20210325仲裁早新闻：美国仲裁协会国际争议解决中心修改仲裁规则和调解规则（附规则原文）
美国仲裁协会国际争议解决中心
修改仲裁规则和调解规则
美国仲裁协会国际争议解决中心（ICDR）已完成对ICDR《争议解决程序》中的调解规则和仲裁规则修订的全面审核，将其公布，自2021年3月1日起生效（请见随附的规则条文）。
此次修订考虑了一系列重要议题，包括仲裁中的第三方资助、当事人在调解和仲裁程序中讨论网络安全、隐私权和数据保护事宜的义务、可仲裁性交由仲裁庭决定、《新加坡调解公约》的生效和实施、视频通信以及新冠疫情影响。
新《仲裁规则》的主要创新点在于其重申了仲裁员的独立性和公正性义务，不仅要遵守ICDR规则和ICDR管理人提供的《任命通知书》的条款，而且还要遵守《商事争议仲裁员道德守则》，此外，该规则通过争议点预先处分、推定仲裁中适用调解、明确规定使用视频方式进行仲裁，以及提高快速仲裁程序的最高标的额，以提高仲裁的效率和经济性。在合并审理和追加当事人方面，规则扩大了其适用范围，以在符合案件法益时追加其他当事人。不仅如此，新规则阐明了第三方资助披露义务和仲裁庭秘书方面的规则适用，而且ICDR经当事人批准后可公布脱敏版裁决，提高了ICDR仲裁的透明度。此外，新版仲裁规则授权仲裁庭对仲裁费用可作出单独裁决且附带利息，有利于代另一方预付仲裁费用的当事人。
在新《调解规则》方面，新规则给出了有关调解程序的详细指南，并强调当事人的控制和参与，以及ICDR对于当事人寻找和任命调解员方面的机构支持。此外，新规则还强调当事人和调解员需要考虑其案件所需的适当网络安全、隐私和数据保护级别。随着《新加坡调解公约》推出和影响力的扩大，ICDR作出了相应的适应性调整，规定了根据《新加坡调解公约》项下的和解协议的执行的问题。
一、2021年国际仲裁规则的重要修改
1.加入第5条——国际管理审查理事会
ICDR是仲裁案件的管理人，而此次修订新加入了第5条，规定国际管理审查理事会（International Administrative Review Council, IARC）可作为ICDR对于以下事项作出决定的决策机构：（a）仲裁员的回避，（b）仲裁员的继续在任，（c）关于仲裁员人数的争议，（d）仲裁地，以及（e）是否满足提起或提交仲裁的管理要求。
ICDR添加这一规则的目的是使得公众能更好地理解国际管理审查理事会在案件的初始阶段如何处理管理性问题，提高透明度。
2.追加当事人–第8条（以前的第7条）
第8条第1款在以前第7条第1款的基础上规定，在仲裁庭组庭后，若其认为追加其他当事人符合案件法益且该当事人同意加入，则追加当事人。本条修改导致其适用范围的拓展。
3.合并审理–第9条（以前的第8条）
依照第9条第1款，当事人仍可请求仲裁员合并审理仲裁，但案件管理人可以主动任命合并审理的仲裁员，而合并审理的适用标准保持不变，但是合并审理的范围现已扩大到在仲裁涉及“相关”当事人时即允许合并审理，而先前规则只允许数个仲裁的当事人相同时才允许合并审理。ICDR扩大合并审理的适用范围的目的是使当事人可以在仲裁机制中解决此类问题，而无需将其提交法院审理。
4.仲裁员的公正和独立–第14条（以前的第13条）
第14条第1款新规定仲裁员需要承担一些新义务，包括（a）维持公正性和独立性标准，（b）了解ICDR规则和案件管理人提供的《任命通知》中的条款并照此行事，以及（c）根据《商事争议仲裁员道德守则》行事。
5.第三方资助-第14条（以前的第13条）
第14条第7款是新加入的内容，与第三方资助和未披露的经济利益问题有关。依当事人申请或与当事人协商后，仲裁庭可自行要求当事人（a）披露非当事人（例如第三方资助人或保险人）对于一方当事人参与仲裁的费用是否已承诺支付或进行出资；或（b）查明有关个人或实体的身份；以及（c）描述承诺的性质。同样，仲裁庭可以要求当事人披露在仲裁结果中具有经济利益的非当事人（例如资助人、保险人、母公司、或最终实益拥有人），并描述利益的性质。
6.仲裁庭秘书-第17条和第41条（以前的第38条）
新添的第17条规定，仲裁庭可以在双方当事人同意下，并根据ICDR可能提供的任何指导原则来任命仲裁庭秘书。第41条规定仲裁庭秘书也适用责任排除。
7.仲裁管辖权-第21条（以前的第19条）
当事人提及仲裁规则时，其是否构成将仲裁性交由仲裁庭方面决定可能存在争议。对于此，第21条第1款进行了澄清，并强调无需法院介入，仲裁庭有权审理并对可仲裁性争议做出决定。该项修订的原因在于2019《国际商事和投资者-仲裁法的美国法重述》采取的立场与现有判例法相反，规定若某仲裁规则被纳入仲裁协议，则其构成将可仲裁性交由仲裁庭而非法院决定的“明确且不容置疑的证据”，这与美国最高法院在First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944(1995)案中的要求相同。
然而，“可仲裁性”一词在美国国内和国外的涵义较为不同，在国际上其通常涵义为国家立法或司法是否禁止某类特定类别的争端去仲裁。但是，在美国 “可仲裁性”其还包括仲裁庭是否对争议具有管辖权，因此需要特别注意。
8.程序的进行-第22条（以前的第20条）
对该规则进行了重要更改。预备会议改名为“程序性听证会”，从而强调该会议对于当事人及其代理人而言都很重要，并且其中将包括各种重要的待讨论以纳入第一号程序令的程序性问题。
9.网络安全、隐私和数据保护-第22条
ICDR一向重视客户信息和案件信息的安全性和隐私性，并在此次修订中在第22条“程序的进行”中增加了有关规定，要求仲裁庭与当事人就网络安全、隐私和数据保护问题进行讨论，以便为案件制定适当的安全性和合规性标准。在每个案件中ICDR都会向各方当事人发送有用的资源，包括AAA-ICDR最佳实践指南和AAA-ICDR网络安全检查表。
10.先予处分-第23条
ICDR认识到有必要提高仲裁效率，在新的第23条明确规定争议点先予处分，而申请争议点先予裁决的一方当事人必须首先申请许可，获批之后才得继续申请对争议点进行先予处分。若仲裁庭认定（a）该申请有合理的胜诉可能性，（b）该申请可处分或限制该案中的一个或多个争议点，并且（c）审理该申请很可能比将其留到案件的实体部分更为有效或经济，则仲裁庭将批准提出该申请。第23条第2款规定了双方在先予处分许可是否应获批、以及若获批则是否仲裁庭应进行争议点先予处分这些问题上的听证权和正当程序权利。第23条第3款则赋予仲裁庭就该申请作出指令或裁决的权力。若仲裁庭作出的是裁决，则应给出裁决理由。该规则综合考虑平衡了世界各司法管辖区和法律从业人员的执业习惯。
11.使用视频、音频或其他电子方式开庭–第22条（以前的第20条），第26条（以前的第23条）
第22条和第26条均承认可以使用视频、音频或其他电子方式进行初步事项和最终的开庭审理。第22条第3款鼓励各方当事人和仲裁庭在程序性听证会上考虑适用何种规则和程序来来进行数据保护和保障安全性。第26条则指出开庭的部分或全部都可使用视频形式进行。当事人可以同意选择视频形式进行审理，仲裁庭也可以在与各方协商后指令适用视频形式进行审理，但前提是视频审理不会有损一方当事人在程序公平方面的权利。仲裁庭还有权指令不需要证人亲自出庭而以其他方式对其进行盘问。
12.证人陈述–第26条（以前的第23条）
在新的第26条第4款中规定“应当”而非“可以”使用证人陈述，这种修订反映了使用证人陈述作为直接证词的国际习惯操作，提高了效率。
13.电子签名–第32条（以前的第29条）
新增的第32条第4款允许仲裁庭以电子方式签署指令或裁决，除非（a）准据法要求进行实际签名；（b）当事人约定必须进行实际签名；或（c）仲裁庭或管理人认定实际签名是适当的。这部分的修订在新冠疫情期间显得尤为重要。
14.预付仲裁费用–第39条（以前的第36条）
第39条第3款规定，若一方当事人未支付所需的仲裁费用，这将导致该当事人的仲裁请求或反请求被撤回，但该当事人仍有权为其请求或反请求进行辩护。新的第39条第4款规定，一方当事人未支付仲裁费用而对方代为支付的则该对方可请求仲裁庭单独另行作出裁决以收回代付款，附加利息。若支付方不止一方，则仲裁庭可以就每个支付方作出该等裁决。若没有任何一方当事人愿意支付该等仲裁费用，则第39条第5款规定，仲裁庭可以指令中止或终止仲裁程序；若此时尚未任命仲裁庭，则案件管理人可以中止或终止该仲裁程序。
15.保密-第40条（以前是第30条第3款的——仲裁裁决的时间、形式和效力）
在裁决的公布方面，第40条第4款规定除非当事人在裁决作出之日起6个月内以书面形式反对裁决的公布，否则ICDR可以发布脱敏版的、隐去各方当事人的名称和其他识别细节的裁决、指令、裁定和决定。这部分内容原先规定在第30条“仲裁裁决的时间、形式和效力”，但新规则将其规定在“保密”条款之下。
16.国际快速程序：第E-5条
2014年版仲裁规则首次规定了快速程序，适用于披露的仲裁请求或反请求额度不超过250,000美元的案件，而2021修订版将该额度增加至500,000美元。
17.国际快速程序：第E-9条
与第22条和第27条一样，第E-9条也承认，庭审可以通过视频方式进行。
18. 仲裁规则的其他更改
（1）仲裁通知 - 第2条
调解作为争议解决手段其地位不断提升， ICDR也作出承诺使用调解进行争议解决，先前版本的第2条第3款第g项规定的是当事人在仲裁通知中应声明其是否有兴趣对其争议进行调解，而2021修订版则要求当事人在仲裁通知中说明其是否愿意在进行仲裁之前或与此同时对其争议进行调解。
