear the identity of such party.


(a) The growing size of law firms should be takeninto account as part of today’s reality ininternational arbitration. There is a need tobalance the interests of a party to appoint thearbitrator of its choice, who may be a partner at alarge law firm, and the importance of maintainingconfidence in the impartiality and independenceof international arbitrators. The arbitrator must, inprinciple, be considered to bear the identity of hisor her law firm, but the activities of the arbitrator’sfirm should not automatically create a conflict ofinterest. The relevance of the activities of thearbitrator’s firm, such as the nature, timing andscope of the work by the law firm, and therelationship of the arbitrator with the law firm,

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should be considered in each case. GeneralStandard 6(a) uses the term ‘involve’ rather than‘acting for’ because the relevant connections witha party may include activities other thanrepresentation on a legal matter. Althoughbarristers’ chambers should not be equated withlaw firms for the purposes of conflicts, and nogeneral standard is proffered for barristers’chambers, disclosure may be warranted in viewof the relationships among barristers, parties orcounsel. When a party to an arbitration is amember of a group of companies, specialquestions regarding conflicts of interest arise.Because individual corporate structurearrangements vary widely, a catch-all rule is notappropriate. Instead, the particular circumstancesof an affiliation with another entity within the samegroup of companies, and the relationship of thatentity with the arbitrator’s law firm, should beconsidered in each individual case.

(b) When a party in international arbitration is a legalentity, other legal and physical persons may havea controlling influence on this legal entity, or adirect economic interest in, or a duty to indemnifya party for, the award to be rendered in thearbitration. Each situation should be assessedindividually, and General Standard 6(b) clarifiesthat such legal persons and individuals may beconsidered effectively to be that party. Third-partyfunders and insurers in relation to the disputemay have a direct economic interest in the award,and as such may be considered to be theequivalent of the party. For these purposes, theterms ‘third-party funder’ and ‘insurer’ refer to anyperson or entity that is contributing funds, or othermaterial support, to the prosecution or defence ofthe case and that has a direct economic interestin, or a duty to indemnify a party for, the award tobe rendered in the arbitration.

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Duty of the Parties and the Arbitrator

(a) A party shall inform an arbitrator, the ArbitralTribunal, the other parties and the arbitrationinstitution or other appointing authority (if any) ofany relationship, direct or indirect, between thearbitrator and the party (or another company ofthe same group of companies, or an individualhaving a controlling influence on the party in thearbitration), or between the arbitrator and anyperson or entity with a direct economic interest in,or a duty to indemnify a party for, the award to berendered in the arbitration. The party shall do soon its own initiative at the earliest opportunity.

(b) A party shall inform an arbitrator, the ArbitralTribunal, the other parties and the arbitrationinstitution or other appointing authority (if any) ofthe identity of its counsel appearing in thearbitration, as well as of any relationship, includingmembership of the same barristers’ chambers,between its counsel and the arbitrator. The partyshall do so on its own initiative at the earliestopportunity, and upon any change in its counselteam.

(c) In order to comply with General Standard 7(a), aparty shall perform reasonable enquiries andprovide any relevant information available to it.

(d) An arbitrator is under a duty to make reasonableenquiries to identify any conflict of interest, as wellas any facts or circumstances that mayreasonably give rise to doubts as to his or herimpartiality or independence. Failure to disclosea conflict is not excused by lack of knowledge, ifthe arbitrator does not perform such reasonableenquiries.

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(a) The parties are required to disclose anyrelationship with the arbitrator. Disclosure of suchrelationships should reduce the risk of anunmeritorious challenge of an arbitrator’simpartiality or independence based oninformation learned after the appointment. Theparties’ duty of disclosure of any relationship,direct or indirect, between the arbitrator and theparty (or another company of the same group ofcompanies, or an individual having a controllinginfluence on the party in the arbitration) has beenextended to relationships with persons or entitieshaving a direct economic interest in the award tobe rendered in the arbitration, such as an entityproviding funding for the arbitration, or having aduty to indemnify a party for the award.

