The Geneva Chamber of Commerce and Industry adopts revised arbitration rules

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The Geneva Chamber of Commerce and Industry adopts revised arbitration rules

KAUFMANN-KOHLER, Gabrielle

KAUFMANN-KOHLER, Gabrielle. The Geneva Chamber of Commerce and Industry adopts revised arbitration rules. Journal of international arbitration , 1992, vol. 9, no. 2, p. 71-85

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1 / 1

The Geneva Cham ber of Commerce and Industry Adopts Revised Arbitration Rules

Gabrielle KAUPMANN*

On l January 1992, the revised ru les of arbitration (the Rules) of the Cham ber of Commerce and lndustry of Geneva (the CCIG) entered into force. The English version of the Rules is attached as Annex 1 to this article. The Rules are also availablc in French and German.

The purpose of this brief contribution is, first, to offer an introduction to the general philosophy of the Rulcs and, second, to set forth some of the Rules' main characteristics.

l. GENERAL PIIILOSOPHY: As MUCH [NSTITUTIONAL lNVOLVEMENT AS NECESSARY AND AS LITTLE AS POSSIBLE

(a) ALTERNATIVE BETWEEN ADMJNISTERED AND AD HOC ARfliTRATION

The former Arbitration Directives of the CCIG only provided for the CCIG's function as an appointing authority. The Rules extend the scope of the CCIG's functions in order to better service the needs of the users. Such increased functions do not, however, amount to administered arbitration.

The purpose of the Rules is to offer an alternative between, on the one hand, full y administered arbitration and, on the other lu nd, pure ad hoc arbitration. Administered arbitration can prove cumbersome and th us unsatisfactory in ter ms both of ti me and cost, whereas ad hoc arbitration, which la_cks any regula tory framework, is sometimes fraught with uncertainty and unpredictability.

The need for this alternative a rose, in parti cul ar, as a result of the entry into force of the new Swiss Act on Priva te International Law (the PIL Act) in 1989, which deals with international arbitration in Chapter 12. ln keeping with the general trend prevailing in international arbitration today, the PIL Act provides a legal framework for international arbitrations in Switzerland, which lcaves broad freedom to the parties in shaping the arbitral process. The Rules ai rn at putting that freedom to good use.

(b) SCOPE Of THE CCIG's FUNCTIONS

ln more practical terms, the CCIG's functions under the Rules include the following tasks:

*Member of the Geneva and New York 13ars; parrner Etienne Dlum Stchlé Manfrini & Partners, Gcneva. The au thor bears sole responsibility for the views expressed in this article.

72 JOURNAl. OF INTERNATIONAL ARBITRATION

-

monitoring

the

process for

the

appointment of the arbitrators, which

includes

appointing and confirming arbitra tors undcr certain circumstances (see section Il (a) below );

- ruling

on challenges against arbitrators (see section

TI(b)

below);

-consolidating arbitrations

and setting

multi-party arbitrations in

motion

when appropriate (see section ll(c) bclow);

-

setting and controlling

the cost of arbitration

(see section TI(f) below).

As opposed to the fun

c

tions so listed, the CCIG does

11ot carry out the followin

g tasks:

-

it does not receive copies of ail pleadings and communications between the parties and the arbitral tribunal (it does ho

wever contact the arbitra tors o

n a regular basis to verify the progress of the proceedings);

-it neither requi res nor appro

ves terms

of refe rence;

-it

neither re views no r approves arbit ra

l awa

rds.

It is believed th at these tasks are best perf

o

rmed by competent arbitra tors and th at additional institutional involvement is ncithe r

cost- nor ti me-effective.

The CCIG carries

o

ut

its tasks und

er th

e

Rules

throu

gh a com

mittee

of fiv

e

persan

s appointed for such purpose. ¹

A

s a result of its limited size, the comm

ittee is

able

to

move quickly and avoid bureaucratie ddays.

(c)

DETAILED RULES ON PROCEDURE BEFORE THE ARHITRAL TRIBUNAL

ln

addition to the description of the functio

ns

of the CCIG

set

forth in the fo

regoing paragraphs, the Rules contain provisions on

the procedure applicable be

fore the arbi

tral tribunal (sec section ll(d) bclow). The parties are free

to amend

such procedural

provisions

by co

nsent

either in

the

arbitration clause

or

during the

a

rbitration. ln t

he absence of

su ch con

sent, the arbitra

tors

, however, may not modify

the procedure.

The

ra

tionale for

including

proced

ural

rules is primarily to enhance

the

predictability of the arbitration process and to avoid

di

vergent ex pectations of th e parties

(and

sometimes also of the

aFbitrators) arising

from thcir possibly quite diff

erent cultural and legal backgrounds.

Among the provisions o

n the procedure be

fo

re the arbitrato

rs, th

ere are also ru les

on expedited proceedings (see section Il(e) bclow).

