Arbittration Rules of Netherlands Arbitration Institute (3)
Article 14 - List-Procedure
1. As soon as possible after receipt of the short answer referred to in Article 7 or, on the absence thereof, after expiration of the period of time for filing of short answer, the Administrator shall communicate to each of the parties an identical list of names. If one arbitrator is to be appointed, the list shall contain not less than three names; if three arbitrators are to be appointed, the list shall contain not less than nine names.
2. Each party may delete from this list the names of persons against whom he has overriding objections, and number the remaining names in the order of his preference.
3. If a list is not returned to the Administrator within two weeks after its dispatch to a party, it will be assumed that all persons appearing on it are equally acceptable to that party for appointment as arbitrator.
4. As soon as possible after receipt of the lists, or failing this, after expiration of the period of time referred to in the previous paragraph, the Administrator shall, taking into account the preferences and/or objections expressed by the parties, invite one or three persons from the list, as the case may be, to act as arbitrator.
5. If and to the extent that the lists which have been returned show an insufficient number of persons who are acceptable as arbitrator to each of the parties, the Administrator shall be authorized to invite directly one or more other persons to act as arbitrator. The same shall apply if a person is not able or does not wish to accept the Administrator’s invitation to act as arbitrator, or if there appear to be other reasons precluding him from acting as arbitrator, and there remain on the lists an insufficient number of persons who are acceptable as arbitrator to each of the parties.
6. If the arbitral tribunal is composed of three arbitrators, the arbitrators shall choose a chairman from amongst themselves, if necessary, in accordance with the provisions of Article 16(3).
7. If the parties agreed only to the appointment of arbitrator(s) by the NAI, without referring to arbitration by the NAI or arbitration in accordance with the NAI Rules, such appointment shall take place in accordance with the provisions of this Article unless the parties agreed to another method of appointment by the NAI.
8. For the application of the provisions of this Article, the Administrator preferably shall draw the names of persons from the General Panel of Arbitrators which is established, expanded and amended by the NAI.
9. The appointment of the arbitrator(s) in accordance with the provisions of this Article shall take place within two months after commencement of the arbitration.
Article 15 - Letter of Appointment; Acceptance of Mandate; Notice of Appointment to Parties
1. The appointment of the arbitrator(s) in accordance with the provisions of Article 13 or 14 shall be confirmed by the Administrator by a letter of appointment addressed to the arbitrator(s).
2. An arbitrator shall accept his mandate in writing. The signing and returning to the Administrator of a copy of the letter of appointment will suffice for this purpose.
3. Simultaneously with the dispatch of the letter of appointment, the Administrator shall notify the parties in writing of the appointment.
Article 16 - Nationality of Arbitrator
1. No person shall be precluded from appointment as arbitrator by reason of his nationality, except as provided in the following paragraphs.
2. In an arbitration between parties of different nationality, if an arbitral tribunal composed of one arbitrator is to be appointed in accordance with the list-procedure provided in Article 14, each of the parties may require that this arbitrator be of a nationality other than that of any of the parties.
3. In an arbitration between parties of different nationality, if an arbitral tribunal composed of three arbitrators is to be appointed in accordance with the list-procedure provided in Article 14, each of the parties may require that the arbitrator who will act as the chairman of the arbitral tribunal be of a nationality other than that of any of the parties.
4. Such request shall be communicated to the Administrator, by the claimant in the request for arbitration referred to in Article 6, and by the respondent in the short answer referred to in Article 7.
Article 17 - Release from Mandate
1. An arbitrator who has accepted his mandate may, at his own request, be released therefrom either with the consent of the parties or by the Administrator.
2. An arbitrator who has accepted his mandate may be released therefrom by the parties jointly, without a request thereto from the arbitrator himself being necessary. The parties shall promptly notify the Administrator of such release.
3. An arbitrator who has accepted his mandate and who has become de jure or de facto unable to perform his mandate may, at the written request of a party, be released from his mandate by the Administrator.
4. In the cases referred to in paragraphs(1) and (3), the Administrator shall not release an arbitrator from his mandate until the parties have been given the opportunity to express their views in writing to the Administrator.
Article 18 - Replacement of Arbitrator
1. An arbitrator who, for whatever reason, is released from his mandate shall be replaced by a new arbitrator. The new arbitrator shall be appointed in accordance with the list-procedure provided in Article 14 unless the parties have agreed to another method of replacement. The same applies in case of death of an arbitrator.
2. Until replacement has taken place, the arbitral proceedings shall be suspended by operation of law. After replacement, the arbitral proceedings shall continue from the stage they had reached unless the arbitral tribunal deems a reconsideration of the matter, wholly or in part, justified.
Article 19 - Challenge of Arbitrator
1. An arbitrator may be challenged by a party in accordance with the provisions of this Article, if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, including the requirements of Article 10(1) and (2).
2. An arbitrator may also be challenged on grounds that existed prior to his appointment.
3. The challenge and the grounds therefor shall be notified in writing by the challenging party to the challenged arbitrator, the other party, the Administrator and, if the arbitral tribunal is composed of more than one arbitrator, the other arbitrators. Said notification shall be made within one week after receipt of the notification referred to in Article 11 or, in the absence thereof, within one week after the challenging party became aware of the grounds for the challenge.