(b) Counsel appearing in the arbitration, namely thepersons involved in the representation of theparties in the arbitration, must be identified by theparties at the earliest opportunity. A party’s duty todisclose the identity of counsel appearing in thearbitration extends to all members of that party’scounsel team and arises from the outset of theproceedings.

(c) In order to satisfy their duty of disclosure, theparties are required to investigate any relevantinformation that is reasonably available to them.In addition, any party to an arbitration is required,at the outset and on an ongoing basis during theentirety of the proceedings, to make a reasonableeffort to ascertain and to disclose availableinformation that, applying the general standard,might affect the arbitrator’s impartiality orindependence.

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(d) In order to satisfy their duty of disclosure underthe Guidelines, arbitrators are required toinvestigate any relevant information that isreasonably available to them.

PART IIPRACTICAL APPLICATION OF THE GENERALSTANDARDS

1. If the Guidelines are to have an important practicalinfluence, they should address situations that arelikely to occur in today’s arbitration practice andshould provide specific guidance to arbitrators,parties, institutions and courts as to whichsituations do or do not constitute conflicts ofinterest, or should or should not be disclosed.For this purpose, the Guidelines categorisesituations that may occur in the followingApplication Lists. These lists cannot cover everysituation. In all cases, the General Standardsshould control the outcome.

2. The Red List consists of two parts: ‘a Non-Waivable Red List’ (see General Standards 2(d)and 4(b)); and ‘a Waivable Red List’ (see GeneralStandard 4(c)). These lists are non-exhaustive anddetail specific situations that, depending on thefacts of a given case, give rise to justifiable doubtsas to the arbitrator’s impartiality andindependence. That is, in these circumstances,an objective conflict of interest exists from the pointof view of a reasonable third person havingknowledge of the relevant facts andcircumstances (see General Standard 2(b)). TheNon-Waivable Red List includes situationsderiving from the overriding principle that noperson can be his or her own judge. Therefore,acceptance of such a situation cannot cure the

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conflict. The Waivable Red List covers situationsthat are serious but not as severe. Because oftheir seriousness, unlike circumstancesdescribed in the Orange List, these situationsshould be considered waivable, but only if andwhen the parties, being aware of the conflict ofinterest situation, expressly state their willingnessto have such a person act as arbitrator, as setforth in General Standard 4(c).

3. The Orange List is a non-exhaustive list of specificsituations that, depending on the facts of a givencase, may, in the eyes of the parties, give rise todoubts as to the arbitrator’s impartiality orindependence. The Orange List thus reflectssituations that would fall under General Standard3(a), with the consequence that the arbitrator hasa duty to disclose such situations. In all thesesituations, the parties are deemed to haveaccepted the arbitrator if, after disclosure, notimely objection is made, as established inGeneral Standard 4(a).

4. Disclosure does not imply the existence of aconflict of interest; nor should it by itself resulteither in a disqualification of the arbitrator, or in apresumption regarding disqualification. Thepurpose of the disclosure is to inform the partiesof a situation that they may wish to explore furtherin order to determine whether objectively that is,from the point of view of a reasonable third personhaving knowledge of the relevant facts andcircumstances – there are justifiable doubts asto the arbitrator’s impartiality or independence. Ifthe conclusion is that there are no justifiabledoubts, the arbitrator can act. Apart from thesituations covered by the Non-Waivable Red List,he or she can also act if there is no timely objection

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by the parties or, in situations covered by theWaivable Red List, if there is a specific acceptanceby the parties in accordance with General Standard4(c). If a party challenges the arbitrator, he or shecan nevertheless act, if the authority that rules onthe challenge decides that the challenge doesnot meet the objective test for disqualification.

5. A later challenge based on the fact that anarbitrator did not disclose such facts orcircumstances should not result automatically innon-appointment, later disqualification or asuccessful challenge to any award.Nondisclosure cannot by itself make an arbitratorpartial or lacking independence: only the facts orcircumstances that he or she failed to disclosecan do so.

