Arbittration Rules of Netherlands Arbitration Institute (2)
TEXT OF THE NAI ARBITRATION RULES
SECTION ONE - GENERAL PROVISIONS
Article 1 - Definitions
In these Rules, the words and phrases listed below have the following meaning:
(a) “NAI” - Netherlands Arbitration Institute, Foundation (Stichting), with its seat in Rotterdam;
(b) “Governing Board” - the Governing Board of the NAI;
(c) “Executive Board” - the executive section of the NAI Governing Board as provided for in the NAI Articles of Association;
(d) “Administrator” - the Secretary to the Governing Board or his deputy nominated by the Governing Board;
(e) “arbitration agreement” - the agreement by which parties bind themselves to submit to arbitration an existing dispute between them (compromis; submission agreement) or disputes which may arise between them in the future (arbitration clause) out of a defined legal relationship, whether contractual or not; this agreement shall be proven by an instrument in writing; for this purpose an instrument in writing which provides for arbitration or which refers to standard conditions providing for arbitration is sufficient, provided that this instrument is expressly or impliedly accepted by or on behalf of the parties;
(f) “arbitral tribunal” - an arbitral tribunal of one or more arbitrators, composed in accordance with the third section of these Rules;
(g) “international arbitration” - an arbitration in which at least one of the parties is domiciled or has his seat or actual residence outside the Netherlands.
Article 2 - Field of Application (Arbitration)
These Rules shall apply if parties have agreed to arbitration by the NAI or to arbitration in accordance with the NAI Rules.
Article 3 - Field of Application (Binding Advice)
1. These Rules shall apply accordingly if parties have agreed in writing to binding advice by the NAI or to binding advice in accordance with the NAI Rules.
2. If parties have agreed to arbitration, but the arbitral tribunal finds that a dispute is wholly or partially incapable of settlement by arbitration, the arbitral tribunal is authorized to render is decision wholly or partially in the form of a binding advice.
3. In case of binding advice, no deposit of the decision with the registry of the district court takes place. The period of time for correction (Article 52) and for rendering an additional decision (Article 53) shall expire 30 days after the day the decision is received.
Article 4 - Notices
1. Notices shall be given or confirmed in writing, such as by letter or rapid written communication.
2. If there is more than one claimant or respondent, the number of copies of notices and other written submissions to be submitted shall be increased accordingly.
Article 5 - Periods of Time
1. For the purposes of these Rules, a period of time shall start to run on the day a notice is received unless these Rules or the arbitral tribunal explicitly provide otherwise.
2. In an international arbitration, the periods of time referred to in Articles 7(4), 12(3), 13(2), 14(3), 14(9), 19(3), 19(7), 57(5) and 59(6) shall be doubled.
3. The Administrator is, at the request of a party or on his own motion, authorized to extend in exceptional cases the periods of time referred to in Articles 7(4), 12(3), 13(2), 14(3), 14(9), 57(5) and 59(6).
SECTION TWO - COMMENCEMENT OF ARBITRATION
Article 6 - Request for Arbitration
1. An arbitration commences by the filing of a request for arbitration with the NAI Secretariat.
2. Both in case of an arbitration clause and in case of a submission agreement, the arbitration shall be deemed to have commenced on the day the request for arbitration is received by the NAI Secretariat.
3. The request for arbitration shall contain the following:
(a) the name and address of the claimant, his place of domicile, seat or actual residence, as well as his telephone and telex numbers;
(b) the name and address of the respondent, his place of domicile, seat or actual residence, as well as his telephone and telex numbers;
(c) a brief description of the dispute;
(d) a clear description of what is claimed;
(e) a reference to the arbitration agreement; a copy of the latter shall be submitted simultaneously;
(f) the name(s) and address(es) of the arbitrator(s), their place of domicile or actual residence, as well as their telephone and telex numbers, insofar as parties themselves have appointed the arbitrator(s);
(g) the method of appointing the arbitrator(s), if parties have agreed to a method of appointment different from the list-procedure provided in Article 14;
(h) the number of the arbitrators, if agreed by the parties;
(i) the place of arbitration, if agreed by the parties;
(j) the preference, if any, of the claimant for the number of the arbitrators and/or for the place of arbitration, if not agreed by the parties;
(k) to the extent applicable, further particulars as to the arbitral procedure, e.g., the nationality of arbitrators as referred to in Article 16(4).
4. The request for arbitration shall be filed in five copies. If the request for arbitration is not filed in a sufficient number of copies, or does not comply with all requirements listed in the preceding paragraph, the Administrator shall contact the claimant in order to obtain additional copies or completion as necessary. The Administrator is authorized to suspend action on the request for arbitration until the requirements mentioned above have been complied with. The suspension does not prejudice the provisions of paragraph(2).
5. As regards the requirements of paragraph (3)(e), in case a request for arbitration is contained in rapid written communication, it is sufficient for the claimant to quote literally the text of the arbitration agreement provided that, as soon as possible after the commencement of the arbitration, the claimant communicates a copy of the arbitration agreement to the Administrator.
6. The Administrator shall communicate to the claimant a written acknowledgment of receipt of the request for arbitration, making mention of the date of receipt.