TT. MAIN CHARACTERISTlCS OF THE RU LES

(a)

AI'I'OINTMENT 01' THE ARBITRA TORS

lt is a basic policy

of the Ru les to in volve the parties in the appointment. A pa rty is more

likely

to trust an

arbitral

tribuna

l whe

n it took part

in

the

selection

of its m

embers; and trust is an important clement in

a well-conducted arbitra

tion.

1 At present the arbitra rion committcc in eludes Ms Janine Uzan-Spira, General Counsd of the CCIG; Mr Andreas Uuchcr, Professor of Law, Gene va University; Mr Louis Gaillard, Prcsiding Justice, Gcncva Court of First Instance; Mr Pierre-Yves Tschanz, mcmber of the Geneva and New York llars, former! y conseil juridique in Paris, practicing attorney in Gcncva; Ms Gabrielle Kaufmann, Docror ofLaws, mcmbcr of the Geneva and New York Uars, practicing attorney in Gene va.

GENEY A CHAMJ3ER Of COMMERCE AND INDUSTRY 73

The parties m a y choose the num ber of arbitra tors (Article 11.1). ln the absence of a choice being specified, a sole arbitrator is the rule for obvious cost reasons, w ith an

exception for large and complex cases (Article 11.2). The parties select the arbitra

tors

either

joi ntly fo r the so le arbitra tor, or separatcly for the co-arbitra tors; and indirectly the chairm an who is

selected

by the co-arbitra tors. Only if the pa rties or the co-

a

rbitrators can net agree, or if a party d efaul ts, will the CCIC proceed w ith

the

appointment (A

rticle 12.1

and 12.2).

What requ irem

en

ts must an arbi t ra tor meet to be selected? Obviously he must be independent (as must the co-arbitrators) and is un der an on going duty of disc

losure.

H e must also have the necessary availability to conduct the arbitra tio n effic

ient!

y so as to a void the drawbacks of th e "busy ar bitrator" phen omenon. Further, he must ful fil the qualifi

cations agreed

upon by the parti es

(Article

10).

The search for the " right" a rbitrator is a delicate assignm ent which requires a

careful and thorough assess

m ent of the case and the candidates. One of th e reasons for

w

hich the Ru les pro vide for extensive initial w ritten submissions (Articles 7 and 8) is precisely to allow a meaningful choice. As one member of the arbitration committee put it, the selectio n

sho

uld not be

limited to "rounding

up

t

he usual suspects". lt should go further, and in particular no t be restricted to Sw iss nation

ais or domici

liaries

(except possibly where absolutely rcquired for cost reasons).

When the CCIG itself makes the appointmen t, it will be in a position to ascertain w he ther the potential arbitrator meets all the requiremen ts. What about w hen the pa rties appoint the arbit

rators? In

this even t their choice is

subject to

the CCTC's confirmation

(Article 12.

3). Confirmation is not a mere formality. Consistent with the approa

ch adopted w

h en selecting an arbitrator itself, the CCIG will verif y that a selected a rb

itrator sa

tisfies the tests of independe nce, availabûity and

agreed

qualifi

cations. Tfhe does not, the CCIG will refuse confi

rmation. H

owever, the CCIG

w ill not interfere in the parties'

choicc

to the extent of assessing the

abitrator's adequacy to do

the j ob beyond s u

ch

tes ts. T h at is the pa rties' responsibility.

(b)

^CHALLF.NCES AGAINST ARBITRA'I'ORS

If

,

des pite th e

care

used in the arbitrator selectio

n

and

t

he confirmatio n

procedure,

an arbitrator tu rns

out

to Jack independence, availability

o

r agreed q ualifications, he may be challenged before the CCJC (Article 13). T he CCIG has sole j misdiction over th

e challenge to the exclusion of natio

nal co urts. T he CCIC may a Iso

rem ove an arbi

t

rator sua spou te if

he refuses or is manifest ly una ble to perform his duties (Article 14).

ln aU

cases, the CCT C

requests written su

bmissions from aU involved and issues a decision w

hich states reasons, although in a summa

ry fa

sh

ion (Articles 13.3 and 14. 2).

T he fact th

at reasons are stated will

favour the developm

ent of a consistent practice in

a very sensitive a rea of arb itratio n.

74

JOURNAL OF INTERNATIONAL ARJ:HTRATION

(c)

MULTI-PARTY ARBITRATION

Under this convenient heading are also included third-party practice and multiple arbitrations between the same parties.

Most arbitration nlles arc silent about these con1plex situations. Furthermore, in the major European arbitration centres at least, court-ordered consolidation is not availablc. This unsatisfactory situation may cause substantial difficulties, ranging from the duplication of costs to conduct parallcl proceedings to conflicting awards on the same matter. It also places arbitration at a disadvantage cmnpared to court litigation.