（2）答辩和反请求 - 第3条
修订后的第3条第1款规定，提出反请求的30天期限的起算点为管理员确认其收到仲裁通知之日。第3条第4款要求被申请人作出第2条第3款第g项中规定的申请人应作出的声明，即其是否愿意在进行仲裁之前或与此同时对其争议进行调解。
（3）紧急保护措施 - 第7条（以前的第6条）
第7条第1款条规定了当事人若申请紧急保护措施，则必须在其仲裁申请中进行声明，说明若无该等救济则该当事人将遭何种损害或不利，并且申请中还需包括这方面费用的支付。而修订后的第7条第3款具体指出，紧急仲裁员具有自我认定是否有管辖权的权力。
（4）任命仲裁员 - 第13条（以前的第12条）
第13条第4款反映，案件管理人在任命仲裁员时可以直接任命，也可以向当事人发送仲裁员候选人清单。
（5）仲裁员回避 - 第15条（以前的第14条）
2021版本第15条第1款在之前该条内容的基础上进行了扩展，规定若仲裁员未履行其职责则可被申请回避。
（6）仲裁员的替换 - 第16条（以前的第15条）
若一名仲裁员未能参加仲裁，则原第15条第3款并不允许当事人此时拒绝由两名仲裁员继续仲裁，而2021年新版本的第16条第3款则规定当事人可约定仲裁这种情况下不得由两名仲裁员继续进行。
（7）证人不出庭 - 第26条（以前的第23条）
第26条第5款规定，证人被要求出庭作证的，若证人再无合理理由的情况下不出庭，则仲裁庭若认为适当，可作出相应指令，包括降低证人陈述的权重或对其不予考虑。
（8）仲裁费用 - 第37条（以前的第34条）
第37条特别增加了关于仲裁费用的定义，其中包括与仲裁员补偿有关的税款以及与仲裁庭助理业务有关的费用。
二、2021年国际调解规则的重要修改
ICDR认为调解是一种可行且重要的替代性争议解决机制。历史上对ICDR《国际调解规则》的制订和修改基本上都与AAA适用于国内调解的《商业调解规则》同步进行，但ICDR在2021年首次对《国际调解规则》进行重大实质性修订，重新制定了一套全面的国际调解规则。
1.视频、音频或其他电子方式的使用–规则第M-1条和第M-9条
《调解规则》第1条和第9条承认可以通过视频进行调解的全部或部分。
2.调解员的任命：规则第M-4条
第4条将其文本进行了重新编排，凸显了当事人参与的重要性以及ICDR负有协助当事人寻找合格调解员的义务。若各方当事人无法就调解员的选任达成一致，并且双方协议中未规定其他任命方式，则ICDR将向各方当事人发送其调解员名册中的调解员名单，鼓励各方当事人就名单上的调解员达成一致；无法达成一致的，则每一方当事人各自对调解员进行删除和排名，最终由ICDR依照双方的偏好指定一个双方都可接受的调解员。若无法从名单中进行任命，则ICDR保留从调解员名册中任命调解员的权力，无需对当事人提交其他名单。
3.调解员的职责与责任–规则第M-8条
之前版本的《调解规则》第8条列举了6项内容，详细规定了调解员的职责以及调解程序的进行方式。为提高规则明确性，2021版规则将第M-8条的调解程序的进行方式移动到第M-9条“调解程序”中，该条内容主要是关于调解流程的管理和组织，而调解员职责的部分则保留在第M-8条中。
4.调解程序–规则第M-9条
如上所述，调解程序的进行方式的内容主要规定在2021规则新加的第M-9条中，除此之外，该条内容也承认视频方式是进行调解的适当方式。此外，该条内容还采纳了调解实践的习惯操作，就整个调解的流程和进行方式进行了概括规定，包括以下程序：（a）调解员为达到组织调解的目的，可与各方当事人进行初步会议；（b）调解的全部或部分可通过视频方式进行；（c）就各方当事人所请求的救济而言，各方当事人被要求交换与之相关的所有文件；（d）就有关争议点、根本利益、以及当事人谈判的历史而交换备忘录。
对于任何信息而言，若一方当事人希望保持其机密性，则应另行发送给调解员，而调解员可以在任何安排好的调解会议之前、期间和之后与各方当事人和/或其代表进行单独或单方面的会议以及其他交流，该等交流可以通过现场亲自、书面或视频进行。调解员可以私下或在双方同意的情况下共同向所有各方当事人以口头或书面形式提出和解建议。若在安排好的调解中未能完全解决所有问题，则调解员可以继续与当事人沟通，以促进争议的完全解决。此外，调解员和当事人应针对其案件所需而设定适当网络安全、隐私和数据保护级别。
5.当事人的责任-规则第M-10条（以前的规则第8条）
2021《调解规则》第M-10条强调，由每一方当事人都负有责任在调解中派出有权代表承诺执行和解协议。
6.调解所产生的和解协议的执行–规则第M-14条（以前的规则第12条）
新增的2021《调解规则》第M-14条第e款旨在于协助当事人依照《新加坡调解公约》或其他准据法而执行调解所产生的和解协议。根据《新加坡调解公约》第4条第b款，各方当事人可以请求调解员签署和解协议，请求调解员签署文件表明调解已进行，或要求ICDR签发文件证明在调解过程中达成和解协议，以协助调解所产生的和解协议的执行。
INTERNATIONAL DISPUTE RESOLUTION PROCEDURES (Including Mediation and Arbitration Rules)
Rules Amended and Effective March 1, 2021
International Mediation Rules
M-1.Agreement of Parties
Whenever parties have agreed in writing to mediate disputes under these International Mediation Rules, or have provided for mediation or conciliation of existing or future international disputes under the auspices of either the International Centre for Dispute Resolution (“ICDR”), the international division of the American Arbitration Association (“AAA”), or the AAA without designating particular rules, they shall be deemed to have made these International Mediation Rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement. The parties by mutual agreement may vary any part of these Rules including, but not limited to, agreeing to conduct all or part of the mediation via video, audio, or other electronic means.
M-2.Initiation of Mediation
1. Any party or parties to a dispute may initiate mediation under the ICDR’s auspices by filing a request for mediation to any of the ICDR’s regional offices or case management centers via email, mail, courier, or fax. Requests for mediation may also be filed online through the ICDR’s AAA WebFile at www.icdr.org or via email at casefiling@adr.org.
2. The party initiating the mediation shall simultaneously notify the other party or parties of the request. The initiating party shall provide the following information to the ICDR and the other party or parties as applicable:
a. the names, regular mail addresses, email addresses, and telephone numbers of all parties to the dispute and representatives, if any, in the mediation;
b. a copy of the mediation provision of the parties’ contract or the parties’ stipulation to mediate;
c. a brief statement of the nature of the dispute and the relief requested; and
d. any recommendations for a specific mediator or qualifications the mediator should possess.