6. Situations not listed in the Orange List or fallingoutside the time limits used in some of theOrange List situations are generally not subjectto disclosure. However, an arbitrator needs toassess on a case-by-case basis whether a givensituation, even though not mentioned in theOrange List, is nevertheless such as to give riseto justifiable doubts as to his or her impartiality orindependence. Because the Orange List is a non-exhaustive list of examples, there may besituations not mentioned, which, depending onthe circumstances, may need to be disclosed byan arbitrator. Such may be the case, for example,in the event of repeat past appointments by thesame party or the same counsel beyond the three-year period provided for in the Orange List, or whenan arbitrator concurrently acts as counsel in anunrelated case in which similar issues of law areraised. Likewise, an appointment made by thesame party or the same counsel appearing before

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an arbitrator, while the case is ongoing, may alsohave to be disclosed, depending on thecircumstances. While the Guidelines do notrequire disclosure of the fact that an arbitratorconcurrently serves, or has in the past served, onthe same Arbitral Tribunal with another memberof the tribunal, or with one of the counsel in thecurrent proceedings, an arbitrator should assesson a case-by-case basis whether the fact of havingfrequently served as counsel with, or as anarbitrator on, Arbitral Tribunals with anothermember of the tribunal may create a perceivedimbalance within the tribunal. If the conclusion is‘yes’, the arbitrator should consider a disclosure.

7. The Green List is a non-exhaustive list of specificsituations where no appearance and no actualconflict of interest exists from an objective point ofview. Thus, the arbitrator has no duty to disclosesituations falling within the Green List. As statedin the Explanation to General Standard 3(a), thereshould be a limit to disclosure, based onreasonableness; in some situations, an objectivetest should prevail over the purely subjective testof ‘the eyes’ of the parties.

8. The borderline between the categories thatcomprise the Lists can be thin. It can be debatedwhether a certain situation should be on one Listinstead of another. Also, the Lists contain, forvarious situations, general terms such as‘significant’ and ‘relevant’. The Lists reflectinternational principles and best practices to theextent possible. Further definition of the norms,which are to be interpreted reasonably in light ofthe facts and circumstances in each case, wouldbe counterproductive.

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1. Non-Waivable Red List

1.1 There is an identity between a party and thearbitrator, or the arbitrator is a legal representativeor employee of an entity that is a party in thearbitration.

1.2 The arbitrator is a manager, director or memberof the supervisory board, or has a controllinginfluence on one of the parties or an entity thathas a direct economic interest in the award to berendered in the arbitration.

1.3 The arbitrator has a significant financial orpersonal interest in one of the parties, or theoutcome of the case.

1.4 The arbitrator or his or her firm regularly advisesthe party, or an affiliate of the party, and thearbitrator or his or her firm derives significantfinancial income therefrom.

2. Waivable Red List

2.1 Relationship of the arbitrator to the dispute

2.1.1 The arbitrator has given legal advice, orprovided an expert opinion, on the disputeto a party or an affiliate of one of the parties.

2.1.2 The arbitrator had a prior involvement inthe dispute.

2.2 Arbitrator’s direct or indirect interest in the dispute

2.2.1 The arbitrator holds shares, either directlyor indirectly, in one of the parties, or anaffiliate of one of the parties, this party oran affiliate being privately held.

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2.2.2 A close family member2 of the arbitrator hasa significant financial interest in theoutcome of the dispute.

2.2.3 The arbitrator, or a close family member ofthe arbitrator, has a close relationship witha non-party who may be liable to recourseon the part of the unsuccessful party in thedispute.

2.3 Arbitrator’s relationship with the parties or counsel

2.3.1 The arbitrator currently represents oradvises one of the parties, or an affiliate ofone of the parties.

2.3.2 The arbitrator currently represents oradvises the lawyer or law firm acting ascounsel for one of the parties.

2.3.3 The arbitrator is a lawyer in the same lawfirm as the counsel to one of the parties.

2.3.4 The arbitrator is a manager, director ormember of the supervisory board, or has acontrolling influence in an affiliate3 of oneof the parties, if the affiliate is directlyinvolved in the matters in dispute in thearbitration.

2.3.5 The arbitrator’s law firm had a previous butterminated involvement in the case withoutthe arbitrator being involved himself orherself.

2 Throughout the Application Lists, the term ‘close family mem-ber’ refers to a: spouse, sibling, child, parent or life partner, inaddition to any other family member with whom a close rela-tionship exists.