The Rules attempt to remedy these problems to the extent possible by a set of explicit, straightforward provisions. In a nutshell, the Rules deal with three situations:

first, the case of multiple arbitration requests between the same parties (Article 16);

second, the case of an arbitration which from the outsct features severa! parties on either or both sides (Article 17); third, the case in which a defendant in tends to join a third party (Article 18).

(i)

Multiple requests between the sa me parties

In the first situation, th at of multiple requests bctween the same parties, the CCIG may consolida te the two arbitrations (i.e. assign the second arbitration request to the tribunal entrusted with the resolution of the first one). When dcciding upou consolidation, the CCIG will take i11to account the conncction bet\.veen the disputes and the progress of the first arbitra tian.

(ii)

Requests

by

aiJ(I/or agaiiJSt severa! parties

For the second case, that of an arbitration request filcd by and/or against sevcral parties, the Ru1es in elude specifie provisions on the formation of the arbitral tribunal (Article 17). The parties are free to choose between a tribunal of one or three arbitrators and are entitled to decide npon the mcthod of selection of the co- arbitrators. For instance, they may choose a tribunal of thrce and agree that ali the plaintiffs choose one arbitrator, ail the defendants another, and they joint! y select the third.

If the parties fail to agree on a method of selection, the CCIG appoints the co- arbitra tors. This express provision is intended to dcfeat procedural challenges su ch as the one which succecded in January 1992 before the French

Cour de cassation i11 the Dutco

case.

²

In

Dutw,

the ICC, whose rules are silent on this issue, had held that the two defendants, BKMI and Siemens, were under an obligation to appoint the samc arbitra tor.

(iii)

Third-party jainder

The third case refcrs to third-party practice. If, upon being served with the

~ 7 il1ternational Arbitration Report 1Y92, issue No. 2, p. D-l.

CENEVA CHAMBER OP COMMERCE AND INDUSTRY

75

arbitration request (but not la ter in the proceedings), the defendant wishes to join a third party to the arbitration, it is entitled to give notice of su ch intent in its answer (Article 18). On purpose, the Rules do not specify in what capacity the thini party's participation may be sought. lt could, for instance, be a co-debtor of the defendant; or a surety; or a joint-venture partner of the claimant against which the defendant in tends to raise a counterclaim.

On the basis of written submissions from the plaintiff, the defendant and the third party, the CCIG nlles upon the joinder. In doing so, it takes into account the prima facie existence of an arbitration agreement as well as the practical and legal advisability of conducting joint proceedings. (Will the evidence be more effective! y taken in one procccding? Are the legal issues the san1c? etc.) The factual and legal situations in which multi-party arbitrations may arise are so variable dut in nu merous instances the advisability of ajoinder cannat be determined in ad vance by a hard-and- fast rule. This is the reason for which the decision regarding ajoinder needs to be takcn on a case-by-case. basis by the CCIG.

If the CCIG accepts the joinder, the third party is involved in sctting up the tribunal in the same manner as in the second situation referred to above. Howevcr, the CCIG's acceptance of the joinder, and in particular of the prima fa cie jurisdiction over the third party, docs not prejudice the arbitrators' own decision on the same issue. If, contrary to the CCIG, the arbitra tors decide against ajoinder, the arbitration proceeds without the third party but with the same tribunal.

It

is express! y provided that the formation of the tribunal in which the third party took part cannat be challengcd.

(d) PROCEDURE HEFORE THE ARBITRAL TRIBUNAL

The rationalc for including these ru les (Articles 19 to 28) is to add predictability

to

the arbitration. The Rulcs answer questions often asked by counsel such as: may the arbitrators grant ex-parte provisional remedies (Article 23)? To what extent is disco very allowed (Articlce 25.3)? Are written witness statcmcnts filed in ad vance of the hcaring (Article 26.1)? Undcr what circumstances may documents be accepted in evidence aftcr expiration of the time-limit for production of documentary evidence (Article 25.2)? How arc witnesscs cxamined (Article 26.2)? Arc there verbatim hearing transcripts (Article 28)? Do the parties appoint their own expert or will the arbitrators do so (Article 27)?

The answers embodied in the Rulcs arc rneant to reflect increasingly common practice in present-day arbitration and should, thercforc, be generally acceptable to parties and arbitrators.

(e) EXPEDITED PROCEDURE

In the interest of a rapid resolution of the dispute, the parties may agree on a

special expcditcd procedure (Article 31). If they do so, the time-limit for the

appointment of the arbitra tors m_ay be shortened; the opportunity to file written

76

JOURNAL 01' INTERNATIONAL AHI3!TRATION

su bmissions is limited; the arbitral tribun al wil

l o

nly hold one hearing, unl ess it rules on documentar y eviden ce; the award will

state no or on

ly summary reasons.

Exped

ited proceedings

may be a helpful tool in ali cases in which the pa

rties are

pa

rti

cularl y con cerned about time and cost. They are likcly to be especially suited for smaller cases.

