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article	1	COMMENCEMENT OF ARBITRATION	1.
	2	NOTICES AND COMMUNICATIONS	3.
	3	CONSTITUTION OF THE ARBITRAL TRIBUNAL, NUMBER OF ARBITRATORS AND PROCEDURE FOR APPOINTMENT	4.
	4	QUALIFICATIONS OF ARBITRATORS	5.
	5	CHALLENGE OF ARBITRATORS	6.
	6	REPLACEMENT OF ARBITRATORS	7.
	7	TRUNCATED TRIBUNAL	7.
	8	FEES AND EXPENSES	8.
	9	COMMUNICATIONS BETWEEN PARTIES AND ARBITRATORS	9.
	10	EXCLUSION OF LIABILITY	9.
	11	PRELIMINARY ISSUES	9.
	12	SEAT OF ARBITRATION	10.
	13	LANGUAGE OF ARBITRATION	10.
	14	SUBSTANTIVE LAW APPLICABLE	10.
	15	CONDUCT OF PROCEEDINGS GENERALLY	11.
	16	ADDITIONAL POWERS OF ARBITRATORS	12.
	17	EVIDENCE, HEARINGS AND PLEADINGS	13.
	18	EVIDENCE OF WITNESSES	14.
	19	EXPERTS	15.
	20	INTERIM MEASURES	15.
	21	CLOSURE OF PROCEEDINGS	16.
	22	THE AWARD	17.
	23	CORRECTION OF AWARDS AND ADDITIONAL AWARDS	18.
	24	EXPENSES	18.
	25	SETTLEMENT	19.

Commencement of Arbitration article 1

1.1 The party commencing arbitration (the Claimant) shall give to the other party (the Respondent) a Notice of Arbitration.

1.2 Arbitral proceedings shall be deemed to commence on the date on which the Notice of Arbitration is received by the Respondent.

1.3 The Notice of Arbitration shall include the following:

(a) The full names and addresses of the parties (including telephone and facsimile numbers and e-mail addresses if known).

(b) A reference to the arbitration clause or the separate arbitration agreement that is involved.

(c) A full statement of the Claimant’s claim, including the nature of the claim, a statement of the relevant facts and of the applicable law on which the Claimant relies and a statement of the relief or remedy sought including details of the sum or sums claimed and how they are made up. The claim shall be accompanied by copies of, or relevant extracts from, the contract and such other documents (including a full copy of any expert report(s)) as the Claimant intends to rely upon and shall detail the relevant parts of the contract, and the relevant parts of any such other documents, as are particularly relied upon by the Claimant.

(d) [Not used.]

(e) A demand that the matter be referred to arbitration.

(f) If the arbitration clause or agreement calls for each party to appoint an Arbitrator, the name and address (and telephone and facsimile numbers and e-mail address if known) of the Arbitrator nominated by the Claimant. The Respondent shall thereafter, within seven days after receipt of the Notice of Arbitration, intimate the name and address (and telephone, facsimile number and email address if known) of the Arbitrator nominated by the Respondent.

(g) If the arbitration clause or agreement does not call for each party to appoint an Arbitrator, a proposal by the Claimant of the name of an Arbitrator with his full name and address (and his telephone and facsimile numbers and e-mail address if known). The Respondent shall, within seven days after receipt of the Notice of Arbitration, intimate whether or not he accepts the Arbitrator nominated by the Claimant and, if he does not accept him, the name and address (and telephone, facsimile number and email address if known) of the Arbitrator whom the Respondent proposes.

1.3.1 Within twenty one days after receipt of the Notice of Arbitration (and irrespective of whether or not an Arbitrator has by then been appointed in accordance with Article 3) the Respondent shall deliver to the Claimant a Notice of Defence. Failure to deliver a Notice of Defence shall not delay the arbitration. If there is such a failure all claims set forth in the Notice of Arbitration shall be deemed to be denied.

1.4 The Notice of Defence shall include:-

(a) Any comment on article 1.3(a) (b) or (e) that the Respondent considers appropriate.

(b) A full statement of the Respondent’s defence, including a statement of the relevant facts and of the applicable law (if any) on which the Respondent relies in its defence and a statement of the relief requested. The defence shall be accompanied by copies of, or relevant extracts from, the contract and such other documents (including a full copy of any expert report(s)) as the Respondent intends to rely upon, except where such copies or extracts have already been provided by the Claimant under Article 1.3(c), in which event the Respondent shall state its position regarding the terms of such copies or extracts.

1.5 [Not used.]

1.6 The Respondent may include in the Notice of Defence any counterclaim within the scope of the arbitration clause or agreement and such counterclaim shall become part of the arbitration. If so, the counterclaim in the Notice of Defence shall include those matters in Article 1.3. (b), (c) and (e).

