مقررات مرکز داوری بین المللی difc-lcia دبی

اینجانب خلیل آسایش وکیل ایرانی در دبی با آشنایی و اطلاع از مقررات حقوقی بین المللی و انجام امور وکالت در زمینه داوری بین المللی (DIFC.ICC) و اجرای آرا خارجی در دادگاه های داخلی و خارجی از جمله ( آلمان، فرانسه، ترکیه، امارات متحده عربی و عمان…)  آماده ارائه خدمات حقوقی می باشم.

 

 

مرکز داوری بین المللی دبی DIFC

Where any agreement, submission or reference howsoever made or evidenced in writing (whether signed or not) provides in whatsoever manner for arbitration under the rules of or by the DIFC-LCIA Arbitration Centre or DIFC-LCIA, the parties thereto shall be taken to have agreed in writing that any arbitration between them shall be conducted in accordance with the Rules of Arbitration of the DIFC- LCIA Arbitration Centre as set forth below or such amended version of those rules as the DIFC-LCIA Arbitration Centre may have adopted hereafter to take effect before the commencement of the arbitration and that such Rules of Arbitration form part of their agreement (collectively, the “Arbitration Agreement”). These Rules of Arbitration of the DIFC-LCIA Arbitration Centre comprise this Preamble, the Articles and the Index, together with the Annex and the Schedule of Arbitration Costs as from time to time may be separately amended by the DIFC-LCIA Arbitration Centre (the “DIFC-LCIA Rules”).

Article 1 Request for Arbitration

1.1 Any party wishing to commence arbitration under the DIFC-LCIA Rules (the “Claimant”) shall deliver to the Registrar of the DIFC-LCIA Arbitration Centre (the “Registrar”) a written request for arbitration (the “Request”), containing or accompanied by:

(i)  the full name, nationality and all contact details (including email address, postal address and telephone number) of the Claimant for the purpose of receiving delivery of all documentation in the arbitration in accordance with Article 4; and the same particulars of the Claimant’s authorised representatives (if any) and of all other parties to the arbitration;

(ii)  the full terms of the Arbitration Agreement (except the DIFC-LCIA Rules) invoked by the Claimant to support its claim, together with a copy of any contractual or other documentation in which those terms are contained and to which the Claimant’s claim relates;

(iii)  a statement briefly summarising the nature and circumstances of the dispute, its estimated monetary amount or value, the transaction(s) at issue and the claim advanced by the Claimant against any other party to the arbitration (each such other party being here separately described as a “Respondent”);

(iv)  a statement of any procedural matters for the arbitration (such as the arbitral seat, the language(s) of the arbitration, the number of arbitrators, their qualifications and identities) upon which the parties have already agreed in writing or in respect of which the Claimant makes any proposal under the Arbitration Agreement;

(v)  if the Arbitration Agreement (or any other written agreement) howsoever calls for any form of party nomination of arbitrators, the full name, email address, postal address and telephone number of the Claimant’s nominee;

(vi)  confirmation that the registration fee prescribed in the Schedule of Arbitration Costs has been or is being paid to the DIFC-LCIA Arbitration Centre, without actual receipt of which the Request shall be treated by the Registrar as not having been delivered and the arbitration as not having been commenced under the Arbitration Agreement; and

(vii) confirmation that copies of the Request (including all accompanying documents) have been or are being delivered to all other parties to the arbitration in accordance with Article 4 by one or more means to be identified specifically in such confirmation, to be supported then or as soon as possible thereafter by documentary proof satisfactory to the LCIA Court of actual delivery (including the date of delivery) or, if actual delivery is demonstrated to be impossible to the LCIA Court’s satisfaction, sufficient information as to any other effective form of notification.

1.2  A Claimant wishing to commence more than one arbitration under the DIFC-LCIA Rules (whether against one or more Respondents and under one or more Arbitration Agreements) may serve a composite Request in respect of all such arbitrations, provided that the requirements of Article 1.1 are complied with to the satisfaction of the LCIA Court in respect of each arbitration. In particular, in any composite Request the Claimant must identify separately the estimated monetary amount or value in dispute, the transaction(s) at issue and the claim advanced by the Claimant against any other party in each arbitration. Each arbitration so commenced shall proceed separately and in accordance with the DIFC-LCIA Rules, subject to the LCIA Court or the Arbitral Tribunal determining otherwise.

1.3  The Request (including all accompanying documents) shall be submitted to the Registrar in electronic form in accordance with Article 4.1.