If

th

e

parties w ish to resort to such proceedings,

they

sh ould best already ag

ree

in the arb itratio n clause. La ter,

w

hen a dispute has arisen, one of the parties may have lost its interest in speed ...

(f)

Co sn

(i)

Flat CCIC fee

In addition toits actual disbursements (Article 33.4), the CCIG

charges a fee of Swiss francs 4,000 (approximatel y US$ 2, 700 at current rates) fo r arbitrations below Swiss francs 2 millio n (approximatcly US$ 1.33 million) and Swi

ss

francs 6,000 (a pproximatel y U S$ 4 ,000) for arbitrations

in exccss of suc

h a mount (Article 33. 1).

The fee is in no o ther way proportionatc to the amount

in

dispute. Only if an arbitrator is challenged will th

e CCIG assess

an addition al charge (A rticle 33.3).

(ii)

Arbitrator's fees

In legal practice, compensation by tim

e spent

is by far the m

ost com

m

on mcthod of rem

uneration

. T he Ru les takc th is fa ct into account and pro vi de that the arbitrator's fees are com putcd o n

the

basis of time spent (Ar ticl e 34.1

)

at a relatively modcrate hourl y rate (compa red to a practitioner's cm-rent market rate). These ra tes arc prog ressive according to the amount in dispute and ran ge fr om Swiss fra

n

cs 200 to 350

(ap

p

roximately US$ 130--230) (Schedule fo

r A rbitrato r's Fees, Article 1

).

If compensa tion by timc spent reA ccts the general practice, it also has so me drawba

cks. There arc slow and fast workers,

there are individu als w ho leavc no stone unturned and others w

ho procccd in a more expeditious fashion. Moreover, the ope

n- end

ed nature of

the computatio n on the basis of ti me spen t does not allow counscl to assess a party's maxim

um expos

ure, w h

ich may b

e an important factor w h en decidi ng w heth er to start an arbitration. To overcome these difftculties, the Ru les pro vide for a cap on arbi trato

r's fees, which is proportionate to the am

o u nt in dispute and m ay not be exceedcd even if the ti me computation werc higher (Schedule for A rbitra tor's Fees, Article 2).

(iii)

Ad va11ces

Cos t advances arc pa

yable in

two instalments. T he first insta lment is due at the

ou tsct an d the second one d uring the course of the procecdings. Counte rclaims will

give ri se to separa te ad van

ces (Article 35.1 a

nd 35. 2), th us p

rotecting t

he plaintifffrorn

sharing in th e finan cing of

inA

ated counterclaim s.

GENI:V A CHAMBER Or COMMERCE AND INDUSTRY

77

Advances will bcar interest, which will be credited to the party that made the ad vance (Article 35.5).

ln conclusion, one may venture two comments on the cost aspect. First, quality has its priee-and so does qualitatively good legal adjudication. Second, the CCIG's a pproach is neverthelcss highly cost-conscious. It attempts to strike a balance between the priee of good adjudication, which rcquires decently paid arbitrators, and the parties' concern with costs and especially with cost returns.

78

JOURNAL OF INTERNATIONAL ARBITRATION

ANNEX 1

CIIAMDER Of COMMERCE AND lNDUSTRY OF GENEY A (CClG) AnfliTRATION RULES

ln force as of 1 January 1992

Chamber of Commerce and lndustry ofGeneva, 4, boulevard du Théâtre, 1204 Gcneva.

Tel: (022) 311 53 33 Fax: (022) 310 03 63.

MODEL CLAUSE

Any disputes arising with rcspect to or in connection with this Agreement shall bc finally decided by one or more arbitra tors in accordance with the Ruks of Arbitration of the Cham ber of Commerce and lndustry of Geneva.

INTRODUCTION TO THE AIUIITRATION RUlES

With thc present Arbitration Ru les, the Chamber of Commercc and lndusu·y ofGcneva offers an effective dispute resolution procedure adapted to the nceds of the business community.

Arbitration has become the bcst means of cnsuring security in commercial dcalings, particularly in international commercc. Hy virtue of its traditions and favourable statutory framework, Switzerland hasts a largc number of arbitra tians.

The Cham ber of Commercc and lndustry of Ge neva is a Swiss priva te law association having long cxperience as an arbiu·al institution. In arder better to fitlfill this role, it has established an Arbitration Con11nittee composed of cxperienced specialises who take ca re to nominatc and confirm arbirrators who are qualified, indepcndent, and availabk for the task. ln addition, the Committee a versees the progrcss of the arbitra ti on and contrais the costs.

The Ch amber offers its services in order to organize as best as possible the arbitral procedure. ln addition, the arbirrators and the parti cs have available in Ge neva ali of the communication facilities and infrastructure of an international city.