3. Where there is no pre-existing stipulation or contract by which the parties have provided for mediation of existing or future disputes under the auspices of the ICDR, a party may request the ICDR to invite another party to participate in “mediation by voluntary submission.” Upon receipt of such a request, the ICDR will contact the other party or parties involved in the dispute and attempt to obtain a submission to mediation.
M-3.Representation
Subject to any applicable law, any party may be represented by persons of the party’s choice. The names and addresses of such persons shall be communicated in writing to all parties and to the ICDR.
M-4.Appointment of the Mediator
The ICDR shall assist the parties in finding a mutually agreeable mediator. If the parties are not able to agree on the appointment of a mediator and have not provided any other method of appointment, the mediator shall be appointed in the following manner:
a. Upon receipt of a request for mediation, the ICDR will send to each party a list of mediators from the ICDR’s Panel of Mediators.The parties are encouraged to agree on a mediator from the submitted list and to advise the ICDR of their agreement.
b. If the parties are unable to agree on a mediator, each party shall strike unacceptable names from the list, number the remaining names in order of preference, and return the list to the ICDR. If a party does not return the list within the time specified, all mediators on the list shall be deemed acceptable. The ICDR shall appoint a mutually acceptable mediator from the list, based upon the parties’ designated preferences.
c. If for any reason the appointment cannot be made from the submitted list, the ICDR shall have the authority to make the appointment from among other members of the Panel of Mediators without the submission of additional lists.
M-5. Mediator’s Impartiality and Duty to Disclose
1. ICDR mediators are required to abide by the Model Standards of Conduct for Mediators in effect at the time a mediator is appointed to a case. Where there is a conflict between the Model Standards and any provision of these Mediation Rules, these Mediation Rules shall govern. The Model Standards require mediators to (i) decline a mediation if the mediator cannot conduct it in an impartial manner,and (ii) disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.
2. Prior to accepting an appointment, ICDR mediators are required to make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator. ICDR mediators are required to disclose any circumstance likely to create a presumption of bias or prevent a resolution of the parties’ dispute within the time frame desired by the parties. Upon receipt of such disclosures, the ICDR shall immediately communicate the disclosures to the parties for their comments.
3. The parties may, upon receiving disclosure of actual or potential conflicts of interest of the mediator, waive such conflicts and proceed with the mediation. In the event that a party disagrees as to whether the mediator shall serve, or in the event that the mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, the mediator shall be replaced.
M-6.Vacancies
If any mediator shall become unwilling or unable to serve, the ICDR will appoint another mediator, unless the parties agree otherwise, in accordance with Rule M-4.
M-7.Language
If the parties have not agreed otherwise, the language of the mediation shall be that of the documents containing the mediation agreement.
M-8. Duties and Responsibilities of the Mediator
1. The mediator shall conduct the mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.
2. The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute.
3. The mediator is not a legal representative of any party and has no fiduciary duty to any party.
M-9. Mediation Proceedings
1.The mediator shall conduct the proceedings with a view to expediting the resolution of the dispute. The mediator may conduct a preparatory conference with the parties promptly after being appointed for the purpose of organizing the proceedings of the case. In establishing procedures for the case, the mediator and the parties may conduct all or part of the mediation via video, audio, or other electronic means to increase the efficiency and economy of the proceedings.
2.The parties are encouraged toexchange all documents pertinent to the relief requested. The mediator mayrequest the exchange of memoranda on issues, including the underlying interestsand the history of the parties’ negotiations. Information that a party wishesto keep confidential may be sent to the mediator, as necessary, in a separatecommunication with the mediator.
3.The mediator may conduct separate or ex parte meetings and other communications with the parties and/or their representatives, before, during, and after any scheduled mediation conference. Such communications may be conducted in person, in writing, viavideo, audio or other electronic means.
4.The mediator may make oral or written recommendations for settlement to a party privately or, if the parties agree, to all parties jointly.
5.In the event that a complete settlement of all or some issues in dispute is not achieved within the scheduled mediation conference(s), the mediator may continue to communicate with the parties for a period of time in an ongoing effort to facilitate a complete settlement.
6. Early in the proceeding or at the preparatory conference, the mediator and the parties shall consider cybersecurity, privacy, and data protection to provide for an appropriate level of security and compliance in connection with the proceeding.
M-10.Responsibilities of the Parties
1.The parties shall ensure that appropriate representatives of each party, having authority to commit to the execution of a settlement agreement, attend the mediation conference.
2.Prior to and during the scheduled mediation conference(s), the parties and their representatives shall, as appropriate to each party’s circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation.
M-11.Privacy
Mediation conferences and related mediation communications are private proceedings. The parties and their representatives may attend mediation conferences. Other persons may attend only with the permission of the parties and with the consent of the mediator.
M-12.Confidentiality
1.Subject to applicable law or the parties’ agreement, confidential information disclosed to a mediator by the parties or by other participants in the course of the mediation shall not be divulged by the mediator. The mediator shall maintain the confidentiality of all information obtained in the mediation, and all records, reports, or other documents received by a mediator while serving in that capacity shall be confidential.
2.The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum.
3. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding the following, unless agreed to by the parties or required by applicable law:
a. views expressed or suggestions made by a party or other participant with respect to a possible settlement of the dispute;
b. admissions made by a party or other participant in the course of the mediation proceedings;
c. proposals made or views expressed by the mediator;or
d. the fact that a party had or had not indicated willingness to accept a proposal for settlement made by the mediator.
M-13.No Stenographic Record
There shall be no stenographic record of the mediation process.
M-14.Termination of Mediation
The mediation shall be terminated:
a. By the execution of a settlement agreement by the parties; or
b. By a written or verbal declaration of the mediator to the effect that further efforts at mediation would not contribute to a resolution of the parties’ dispute; or
c. By a written or verbal declaration of any party to the effect that the mediation proceedings are terminated; or
d. When there has been no communication between the mediator and any party or party’s representative for 21 days following the conclusion of the mediation conference; or
e. The parties may request the mediator (by signingthe settlement agreement or otherwise) or the ICDR to issue an attestation that a settlement was reached in the course of a mediation to assist in the enforcement of such settlement agreement under the United Nations Convention on International Settlement Agreements Resulting from Mediation or other applicable law.
M-15.Exclusion of Liability
Neither the ICDR nor any mediator is a necessary party in judicial proceedings relating to the mediation. Neither the ICDR nor any mediator shall be liable to any party for any error, act or omission in connection with any mediation conducted under these Rules.
M-16.Interpretation and Application of Rules
The mediator shall interpret and apply these Rules insofar as they relate to the mediator’s duties and responsibilities. All other Rules shall be interpreted and applied by the ICDR.
M-17.Deposits
Unless otherwise directed by the mediator, the ICDR will require the parties to deposit in advance of the mediation conference such sums of money as it, in consultation with the mediator, deems necessary to cover the costs and expenses of the mediation, and the ICDR shall render an accounting to the parties and return any unexpended balance at the conclusion of the mediation.
M-18.Expenses
All expenses of the mediation, including required travel and other expenses or charges of the mediator, shall be borne equally by the parties unless they agree otherwise. The expenses of participants for either side shall be paid by the party requesting the attendance of such participants.
M-19.Costs of Mediation
FOR THE CURRENT ADMINISTRATIVE FEE SCHEDULE, PLEASE VISIT
www.adr.org/internationalfeeschedule.
International Arbitration Rules
Article1: Scope of these Rules
1.Where parties have agreed to arbitrate disputes under these International Arbitration Rules (“Rules”), or have provided for arbitration of an international dispute by either the International Centre for Dispute Resolution (“ICDR”), the international division of the American Arbitration Association (“AAA”), or the AAA without designating particular rules, the arbitration shall take place in accordance with these Rules as in effect at the date of commencement of the arbitration, subject to modifications that the parties may adopt in writing. The ICDR is the Administrator of these Rules.
2.These Rules govern the arbitration, except that, where any such rule is in conflict with any provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
3.When parties agree to arbitrate under these Rules, or when they provide for arbitration of an international dispute by the ICDR or the AAA without designating particularrules, they thereby authorize the ICDR to administer the arbitration. These Rules specify the duties and responsibilities of the ICDR as the Administrator.The Administrator may provide services through any of the ICDR’s case management offices or through the facilities of the AAA or arbitral institutions with which the ICDR or the AAA has agreements of cooperation.Arbitrations administered under these Rules shall be administered only by the ICDR or by an individual or organization authorized by the ICDR to do so.
