Arbittration Rules of Netherlands Arbitration Institute (4)
Article 27 - Evidence in General
Unless the parties have agreed otherwise, the arbitral tribunal shall be free to determine the admissibility, relevance, materiality and weight of evidence as well as the allocation of the burden of proof.
Article 28 - Production of Documents
1. Except as otherwise agreed by the parties, the memorials mentioned in Article 24 shall be accompanied by, to as large an extent as possible, the documentary evidence relied on by the parties.
2. The arbitral tribunal shall have the power to order the production of specific documents which it deems relevant to the dispute.
Article 29 - Witnesses
1. The arbitral tribunal shall determine the day, time and place of the examination of witnesses, as well as the manner in which the examination shall proceed unless the parties agreed to a manner of examination. The parties shall be notified in writing in a timely manner of this day, time and place.
2. A party who wishes to have a witness examined shall notify the arbitral tribunal and the other party in a timely manner of the witness’ name and the subject matters of the witness’ testimony.
3. The arbitral tribunal shall decide whether a witness shall be examined under oath or on affirmation.
4. The arbitral tribunal shall decide whether, and in what form, the examination shall be recorded.
5. If the arbitral tribunal is composed of more than one arbitrator, it shall be authorized in special circumstances to designate one of its members to examine witnesses. In such case a written report of the examination of the witnesses shall be made.
Article 30 - Experts (Party-Appointed)
A party shall be free to submit the opinion of an expert consulted by him. At the request of either party or when the arbitral tribunal so determines, this expert shall be called at a hearing to provide further explanation.
Article 31 - Experts (Tribunal-Appointed)
1. The arbitral tribunal may appoint one or more experts to give advice. The arbitral tribunal may consult the parties as to the terms of reference for the expert.
2. The arbitral tribunal shall promptly communicate to the parties a copy of the appointment and the terms of reference of the expert.
3. If a party fails to provide an expert with the information required by him or fails to give him the necessary cooperation, the expert may request the arbitral tribunal to order that party to do so.
4. Promptly upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of this report to the parties.
5. The parties shall be given an opportunity to comment in writing on the expert’s report within a period of time set by the arbitral tribunal.
6. A party may request the arbitral tribunal to examine the expert at a hearing. If a party wishes to make such request, he shall so inform the arbitral tribunal and the other party promptly upon receipt of the expert’s report. The arbitral tribunal shall give each party, so if requested, an opportunity of presenting his own experts at the same hearing.
7. The arbitral tribunal shall not be obligated to follow the expert’s advice if it is not in conformity with its own convictions.
Article 32 - Site Inspection
If the arbitral tribunal deems it appropriate, it may order a site inspection. The parties shall be given the opportunity to be present at the inspection.
Article 33 - Order for Appearance in Person of Parties
At any stage of the proceedings the arbitral tribunal may order the parties to appear in person for the purpose of providing information or attempting to arrive at a settlement.
Article 34 - Amendment of Claim
1. A party may amend or increase a claim or counterclaim, as the case may be, at the latest at the beginning of the final hearing or, in the absence of a hearing, at the latest in the final memorial admitted by the arbitral tribunal. Thereafter, such shall no longer be allowed except in exceptional circumstances as determined by the arbitral tribunal. A party may at all times decrease his claim or counterclaim, as the case may be.
2. The other party may object to an amendment or increase if this unreasonably hinders his defence, or if this causes unreasonable delay of the proceedings. The arbitral tribunal shall hear the parties and promptly decide on the objections raised by the other party.
3. In case of default of a party as provided in Article 36, the arbitral tribunal shall give in writing the defaulting party an opportunity to comment on the amendment or increase.
Article 35 - Withdrawal of Request for Arbitration
1. The claimant may withdraw his request for arbitration so long as the respondent has not submitted a statement of defence as referred to in Article 24 or, in case the arbitration does not take place on the basis of written submissions, so long as a hearing has not been held.
2. Thereafter, withdrawal of the request for arbitration shall be possible only with the express consent of the respondent, without prejudice to the provisions of Articles 57(5) and 59(6).
3. The withdrawal shall be confirmed in writing to the parties by the Administrator and, after its appointment, by the arbitral tribunal through the intermediary of the Administrator.
Article 36 - Default
1. If the respondent, without showing good cause, fails to submit within the period of time set by the arbitral tribunal a statement of defence as referred to in Article 24, the arbitral tribunal may render an award forthwith.
2. This award shall be rendered in favour of the claimant unless the arbitral tribunal considers the claim to be unlawful or unfounded.
Before rendering the award, the arbitral tribunal may require the claimant to produce evidence in support of one or more of his contentions.
3. Paragraphs (1) and (2) shall apply accordingly if a hearing takes place, whether or not preceded by an exchange of memorials, and the respondent, although duly notified, fails to appear without showing good cause.
4. If the claimant, without showing good cause, fails to submit, within the period of time set by the arbitral tribunal, a statement of claim as referred to in Article 24, the arbitral tribunal may terminate the arbitral proceedings by means of an award. The same shall apply if the claimant, after submitting the statement of claim, fails to comply with an order of the arbitral tribunal to duly explain his claim within the period of time set by the arbitral tribunal.
5. The provisions of this Article shall apply accordingly to a counterclaim.
Article 37 - Interim Measures
1. At any stage of the arbitral procedure, the arbitral tribunal may, at the request of a party, take provisional decisions or interim measures that it considers necessary or desirable as to the matters in dispute.
2. Such decisions or measures may be laid down in the form of an interim arbitral award or an order of the arbitral tribunal.
3. Such decisions or measures shall in no way prejudice the final judgment of the arbitral tribunal on the merits of the case.