1.4  The arbitration shall be treated as having commenced for all purposes on the date upon which the Request (including all accompanying documents) is received electronically by the Registrar (the “Commencement Date”), provided that the DIFC-LCIA Arbitration Centre has received the registration fee. Where the registration fee is received subsequently the Commencement Date will be the date of the DIFC-LCIA Arbitration Centre’s actual receipt of the registration fee.

1.5  At any time after the Commencement Date but prior to the appointment of the Arbitral Tribunal the LCIA Court may allow a Claimant to supplement, modify or amend its Request to correct any error in computation, any clerical or typographical error, any ambiguity or any mistake of a similar nature, after giving the parties a reasonable opportunity to state their views and upon such terms as the LCIA Court may decide.

1.6  There may be one or more Claimants (whether or not jointly represented); and in such event, where appropriate, the term “Claimant” shall be so interpreted under the Arbitration Agreement.

Article 2 Response

2.1 Within 28 days of the Commencement Date, or such lesser or greater period to be determined by the LCIA Court upon application by any party or upon its own initiative (pursuant to Article 22.5), the Respondent shall deliver to the Registrar a written response to the Request (the “Response”), containing or accompanied by:

(i) the Respondent’s full name, nationality and all contact details (including email address, postal address and telephone number) for the purpose of receiving delivery of all documentation in the arbitration in accordance with Article 4 and the same particulars of its authorised representatives (if any);

(ii)  confirmation or denial of all or part of the claim advanced by the Claimant in the Request, including the Claimant’s invocation of the Arbitration Agreement in support of its claim;

(iii)  if not full confirmation, a statement briefly summarising the nature and circumstances of the dispute, its estimated monetary amount or value, the transaction(s) at issue and the defence advanced by the Respondent, and also indicating any counterclaim advanced by the Respondent against any Claimant and any cross-claim against any other Respondent;

(iv)  a response to any statement of procedural matters for the arbitration contained in the Request under Article 1.1(iv), including the Respondent’s own statement relating to the arbitral seat, the language(s) of the arbitration, the number of arbitrators, their qualifications and identities and any other procedural matter upon which the parties have already agreed in writing or in respect of which the Respondent makes any proposal under the Arbitration Agreement;

(v)  if the Arbitration Agreement (or any other written agreement) howsoever calls for party nomination of arbitrators, the full name, email address, postal address and telephone number of the Respondent’s nominee; and

(vi)  confirmation that copies of the Response (including all accompanying documents) have been or are being delivered to all other parties to the arbitration in accordance with Article 4 by one or more means of delivery to be identified specifically in such confirmation, to be supported then or as soon as possible thereafter by documentary proof satisfactory to the LCIA Court of actual delivery (including the date of delivery) or, if actual delivery is demonstrated to be impossible to the LCIA Court’s satisfaction, sufficient information as to any other effective form of notification.

2.2  Where the Request is a composite Request, the Respondent may serve a composite Response in respect of all or any of the arbitrations, provided that the requirements of Article 2.1 are complied with to the satisfaction of the LCIA Court in respect of each arbitration to which the Response relates. In particular, in any composite Response the Respondent must identify separately the estimated monetary amount or value in dispute, the transaction(s) at issue and the defence, counterclaim or cross-claim advanced by the Respondent against any other party to each arbitration.

2.3  The Response (including all accompanying documents) shall be submitted to the Registrar in electronic form in accordance with Article 4.1.

2.4  Failure to nominate or propose any arbitrator candidate within the time for delivery of a Response or such other time period as is agreed by the parties shall constitute an irrevocable waiver of that party’s opportunity to nominate or propose any arbitrator candidate. Failure to deliver any or any part of a Response within time or at all shall not (by itself) preclude the Respondent from denying any claim or from advancing any defence, counterclaim or cross- claim in the arbitration.

2.5  Subject to Article 2.4, at any time prior to the appointment of the Arbitral Tribunal the LCIA Court may allow a party to supplement, modify or amend its Response to correct any error in computation, any clerical or typographical error, any ambiguity or any mistake of a similar nature, after giving the parties a reasonable opportunity to state their views and upon such terms as the LCIA Court may decide.

2.6  There may be one or more Respondents (whether or not jointly represented); and in such event, where appropriate, the term “Respondent” shall be so interpreted under the Arbitration Agreement.