4.Unless the parties agree or the Administrator determines otherwise, the International Expedited Procedures shall apply in any case in which no disclosed claim or counterclaim exceeds $500,000 USD exclusive of interest and the costs of arbitration. The parties may also agree to use the International Expedited Procedures in other cases. The International Expedited Procedures shall be applied as described in Articles E-1 through E-10 of these Rules, in addition to any other portion of these Rules that is not in conflict with the Expedited Procedures. Where no party’s claim or counterclaim exceeds $100,000 USD exclusive of interest, attorneys’ fees, and other arbitration costs, the dispute shall be resolved by written submissions only unless the arbitrator determines that an oral hearingis necessary.
Commencing the Arbitration
Article 2: Notice of Arbitration and Statement of Claim
1.The party initiating arbitration (“Claimant”) shall, in compliance with Article 11, give written Notice of Arbitration to the Administrator and at the same time to the party against whom a claim is being made (“Respondent”). The Claimant may also initiate the arbitration online through the Administrator’s AAA WebFile at www.icdr.orgor via email at casefiling@adr.org.
2. The arbitration shall be deemed to commence on the date on which the Administrator receives the Notice of Arbitration.
3.The Notice of Arbitration shall contain the following information:
a. a demand that the dispute be referred to arbitration;
b. the names, addresses, telephone numbers, fax numbers, and email addresses of the parties and, if known, of their representatives;
c. a copy of the entire arbitration clause or agreement being invoked, and, where claims are made under more than one arbitration agreement, a copy of the arbitration agreement under which each claim is made;
d. a reference to any contract out of or in relation to which the dispute arises;
e. a description of the claim and of the facts supporting it;
f. the relief or remedy sought and any amount claimed; and
g. optionally, proposals, consistent with any prior agreement between or among the parties, as to the means of designating the arbitrators, the number of arbitrators, the place of arbitration, the language of the arbitration, and whether the party filing the Notice of Arbitration is willing to mediate the dispute prior to or concurrently with the arbitration.
4.The Notice of Arbitration shall be accompanied by the appropriate filing fee.
5.Upon receipt of the Notice of Arbitration, the Administrator shall communicate with all parties with respect to the arbitration and shall acknowledge the commencement of the arbitration.
Article 3:Answer and Counterclaim
1.Within 30 days after the Administrator confirms receipt of the Notice of Arbitration, Respondent shall submit to Claimant, to any other parties, and to the Administrator a written Answer to the Notice of Arbitration.
2.At the time Respondent submits its Answer, Respondent may make any counterclaims covered by the agreement to arbitrate or assert any setoffs and Claimant shall within 30 days submit to Respondent, to any other parties, and to the Administrator a written Answer to the counterclaim or setoffs.
3.A counterclaim or setoff shall contain the same information required of a Notice of Arbitration under Article 2(3) and shall be accompanied by the appropriate filing fee.
4.Respondent shall within 30 days after the Administrator confirms receipt of the Notice of Arbitration submit to Claimant, to any other parties, and to the Administrator a response to any proposals by Claimant not previously agreed upon, or submit its own proposals, consistent with any prior agreement between or among the parties, as to the means of designating the arbitrators, the number of arbitrators, the place of the arbitration, the language of the arbitration, and whether Respondent is willing to mediate the dispute prior to or concurrently with the arbitration.
5. The arbitral tribunal, or the Administrator if the tribunal has not yet been constituted, may extend any of the time limits established in this Article if it considers such an extension justified.
6.Failure of Respondent to submit an Answer shall not preclude the arbitration from proceeding.
7.In arbitrations with multiple parties, Respondent may make claims or assert setoffs against another Respondent and Claimant may make claims or assert setoffs against another Claimant in accordance with the provisions of this Article 3.
Article 4: Administrative Conference
The Administrator may conduct an administrative conference before the arbitra ltribunal is constituted to facilitate party discussion and agreement on issues such as arbitrator selection, mediating the dispute, process efficiencies, and any other administrative matters.
Article 5: International Administrative Review Council
When the Administrator is called upon to act under these Rules, the Administrator may act through its International Administrative Review Council (IARC) to take any action. Such actions may include determining challenges to the appointment or continuing service of an arbitrator, deciding disputes regarding the number of arbitrators to be appointed, or determining whether a party has met the administrative requirements to initiate or file an arbitration contained in the Rules have been met. If the parties do not agree on the place of arbitration, the IARC may make an initial determination as to the place of arbitration, subject to the power of the arbitral tribunal to make a final determination.
Article 6: Mediation
Subject to (a) any agreement of the parties otherwise or (b) the right of any party to elect not to participate in mediation, the parties shall mediate their dispute pursuant to the ICDR’s International Mediation Rules concurrently with the arbitration.
Article 7:Emergency Measures of Protection
1.A party may apply for emergency relief before the constitution of the arbitral tribunal by submitting a written application to the Administrator and to all other parties setting forth:
a. the nature of the relief sought;
b. the reasons why such relief is required on an emergency basis before the tribunal is appointed;
c. the reasons why the party is likely to be found to be entitled to such relief; and
d. what injury or prejudice the party will suffer if relief is not provided.
The application shall be submitted concurrent with or following the submission of a Notice of Arbitration. Such application may be filed by email, or as otherwise permitted by Article 11, and must include payment of any applicable fees and a statement certifying that all parties have been notified or an explanation of the steps taken in good faith to notify all parties.
2.Within one business day of receipt of the application for emergency relief as provided in Article 7(1), and upon being satisfied that the requirements of Article 7(1) have been met, the Administrator shall appoint a single emergency arbitrator. Upon accepting appointment, a prospective emergency arbitrator shall, in accordance with Article 14, disclose to the Administrator any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence. Any challenge to the appointment of the emergency arbitrator must be made within one business day of the communication by the Administrator to the parties of the appointment of the emergency arbitrator and the circumstances disclosed.
3.The emergency arbitrator shall as soon as possible, and in any event within two business days of appointment, establish a schedule for consideration of the application for emergency relief. Such schedule shall provide a reasonable opportunity to all parties to be heard and may provide for proceedings by telephone, video, written submissions, or other suitable means, as alternatives to an in-person hearing. The emergency arbitrator shall have the authority vested in the arbitral tribunal under Article 21, including the authority to rule on the emergency arbitrator’s jurisdiction, and shall resolve any disputes over the applicability of this Article.
4.The emergency arbitrator shall have the power to order or award any interim or conservatory measures that the emergency arbitrator deems necessary, including injunctive relief and measures for the protection or conservation of property. Any such measures may take the form of an interim award or an order. The emergency arbitrator shall give reasons in either case. The emergency arbitrator may modify or vacate the interim award or order. Any interim award or order shall have the same effectas an interim measure made pursuant to Article 27 and shall be binding on the parties when rendered. The parties shall undertake to comply with such an interim award or order without delay.
5.The emergency arbitrator shall have no further power to act after the arbitral tribunal is constituted. Once the tribunal has been constituted, the tribunal may affirm, reconsider, modify, or vacate the interim award or order of emergency relief issued by the emergency arbitrator. The emergency arbitrator may not serve as a member of the tribunal unless the parties agree otherwise.
6. Any interim award or order of emergency relief may be conditioned on provision of appropriate security by the party seeking such relief.
7.A request for interim measures addressed by a party to a judicial authority shall not be deemed incompatible with this Article 7 or with the agreement to arbitrate or a waiver of the right to arbitrate.
8.The costs associated with applications for emergency relief shall be addressed by the emergency arbitrator, subject to the power of the arbitral tribunal to determine finally the allocation of such costs.
Article 8:Joinder
1.A party wishing to join an additional party to the arbitration shall submit to the Administrator a Notice of Arbitration against the additional party. No additional party may be joined after the appointment of any arbitrator, unless (a) all parties, including the additional party, otherwise agree, or (b) the arbitral tribunal once constituted determines that the joinder of an additional party is appropriate, and the additional party consents to such joinder. The party wishing to join the additional party shall, at that same time, send the Notice of Arbitration to the additional party and all other parties. The date on which such Notice of Arbitration is received by the Administrator shall be deemed to be the date of the commencement of arbitration against the additional party. Any joinder shall be subject to the provisions of Articles 13 and 21.
2.The request for joinder shall contain the same information required of a Notice of Arbitration under Article 2(3) and shall be accompanied by the appropriate filing fee.
