CEPANI Rules of Abitration (2000)

Commencement of the proceedings

Article 1 : Request for Arbitration

1. The party that wishes to resort to CEPANI arbitration shall send its request to the Secretariat of CEPANI. The Request for arbitration shall contain, inter alia, the following particulars :

  1. Full name, capacity, address and telephone and fax numbers of each party;
  2. A recital of the nature and circumstances of the dispute that gives rise to the claim;
  3. The object of the claim, a summary of the means invoked and, if possible, a financial assessment of the claim;
  4. Any information that may assist in determining the number of arbitrators and their choice in accordance with the provisions of Article 10;
  5. Information regarding the seat and language of the arbitration.

Together with the Request, Claimant shall provide copies of all agreements, correspondence and other relevant documents.

2. Claimant shall also provide proof of the dispatch to Respondent of the Request and the enclosures thereto.

Article 2 : Answer to the Request for Arbitration - Counterclaim

1. Within one month of that dispatch, Respondent shall send its Answer to the request for arbitration to the Secretariat of CEPANI. Respondent shall state its position on the number and choice of the arbitrators, as well as on the seat and language of the arbitration; it shall also state its view on the nature and circumstances of the dispute that gives rise to the claim.

2. Respondent shall, within the same time limit, provide proof of the dispatch to Claimant of a copy of its Answer and the enclosures thereto.

3. Any counterclaim must be entered by Respondent together with its Answer to the Request for Arbitration, and shall contain the following particulars :

  1. A recital of the nature and circumstances of the dispute that gives rise to the claim.
  2. An indication of the object of the claim and, if possible, a financial assessment of the claim.

Article 3 : Extension of the time limits

If warranted, the time limits mentioned in Articles 2 and 3 may be extended or shortened by the Secretariat of CEPANI.

Article 4 : Lack of an arbitration clause

If it appears that there is no arbitration clause, the arbitration cannot take place should Respondent not answer within the one-month period mentioned in Article 2, or should Respondent refuse arbitration through CEPANI.

Article 5 : Effect of the arbitration clause

1. When the parties agree to resort to CEPANI for arbitration, they thereby submit to these Rules.

2. If, notwithstanding the arbitration agreement, one of the parties were to refuse to submit to arbitration, or fail to take part in the arbitration, the arbitration shall take place nevertheless.

3. When a party raises one or more pleas concerning the existence or the validity of the arbitration agreement, the Arbitral Tribunal shall rule on its jurisdiction.

4. Unless otherwise agreed, neither the invalidity nor the non-existence of the contract containing the clause shall deprive the Arbitral Tribunal of jurisdiction, provided the Arbitral Tribunal upholds the validity of the arbitration agreement.

Article 6 : Documents

All Requests and Answers, as well as written notes submitted by the parties and all attached exhibits or copies thereof, shall be sent to each party. These documents must also be sent to each arbitrator and to the Secretariat of CEPANI.

Article 7 : Notifications and communications

All notifications and communications made in pursuance of these Rules shall be valid if they are made by delivery against receipt, by registered mail, courier, fax or any other means of telecommunication that proves their dispatch. Such notifications shall be valid if dispatched to the address or last known address of the addressee.

THE ARBITRAL TRIBUNAL

Article 8 : Rules of good conduct for arbitrators

Only those persons who are independent of the parties and of their counsel, and who comply with the rules of good conduct set out in Schedule II, may serve as arbitrators in arbitration proceedings organised by CEPANI.

Article 9 : Selection of arbitrators

1. The Appointments Committee or the Chairman of CEPANI shall appoint, or approve the appointment, of the arbitrators in accordance with the following Rules.

2. Where the parties have agreed to settle their dispute through a sole arbitrator, they may appoint him by mutual consent, subject to the approval of the Appointments Committee or the Chairman of CEPANI.

Should the parties fail to agree on his appointment within thirty days of the notification of the Request for Arbitration to Respondent, the sole arbitrator shall be automatically appointed by the Appointments Committee or by the Chairman of CEPANI.

Where the Appointments Committee or the Chairman of CEPANI refuse to approve the appointment of the arbitrator, it or he shall proceed with his replacement within the same time limit.