Article 3 LCIA Court and Registrar

3.1  The functions of the LCIA Court under the Arbitration Agreement shall be performed in its name by the President of the LCIA Court (or any of its Vice-Presidents, Honorary Vice- Presidents or former Vice-Presidents) or by a division of three or more members of the LCIA Court appointed by its President or any Vice-President (the “LCIA Court”).

3.2  The functions of the Registrar under the Arbitration Agreement shall be performed under the supervision of the LCIA Court by the Registrar or any deputy Registrar.

3.3  All communications in the arbitration to the LCIA Court from any party, authorised representative of a party, arbitrator, tribunal secretary or expert to the Arbitral Tribunal shall be addressed to the Registrar. All such communications with the Registrar from any party or authorised representative of a party shall be copied to all other parties.

Article 4 Written Communications and Periods of Time

4.1  The Claimant shall submit the Request under Article 1.3 and the Respondent the Response under Article 2.3 in electronic form, either by email or other electronic means including via any electronic filing system operated by the DIFC-LCIA Arbitration Centre. Prior written approval should be sought from the Registrar, acting on behalf of the LCIA Court, to submit the Request or the Response by any alternative method.

4.2  Save with the prior written approval or direction of the Arbitral Tribunal, or, prior to the constitution of the Arbitral Tribunal, the Registrar acting on behalf of the LCIA Court, any written communication in relation to the arbitration shall be delivered by email or any other electronic means of communication that provides a record of its transmission.

4.3  Delivery by email or other electronic means of communication shall be as agreed or designated by a party for the purpose of receiving any communication in regard to the Arbitration Agreement. Any written communication (including the Request and Response) delivered to such party by that electronic means shall be treated as having been received by such party. In the absence of such agreement or designation or order by the Arbitral Tribunal, if delivery by electronic means has been regularly used in the parties’ previous dealings, any written communication (including the Request and Response) may be delivered to a party by that electronic means and shall be treated as having been received by such party, subject to the LCIA Court or the Arbitral Tribunal being informed of any reason why the communication will not actually be received by such party including electronic delivery failure notification. Notwithstanding the above, the LCIA Court or the Arbitral Tribunal may direct that any written communication be delivered to a party at any address and by any means it considers appropriate.

4.4  For the purpose of determining the commencement of any time limit, unless otherwise ordered by the Arbitral Tribunal or the Registrar acting on behalf of the LCIA Court, a written communication sent by electronic means shall be treated as having been received by a party on the day it is transmitted (such time to be determined by reference to the recipient’s time zone). If delivery by any other means is permitted or directed under this Article 4, a written communication shall be treated as having been received by a party on the day it is delivered (such time to be determined by reference to the recipient’s time zone).

4.5  For the purpose of determining compliance with a time limit, unless otherwise ordered by the Arbitral Tribunal or the Registrar acting on behalf of the LCIA Court, a written communication shall be treated as having been made by a party if transmitted or delivered prior to or on the date of the expiration of the time limit (such time to be determined by reference to the sender’s time zone).

4.6  For the purpose of calculating a period of time, such period shall begin to run on the day following the day when a written communication is received by the addressee. If the last day of such period is an official holiday or non-business day at the place of that addressee (or the place of the party against whom the calculation of time applies), the period shall be extended until the first business day which follows that last day. Official holidays and non-business days occurring during the running of the period of time shall be included in calculating that period.

4.7  A party shall inform the Registrar, the Arbitral Tribunal and all other parties as soon as reasonably practical of any changes to its full name and contact details (including email address, postal address and telephone number) or to those of its authorised representatives.

Article 5 Formation of Arbitral Tribunal

5.1  The formation of the Arbitral Tribunal by the LCIA Court shall not be impeded by any controversy between the parties relating to the sufficiency of the Request or the Response. The LCIA Court may also proceed with the arbitration notwithstanding that the Request is incomplete or the Response is missing, late or incomplete.

5.2  The expression the “Arbitral Tribunal” includes a sole arbitrator (including, where appropriate, an Emergency Arbitrator) or all the arbitrators where more than one.

5.3  All arbitrators shall be and remain at all times impartial and independent of the parties; and none shall act in the arbitration as advocate for or authorised representative of any party. No arbitrator shall give advice to any party on the parties’ dispute or the conduct or outcome of the arbitration.