4. By a request for a provisional decision or interim measure, a party does not forfeit the right to request a court to grant interim measures of protection or to apply to the president of the district court for a decision in summary proceedings.
Article 38 - Security
1. The arbitral tribunal may, at the request of a party, order the other party to provide security or to have security provided in favour of the requesting party, in a form to be determined by the arbitral tribunal, for costs related to the arbitration which are deemed to be required by the arbitral tribunal.
2. The provisions of Article 37(2) - (4) inclusive shall apply accordingly.
Article 39 - Tribunal Secretary; Technical Assistance
1. At the request of the arbitral tribunal, the Administrator shall arrange for the presence of a lawyer who acts as the secretary to the arbitral tribunal. The provisions of Articles 10, 11 and 19 shall apply accordingly to the secretary.
2. The arbitral tribunal may request the Administrator to arrange for technical assistance in the arbitral proceedings.
Article 40 - Language
1. The arbitral proceedings shall be conducted in the language or languages agreed to by the parties or, in the absence of such agreement, in the language or languages determined by the arbitral tribunal.
2. If any communication or written submission is in another language, the Administrator and, after its appointment, the arbitral tribunal, may require that the party from whom the communication or written submission emanates arrange for a translation in the form and within the period of time determined by the Administrator or the arbitral tribunal, as the case may be.
3. At the request of the arbitral tribunal, the administrator shall arrange for the presence of an interpreter at the hearing.
Article 41 - Third Parties
1. A third party who has an interest in the outcome of arbitral proceedings to which these Rules apply may request the arbitral tribunal for permission to join the proceedings or to intervene therein.
2. Such request shall be filed with the Administrator in six copies. The Administrator shall communicate a copy of the request to the parties and to the arbitral tribunal.
3. A party who claims to be indemnified by a third party may serve a notice of joinder on such a party. A copy of the notice shall be sent without delay to the arbitral tribunal, the other party and the Administrator.
4. The joinder, intervention or joinder for the claim of indemnity may only be permitted by the arbitral tribunal, having heard the parties and the third party, if the third party accedes to the arbitration agreement by an agreement in writing between him and the parties to the arbitration agreement. On the grant of request for joinder, intervention or joinder for the claim of indemnity, the third party becomes a party to the arbitral proceedings.
5. In case of a request or notice as referred to in paragraphs (1) and (3), respectively, the arbitral tribunal may suspend the proceedings.
After the suspension, the proceedings shall be resumed in the manner as determined by the arbitral tribunal, unless the parties have agreed otherwise.
6. The provisions on the costs of the arbitration contained in the sixth section shall apply accordingly to a third party who has acceded to the arbitration agreement in accordance with the provisions of paragraph (4).
Article 42 - Non-Compliance of a Party with Provisions Contained in Section Four
If a party does not comply, or complies insufficiently, with any provision contained in this section, or with an order, decision or measure issued by the arbitral tribunal pursuant to this section, the arbitral tribunal may draw therefrom the conclusions it deems appropriate.
SECTION FIVE - AWARD
Article 43 - Period of Time for Rendering Award
1. The arbitral tribunal shall render its award as soon as possible.
2. The mandate of the arbitral tribunal shall last until it has rendered its last final award, without prejudice to the provisions of Articles 52 and 53.
Article 44 - Types of Award
The arbitral tribunal may render a final award, a partial final award, or an interim award.
Article 45 - Decision According to Rules of Law or as Amiable Compositeur
1. The arbitral tribunal shall decide as amiable compositeur unless the parties agreed to authorize it to make its award in accordance with the rules of law.
2. In an international arbitration, the arbitral tribunal shall make its award in accordance with the rules of law unless the parties agreed to authorize it to decide as amiable compositeur.
Article 46 - Applicable Law
If a choice of law is made by the parties, the arbitral tribunal shall make its award in accordance with the rules of law chosen by the parties. Failing such choice of law, the arbitral tribunal shall make its award in accordance with the rules of law which it considers appropriate.
Article 47 - Trade Usages
In all cases the arbitral tribunal shall take into account any applicable trade usages.
Article 48 - Decision-Making; Signing of Award
1. If the arbitral tribunal is composed of more than one arbitrator, it shall decide by a majority of votes.
2. If a minority of the arbitrators refuses to sign, the other arbitrators shall make mention thereof beneath the award signed by them.
This statement shall also be signed by them.
3. If a minority of the arbitrators is incapable of signing and it is unlikely that this impediment will cease to exist within a reasonable time, the provisions of the previous paragraph shall apply accordingly.
4. No mention shall be made in the award of the opinion of a minority of the arbitrators.
In an international arbitration, however, a minority may express its opinion to the other arbitrators and to the parties, in a separate document. This document shall not be deemed to form part of the award.
Article 49 - Form and Contents of Award
1. The arbitral award shall be recorded in writing in four copies and signed by the arbitrator(s), having regard to the provisions of Article 48(2) and (3).
2. The arbitral award shall contain in any case:
(a) the name and domicile or actual residence of the arbitrator(s);
(b) the name and domicile, seat or actual residence of the parties;
(c) a short summary of the procedure;
(d) a description of the claim and a description of the counterclaim, if any;
(e) the reasons for the decision given in the award;
(f) the determination and award of the arbitration costs referred to in Article 61;
(g) the mention whether, in accordance with the provisions of Article45, the arbitral tribunal decided in accordance with the rules of law or as amiable compositeur;
(h) the decision;
(i) the place where the award is made, which is at the same time the place of arbitration referred to in Article 22; and
(j) the date on which the award is made.
3. If the award is a partial final award or an interim award, the determination and award of the arbitration costs referred to in the previous paragraph under (f) may be reserved until later in the proceedings.
4. As soon as possible after being signed, the copies of the award shall be communicated to the Administrator.
Tags: International-Arbitrage