3 Throughout the Application Lists, the term ‘affiliate’ encom-passes all companies in a group of companies, including theparent company.

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2.3.6 The arbitrator’s law firm currently has asignificant commercial relationship withone of the parties, or an affiliate of one ofthe parties.

2.3.7 The arbitrator regularly advises one of theparties, or an affiliate of one of the parties,but neither the arbitrator nor his or her firmderives a significant financial incometherefrom.

2.3.8 The arbitrator has a close familyrelationship with one of the parties, or witha manager, director or member of thesupervisory board, or any person having acontrolling influence in one of the parties,or an affiliate of one of the parties, or with acounsel representing a party.

2.3.9 A close family member of the arbitrator hasa significant financial or personal interestin one of the parties, or an affiliate of one ofthe parties.

3. Orange List

3.1 Previous services for one of the parties or otherinvolvement in the case

3.1.1 The arbitrator has, within the past threeyears, served as counsel for one of theparties, or an affiliate of one of the parties,or has previously advised or beenconsulted by the party, or an affiliate of theparty, making the appointment in anunrelated matter, but the arbitrator and theparty, or the affiliate of the party, have noongoing relationship.

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3.1.2 The arbitrator has, within the past threeyears, served as counsel against one ofthe parties, or an affiliate of one of theparties, in an unrelated matter.

3.1.3 The arbitrator has, within the past threeyears, been appointed as arbitrator on twoor more occasions by one of the parties, oran affiliate of one of the parties.4

3.1.4 The arbitrator’s law firm has, within the pastthree years, acted for or against one of theparties, or an affiliate of one of the parties,in an unrelated matter without theinvolvement of the arbitrator.

3.1.5 The arbitrator currently serves, or hasserved within the past three years, asarbitrator in another arbitration on a relatedissue involving one of the parties, or anaffiliate of one of the parties.

3.2 Current services for one of the parties

3.2.1 The arbitrator’s law firm is currentlyrendering services to one of the parties, orto an affiliate of one of the parties, withoutcreating a significant commercialrelationship for the law firm and without theinvolvement of the arbitrator.

4 It may be the practice in certain types of arbitration, such asmaritime, sports or commodities arbitration, to draw arbitratorsfrom a smaller or specialised pool of individuals. If in such fieldsit is the custom and practice for parties to frequently appointthe same arbitrator in different cases, no disclosure of this factis required, where all parties in the arbitration should be familiarwith such custom and practice.

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3.2.2 A law firm or other legal organisation thatshares significant fees or other revenueswith the arbitrator’s law firm rendersservices to one of the parties, or an affiliateof one of the parties, before the ArbitralTribunal.

3.2.3 The arbitrator or his or her firm representsa party, or an affiliate of one of the parties tothe arbitration, on a regular basis, but suchrepresentation does not concern thecurrent dispute.

3.3 Relationship between an arbitrator and anotherarbitrator or counsel

3.3.1 The arbitrator and another arbitrator arelawyers in the same law firm.

3.3.2 The arbitrator and another arbitrator, or thecounsel for one of the parties, aremembers of the same barristers’chambers.

3.3.3 The arbitrator was, within the past threeyears, a partner of, or otherwise affiliatedwith, another arbitrator or any of the counselin the arbitration.

3.3.4 A lawyer in the arbitrator’s law firm is anarbitrator in another dispute involving thesame party or parties, or an affiliate of oneof the parties.

3.3.5 A close family member of the arbitrator is apartner or employee of the law firmrepresenting one of the parties, but is notassisting with the dispute.

3.3.6 A close personal friendship exists betweenan arbitrator and a counsel of a party.

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3.3.7 Enmity exists between an arbitrator andcounsel appearing in the arbitration.

3.3.8 The arbitrator has, within the past threeyears, been appointed on more than threeoccasions by the same counsel, or thesame law firm.

3.3.9 The arbitrator and another arbitrator, orcounsel for one of the parties in thearbitration, currently act or have actedtogether within the past three years as co-counsel.

3.4 Relationship between arbitrator and party andothers involved in the arbitration

3.4.1 The arbitrator’s law firm is currently actingadversely to one of the parties, or anaffiliate of one of the parties.