3.The additional party shall submit an Answer in accordance with the provisions of Article 3.
4.The additional party may make claims, counterclaims, or assert setoffs against any other party in accordance with the provisions of Article 3.
Article 9: Consolidation
1.At the request of a party or on its own initiative, the Administrator may appoint a consolidation arbitrator, who will have the power to consolidate two or more arbitrations pending under these Rules, or these and other arbitration rules administered by the AAA or ICDR, into a single arbitration where:
a. the parties have expressly agreed to appoint a consolidation arbitrator; or
b. all of the claims and counterclaims in the arbitrations are made under the same arbitration agreement; or
c. the claims, counterclaims, or setoffs in the arbitrations are made under more than one arbitration agreement; the arbitrations involve the same or related parties; the disputes in the arbitrations arise in connection with the same legal relationship; and the arbitration agreements may be compatible.
2. A consolidation arbitrator shall be appointed as follows:
a. The Administrator shall notify the parties in writing of its intention to appoint a consolidation arbitrator and invite the parties to agree upon a procedure for the appointment of a consolidation arbitrator.
b. If the parties have not within 15 days of such notice agreed upon a procedure for appointment of a consolidation arbitrator, the Administrator shall appoint the consolidation arbitrator.
c. Absent the agreement of all parties, the consolidation arbitrator shall not be an arbitrator who is appointed to any pending arbitration subject to potential consolidation under this Article.
d. The provisions of Articles 14-16 of these Rules shall apply to the appointment of the consolidation arbitrator.
3.In deciding whether to consolidate, the consolidation arbitrator shall consult the parties, may consult the arbitral tribunal(s), and may take into account all relevant circumstances, including:
a. applicable law;
b. whether one or more arbitrators have been appointed in more than one of the arbitrations and, if so, whether the same or different persons have been appointed;
c. the progress already made in the arbitrations;
d. whether the arbitrations raise common issues of law and/or facts; and
e. whether the consolidation of the arbitrations would serve the interests of justice and efficiency.
4.The consolidation arbitrator may order that any or all arbitrations subject to potential consolidation be stayed pending a ruling on a request for consolidation.
5.When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties or the consolidation arbitrator decides otherwise.
6. Where the consolidation arbitrator decides to consolidate an arbitration with one or more other arbitrations, each party in those arbitrations shall be deemed to have waived its right to appoint an arbitrator. The consolidation arbitrator may revoke the appointment of any arbitrators and may select one of the previously-appointed tribunals to serve in the consolidated proceeding. The Administrator shall, as necessary, complete the appointment of the tribunal in the consolidated proceeding. Absent the agreement of all parties, the consolidation arbitrator shall not be appointed in the consolidated proceedings.
7.The decision as to consolidation, which need not include a statement of reasons, shall be rendered within 15 days of the date for final submissions on consolidation.
Article10: Amendment or Supplement of Claim, Counterclaim, or Defense
Any party may amend or supplement its claim, counterclaim, setoff, or defense unless the arbitral tribunal considers it inappropriate to allow such amendment or supplement because of the party’s delay in making it, prejudice to the other parties, or any other circumstances. A party may not amend or supplement a claim or counterclaim if the amendment or supplement would fall outside the scope of the agreement to arbitrate. The tribunal may permit an amendment or supplement subject to an award of costs and/or the payment of filing fees as determined by the Administrator.
Article 11:Notices
1.Unless otherwise agreed by the parties or ordered by the arbitral tribunal, all notices and written communications may be transmitted by any means of communication that allows for a record of its transmission, including email, mail, courier, fax, or other written forms of electronic communication addressed to the party or its representative at its last- known address, or by personal service.
2.For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is made. If the last day of such period is an official holiday at the place received, the period is extended until the first business day that follows. Official holidays occurring during the running of the period of time are included in calculating the period.
The Tribunal
Article12: Number of Arbitrators
If the parties have not agreed on the number of arbitrators, one arbitrator shall be appointed unless the Administrator determines that three arbitrators are appropriate because of the size, complexity, or other circumstances of the case.
Article 13:Appointment of Arbitrators
1.The parties may agree upon any procedure for appointing arbitrators and shall inform the Administrator as to such procedure. In the absence of party agreement as to the method of appointment, the Administrator may use the ICDR list method as provided in Article 13(6).
2.The parties may agree to select arbitrators, with or without the assistance of the Administrator. When such selections are made, the parties shall take into account the arbitrators’ availability to serve and shall notify the Administrator so that a Notice of Appointment can be communicated to the arbitrators, together with a copy of these Rules.
3.If within 45 days after the commencement of the arbitration, all parties have not agreed on a procedure for appointing the arbitrator(s) or have not agreed on the selection of the arbitrator(s), the Administrator shall, at the written request of any party, appoint the arbitrator(s). Where the parties have agreed upon a procedure for selecting the arbitrator(s), but all appointments have not been made within the time limits provided by that procedure, the Administrator shall, at the written request of any party, perform all functions provided for in that procedure that remain to be performed.
4.In making appointments, the Administrator shall, after inviting consultation with the parties, endeavor to appoint suitable arbitrators, taking into account their availability to serve. At the request of any party or on its own initiative, the Administrator may appoint or submit a list(s) including nationals of a country other than that of any of the parties.
5.If there are more than two parties to the arbitration, the Administrator may appoint all arbitrators unless the parties have agreed otherwise no later than 45 days after the commencement of the arbitration.
6.If the parties have not selected an arbitrator(s) and have not agreed upon any other method of appointment, the Administrator, at its discretion, may appoint the arbitrator(s) in the following manner using the ICDR list method. The Administrator shall send simultaneously to each party an identical list of names of persons for consideration as arbitrator(s). The parties are encouraged to agree to an arbitrator(s) from the submitted list and shall advise the Administrator of their agreement. If, after receipt of the list, the parties are unable to agree upon an arbitrator(s), each party shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the Administrator. The parties are not required to exchange selection lists. If a party does no treturn the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on the parties’ lists, and in accordance with the designated order of mutual preference, the Administrator shall invite an arbitrator(s) to serve. If the parties fail to agree on any of the persons listed, or if acceptable arbitrators are unable or unavailable to act, or if for any other reason the appointment cannot be made from the submitted lists, the Administrator shall have the power to make the appointment without the submission of additional lists. The Administrator shall, if necessary, designate the presiding arbitrator in consultation with the tribunal.
7.The appointment of an arbitrator is effective upon receipt by the Administrator of the Administrator’s Notice of Appointment completed and signed by the arbitrator.
Article 14: Impartiality and Independence of Arbitrator
1.Arbitrators acting under these Rules shall be impartial and independent and shall act in accordance with these Rules, the terms of the Notice of Appointment provided by the Administrator, and with The Code of Ethics for Arbitrators in Commercial Disputes.
2.Upon accepting appointment, an arbitrator shall sign the Notice of Appointment provided by the Administrator affirming that the arbitrator is available to serve and is independent and impartial. The arbitrator shall disclose any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence and any other relevant facts the arbitrator wishes to bring to the attention of the parties.
3.If, at any stage during the arbitration, circumstances arise that may give rise to such doubts, an arbitrator or party shall promptly disclose such information to all parties and to the Administrator. Upon receipt of such information from an arbitrator or a party, the Administrator shall communicate it to all parties and to the tribunal.
4.Disclosure by an arbitratoror party does not necessarily indicate belief by the arbitrator or party that the disclosed information gives rise to justifiable doubts as to the arbitrator’s impartiality or independence.
5.Failure of a party to disclose any circumstances that may give rise to justifiable doubts as to an arbitrator’s impartiality or independence within a reasonable period after the party becomes aware of such information constitutes a waiver of the right to challenge an arbitrator based on those circumstances.
6.No party or any one acting onits behalf shall have any ex parte communication relating to the case with any arbitrator, or with any candidate for party-appointed arbitrator, except to advise the candidate of the general nature of the controversy and of the anticipated proceedings and to discuss the candidate’s qualifications, availability, or impartiality and independence in relation to the parties, or to discuss the suitability of candidates for selection as a presiding arbitrator where the parties or party-appointed arbitrators are to participatein that selection. No party or any one acting on its behalf shall have any exparte communication relating to the case with any candidate for presiding arbitrator.
7.On the application of a party, or on its own initiative after consulting the parties, the tribunal may require the parties to disclose:
a. Whether any non-party (such as a third-party funder or an insurer) has undertaken to pay or to contribute to the cost of a party’s participation in the arbitration, and if so, to identify the person or entity concerned and to describe the nature of the undertaking.
b. Whether any non-party (such as a funder, insurer, parent company, or ultimate beneficial owner) has an economic interest in the outcome of the arbitration, and if so, to identify the person or entity concerned and to describe the nature of the interest.