5.4  Before appointment by the LCIA Court, each arbitrator candidate shall furnish to the Registrar (upon the latter’s request) a brief written summary of his or her qualifications and professional positions (past and present); the candidate shall also agree in writing fee rates conforming to the Schedule of Costs; the candidate shall sign a written declaration stating: (i) whether there are any circumstances currently known to the candidate which are likely to give rise in the mind of any party to any justifiable doubts as to his or her impartiality or independence and, if so, specifying in full such circumstances in the declaration; and (ii) whether the candidate is ready, willing and able to devote sufficient time, diligence and industry to ensure the expeditious and efficient conduct of the arbitration. The candidate shall promptly furnish such agreement and declaration to the Registrar.

5.5  Each arbitrator shall assume a continuing duty, until the arbitration is finally concluded, forthwith to disclose in writing any circumstances becoming known to that arbitrator after the date of his or her written declaration (under Article 5.4) which are likely to give rise in the mind of any party to any justifiable doubts as to his or her impartiality or independence, to be delivered to the LCIA Court, any other members of the Arbitral Tribunal and all parties in the arbitration.

5.6  The LCIA Court shall appoint the Arbitral Tribunal promptly following delivery to the Registrar of the Response or, if no Response is received, promptly after 28 days from the Commencement Date (or such other lesser or greater period to be determined by the LCIA Court pursuant to Article 22.5).

5.7  No party or third person may appoint any arbitrator under the Arbitration Agreement: the LCIA Court alone is empowered to appoint arbitrators (albeit taking into account any written agreement or joint nomination by the parties or nomination by the other candidates or arbitrators).

5.8  A sole arbitrator shall be appointed unless the parties have agreed in writing otherwise or the LCIA Court determines that in the circumstances a three-member tribunal is appropriate (or, exceptionally, more than three).

5.9  The LCIA Court shall appoint arbitrators with due regard for any particular method or criteria of selection agreed in writing by the parties. The LCIA Court shall also take into account the transaction(s) at issue, the nature and circumstances of the dispute, its monetary amount or value, the location and languages of the parties, the number of parties and all other factors which it may consider relevant in the circumstances.

5.10  The President of the LCIA Court shall only be eligible to be appointed as an arbitrator if the parties agree in writing to nominate him or her as the sole or presiding arbitrator; and the Vice-Presidents of the LCIA Court and the Chair of the LCIA Board of Directors (the latter being >ex officio a member of the LCIA Court) shall only be eligible to be appointed as arbitrators if nominated in writing by a party or parties or by the other candidates or arbitrators–provided that no such nominee shall have taken or shall take thereafter any part in any function of the LCIA Court or the DIFC-LCIA Arbitration Centre relating to such arbitration.

Article 6 Nationality of Arbitrators and Parties

6.1  Upon request of the Registrar, the parties shall each inform the Registrar and all other parties of their nationality. Where the parties are of different nationalities, a sole arbitrator or the presiding arbitrator shall not have the same nationality as any party unless the parties who are not of the same nationality as the arbitrator candidate all agree in writing otherwise.

6.2  For the purposes of Article 6.1, in the case of a natural person, nationality shall mean citizenship, whether acquired by birth or naturalisation or other requirements of the nation concerned. In the case of a legal person, nationality shall mean the jurisdiction in which it is incorporated and has its seat of effective management. A legal person that is incorporated in one jurisdiction but has its seat of effective management in another shall be treated as a national of both jurisdictions. The nationality of a party that is a legal person shall be treated as including the nationalities of its controlling shareholders or interests.

6.3 A person who is a citizen of two or more States shall be treated as a national of each State; citizens of the European Union shall be treated as nationals of its different Member States and shall not be treated as having the same nationality; a citizen of a State’s overseas territory shall be treated as a national of that territory and not of that State; and a legal person incorporated in a State’s overseas territory shall be treated as such and not (by such fact alone) as a national of or a legal person incorporated in that State.

Article 7 Party and Other Nominations

7.1  If the parties have agreed howsoever that any arbitrator is to be appointed by one or more of them or by any third person (other than the LCIA Court), that agreement shall be treated under the Arbitration Agreement as an agreement to nominate an arbitrator for all purposes. Such nominee may only be appointed by the LCIA Court as arbitrator subject to that nominee’s compliance with Articles 5.3 to 5.5; and the LCIA Court shall refuse to appoint any nominee if it determines that the nominee is not so compliant or is otherwise unsuitable.

7.2  Where the parties have howsoever agreed that the Claimant or the Respondent or any third person (other than the LCIA Court) is to nominate an arbitrator and such nomination is not made within time (in the Request, Response or otherwise), the LCIA Court may appoint an arbitrator notwithstanding the absence of a nomination. The LCIA Court may, but shall not be obliged to, take into consideration any late nomination.