3.4.2 The arbitrator has been associated with aparty, or an affiliate of one of the parties, ina professional capacity, such as a formeremployee or partner.

3.4.3 A close personal friendship exists betweenan arbitrator and a manager or director ora member of the supervisory board of: aparty; an entity that has a direct economicinterest in the award to be rendered in thearbitration; or any person having acontrolling influence, such as a controllingshareholder interest, on one of the partiesor an affiliate of one of the parties or awitness or expert.

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3.4.4 Enmity exists between an arbitrator and amanager or director or a member of thesupervisory board of: a party; an entity thathas a direct economic interest in the award;or any person having a controlling influencein one of the parties or an affiliate of one ofthe parties or a witness or expert.has adirect economic interest in the award; orany person having a controlling influencein one of the parties or an affiliate of one ofthe parties or a witness or expert.

3.4.5 If the arbitrator is a former judge, he or shehas, within the past three years, heard asignificant case involving one of the parties,or an affiliate of one of the parties.

3.5 Other circumstances

3.5.1 The arbitrator holds shares, either directlyor indirectly, that by reason of number ordenomination constitute a material holdingin one of the parties, or an affiliate of one ofthe parties, this party or affiliate beingpublicly listed.

3.5.2 The arbitrator has publicly advocated aposition on the case, whether in apublished paper, or speech, or otherwise.

3.5.3 The arbitrator holds a position with theappointing authority with respect to thedispute.

3.5.4 The arbitrator is a manager, director ormember of the supervisory board, or has acontrolling influence on an affiliate of oneof the parties, where the affiliate is notdirectly involved in the matters in dispute inthe arbitration.

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4. Green List

4.1 Previously expressed legal opinions

4.1.1 The arbitrator has previously expressed alegal opinion (such as in a law review articleor public lecture) concerning an issue thatalso arises in the arbitration (but thisopinion is not focused on the case).

4.2 Current services for one of the parties

4.2.1 A firm, in association or in alliance with thearbitrator’s law firm, but that does not sharesignificant fees or other revenues with thearbitrator’s law firm, renders services toone of the parties, or an affiliate of one ofthe parties, in an unrelated matter.

4.3 Contacts with another arbitrator, or with counselfor one of the parties

4.3.1 The arbitrator has a relationship withanother arbitrator, or with the counsel forone of the parties, through membership inthe same professional association, orsocial or charitable organisation, or througha social media network.

4.3.2 The arbitrator and counsel for one of theparties have previously served together asarbitrators.

4.3.3 The arbitrator teaches in the same facultyor school as another arbitrator or counselto one of the parties, or serves as an officerof a professional association or social orcharitable organisation with anotherarbitrator or counsel for one of the parties.

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4.3.4 The arbitrator was a speaker, moderatoror organiser in one or more conferences,or participated in seminars or workingparties of a professional, social orcharitable organisation, with anotherarbitrator or counsel to the parties.

4.4 Contacts between the arbitrator and one of theparties

4.4.1 The arbitrator has had an initial contact witha party, or an affiliate of a party (or theircounsel) prior to appointment, if this contactis limited to the arbitrator’s availability andqualifications to serve, or to the names ofpossible candidates for a chairperson, anddid not address the merits or proceduralaspects of the dispute, other than to providethe arbitrator with a basic understandingof the case.

4.4.2 The arbitrator holds an insignificantamount of shares in one of the parties, oran affiliate of one of the parties, which ispublicly listed.

4.4.3 The arbitrator and a manager, director ormember of the supervisory board, or anyperson having a controlling influence onone of the parties, or an affiliate of one ofthe parties, have worked together as jointexperts, or in another professional capacity,including as arbitrators in the same case.