Article 15:Challenge of an Arbitrator
1. A party may challenge an arbitrator whenever circumstances exist that give rise to justifiable doubts asto the arbitrator’s impartiality, or independence, or for failing to performthe arbitrator’s duties. Unless a shorter time period is otherwise agreed by the parties, specified by law, or determined by the Administrator, a party shall send a written notice of the challenge to the Administrator within 15 days after being notified of the appointment of the arbitrator or within 15 days after the circumstances giving rise to the challenge become known to that party. The challenge shall state in writing the reasons for the challenge. The party shall not send this notice to any member of the arbitral tribunal.
2. Upon receipt of such achallenge, the Administrator shall notify the other party of the challenge and give such party an opportunity to respond. The Administrator shall not send the notice of challenge to any member of the tribunal but shall notify the tribunal that a challenge has been received, without identifying the party challenging. When an arbitrator has been challenged by a party, the other party may agree to the acceptance of the challenge and, if there is agreement, the arbitrator shall be removed. The Administrator may advise the challenged arbitrator of the challenge and request information from the challenged arbitrator relating to the challenge. The challenged arbitrator, after consultation with the Administrator, also may withdraw in the absence of such agreement. In neither case does withdrawal imply acceptance of the validity of the grounds for the challenge.
3. If the other party does not agree to the challenge or the challenged arbitrator does not withdraw, the Administrator shall make the decision on the challenge.
4. The Administrator, on its own initiative, may remove an arbitrator for failing to perform or if the arbitrator becomes incapable of performing the duties of an arbitrator.
Article 16:Replacement of an Arbitrator
1.If an arbitrator withdraws, is incapable of performing the duties of an arbitrator, or is removed for any reason, and the office becomes vacant, a substitute arbitrator, if needed, shall be appointed pursuant to the provisions of Article 13, unless the parties otherwise agree.
2.If a substitute arbitrator is appointed under this Article, unless the parties otherwise agree the arbitral tribunal shall determine at its sole discretion whether all or part of the case shall be repeated.
3.If an arbitrator on a three-person arbitral tribunal fails to participate in the arbitration for any reason, and unless otherwise agreed to by the parties, the two other arbitrators shall have the power in their sole discretion to continue the arbitration and to make any decision, ruling, order, or award, notwithstanding the failure of the third arbitrator to participate. In determining whether to continue the arbitration or to render any decision, ruling, order, or award without the participation of an arbitrator, the two other arbitrators shall take into account the stage of the arbitration, the reason, if any, expressed by the third arbitrator for such non-participation and such other matters as they consider appropriate in the circumstances of the case.
4.In the event that the two other arbitrators do not agree to continue the arbitration without the participation of the third arbitrator, the Administrator on proof satisfactory to it shall declare the office vacant, and a substitute arbitrator shall be appointed pursuant to the provisions of Article 13, unless the parties otherwise agree.
Article17: Arbitral Tribunal Secretary
The tribunal may, with the consent of the parties, appoint an arbitral tribunal secretary, who will serve in accordance with ICDR guidelines.
General Conditions
Article18: Party Representation
Any party may be represented in the arbitration. The names, addresses, telephone numbers, fax numbers, and email addresses of representatives shall be communicated in writing to the other party and to the Administrator. Unless instructed otherwise by the Administrator, once the arbitral tribunal has been established, the parties or their representatives may communicate in writing directly with the tribunal with simultaneous copies to the other party and, unless otherwise instructed by the Administrator, to the Administrator. The conduct of party representatives shall be in accordance with such guidelines as the ICDR may issue on the subject.
Article 19: Place of Arbitration
1.If the parties do not agree on the place of arbitration by a date established by the Administrator, the Administrator may initially determine the place of arbitration, subject to the power of the arbitral tribunal to determine finally the place of arbitration within 45 days after its constitution.
2.The tribunal may meet at any location it deems appropriate for any purpose, including to conduct hearings, hold conferences, hear witnesses, inspect property or documents, or deliberate, and, if done elsewhere than the place of arbitration, the arbitration shall be deemed conducted at the place of arbitration and any award shall be deemed made at the place of arbitration.
Article 20: Language
If the parties have not agreed otherwise, the language(s) of the arbitration shall be the language(s) of the documents containing the arbitration agreement, subject to the power of the arbitral tribunal to determine otherwise. The tribunal may order that any documents delivered in another language shall be accompanied by a translation into the language(s) of the arbitration.
Article 21: Arbitral Jurisdiction
1.The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to arbitrability, to the existence, scope, or validity of the arbitration agreement(s), or with respect to whether all of the claims, counterclaims, and setoffs made in the arbitration may be determined in a single arbitration, without any need to refer such matters first to a court.
2.The tribunal shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the tribunal that the contract is null and void shall not for that reason alone render invalid the arbitration clause.
3.A party must object to the jurisdiction of the tribunal or to arbitral jurisdiction respecting the admissibility of a claim, counterclaim, or setoff no later than the filing of the Answer, as provided in Article 3, to the claim, counterclaim, or setoff that gives rise to the objection. The tribunal may extend such time limit and may rule on any objection under this Article as a preliminary matter or as part of the final award.
4.Issues regarding arbitral jurisdiction raised prior to the constitution of the tribunal shall not preclude the Administrator from proceeding with administration and shall be referred to the tribunal once constituted for determination.
Article 22:Conduct of Proceedings
1.Subject to these Rules, the arbitral tribunal may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.
2.The tribunal shall conduct the proceedings with a view to expediting the resolution of the dispute. The tribunal may, promptly after being constituted, conduct a procedural hearing with the parties for the purpose of organizing, scheduling, and agreeing to procedures, including the setting of deadlines for any submissions by the parties. In establishing procedures for the case, the tribunal and the parties may consider how technology, including video, audio, or other electronic means, could be used to increase the efficiency and economy of the proceedings.
3.At the procedural hearing, the tribunal shall discuss with the parties cybersecurity, privacy, and data protection to provide for an appropriate level of security and compliance in connection with the proceeding.
4.The tribunal may decide preliminary issues, bifurcate proceedings, direct the order of proof, exclude cumulative or irrelevant testimony or other evidence, and direct the parties to focus their presentations on issues whose resolution could dispose of all or part of the case.
5. At any time during the proceedings, the tribunal may order the parties to produce documents, exhibits, or other evidence it deems necessary or appropriate. Unless the parties agree otherwise in writing, the tribunal shall apply Article 24.
6.Documents or information submitted to the tribunal by one party shall at the same time be transmitted by that party to all parties and, unless instructed otherwise by the Administrator, to the Administrator.
7.The tribunal shall determine the admissibility, relevance, materiality, and weight of the evidence.
8.The parties shall make every effort to avoid unnecessary delay and expense in the arbitration. The arbitral tribunal may allocate costs, draw adverse inferences, and take such additional steps as are necessary to protect the efficiency and integrity of the arbitration.
Article 23:Early Disposition
1.A party may request leave from the arbitral tribunal to submit an application for disposition of any issue presented by any claim or counterclaim in advance of the hearing on the merits (“early disposition”). The tribunal shall allow a party to submit an application for early disposition if it determines that the application (a) has a reasonable possibility of succeeding, (b) will dispose of, or narrow, one ormore issues in the case, and (c) that consideration of the application is likely to be more efficient or economical than leaving the issue to be determined with the merits.
2.Each party shall have the right to be heard and a fair opportunity to present its case regarding whether or not such application should be heard and, if permission to make the application is given, whether early disposition should be granted.
3.The arbitral tribunal shall have the power to make any order or award in connection with the early disposition of any issue presented by any claim or counterclaim that the tribunal deems necessary or appropriate. The tribunal shall provide reasoning for any award.
Article 24:Exchange of Information
1.The arbitral tribunal shall manage the exchange of information between the parties with a view to maintaining efficiency and economy. The tribunal and the parties should endeavor to avoid unnecessary delay and expense while at the same time avoiding surprise, assuring equality of treatment, and safeguarding each party’s opportunity to present its claims and defenses fairly.
2.The parties may provide the tribunal with their views on the appropriate level of information exchange for each case, but the tribunal retains final authority. To the extent that the parties wish to depart from this Article, they may do so only by written agreement and in consultation with the tribunal.
3.The parties shall exchange all documents upon which each intends to rely on a schedule set by the tribunal.