1.7 If a counterclaim is asserted in the Notice of Defence, within twenty one days after its receipt, the Claimant shall deliver to the Respondent a reply to the counterclaim which shall include the same matters as provided for in the Notice of Defence in Article 1.4 with the addition of a statement of the remedy requested, instead of the relief requested, if considered appropriate by the Respondent.

1.8 Failure by the Respondent to include a counterclaim in the Notice of Defence shall not preclude the Respondent from making a counterclaim, within the scope of the arbitration clause or agreement, no later than seven days after the later of the Notice of Defence or the appointment of the arbitral tribunal (in terms of Article 3) if, on cause shown, the arbitral tribunal in its absolute discretion is prepared to permit it, in which event it shall become part of the arbitration.

1.9 If any party has been served with a Notice of Arbitration he may, at any time before the arbitral tribunal has been appointed, give Notice of Arbitration in respect of any other disputes which fall under the same arbitration agreement. All disputes identified in such Notice of Arbitration shall be consolidated within the same arbitral proceedings.

1.10 After an arbitral tribunal has been appointed, either party may give a further Notice of Arbitration to the other, and to the arbitral tribunal, referring any additional dispute which falls under the same arbitration agreement to the arbitral tribunal proceedings and, whether or not the other party consents to that other dispute being referred to the proceedings, the arbitral tribunal may in its absolute discretion order that the additional dispute should be referred to and consolidated within those same proceedings or that it should not be so referred and consolidated.

1.11 [Not used.]

1.12 Immediately following the appointment of an arbitral tribunal (in terms of Article 3) the Claimant shall send to the arbitral tribunal a copy of all Notices of Arbitration in the arbitration and a copy of all replies to any counterclaims in any Notices of Defence in the arbitration. The Respondent shall send to the arbitral tribunal a copy of all Notices of Defence (including any counterclaims contained therein) in the arbitration. At the same time each party shall send to the arbitral tribunal copies of, or relevant extracts from, the contract and such other documents as the party intends to rely upon (except in so far as such action is made unnecessary for the Respondent by Article 1.4(b)).

Notices and Communications article 2

2.1 All notices or other communications between the parties and the arbitral tribunal shall be in writing and may be delivered by courier or by registered/recorded post, or transmitted by facsimile, e-mail or any other means of telecommunication which provides a record of its transmission.

2.2 A party’s last known residence or place of business during the arbitration shall be a valid address for the purposes of any notices or other communications in the absence of any notification of a change of address by that party to the other party and to the arbitral tribunal.

2.3 For the purpose of determining the date of the commencement of a time limit, a notice or other communication shall be treated as having been received on the day it is delivered, or in the case of a telecommunication, transmitted in accordance with Article 2.1.

2.4 For the purpose of determining compliance with a time limit, a notice or other communication shall be treated as having been sent made or transmitted if it is dispatched in accordance with Article 2.1 and 2.2 prior to or on the date of expiration of the time limit.

2.5 All communications with, and other documents sent to, the arbitral tribunal by one party shall at the same time be communicated to the other party.

Constitution of the Arbitral Tribunal, Number

of Arbitrators and Procedure for Appointment article 3

3.1 The expression “the arbitral tribunal” in this Code includes a sole Arbitrator or all Arbitrators where more than one. All references to an Arbitrator shall include the masculine and the feminine, and Arbitrator shall include Arbiter.

3.2 The parties are free to agree on the number of Arbitrators. If they have not agreed, a single Arbitrator shall be appointed.

3.3 If the parties have agreed that there shall be more than one Arbitrator and the Claimant has nominated an Arbitrator in accordance with Article 1.3(f) but the Respondent fails within seven days after receipt of the Notice of Arbitration to intimate the name and address of another Arbitrator in accordance with Article 1.3(f), the parties shall be deemed to have agreed on a single Arbitrator and the Arbitrator nominated by the Claimant shall be deemed appointed as the sole Arbitrator upon the expiry of the foregoing seven day period.

3.4 If the parties have agreed that there shall be a single Arbitrator and the Claimant has proposed an Arbitrator under Article 1.3(g), and the Respondent does not intimate non-acceptance of that Arbitrator within seven days after receipt of the Notice of Arbitration, then the Arbitrator proposed by the Claimant shall be deemed appointed as the sole Arbitrator upon the expiry of the foregoing seven day period.