4.4.4 The arbitrator has a relationship with oneof the parties or its affiliates through a socialmedia network.

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Schedule-7APCAM INTERNATIONAL

ARBITRATION FEE SCHEDULE

REGISTRATION CHARGES

Filing Fee

Arbitration: US$ 1000.00

Filing of Applications

AMA Procedure: US$ 250.00Emergency Arbitrator: US$ 250.00Interpretation, correction oradditional Award: US$ 350.00Scrutiny of Award: US$ 350.00Miscellaneous applications:US$ 100.00

ARBITRAL TRIBUNAL FEE(Per Arbitrator)

Quantum of Claim(In US$)

Arbitrator Fee(In US$)

ArbitratorCategory

AAA

Up to 50,000.00 ACA

AICA

2500.00

3500.00

4500.00

From 50,001.00to 500,000.00

2500.00 Plus 2%excess of 50,000.00 AAA

ACA

AICA

3500.00 Plus 3%excess of 50,000.00

4500.00 Plus 4%excess of 50,000.00

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Quantum of Claim(In US$)

Arbitrator Fee(In US$)

ArbitratorCategory

From 500,001.00to 1,000,000.00

11,500.00 Plus 1%excess of 500,000.00

AAA

ACA

AICA

17,000.00 Plus 1.5%excess of 500,000.00

22,500.00 Plus 2%excess of 500,000.00

From 1,000,001.00to 5,000,000.00

ACA

AICA

24,500.00 Plus 0.5%excess of 1,000,000.0032,500.00 Plus 0.75%excess of 1,000,000.00

From 5,000,001.00to 10,000,000.00

ACA

AICA

44,500.00 Plus 0.2%excess of 5,000,000.0062,500.00 Plus 0.25%excess of 5,000,000.00

More than10,000,000.00

ACA

AICA

54,500.00 Plus 0.05%excess of 10,000,000.00with a ceiling of100,000.00

75,000.00 Plus 0.075%excess of 10,000,000.00with a ceiling of150,000.00

• In case the Arbitral Tribunal is a Sole Arbitrator, she/he will be entitled to an additional 15% of the aboveFee schedule

• In case of Fast Track Arbitration, the fee will be75%of the above Fee schedule

• For disputes which cannot be quantified, the fee willbe finalised by APCAM based on the facts

• As per Rule 23(2) parties and the tribunal are free toagree on different fees

• For Payment Schedule, see below

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Additional Fees for the Arbitral Tribunal(Per Arbitrator)

Interpretation, correction or additional Award

Up to US$ 50,000.00: US$ 750.00From US$ 50,001.00 toUS$ 1,000,000.00: US$ 1250.00More than US$ 1,000,000.00: US$ 2500.00

Scrutiny Fees(Per Member)

Up to US$ 50,000.00: US$ 1000.00From US$ 50,001.00 toUS$ 1,000,000.00: US$ 1500.00More than US$ 1,000,000.00: US$ 2500.00

Emergency Arbitrator Fees(Emergency & AMA Procedure)

Up to US$ 50,000.00: ACA US$ 1000.00AICA US$ 1250.00

From US$ 50,001.00 to ACA US$ 1750.00US$ 1,000,000.00: AICA US$ 2250.00

More than US$ 1,000,000.00: ACA US$ 3000.00AICA US$ 3500.00

• For disputes which cannot be quantified, the fee will befinalised by APCAM based on the facts

Travel, Boarding & Lodging for Arbitrators(Per Member)

Local Sitting: Travelling allowance of US$75.00 per sitting.

Outstation Sitting: Actuals by Air and out-of-pocket expenses at actualsfor boarding, lodging andlocal transport subject tomaximum of US$ 350.00/ day.

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From 500,001.00 5375.00to 1,000,000.00 Plus 0.35% excess of

50,000.00

From 1,000,001.00 7125.00to 5,000,000.00 Plus 0.10% excess of

1,000,000.00

From 5,000,001.00 11,125.00to 10,000,000.00 Plus 0.05% excess of

5,000,000.00

More than 10,000,000.00 13,625.00Plus 0.02% excess of10,000,000.00with a ceiling of 25,000.00

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(In US$) (In US$)

Upto 50,000.00 2000.00

From 50,001.00 2000.00to 500,000.00 Plus 0.75% excess of

50,000.00

• For disputes which cannot be quantified, thefee will be finalised by APCAM based on thefacts

• For Payment Schedule, see below

APCAM ADMINISTRATIVE FEE

Emergency Arbitration & Administrative Fees(Emergency & AMA Procedure)

Up to US$ 50,000.00: US$ 750.00

From US$ 50,001.00 toUS$ 1,000,000.00: US$ 1250.00

More than US$ 1,000,000.00: US$ 2000.00

• For disputes which cannot be quantified, the fee will befinalised by APCAM based on the facts

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FEE PAYMENT SCHEDULE

Registration Charges

• Filing fee to be paid by the Claimant on filing ofNotice of Arbitration.