Article 7 - Short Answer
1. The Administrator shall communicate a copy of the request for arbitration to the respondent, along with mention of the date of receipt, and shall invite him in writing to submit a short answer thereto.
2. The short answer shall also contain the preference, if any, of the respondent for the number of the arbitrators and/or for the place of arbitration, if not agreed by the parties, as well as, to the extent applicable, any further particulars as to the arbitral procedure.
3. In the short answer the respondent may introduce a counterclaim against the claimant in accordance with the provisions of Article 25(2).
The requirements mentioned in Article 6(3)(c), (d) and (e) apply accordingly to the counterclaim.
4. The respondent shall file the short answer with the Administrator in five copies within 14 days after receipt of the invitation mentioned above.
5. The Administrator shall communicate a copy of the short answer to the claimant.
Article 8 - Purpose of Request for Arbitration and Short Answer
The request for arbitration and the short answer serve as an introduction to the arbitral procedure. They do not prejudice the right of the parties to submit a statement of claim and a statement of defence, respectively, in accordance with the provisions of Article 24.
To the extent that the Administrator is involved in the determination of the number and/or the appointment of the arbitrator(s), he shall draw the required information from the request for arbitration and the short answer.
Article 9 - Plea as to Lack of Arbitration Agreement
1. A party who participated in the appointment of the arbitrator(s) in the manner provided in the third section shall not be barred from raising the plea that the arbitral tribunal lacks jurisdiction on the ground that there is no valid arbitration agreement.
2. A respondent who appears in the arbitral proceedings and wishes to raise the plea that the arbitral tribunal lacks jurisdiction on the ground that there is no valid arbitration agreement shall raise this plea before submitting any defence. Accordingly, this plea shall be raised ultimately in the statement of defence or, in the absence thereof, prior to the first written or oral defence. For the purpose of this paragraph, the short answer referred to in Article 7 shall not be deemed to constitute a defence.
3. If a respondent fails to raise this plea before submitting any defence, as provided in the previous paragraph, he shall be barred from doing so thereafter in the arbitral proceedings or in proceedings before a court unless the plea is made on the ground that the dispute is not capable of settlement by arbitration.
4. A plea that the arbitral tribunal lacks jurisdiction shall be decided by the arbitral tribunal.
5. An arbitration agreement shall be considered and decided upon as a separate agreement. The arbitral tribunal shall have the power to decide on the validity of the contract of which the arbitration agreement forms part or to which the arbitration agreement is related.
6. A plea that the arbitral tribunal lacks jurisdiction shall not preclude the NAI from administering the arbitration.
SECTION THREE - APPOINTMENT OF ARBITRATORS
Article 10 - Impartiality and Independence of Arbitrators
1. The arbitrator shall be impartial and independent. He may not have close personal or professional relationship with a co-arbitrator or with any of the parties. He may not have any direct personal or professional interest in the outcome of the case. He may not, prior to his appointment, disclose his opinion on the case to one of the parties.
2. In the course of the proceedings an arbitrator shall not have any contacts with a party concerning matters regarding the proceedings unless he has obtained prior consent of the other parties and, if the tribunal consists of more than one arbitrator, of the co-arbitrators.
Article 11 - Disclosure in Case of Doubt as to Impartiality and Independence
1. If there are grounds for doubt as to his independence or impartiality, a prospective arbitrator, or an arbitrator who has been appointed but did not yet do so, shall disclose the existence and nature of such grounds in accordance with the provisions of the next paragraph.
2. A prospective arbitrator shall make such disclosure to the person who approached him. An arbitrator who has been appointed shall make such disclosure to the Administrator. The Administrator shall communicate a copy of the notification of disclosure to the parties and, if the arbitral tribunal is composed of more than one arbitrator, to the other arbitrators.
Article 12 - Number of Arbitrators
1. If the parties have not agreed on the number of arbitrators, the number shall be determined by the Administrator after the filing of the short answer or, in the absence thereof, after expiration of the period of time for filing the short answer.
2. The Administrator shall determine that the number of arbitrators be one or three, taking into account the preference of the parties, the amount of the claim and of the counterclaim, if any, and the complexity of the case.
3. If the parties agreed on an even number of arbitrators, the latter shall appoint an additional arbitrator who shall act as the chairman of the arbitral tribunal. If, within two weeks after acceptance of their mandate, the arbitrators fail to agree on the additional arbitrator, the latter shall, at the request of either party, be appointed in accordance with the list-procedure provided in Article 14.
Article 13 - Method of Appointment as Agreed by the Parties
1. If the parties agreed on a method of appointing the arbitrator(s) other than the list-procedure provided in Article 14, the appointment shall take place as agreed by the parties, subject to the provisions of the following paragraphs.
2. If such method of appointment is not complied with wholly or in part within the period of time agreed to by the parties, or, in the absence of such period of time, within four weeks after commencement of the arbitration, the appointment of the arbitrator(s) shall take place in accordance with the list-procedure provided in Article 14.
3. If one or more of the arbitrators who were appointed by the parties themselves do not, in the opinion of the Administrator, offer sufficient safeguards for a sound arbitration, the Administrator may refuse to administer the arbitration, unless the parties agree to the replacement of such arbitrator in accordance with the list-procedure provided in Article 14.
Tags: International-Arbitrage