3.5 Where the parties have agreed a single Arbitrator be appointed and the Claimant has failed to propose an Arbitrator in accordance with Article 1.3(g) or each party has nominated an Arbitrator, they shall endeavour to agree on the single Arbitrator within seven days of intimation of the name of the Respondent’s proposed Arbitrator under clause 1.3(g). If they do so agree then the Arbitrator shall be deemed appointed on the date of such agreement being reached. If they cannot agree within that period either party may apply to the Chairman of the Chartered Institute of Arbitrators (Scottish Branch) to appoint the Arbitrator within seven days of the application and the Arbitrator shall be deemed appointed on the date of his or her appointment by the relevant officer of the Chartered Institute of Arbitrators (Scottish Branch).

3.6 Where parties have agreed on an arbitral tribunal of three and each has appointed an Arbitrator then unless the parties have agreed on another method of appointment the party-appointed Arbitrators shall endeavour within seven days of the appointment of the later of the two party-appointed arbitrators to be appointed to agree upon a third Arbitrator who shall be the chairman of the arbitral tribunal, or if the parties have so agreed shall act as oversman. If agreement upon the identity of a third Arbitrator is so reached then the arbitral tribunal shall be deemed appointed on the date of such agreement being reached. If the party-appointed Arbitrators do not reach agreement within that time either party may apply to the Chairman of the Chartered Institute of Arbitrators (Scottish Branch) to appoint that third Arbitrator or oversman within seven days of the application and the arbitral tribunal shall be deemed appointed on the date of the third Arbitrator’s appointment by the relevant officer of the Chartered Institute of Arbitrators (Scottish Branch).

3.7 Where application has been made to the Chairman of the Chartered Institute of Arbitrators (Scottish Branch) to appoint an Arbitrator and the relevant officer of the Chartered Institute of Arbitrators (Scottish Branch) refuses or fails to make an appointment within seven days of the application, either party may apply to the Court of Session, Scotland to appoint the Arbitrator. In the event of appointment of the arbitral tribunal by the Court of Session it shall be deemed appointed on the date of appointment by the Court of Session.

3.8 Where the Chairman of the Chartered Institute of Arbitrators (Scottish Branch) is unavailable or unable to act, a Vice-Chairman or the Secretary may act in his place.

3.9 For the purposes of this Article the parties prorogate the exclusive jurisdiction of the Court of Session, Scotland.

Qualifications of Arbitrators article 4

4.1 Any natural person of whatever nationality who is of full age and capacity may be an Arbitrator.

4.2 Each Arbitrator shall be and remain at all times independent and impartial.

4.3 Before nominating or proposing an Arbitrator the party seeking to nominate or propose that Arbitrator shall ascertain that that person is willing and able to accept appointment.

4.4 On being approached to act as Arbitrator, the prospective Arbitrator shall disclose in writing to the party or parties making the approach any circumstances likely to give rise to justifiable doubts as to the Arbitrator’s impartiality or independence or confirm in writing that no such circumstances exist. If at any stage in the arbitration circumstances arise that may give rise to such doubts, the Arbitrator shall promptly disclose those circumstances to the parties. Such circumstances include but are not limited to bias, interest in the result of the arbitration and past or present relationships with a party.

4.5 By accepting appointment the Arbitrator shall be deemed to have undertaken to make available sufficient time to enable the arbitration to be conducted and completed expeditiously. Prior to accepting appointment the Arbitrator shall confirm in writing to the parties (or, if applicable, to the relevant officer of the relevant appointing body, in which event the arbitrator shall immediately after appointment copy such written confirmation to the parties) that he will make available sufficient time to conduct, and will conduct, the arbitration so as to conclude the arbitration within the timescales provided in Articles 15.6, 15.7, 15.8, 15.9, 22.5 and 23.

4.6 Where parties are of different nationality a sole Arbitrator (or chairman or oversman) shall not have the same nationality as any of the parties unless they agree otherwise in writing. The nationality of a party shall be understood to include that of controlling shareholders or interests. Citizens of the European Union shall be treated for this purpose as nationals of the different Member States and shall not be treated as having the same nationality.

4.7 Article 4.6 shall not apply in the case of an Arbitrator appointed as sole Arbitrator under Article 3.3.

4.8 By accepting appointment the Arbitrator shall be deemed to be bound by this Code.

Challenge of Arbitrators article 5

5.1 A party may challenge an Arbitrator if circumstances exist or arise giving rise to justifiable doubts as to the Arbitrator’s impartiality or independence.

5.2 Such challenge may only be made within fifteen days after the party challenging became aware of the circumstances it considers give rise to justifiable doubt as to an Arbitrator’s impartiality or independence.

5.3 The challenge shall be in writing and shall be delivered to the other party and to the arbitral tribunal.

5.4 The other party may agree to the challenge (in which case the Arbitrator shall withdraw from the arbitration) or the challenged Arbitrator may decide to withdraw. In neither case does the withdrawal imply acceptance by the Arbitrator of the validity of the grounds stated for the challenge.