A. GENERAL PHOVISIONS

1. Scope of the Ru/es

1.1 Thesc Rulcs apply whenever the parties have agreed to submit thcir disputcs to CCIG arbitration.

1.2 Arbitration agreements refcrring to the Arbitration Directives of the CClG of June 1, 1980 arc considcred as referring to the present Ru les unlcss one of the parties abjects.

2. Arbirraric>ll Co111nrittee

2.1 The CC!G shall provide ail ncccssary assistance to the parties for the organization of the

arbitration pursuant to thesc Ru les. ·

2.2 For this purpose, the CCIG shall appoint an Arbitration Committce which shall pcrform the functions of the CCIG according to these Ru les. The Arbitration Committee shall consist of three to five mcmbers, one ofwhich shall be an officcr or employee of the CCIG. The members of the Arbitration Committee shall be appointcd by thc CCIG for three ycars. Such membcrs may not serve as arbitrators or counsel in CCIG arbitrations.

GENEVA CHAMBER OF COMMERCE AND INDUSTRY

79

3. Place c>f Arhitration

Unless othcrwise agrced, the place of arbitration shall be Gencva. 4. Confidentiality

CCIG arbitration is confidential. The parties, the arbitrators and the CCIG undertake not to disclose to third parties any facts or other information rclating to the dispute or the arbitral proceedings. The parties, the arbitra tors and the CCIG shall refi·ain from publishing or causing others to publish the award, unlcss the parties ta the arbitration agree ta such publication. 5. Not(fications

The awards and orders of the arbitral tribunal as weil as other decisions of the arbitral tribunal and th ose of the CCIG shall be notified ta the parties at the address shawn in the rcquest for arbitration, or at any othcr addn.:ss subsequent! y specifiee!, by any means of communication pcrmitting proof of receipt.

G. 1ï111e-Li111its

The CCIG may cxtend the time-limits provic!ed in the prcsenr Rules if the circumstances sa justify.

H. COMMENCING THE ARiliTilATION f>llOCF.F.DINGS

7. Rcq11est for Arbitratiou

7.1 The party wishing to initiate an arbitration undcr tl1cse Rulcs shall deliver its request ta the CCIG. Such requcst shall con tain:

(a) the na mes, capacities and addresst:s of the parties, including telephone and telefax or telex numbcrs;

(b) a copy of the conn·act containing the arbitration agreement or any other documt:nt showing thar the arbitration is govcrned by these Rules;

(c) a statement of the facts and legal argument on which the claimant's case is basee!, together with supporting documents;

(d) the claimant's praycr for relief, i.e. a brief and precise description of each claim;

(e) an estimate of the a mount in dispute, if no defini te sum of moncy is cbimed;

(f) relevant information regarding the number and choicc of the arbitra tors within the meaning of Articles 10 and 11.

7.2 The request shall be dclivered in as many copies as there are other parties, together with an additional copy for each arbitrator and for the CCIG. The CCIG shall send the request to the respondcnt.

8. AIISI/ICf

8. 1 The respondent shall communicatc its answer to the CCIG within thirty da ys from the reccipt of the rcquest. The answer shall conta in:

(a) a sratemcnt of the def~nses, together with supporting documents, including any objection concerning the arbitl·ation agreement;

(b) any counterclaim, togcthcr with the information provided in Article 7.1 (d)-(c);

(c) relevant information regarding the number and choice of the arbitra tors within the meaning of Articles 10 ;md Il.

8.2 The answcr shall be delivered in as many copies as thcre are other parties, together with an additional copy for cach arbitrator and for the CCIG. The CCIG shall send the answer ta the claimant.

8() JOURNAL Of INTERNATIONAL ARBITRATION

8. 3 The provisions of this A rtide are subject to Article 18 with respect to the participation of a third party.

C:. fORMATION OF THE ARDITRAL TRIBUNAL 9. Agree/lient to Arbitrale

The CC:lG shall proceed with the formation of the arbitral tribunal, unlcss it is apparent from the ontset that there is manifestly no agreement to arbitrate referring to the C:CIG.

10. Indcpc11dmce and Qual({lcations of tire Arbitra/ors

10.1 Every arbitra tor, whethcr a sole arbitra tor, chairpcrson or a co-arbitrator, shall be and remain independent from the parties and bas the obligation to disclose immcdiatcly any circumstances likely to affect independence with respect to the parties or any one of them.

10.2 Every arbitrator shall have the qualifications agreed by the parties and the availability required to eonduct the arbitration to an expeditious completion.

10.3 The sole arbitrator or the chairperson may not have the same nationality as one of the parties unless the parties agree otherwise or have the same nationality.

11. Numhcr

t:f'

Arhitrators

11. The parties are free to agree th at the arbitral tribunal shall consist of a sole arbitrator or oftluee arbitrators.

11.2 In the absence of su ch an agreement, the tribunal sb al! consist of a sole arbitra tor, unlcss the CC:IG decides ta fonn a tribunal of three arbitrators on account of the amount in dispute, of the nature and of the complexity of the dispute.