4. The tribunal may, upon application, require a party to make available to another party documents in that party’s possession not otherwise available to the party seeking the documents, that are reasonably believed to exist and to be relevant and material to the outcome of the case. Requests for documents shall contain a description of specific documents or classes of documents, along with an explanation of their relevance and materiality to the outcome of the case.
5.The tribunal may condition any exchange of information subject to claims of commercial or technical confidentiality on appropriate measures to protect such confidentiality.
6.When documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the tribunal determines, on application, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible. The tribunal may direct testing or other means of focusing and limiting any search.
7.The tribunal may, on application, require a party to permit inspection on reasonable notice of relevant premises or objects.
8.In resolving any dispute about pre-hearing exchanges of information, the tribunal shall require a requesting party to justify the time and expense that its request may involve and may condition granting such a request on the payment of part or all of the cost by the party seeking the information. The tribunal may also allocate the costs of providing information among the parties, either in an interim order or in an award.
9.In the event a party fails to comply with an order for information exchange, the tribunal may draw adverse inferences and may take such failure into account in allocating costs.
10.Depositions, interrogatories, and requests to admit as developed for use in U.S. court procedures generally are not appropriate procedures for obtaining information in an arbitration under these Rules.
Article 25: Privilege
The arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection.
Article 26: Hearing
1.The arbitral tribunal shall give the parties reasonable notice of the date, time, and place of any oral hearing.
2.A hearing or a portion of a hearing may be held by video, audio, or other electronic means when: (a) the parties so agree; or (b) the tribunal determines, after allowing the parties to comment, that doing so would be appropriate and would not compromise the rights of any party to a fair process. The tribunal may at any hearing direct that witnesses be examined through means that do not require their physical presence.
3.The tribunal shall determine the manner in which witnesses are examined and who shall be present during witness examination.
4.Unless otherwise agreed by the parties or directed by the tribunal, evidence of witnesses should be presented in the form of written statements signed by them. In accordance with a schedule set by the tribunal, each party shall notify the tribunal and the other parties of the names of any witnesses who have presented a witness statement whom it requests to examine. The tribunal may require any witness to appear at a hearing. If a witness whose appearance has been requested fails to appear without valid excuse as determined by the tribunal, the tribunal may make such order it deems appropriate, which may include reducing the weight to be given to the statement(s) or disregarding such statement(s).
5.At least 15 days before the hearings, each party shall give the tribunal and the other parties the names and contact information of any witnesses it intends to present, the subject of their testimony, and the languages in which such witnesses will give their testimony.
6.Hearings are private unless the parties agree otherwise or the law provides to the contrary.
Article 27:Interim Measures
1.At the request of any party, the arbitral tribunal may order or award any interim or conservatory measures it deems necessary, including injunctive relief and measures for the protection or conservation of property.
2.Such interim measures may take the form of an interim order or award, and the tribunal may require security for the costs of such measures.
3.A request for interim measures addressed by a party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
4.The arbitral tribunal may allocate costs associated with applications for interim relief in any interim order or award or in the final award.
5.An application for emergency relief prior to the constitution of the arbitral tribunal may be made as provided for in Article 7.
Article 28: Tribunal-Appointed Expert
1.The arbitral tribunal, after consultation with the parties, may appoint one or more independent experts to report to it, in writing, on issues designated by the tribunal and communicated to the parties.
2.The parties shall provide such an expert with any relevant information or produce for inspection any relevant documents or goods that the expert may require. Any dispute between a party and the expert as to the relevance of the requested information or goods shall be referred to the tribunal for decision.
3.Upon receipt of an expert’s report, the tribunal shall send a copy of the report to all parties and shall give the parties an opportunity to express, in writing, their opinion of the report. A party may examine any document on which the expert has relied in sucha report.
4.At the request of any party, the tribunal shall give the parties an opportunity to question the expert at a hearing. At this hearing, parties may present expert witnesses to testify on the points at issue.
Article 29:Default
1.If a party fails to submit an Answer in accordance with Article 3, the arbitral tribunal may proceed with the arbitration.
2.If a party, duly notified under these Rules, fails to appear at a hearing without showing sufficient cause for such failure, the tribunal may proceed with the hearing.
3.If a party, duly invited or ordered to produce evidence or take any other steps in the proceedings, fails to do so within the time established by the tribunal without showing sufficient cause for such failure, the tribunal may make the award on the evidence before it.
Article 30:Closure of Hearing
1.The arbitral tribunal may ask the parties if they have any further submissions and upon receiving negative replies or if satisfied that the record is complete, the tribunal may declare the arbitral hearing closed.
2.The tribunal on its own motion, or upon application of a party, may reopen the arbitral hearing at any time before the award is made.
Article 31: Waiver
A party who knows of any non-compliance with any provision or requirement of the Rules or the arbitration agreement, and proceeds with the arbitration without promptly stating an objection in writing, waives the right to object.
Article 32: Awards, Orders, Decisions and Rulings
1.In addition to making a final award, the arbitral tribunal may make interim, interlocutory, or partial awards, orders, decisions, and rulings.
2.When there is more than onearbitrator, any award, order, decision, or ruling of the tribunal shall be madeby a majority of the arbitrators.
3.When the parties or the tribunal so authorize, the presiding arbitrator may make orders, decisions, or rulings on questions of procedure, including exchanges of information, subject to revision by the tribunal.
4.An order or award may be signed electronically, unless (a) the applicable law requires a physical signature, (b) the parties agree otherwise, or (c) the arbitral tribunal or Administrator determines otherwise.
Article 33:Time, Form, and Effect of the Award
1.Awards shall be made in writing by the arbitral tribunal and shall be final and binding on the parties.The tribunal shall make every effort to deliberate and prepare the award as quickly as possible after the hearing. Unless otherwise agreed by the parties, specified by law, or determined by the Administrator, the final award shall be made no later than 60 days from the date of the closing of the hearing pursuant to Article 30. The parties shall carry out any such award without delay and, absent agreement otherwise, waive irrevocably their right to any form of appeal, review, or recourse to any court or other judicial authority, insofar as such waiver can validly be made. The tribunal shall state the reasons upon which an award is based, unless the parties have agreed that no reasons need be given.
2. An award shall be signed by the arbitrator(s) and shall state the date on which the award was made and the place of arbitration pursuant to Article 19. Where there is more than one arbitrator and any of them fails to sign an award, the award shall include or be accompanied by a statement of the reason for the absence of such signature.
3.The award shall be transmitted in draft form by the tribunal to the Administrator. The award shal lbe communicated to the parties by the Administrator.
4.If applicable law requires an award to be filed or registered, the tribunal shall cause such requirement to be satisfied. It is the responsibility of the parties to bring such requirements or any other procedural requirements of the place of arbitration to the attention of the tribunal.
Article 34:Applicable Laws and Remedies
1.The arbitral tribunal shall apply the substantive law(s) or rules of law agreed by the parties as applicable to the dispute. Failing such an agreement by the parties, the tribunal shall apply such law(s) or rules of law as it determines to be appropriate.
2.In arbitrations involving the application of contracts, the tribunal shall decide in accordance with the terms of the contract and shall take into account usages of the trade applicable to the contract.
3.The tribunal shall not decideas amiable compositeur or ex aequo et bono unless the parties have expressly authorized it to do so.
4.A monetary award shall be in the currency or currencies of the contract unless the tribunal considers another currency more appropriate, and the tribunal may award such pre-award and post-award interest, simple or compound, as it considers appropriate, taking into consideration the contract and applicable law(s).
5.Unless the parties agree otherwise, the parties expressly waive and forego any right to punitive, exemplary, or similar damages unless any applicable law(s) requires that compensatory damages be increased in a specified manner. This provision shal not apply to an award of arbitration costs to a party to compensate for misconduct in the arbitration.
Article 35:Settlement or Other Reasons for Termination
1.If the parties settle the dispute before a final award is made, the arbitral tribunal shall terminate the arbitration and, if requested by all parties, may record the settlement in the form of a consent award on agreed terms. The tribunal is not obliged to give reasons for such an award.
2.If continuation of the arbitration becomes unnecessary or impossible due to the non-payment of deposits required by the Administrator, the arbitration may be suspended or terminated as provided in Article 39(3).
3.If continuation of the arbitration becomes unnecessary or impossible for any reason other than asstated in Sections 1 and 2 of this Article, the tribunal shall inform the parties of its intention to terminate the arbitration. The tribunal shall thereafter issue an order terminating the arbitration, unless a party raises justifiable grounds for objection.