5.5 If the challenged Arbitrator does not withdraw, the arbitral tribunal shall in the first instance decide upon the challenge. In the event that it rejects the challenge the party making the challenge shall have the right to apply to a tribunal of three persons to be selected (subject always to the provisions of Article 3.8) by the Chairman of the Chartered Institute of Arbitrators (Scottish Branch) to decide the challenge, and the decision of that tribunal shall be final.

5.6 If the challenge is upheld by either the arbitral tribunal or the tribunal referred to in Article 5.5 the challenged Arbitrator shall be deemed to have resigned upon the date of the decision upholding the challenge.

5.7 Pending the decision of such a tribunal the arbitral tribunal may in its discretion continue with the arbitration.

Replacement of Arbitrators article 6

6.1 An Arbitrator shall not be entitled to resign or withdraw (except under Article 5) without the consent in writing of the parties, except upon the provision of a certificate from a registered doctor justifying resignation upon grounds of health.

6.2 When an Arbitrator has died, withdrawn, resigned or been removed from office the position left vacant shall be filled, unless the parties otherwise agree, by appointment by the Chairman of the body designated in Article 3.5.

6.3 When a replacement Arbitrator is appointed in the course of an arbitration, it shall be for the arbitral tribunal to determine in its discretion whether any hearings held previously shall be repeated.

6.4 If in the view of a party an Arbitrator becomes incapacitated or unable to perform the duties of his office the procedure in respect of Challenge of Arbitrators set out in Article 5 shall apply.

6.5 Pending replacement of an Arbitrator, the arbitral proceedings shall be suspended unless otherwise agreed by the parties. Any period of suspension shall be added to the period within which a final award must be issued in terms of Articles 15.6 and 15.7. If a period of suspension only commences after an extension has been agreed under Article 15.8, or has arisen by operation of Article 15.9, the period of suspension shall be added to the date agreed in terms of Article 15.8, or which applies by operation of Article 15.9.

Truncated Tribunal article 7

7.1 If an Arbitrator in a three person tribunal, although duly notified fails without good cause to participate in the work of the tribunal, the two other Arbitrators shall have the power in their sole discretion to continue the arbitration and to make any award, order or other decision despite the failure of the third Arbitrator to participate. In making this decision the two other Arbitrators shall have regard to all matters they consider appropriate in the circumstances of the case. The two Arbitrators shall notify the parties and the third Arbitrator that the arbitral tribunal has become a tribunal of two and that the arbitration shall continue to its conclusion.

7.2 If the two other Arbitrators determine that the arbitration should not proceed without the participation of a third Arbitrator, they shall declare in writing that the office of the third Arbitrator has been vacated, and the procedure for replacing that Arbitrator shall be carried through as if he had resigned in accordance with Article 6.2.

7.3 Upon the appointment of a replacement Arbitrator in the circumstances of Article 7.2 the provision of Article 6.3 shall apply in relation to the repetition of previous proceedings.

Fees and Expenses article 8

8.1 Each Arbitrator shall be compensated on a reasonable basis determined at the time of appointment for serving as an Arbitrator, and shall be reimbursed for his time, travelling and other expenses incurred in the course of the arbitration.

8.2 Provided there is agreement in writing in advance by the parties the Arbitrator’s fees may include a charge for time reserved but not used as a result of late postponement or cancellation.

8.3 In the event of failure to agree at the time of appointment, or subsequently, on an arbitrator’s fees, they shall be fixed upon the application of a party or the Arbitrator by the Auditor of the Court of Session, Scotland.

8.4 Where the arbitral tribunal has appointed a legal adviser, the fees and expenses of the legal adviser, if not agreed, shall be fixed by the Auditor of the Court of Session upon the application of a party or the arbitral tribunal.

8.5 Where the Auditor of the Court of Session is to fix fees and/or expenses under Articles 8.3 and/or 8.4 he shall do so in accordance with any basis of charge agreed between the Arbitrator and the parties.

Communications between Parties

and Arbitrators article 9

9.1 Except as otherwise provided in these Articles or permitted by the arbitral tribunal no party or anyone acting on its behalf shall have any ex parte communications with any Arbitrator with regard to any matter of substance relating

ARBITRATION CODE VERSION 1.0

PREPARED BY THE CHARTERED INSTITUTE OF ARBITRATORS (SCOTTISH BRANCH)
Foreword

Contents

Commencement of Arbitration article 1

ARBITRATION CODE VERSION 1.0

PREPARED BY THE CHARTERED INSTITUTE OF ARBITRATORS (SCOTTISH BRANCH) Foreword

Contents

Commencement of Arbitration article 1

PREPARED BY THE CHARTERED INSTITUTE OF ARBITRATORS (SCOTTISH BRANCH)
Foreword