When it has been agreed to appoint three arbitrators, each party shall nominate its arbitrator in the Request for arbitration or in the Answer to this Request, subject to the approval of the Appointments Committee or the Chairman of CEPANI.

Where a party refrains from nominating its arbitrator or if the latter is not approved, the Appointments Committee or the Chairman of CEPANI shall automatically appoint one within one month.

The third arbitrator appointed by the Appointments Committee or by the Chairman of CEPANI shall chair the Arbitral Tribunal by right.

3. Should the parties not agree on the number of arbitrators, the dispute shall be settled by a sole arbitrator.

However, at the request of one the parties or even on its own motion, the Appointments Committee or the Chairman of CEPANI may decide that the case shall be heard by a tribunal of three arbitrators.

In both cases, the Rules set forth in paragraph 2 shall apply.

4. In the event of an arbitrator's death, challenge, accepted withdrawal, or cause preventing him from fulfilling his duties or resignation, that arbitrator shall be replaced, subject to approval and nomination, in accordance with the Rules and time limits mentioned above.

The same procedure shall apply when the Appointments Committee or the Chairman of CEPANI finds that the arbitrator is not fulfilling his duties in accordance with these Rules or within the allotted time limits. In that case, the Arbitral Tribunal as well as the parties shall be invited to submit their prior comments in writing to the Secretariat of CEPANI within the time limit allotted by it.

5. The approval or the appointment of the Arbitral Tribunal presupposes the payment by the parties, or by one of the parties, of an advance covering the cost of arbitration in accordance with the provisions of Article 25.

Article 10 : Challenge of arbitrators

1. A challenge for reasons of an alleged lack of independence or for any other reason, shall be communicated to the Secretariat of CEPANI in writing and shall contain the facts and circumstances on which it is based.

2. The challenge must be communicated by a party, on pain of inadmissibility, either within the month of the receipt by that party of the notification of the arbitrator's appointment, or within the month of the date on which that party was informed of the facts and circumstances which it invokes in support of its challenge, whatever date is the latest.

3. The Appointments Committee or the Chairman of CEPANI shall rule on the admissibility, and, if need be, on the merits of the challenge, after the Secretariat of CEPANI will have given that arbitrator, the other parties and the other members of the Arbitral Tribunal, if any, a reasonable time period to present their comments in writing. These comments shall be communicated to the parties and to the arbitrators.

Article 11 : Multi-party arbitration

When several contracts containing the CEPANI arbitration clause give rise to disputes that are closely related or indivisible, the Appointments Committee or the Chairman of CEPANI is empowered to order the joinder of the arbitration proceedings.

This decision shall be taken either at the request of the Arbitral Tribunal, or, prior to any other issue, at the request of the parties or the most diligent party, or even on CEPANI's own motion.

Where the request is granted, the Appointments Committee or the Chairman of CEPANI shall appoint the Arbitral Tribunal that shall decide the disputes that were joined. If necessary, it shall increase the number of arbitrators to a maximum of five.

The Appointments Committee or the Chairman of CEPANI shall make its decision after having summoned the parties, and, if need be, the arbitrators who have already been appointed.

They may not order the joinder of disputes in which an interim award, or an award on admissibility or on the merits of the claim, has already been rendered.

THE ARBITRAL PROCEEDINGS

Article 12 : Transmission of the file to the Arbitral Tribunal

The Secretariat of CEPANI shall communicate the file to the Arbitral Tribunal as soon as it is approved or appointed.

Article 13 : Language

1. The language of the arbitration shall be determined by mutual agreement between the parties.

Failing such an agreement, the language or languages of the arbitration shall be determined by the Arbitral Tribunal, due regard being given to the circumstances and, in particular, to the language of the contract.

2. The Arbitral Tribunal alone shall decide which of the parties shall be charged with the translation costs, if any, and to what extent.

Article 14 : Seat of the arbitration

1. The Appointments Committee or the Chairman of CEPANI shall determine the seat of the arbitration, unless the parties have agreed otherwise.

2. Unless otherwise agreed by the parties and after having consulted with them, the Arbitral Tribunal may decide to hold its hearings and meetings at any other location that it considers appropriate.