Article 36:Interpretation and Correction of Award
1.Within 30 days after the receipt of an award, any party, with notice to the other party, may request the arbitral tribunal to interpret the award or correct any clerical, typographical, or computational errors or make an additional award as to claims, counterclaims, or setoffs presented but omitted from the award.
2.If the tribunal considers such a request justified after considering the contentions of the parties, it shall comply with such a request within 30 days after receipt of the parties’ last submissions respecting the requested interpretation, correction, or additional award. Any interpretation, correction, or additional award made by the tribunal shall contain reasoning and shall form part of the award.
3.The tribunal on its own initiative may, within 30 days of the date of the award, correct any clerical, typographical, or computational errors or make an additional award as to claims presented but omitted from the award.
4.The parties shall be responsible for all costs associated with any request for interpretation, correction, or an additional award, and the tribunal may allocate such costs.
Article 37: Costs of Arbitration
The arbitral tribunal shall fix the costs of arbitration in its award(s). The tribunal may allocate such costs among the parties if it determines that allocation is reasonable, taking into account the circumstances of the case.
Such costs may include:
a. the fees and expenses of the arbitrators, including applicable taxes;
b. the costs of any assistance required by the tribunal;
c. the fees and expenses of the Administrator;
d. the reasonable legal and other costs incurred by the parties;
e. any costs incurred in connection with a request for interim or emergency relie fpursuant to Articles 7 or 27;
f. any costs incurred in connection with a request for consolidation pursuant to Article 9; and
g. any costs associated with information exchange pursuant to Article 24.
Article 38:Fees and Expenses of Arbitral Tribunal
1.The fees and expenses of the arbitrators shall be reasonable in amount, taking into account the time spent by the arbitrators, the size and complexity of the case, and any other relevant circumstances.
2.As soon as practicable after the commencement of the arbitration, the Administrator shall designate an appropriate daily or hourly rate of compensation in consultation with the parties and all arbitrators, taking into account the arbitrators’ stated rate of compensation and the size and complexity of the case.
3.Any dispute regarding the fees and expenses of the arbitrators shall be determined by the Administrator.
Article 39:Deposits
1.The Administrator may request that the parties deposit appropriate amounts as an advance for the costs referred to in Article 37.
2.During the course of the arbitration, the Administrator may request supplementary deposits from the parties.
3.Failure of a party asserting a claim or counterclaim to pay the required fees or deposits shall be deemed a withdrawal of the claim or counterclaim. In no event, however, shall a party be precluded from defending a claim or counterclaim.
4.If the deposits requested as referred to in Article 37(a) and 37(b) are not paid promptly and in full, the Administrator shall so inform the parties in order that one or more of them may make the required deposits. If any such deposit is made by one or more of the parties, the tribunal may, upon request, make a separate award in favor of the paying party(s) for recovery of the deposit, together with any interest.
5.If no party is willing to make the requested deposits, the arbitral tribunal may order the suspension or termination of the proceedings. If the tribunal has not yet been appointed, the Administrator may suspend or terminate the proceedings.
6.After the final award has been made, the Administrator shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
Article 40:Confidentiality
1. Confidential information disclosed during the arbitration by the parties or by witnesses shall not be divulged by an arbitrator or by the Administrator. Except as provided in Article 40.3, unless otherwise agreed by the parties or required by applicable law, the members of the arbitral tribunal and the Administrator shall keep confidential all matters relating to the arbitration or the award.
2.Unless the parties agree otherwise, the tribunal may make orders concerning the confidentiality of the arbitration or any matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information.
3.An award may be made public only with the consent of all parties or as required by law, except that the Administrator may publish or otherwise make publicly available selected awards, orders, decisions, and rulings that have become public in the course of enforcement or otherwise.
4.The ICDR may also publish selected awards, orders, decisions, and rulings that have been edited to conceal the names of the parties and other identifying details unless a party has objected in writing to publication within 6 months from the date of the award.
Article 41: Exclusion of Liability
The members of the arbitral tribunal, any emergency arbitrator appointed under Article 7, any consolidation arbitrator appointed under Article 9, any arbitral tribunal secretary, and the Administrator shall not be liable to any party for any act or omission in connection with any arbitration under these Rules, except to the extent that such a limitation of liability is prohibited by applicable law. The parties agree that no arbitrator, emergency arbitrator, consolidation arbitrator, or arbitral tribunal secretary, nor the Administrator shall be under any obligation to make any statement about the arbitration, and no party shall seek to make any of these persons a party or witness in any judicial or other proceedings relating to the arbitration.
Article 42: Interpretation of Rules
The arbitral tribunal, any emergency arbitrator appointed under Article 7, and any consolidation arbitrator appointed under Article 9, shall interpret and apply these Rules insofar as they relate to their powers and duties. The Administrator shall interpret and apply all other Rules.
International Expedited Procedures
Article E-1: Scope of Expedited Procedures
These Expedited Procedures supplement the International Arbitration Rules as provided in Article 1(4).
Article E-2: Detailed Submissions
Parties are to present detailed submissions on the facts, claims, counterclaims,setoffs and defenses, together with all of the evidence then available on which such party intends to rely, in the Notice of Arbitration and the Answer. The arbitrator, in consultation with the parties, shall establish a procedural order, including a timetable, for completion of any written submissions.
Article E-3: Administrative Conference
The Administrator may conduct an administrative conference with the parties and their representatives to discuss the application of these procedures, arbitrator selection, mediating the dispute, and any other administrative matters.
Article E-4: Objection to the Applicability of the Expedited Procedures
If an objection is submitted before the arbitrator is appointed, the Administrator may initially determine the applicability of these Expedited Procedures, subject to the power of the arbitrator to make a final determination. The arbitrator shall take into account the amount in dispute and any other relevant circumstances.
Article E-5: Changes of Claim or Counterclaim
If, after filing of the initial claims and counterclaims, a party amends its claim or counterclaim to exceed $500,000 USD exclusive of interest and the costs of arbitration, the case will continue to be administered pursuant to these Expedited Procedures unless the parties agree otherwise, or the Administrator or the arbitrator determines otherwise. After the arbitrator is appointed, no new or different claim, counterclaim or setoff and no change in amount may be submitted except with the arbitrator’s consent.
Article E-6: Appointment and Qualifications of the Arbitrator
A sole arbitrator shall be appointed as follows. The Administrator shall simultaneously submit to each party an identical list of five proposed arbitrators. The parties may agree to an arbitrator from this list and shall so advise the Administrator. If the parties are unable to agree upon an arbitrator, each party may strike two names from the list, number the remaining names in order of preference, and return the list to the Administrator within 10 days from the transmittal date of the list to the parties. The parties are not required to exchange selection lists. If the parties fail to agree on any of the arbitrators or if acceptable arbitrators are unable or unavailable to act, or if for any other reason the appointment cannot be made from the submitted lists, the Administrator may make the appointment without the circulation of additional lists. The parties will be given notice by the Administrator of the appointment of the arbitrator, together with any disclosures.
Article E-7: Procedural Hearing and Order
After the arbitrator’s appointment, the arbitrator may schedule a procedural hearing with the parties, their representatives, and the Administrator to discuss the procedure and schedule for the case. Within 14 days of appointment, the arbitrator shall issue a procedural order.
Article E-8: Proceedings by Written Submissions
In expedited proceedings based on written submissions, all submissions are due within 60 days of the date of the procedural order, unless the arbitrator determines otherwise. The arbitrator may require an oral hearing if deemed necessary.
Article E-9: Proceedings with an Oral Hearing
In expedited proceedings in which an oral hearing is to be held, the arbitrator shall set the date, time, and location of the hearing. The oral hearing shall take place within 60 days of the date of the procedural order unless the arbitrator deems it necessary to extend that period. Hearings may take place in person or via video, audio, or other electronic means, at the discretion of the arbitrator. Generally, there will be no transcript or stenographic record. Any party desiring a stenographic record may arrange for one. The oral hearing shall not exceed one day unless the arbitrator determines otherwise. The Administrator will notify the parties in advance of the hearing date.
Article E-10: The Award
Awards shall be made in writing and shall be final and binding on the parties. Unless otherwise agreed by the parties, specified by law, or determined by the Administrator, the award shall be made not later than 30 days from the date of the closing of the hearing or from the time established for final written submissions.
Administrative Fees
Administrative Fee Schedules
FORTHE CURRENT ADMINISTRATIVE FEE SCHEDULE, PLEASE VISIT www.adr.org/internationalfeeschedule.
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