12. Appoint ment ~:ft/re Arbitra/ors 12.1 Sole arbitrator

The parties may select the sole arbitrator by mutual agreement. In tbe absence of such a selection within a thirty-day time-limit set by the CC:IG, th!: CCIG shall appoint the sole arbitrator.

12.2 'Jhhruwl ~:ft/nec arbitmtors

If the agreement to arbitrate provides for a tribunal ofthrec arbitrators, each party shall select a co-arbitra tor respcctivcly in the request for arbitration and in the answer. ln the absence of a selection by a party, the CCIG shall appoint the co-arbitrator.

lfthe CCIG decides to forma tribunal ofthree arbitra tors pursuant to Article 11.2, each party sb:tll select a co-arbitrator upon the request of the CCIG. Failing su ch a_ selection by a party within a thirty-day time-litnit set by the CC:IC, the CC:IG shall appoint the co-arbitrator.

Within a thirty-day timc-limit starting from the date when th!: co-arbitra tors learned from the CCIG ofthcir appointmcnt, the co-arbitra tors shall select a chairperson. Failing such selection of a chairperson, the CCIG shall appoint the chairperson.

12.3 Con.f1nnation of the arbitrators

Every arbitrator selected by the parties, either separately or jointly, or by the co-arbitrators, shall be deemcd to be appointed only upon confirmation by the CCIG. The CCIG may refuse the confirmation, without indicating any reas ons, if it considers that the arbitra tor do es not fulfill the requirements of Article 10.

13. 1 An arbitra tor may be challenged upon the grou nd that he or shc does not fulfill the rcquirements of Article 10.1, th at he or she does not possess the qualifications agreed by the parties, or th at he

GENEVA CHAMBER OF COMMERCE AND INDUSTRY

Bl

or shc m:mifestly dacs not have the availability required to conduct the arbitration to an expeditious completion.

13.2 Challenges arc within the exclusive jurisdiction of the CCJG. T!lC challenge petition shall be submittcd to the CCIG immediately after the party making such challenge becomes aware of the relevant facts. It shall specify the facts and circumstanccs upon which the challenge is based.

13.3 The CCIG shall ask the other parties, the challenged arbitrator and the othcr arbitra tors to submit written observations and shall render a decision in summary form stating reasons.

13.4 In domestic arbitrations, the mandatory provisions of the Swiss Intcrcantonal Arbitration Convention of 27 Mar ch 1969 arc rcscrved.

14. RmwiNII

14.1 An arbitrator may be removcd by written agreement of the parties.

14.2 An arbitra tor can also be rcmovcd by the CCIC if he or she refuses to c:nry out his or her ftmctions oris manifestly unable to do so. The CCIG invites the parties, the contested arbitrator and the other arbitrators to submit written observations and shall render a short, reasoned decision.

14.3 ln domcstic arbitra tians, the rnandatory provisions of the Swiss Intercantonal Arbitration Convention of27 March 1969 arc rcscrvcd.

15. Rcplamnmt

15. In case ofdeath, removal, successful challenge or resignation of an arbitrator, such arbitrator shall be replaced pursuant to the provisiOns of Article 12.

15.2 Unlcss otherwisc agrecd by the parties or otherwise decided by the arbitral tribun<ll, the procceding shall continue with the new arbitrator from the point where the previous arbitrator ceased to perform his or her dutics.

D. MuJ.TIPU: Rt,QU!:STS t'OH A1HJJTRATION, MuLTI-PARTY ARBITRATION

16. Mllftiple Requcsts

16. If an arbitration is initi;lted bctween parties already involved in another arbitration governed by these Rules, the CCIG may assign the second case to the arbitral tribunal appointed to decide the first case, in which case the parties shall be dcemed to have waived thcir right to select an arbitra tor in the second case.

J 6.2 In order to decide upon su ch assignment, the CClG shall takc into account ali the circumstances, including the links betwccn the two cases and the progrcss already made in the first case.

17. i.Hulti-party Arbitration in General

17.1 In arbitration procecdings comprising more than two parties, including in case of participation of a third party within the meaning of Article 1 R, the mun ber of arbitrators shaH be detennined in accordance with Article 11.

17.2 The parties may agree on a method of selection of the co-arbitrators. In the absence of su ch an agreement, the co-arbitra tors shall be appointed by the CCJG, ·which shall take into account any proposais by the parties.

17.3 The chJirperson or the sole arbitrator shall be appointed in acconlancc with Article 12.

18. Participatio11 <:fa Tfrhd Party

18.1 lfa rcspondcntintends to cause a thin\ party to participate in the arbitration, it shall so state in its answer and shall state the reasons for such participation. The respondent shall deliver to the CCIG an additional copy ofits answcr.

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18.2 The CCIG shall send the answer to the third party whose participation is sought, the provisions of Articles 8 and 9 being applicable by anal ogy.