3. The Arbitral Tribunal may deliberate at any place that it considers appropriate.

Article 15 : Terms of Reference of the Arbitral Tribunal

1. Before beginning the examination of the case, the Arbitral Tribunal shall draft the Terms of Reference, either on the basis of documents or on the basis of the parties' latest statements, in the presence of the parties.

The Terms of Reference shall mention :

  1. the full name and capacity of the parties;
  2. the address where communications to the parties may be validly made in the course of the proceedings;
  3. a brief recital of the circumstances of the case;
  4. a statement of the parties' claims;
  5. unless the Arbitral Tribunal deems it to be inappropriate, a determination of the issues that are in dispute;
  6. full names, capacities and addresses of the arbitrator(s);
  7. the seat of the arbitration;
  8. any other particulars that the Arbitral Tribunal may deem to be useful.

2. The Terms of Reference mentioned in paragraph 1 must be signed by the parties and the members of the Arbitral Tribunal. The Arbitral Tribunal shall send the document to the Secretariat of CEPANI within two months of the transmission of the file. If necessary, this time limit may be extended pursuant to a reasoned request of the Arbitral Tribunal, or on its own motion by the Secretariat of CEPANI.

If one of the parties refuses to take part in the drafting of the Terms of Reference or to sign them, in spite of being bound by a CEPANI arbitration clause, the award may be rendered after the time limit set by the Secretariat of CEPANI for obtaining that signature will have expired. The award shall be deemed to be contradictory.

3. While drafting the Terms of Reference, at the earliest date possible, the Arbitral Tribunal, having consulted with the parties, shall establish in a separate document the intended timetable of the proceedings and shall send it to the Secretariat of CEPANI as well as to the parties. Any subsequent changes to this timetable shall also be sent to the Secretariat of CEPANI and to the parties.

4. The Arbitral Tribunal shall have the power to decide on an ex aequo basis only if the parties have allowed it to do so in accordance with the provisions of the applicable law.

In that event, the Arbitral Tribunal shall nevertheless abide with these Rules.

Article 16 : Examination of the case

1. The Arbitral Tribunal shall examine the case by all appropriate means and as soon as possible. It may, namely, obtain testimonial evidence and appoint one or more experts.

2. The Arbitral Tribunal may decide the matter solely on the basis of the documents that have been submitted by the parties, unless the parties or one of them request a hearing.

3. Either at the request of a party or on its own motion, the Arbitral Tribunal may summon the parties to appear before it at the time and place specified by it.

4. If any party fails to appear in spite of having been duly summoned, the Arbitral Tribunal shall nevertheless be empowered to proceed provided it will have ascertained that the summons was duly received by the parties and that there is no valid excuse for their absence.

In any event, the award shall be deemed to be contradictory.

5. The hearings shall not be public.

6. The parties shall appear in person or shall be represented. They may be assisted or represented by counsel.

7. New claims or counterclaims must be presented in writing. The Arbitral Tribunal may refuse to examine such new claims if it considers that they might delay the examination or the ruling on the original claim, or if they are beyond the limits of the Terms of Reference.

Article 17 : Interim and conservatory measures

1. Without prejudice to Article 1679, paragraph 2, of the Belgian Judicial Code, each party may ask the Arbitral Tribunal to order interim or conservatory measures, including guarantees or security for costs.

2. All measures ordered by the ordinary courts in relation with the dispute must be communicated immediately to the Arbitral Tribunal and to the Secretariat of CEPANI.

THE ARBITRAL AWARD

Article 18 : Time limit for making the award

1. The Arbitral Tribunal must make the award within four months of the signature by the arbitrators of the Terms of Reference mentioned in Article 15.

2. If necessary, this time limit may be extended pursuant to a reasoned request of the Arbitral Tribunal, or on its own motion by the Secretariat of CEPANI.

Article 19 : Award by several arbitrators

Where there are several arbitrators, the award shall be made by a majority decision. If no majority can be reached, the Chairman's vote shall be decisive.