4. If the challenge is not made in accordance with the provisions of the previous paragraph, the right to bring a challenge on these grounds shall be barred thereafter in the arbitral proceedings or in proceedings before a court.
5. The arbitral tribunal may suspend the arbitral proceedings as of the day of receipt of the notification from the challenging party.
6. Withdrawal by a challenged arbitrator shall not be interpreted as acceptance of the grounds for the challenge.
7. If the challenged arbitrator does not withdraw within two weeks after the day of receipt of the notification from the challenging party, the Executive Board shall promptly decide in writing on the merits of the challenge. The Executive Board may give the challenged arbitrator and the parties the opportunity to be heard. The decision shall be communicated by the Administrator to the parties and the arbitrator(s).
8. If the Executive Board rejects the challenge, the challenging party may being the grounds for the challenge invoked by him before the court.
9. If the challenged arbitrator withdraws or if the challenge is upheld by the Executive Board or by the court, the arbitrator shall be replaced in accordance with the provisions of Article 18(1). The provisions of Article 18(2) shall apply accordingly.
10. If the challenged arbitrator is domiciled or has his actual residence outside the Netherlands, the period of time mentioned in paragraph (7) shall be doubled, regardless of whether the arbitration is international or not.
SECTION FOUR - PROCEDURE
Article 20 - Arbitration File and Communications
1. Simultaneously with the communication of the letter of appointment referred to in Article 15, the Administrator shall transmit the arbitration file to the arbitral tribunal.
2. After transmission of the arbitration file to the arbitral tribunal, the parties shall send their communications and other written submissions directly to the arbitral tribunal. A copy of every communication or written submission shall be sent simultaneously to the Administrator. The same applies to communications from the arbitral tribunal to the parties.
Article 21 - Representation of and Assistance for Parties
1. The parties may appear before the arbitral tribunal in person, be represented by a practising lawyer or be represented by any other person expressly authorized in writing for this purpose. The parties may be assisted in the arbitral proceedings by any persons they may choose.
2. If a party is to be represented at a hearing by a practising lawyer or by an authorized representative, he shall so notify in writing the arbitral tribunal and the other party as soon as possible after the date of the hearing is determined. If the request for arbitration referred to in Article 6, or the short answer referred to in Article 7, was filed by a practising lawyer or by an authorized representative, said notification shall be deemed to have taken place.
Article 22 - Place of Arbitration
1. If the place of arbitration is not agreed to by the parties, the place shall be determined by the arbitral tribunal as soon as possible after receipt of the arbitration file. The arbitral tribunal shall notify the parties and the Administrator in writing of the place so determined.
2. The arbitral tribunal may hold hearings, deliberate, and examine witnesses and experts at any other place, within or outside the Netherlands, which it deems appropriate.
Article 23 - Procedure in General
1. The arbitral tribunal shall ensure the equal treatment of the parties. It shall give each party an opportunity to substantiate his claims and to present his case.
2. The arbitral tribunal shall determine the manner in which, and the periods of time within which, the procedure shall be conducted, taking into account the provisions of these Rules, arrangements, if any, between the parties, and the circumstances of the arbitration.
3. The arbitral tribunal shall ensure that the arbitral procedure takes place with due dispatch. It may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by it or agreed to by the parties.
4. At the request of a party, or on its own motion, the arbitral tribunal may, after receipt of the arbitration file or at a later stage of the proceedings, hold a meeting with the parties to discuss the course of the proceedings and/or to specify further the factual and legal issues in dispute.
Article 24 - Exchange of Memorials
1. Unless the parties have agreed otherwise, the claimant and the respondent shall be given the opportunity by the arbitral tribunal to submit a statement of claim and a statement of defence, respectively.
2. Unless the parties have agreed otherwise, it is at the discretion of the arbitral tribunal whether a memorial of reply and a memorial of rejoinder shall be submitted. The same applies to any further written submissions of the parties.
3. The provisions of this Article shall apply to a counterclaim accordingly.
Article 25 - Counterclaim
1. A counterclaim that is not raised, at the latest, in the statement of defence or, in the absence thereof, that is not brought forward in the first written or oral defence, cannot be raised at a later stage in the same arbitral proceedings, except in exceptional circumstances as determined by the arbitral tribunal.
2. A counterclaim is admissible if it falls under the same arbitration agreement as that on which the request for arbitration is based, or if the same arbitration agreement is expressly or tacitly made to apply to it by the parties.
Article 26 - Hearing
1. The arbitral tribunal shall give the parties an opportunity to elaborate on their contentions orally at a hearing unless the parties agree to forego such opportunity.
2. The arbitral tribunal shall determine the day, time and place of the hearing and shall give the parties adequate advance notice thereof. The same shall apply to any further hearing that the arbitral tribunal may, at its discretion, deem necessary.
3. The arbitral tribunal may allow other persons than those mentioned in Articles 21, 29, 30 and 31, to attend the hearing unless a party raises objections thereto.
Tags: International-Arbitrage