7.3  In the absence of written agreement between the Parties, no party may unilaterally nominate a sole arbitrator or presiding arbitrator.

Article 8 Three or More Parties

8.1  Where the Arbitration Agreement entitles each party howsoever to nominate an arbitrator, the parties to the dispute number more than two and such parties have not all agreed in writing that the disputant parties represent collectively two separate “sides” for the formation of the Arbitral Tribunal (as Claimants on one side and Respondents on the other side, each side nominating a single arbitrator), the LCIA Court shall appoint the Arbitral Tribunal without regard to any party’s entitlement or nomination.

8.2  In such circumstances, the Arbitration Agreement shall be treated for all purposes as a written agreement by the parties for the nomination and appointment of the Arbitral Tribunal by the LCIA Court alone.

Article 9A Expedited Formation of Arbitral Tribunal

9.1  In the case of exceptional urgency, any party may apply to the LCIA Court for the expedited formation of the Arbitral Tribunal under Article 5.

9.2  Such an application shall be made to the Registrar in writing by electronic means, together with a copy of the Request (if made by a Claimant) or a copy of the Response (if made by a Respondent), and shall be delivered or notified forthwith to all other parties to the arbitration. The application shall set out the specific grounds for exceptional urgency requiring the expedited formation of the Arbitral Tribunal.

9.3 The LCIA Court shall determine the application as expeditiously as possible in the circumstances. If the application is granted, for the purpose of forming the Arbitral Tribunal the LCIA Court may abridge any period of time under the Arbitration Agreement or other agreement of the parties (pursuant to Article 22.5).

Article 9B Emergency Arbitrator

9.4  Subject always to Article 9.16 below, in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal (under Articles 5 or 9A), any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal (the “Emergency Arbitrator”).

9.5  Such an application shall be made to the Registrar in writing by electronic means, together with a copy of the Request (if made by a Claimant) or a copy of the Response (if made by a Respondent), delivered or notified forthwith to all other parties to the arbitration. The application shall set out, together with all relevant documentation: (i) the specific grounds for requiring, as an emergency, the appointment of an Emergency Arbitrator; and (ii) the specific claim, with reasons, for emergency relief. The application shall be accompanied by the applicant’s written confirmation that the applicant has paid or is paying to the DIFC-LCIA Arbitration Centre the Special Fee under Article 9B, without actual receipt of which the application shall be dismissed by the LCIA Court. The Special Fee shall be subject to the terms of the Schedule of Arbitration Costs. Its amount is prescribed in the Schedule of Arbitration Costs, covering the fees and expenses of the Emergency Arbitrator and the administrative charges and expenses of the DIFC-LCIA Arbitration Centre, with additional charges (if any) of the LCIA Court. After the appointment of the Emergency Arbitrator, the amount of the Special Fee payable by the applicant may be increased by the LCIA Court in accordance with the Schedule of Arbitration Costs. Save as provided in Section 5(vi) of the Schedule of Arbitration Costs, Article 24 shall not apply to any Special Fee paid to the DIFC-LCIA Arbitration Centre.

9.6  The LCIA Court shall determine the application as soon as possible in the circumstances. If the application is granted, an Emergency Arbitrator shall be appointed by the LCIA Court within three days of the Registrar’s receipt of the application (or as soon as possible thereafter). Articles 5.1, 5.7, 5.9, 5.10, 6, 9C, 10 and 16.2 (last sentence) shall apply to such appointment. The Emergency Arbitrator shall comply with the requirements of Articles 5.3, 5.4 and (until the emergency proceedings are finally concluded) Article 5.5.

9.7  The Emergency Arbitrator may conduct the emergency proceedings in any manner determined by the Emergency Arbitrator to be appropriate in the circumstances, taking account of the nature of such emergency proceedings, the need to afford to each party, if possible, an opportunity to be consulted on the claim for emergency relief (whether or not it avails itself of such opportunity), the claim and reasons for emergency relief and the parties’ further submissions (if any). The Emergency Arbitrator is not required to hold any hearing with the parties whether in person, or virtually by conference call, videoconference or using other communications technology and may decide the claim for emergency relief on available documentation. In the event of a hearing, which may consist of several part- hearings (as decided by the Emergency Arbitrator), Articles 16.3, 19.2, 19.3 and 19.4 shall apply.