18.3 Upon receipt of the third party's answer, the CCIG shall decide on the participation of the third party in the alrcady pending proceeding, taking into account ali of the circumstances. If the CCIG accepts the participation of the third party, it shall proceed with the formation of the arbitral tribunal in accordance with Article 17; if it does not accept the participation, it shall proceed according to Article 12.

18.4 The decision of the CCIG regarding the participation of third parties shall not prejudice the decision of the arbitra tors on the sa me subject. Rcgardlcss of the decision of the arbitrators on su ch participation, the formation of the arbitral tribunal cannot be challenged.

E. PROCEDURE REFORE THE ARBITRAL TR!llUNAL

19. Applicable Rrrles

Unless otherwise agreed by the parties, the procedure before the arbitral tribunal shall be governed by the provisions in this chapter and any additional ru les cstablished by the parties or, if none, by the arbitra tors.

20. Comumuicatious

Subject to Article 5 of these Ru les, the arbitral tribunal shall determine the means of communication between itself and the parties.

21. Couciliation

The arbitral tribunal may at any time seek to conciliate the parties. Any settlcment may be embodied in an arbitral a ward rendered by consent of the parties.

22. Assistance

Each party has the right to be assisted by the counsel ofits choice, rcgardless of the nationality or residence of su ch counsel.

23. Pro11isional or Couservatory Mcasures

23.1 Each party may request provisional or conservatory measures from a state authority having jurisdiction or from the arbitral tribunal.

23.2 The arbitral tribunal shall request the respondent party to state its position and shall render an order bascd on an advcrsarial procecding within a short time.

23.3 ln case of utmost urgency, the arbitral tribunal may order provisional or conserva tory mcasurcs upon mere presentation of the request, providcd that the other party shall be beard subsequently.

23.4 ln domcstic arbitrations, the mandatory provisions of the Swiss lntercantonal Arbitration Convention of27 March 1969 are reserved.

24. Additio11al Briifs

At the rcquest of a party or upon its own initiative, the arbitral tribunal sb ali or der the ex change of additional brief~ if the circumstances so justify.

25. DOCII/1/C/IIS

25.1 Each party shall produce the documents upon which ic relies in conjunction with the written pleadings provided in Articles 7, 8 and 24.

25.2 Exceptionally, the arbitral tribunal may permit the production of new documents if the parties

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so agree, if the party wishing to produce the new document could not do so within the applicable time-limit, of if the relevance of the document did not become apparent un til after expiry of the timc-limit.

25.3 Each party may request in duc course the production of documents in the custody of the opponent. If the parties disa gree, the arbitral tribunal may order production of the documents, on condition th at the requesting party dcmonstrates the likely existenee and relevance of su ch documents.

26. Wit11esses

26.1 The party wishing to have a witness beard shall deliver a preliminary statement signed by such witncss, unlcss the witness refuses. Unless otherwise decided by the arbitral tribunal, the prcliminary statements shall be delivcred, at the la test, fifteen da ys before the hearing at which evidence is to be taken.

26.2 At the hcaring at which evidence is taken, each party shall examine its witncsscs, ifit dcems it neccssary in order to complete the prcliminary statements. The opponent shall thereafter ask the questions that it deems relevant. The arbitrators may ask their own questions at any time.

27. Experts

27. 1 Each party ma y consult and present one or more experts ofits choice to be hcard by the arbitral tribunal. The provisions regarding the examination of witnesses shall apply by analogy.

27.2 The arbitral tribunal may, of its own motion or at the request of a party, appoint one or more experts. The arbitral tribunal shall consult the parties with respect to the appointment and tenns of reference of su ch experts.

28. Records

The examination of witnesses, experts and parties shall be recorded by a stenographer. At the request of the parties or if it dcems it appropria te, the arbitral tribunal may substitute any pro cess permitting the preservation of the en tire statemcnts or of thcir esscntial clements.

F. AwARO 29. Reasons

Unless otherwisc agrced by the parties, the a ward shall state reas ons in a concise manner. It shall confirm the undertaking of confidcntiality contained in Article 4 of tbese Rules.

30. Not(fication

The CCIG shall notify the award to the parties provided tbat ali the costs of arbitration have bccn pa id. The CCIG sha11 keep a copy of the a ward for ten y cars.

G. ExPEDITED PROCEDURE 31. Special Pro11isiow

If the parties so agree, the arbitration shall be conducted according to an expedited procedure.

Such arbitrations shall be governed by the foregoing provisions, subject to the following changes:

(a) the CCIG may shorten the time-limits for the appointment of arbitrators;

(b) upon deposit of the rcquest for Arbitration, each party may state its position only once in writing on the daims asserted against it;

(c) unless the parties authorizc the arbitral tribunal to decide on the basis of the documentary evidence only, the arbitral tribunal shall hold a single hearing for the examination of the parties, witnesses and expert witncsscs as wcll as for oral argument;

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(d) the award shall be rendercd within six months from the date when the CCIG bands the file over to the arbitrators;

(e) the a ward shall state reasons, in summary form, unless the parties waive the requirement of rea sons.