• Application filing fee to be paid by the party makingthe application.

Arbitral Tribunal & Administrative Fee

• 25% to be deposited by the Claimant at the time offiling the Claim statement.

• 25% to be deposited by the respondent at the timeof filing the Response or Statement of Defense.

• 30% to be deposited by the Parties [Claimant andRespondent(s)] equally within 10 days of thecompletion of pleadings.

• 20% to be deposited by the Parties [Claimant andRespondent(s)] equally before the hearing date.

• Balance to be deposited by the Parties [Claimantand Respondent(s)] within 10 days after the matteris reserved for award.

In case of emergency arbitration, the entire fee to bedeposited by the Party making the application at the timeof filing the application.

Rentals of Conference Rooms

The parties shall also pay rentals for the conferencerooms and the related miscellaneous charges as fixedby the centre. Miscellaneous charges shall include tran-scription, translation, stenography, interpretation, copy-ing and similar services and also refreshment charges.

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Schedule-8RECOMMENDED CLAUSES

FUTURE DISPUTES

Parties to a contract who wish to have any future disputesreferred to arbitration under the APCAM Arbitration Rulesmay insert in the contract a clause in the following form:

Suggested Arbitration Clause

“Any dispute, difference or controversy arising out of orin connection with this contract, including any questionregarding its existence, operation, termination, validityor breach thereof shall be referred to and finally resolvedby arbitration as per the applicable arbitration law of theseat of arbitration and shall be conducted by the Asia-Pacific Centre for Arbitration & Mediation (“APCAM”), inaccordance with their Arbitration Rules (“APCAMArbitration Rules”) for the time being in force.”

Suggested Med-Arb Clause

“Any dispute, difference or controversy arising out of orin connection with this contract shall first be referred tomediation at the Asia-Pacific Centre for Arbitration &Mediation (“APCAM”) and in accordance with itsapplicable Mediation Rules (“APCAM Mediation Rules”).If the mediation is abandoned by the mediator or isotherwise concluded without the dispute or difference

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being resolved, then such dispute, difference orcontroversy shall be referred to and determined byarbitration as per the applicable arbitration law of theseat of arbitration by APCAM in accordance with itsArbitration Rules”.

Suggested Arb-Med-Arb Clause

“Any dispute, difference or controversy arising out of orin connection with this contract, including any questionregarding its existence, operation, termination, validityor breach thereof shall be referred to and finally resolvedby arbitration as per the applicable arbitration law of theseat of arbitration and shall be conducted by the Asia-Pacific Centre for Arbitration & Mediation (“APCAM”), inaccordance with their Arbitration Rules (“APCAMArbitration Rules”) for the time being in force.

It is further agreed that following the commencement ofarbitration, the parties will attempt in good faith to resolvesuch dispute, difference or controversy throughmediation, as per the APCAM Arb-Med-Arb Procedure forthe time being in force. Any settlement reached in thecourse of mediation shall be referred to the arbitraltribunal appointed by APCAM and may be made aconsent award on agreed terms”.

* The parties may consider adding —

The number of arbitrators;

The seat and venue of arbitration;

The law applicable for arbitration;

The language of arbitration.

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APPLICABILITY OF APCAM ARBITRATION RULESIN ARBITRATIONS ARISING OUT OF OTHERARBITRATION CLAUSES

Where any agreement, submission or referenceprovides for arbitration by any of the constituent memberinstitutes of the Asia-Pacific Centre for Arbitration &Mediation (“APCAM”), and if such institution providesunder their Rules that international or cross-borderdisputes would be governed by APCAM Arbitration Rules,then such international or cross-border disputes shallbe conducted in accordance with the APCAM ArbitrationRules, including the APCAM Arbitration Fee Schedule.

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