Article 20 : Award by consent

Should the parties agree to settle their dispute after having submitted their case to the Arbitral Tribunal, the settlement shall be recorded in the form of an award if so requested by the parties and if the Arbitral Tribunal agrees to do so.

Article 21 : Rendering of the award

The arbitral award is deemed to have been rendered at the seat of arbitration, on the date of its signature by the arbitrators.

Article 22 : Notification of the award to the parties

Once made, the Secretariat of CEPANI shall notify the award to the parties by registered post, provided, however, the parties or one of them will have paid the arbitration costs in full. The award shall be filed at the registry of the Civil Court, solely if one of the parties so requests.

Article 23 : Finality and enforceability of the award

1. The award is final and not subject to appeal. The parties undertake to carry out the award without delay.

2. By submitting their dispute to CEPANI arbitration, and except where an explicit waiver is required by law, the parties waive their right to any waivable form of appeal.

ARBITRATION COSTS

Article 24 : Nature and amount of the arbitration costs

1. The arbitration costs shall include the arbitrators' costs and fees as well as the administrative expenses of the Secretariat of CEPANI.

2. The arbitration costs shall be determined by the Secretariat of CEPANI with respect to the amount of the main claim and of the counterclaims, in accordance with the Schedule that is in force at the beginning of the arbitral proceedings.

Under extraordinary circumstances, the Secretariat of CEPANI may determine the arbitration costs at a higher or lower figure than the amount calculated in accordance with the Schedule.

Where the claims cannot be partly or fully assessed financially, the Secretariat of CEPANI shall decide, on the basis of all available data, the amount in dispute that shall be used to determine the arbitration costs.

The Secretariat of CEPANI may adjust the amount of the arbitration costs in the course of the proceedings if the circumstances of the case or if new claims reveal that the extent of the dispute is greater than originally stated.

Article 25 : Advances towards arbitration costs

The advance required to cover the arbitration costs as determined in accordance with Article 24 shall be paid prior to the approval or the appointment of the Arbitral Tribunal by the Appointments Committee or the Chairman of CEPANI.

Further advance payments may be required if and when any adjustments are made to the arbitration costs in the course of the proceedings.

In a counterclaim is file, the Secretariat of CEPANI may fix separate advance payments for the main claim and the counterclaim.

Claimant and Respondent shall contribute equally to the advance payment. However, a party may pay the entire advance should the other party fail to make its contribution. If separate advance payments have been fixed, then each party must pay the advance payment relating to its claim or counterclaim. The Arbitral Tribunal shall only decide claims for which the advance payment has been made in full.

The advance payment may be made by way of a bank guarantee when it is equal or in excess of 50.000 Euro.

Article 26 : Allocation of the arbitration costs

The award shall mention which party shall finally bear the arbitration costs as determined by the Secretariat of CEPANI, or the proportion in which those costs shall be allocated between the parties. As the case may be, the award shall record the parties' agreement on the allocation of the arbitration costs.

ADDITIONAL PROVISIONS

Article 27 : General rule

Unless otherwise agreed by the parties, the Rules shall refer all issues that have not been specifically provided for herein, to Chapter VI of the Belgian Judicial Code.

Cost of Arbitration Scale

1. The arbitration costs shall be determined by the Secretariat of CEPANI in accordance with the amount in dispute and within the limits mentioned hereinafter :

2. These amounts include the administrative costs of CEPANI, which shall not exceed 10% of the total arbitration costs. The administrative costs are subject to VAT.

3. When the arbitrator is subject to VAT, he shall so inform the Secretariat of CEPANI, which will charge the parties with the VAT owed on the arbitrator's fees.

4. When a tribunal of three arbitrators has been appointed, the above rates of costs and fees may be doubled.
When the tribunal is composed of more than three arbitrators, the Secretariat of CEPANI shall determine the arbitration costs accordingly.

5. Prior to any technical expertise ordered by the Arbitral Tribunal, the parties or one of them shall pay an advance, the amount of which shall be determined by the arbitral tribunal and cover the probable costs and fees of the expert(s). The fees and final costs of the expert shall be determined by the Arbitral Tribunal.

6. The award shall allocate the technical expert appraisal costs between the parties in whatever proportion is decided.