I-L CosTs or- AHBITHATION 32. De.fi11itio11 ~f Costs

The costs of arbitration in elude the fees and disbursements of the CCIG as weil as the fees and expenses of the arbitral tribunal.

33. Fees a11d Dislwrsentettts <if tite CC IC

33.1 The fees of the CCIG shall be four thousand Swiss francs for arbitrations whcre the a mount in dispute does not exceed two million Swiss francs and six tho usa nd Swiss francs for arbitra ti ons involving a highcr amount. The CC!G may amcnd these charges should the cost of administering arbitrations so rcquire.

33.2 The fees of the CCIG shall be paid at the ti me of fi ling the request for arbitration, failing which the CCIG shall not proceed with the case.

33.3 The CCIG shall asscss an additional charge whcn an arbitrator is challenged.

33.4 The disbursements of the CCIG include the actual costs incurred by the CCIG, such as telephone, telefax, photocopies and courier services.

34. Fees a11d Expenses

of

tite A rbin·al Ti·i/wnal

34. l The fees of the arbitrators shall, in principlc, be computed according to the ti me reasonably spent on the resolution of the dispute at an houri y rate subject to limits established in proportion to the a mount in dispute. The CCIG schedule in force at the ti me of the filing of the request shall apply.

34.2 The expenses of the arbitral tribunal includc the actual expenses incurred by the arbitral tribunal, such as the costs oftravel, meeting room rentai, the remuneration ofinterprcters, the recording and transcribing of hearings, telephone, telefax, photocopies and courier services.

35. Advattcc

35.1 When the arbitral tribunal is being formed, the CCIG shall determine the amount of the ad vance towards the costs of arbiti·ation, su bject to possible changes du ring the arbitration. The fi ling of a counterclaim or a new claim shall result in the determination of separa te advances.

35.2 The advance shall be paid in two instalments of 50 percent each. The first instalmcnt shall be paid at the beginning of the proceeding or following the filing of a new daim within the time- limits set by the CCIG. The CCIG shall ha nd over the flle to the arbitral tribunal as soon as the first instalment is paid. The second instalment shall be paid during the procceding at a date to be set by the CClG in agreement with the arbitrators.

35.3 Each instalment shall be paya bk in equal sb arcs by the elaimant ;md the res pondent. If a party does not pay its share, the other party 1nay substitute for it; if the sharc is not paid, the claim to which such sharc relates, alter notice, shall be decmed to be withdrawn.

35.4 Any supplementary ad vance fixed by the CCIG in agreement with the arbitra tors shall be paid in a single instalment in conformity with Article 35.3.

35.5 The ad vance shall bear intcrest at a usual rate. Su ch intercst is included in the final computation of the arbitration costs in favour of the parties having advanced the amounts bearing interest.

35.6 If the arbitral tribunal ordcrs an expert report, the expert shall commence work only after payment by the parties, or by one of them, of an ad vance dctcnnincd by the arbitral tribunal and intendcd to co ver the costs of the expertise.

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36. Assessl//el/1 of the Costs ofArbitratiol! i11the A111ard

36.1 At the end of the procccding, the CCIG shall determine the final a mount of the costs of arbitration. Such costs shall be stated in the arbitral a ward, which shall also determine which party shall bear such costs or in which proportion the parties shall shan: them.

36.2 ln addition, the arbitral tribunal shall, in principlc, adjudgc that the losing party contribuee towards the attorncy's fees of the other party.

SCHEDULE FOR ARBJTRATOR'S FEiiS

1. Pursuant to article 34.1 of the Arbitration Ru les, the fees of the arbitrators shall, in princip le, be computed according to the ti me reasonably spent on the resolution of the dispute at an houri y rate established on the basis of the a mount in dispute, as follows:

- up to Sfr.

- from Sfr.

- from Sfr.

-more than Sfr.

Amount in dispute

500,000.- 500,000.-to 1,000,000.- 1,000,000.-to 2,000,000.- 2,000,000.- Travel ti me is counted at one-half value.

Hourly rate 200.- 250.- 300.- 350.-

2. ln any one case, the total a mount of arbitrator's fees shall not exceed a certain percentage of the amount in dispute, as follows:

- up to Sfr.

- from Sfr.

- from Sfr.

- from Sfr.

- more than Sfi'.

A mount in dispute

500,000.- 500,001.-to 1,000,000.- 1 ,000,001.-to 2,000,000.- 2,000,001.- to 5,000,000.- 5,000,001.-

Maximum Fee Pcrccntage

sole tluee

arbitra tor arbitrators

JOOj,, 16%

6% 10%

'i% 7.5%

3% 6%

2% 3%