ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798) SS.125-SCHEDULES

PART FIVE—FINANCIAL, ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS
125. Establishment of Alternative Dispute Resolution Fund

(1) There is established by this Act a Fund to be known as the Alternative Dispute Resolution Fund.

(2) The sources of money for the Fund are

(a) grants from the Government for the development of alternative dispute resolution;

(b) charges and fees collected by the Centre in the performance of its functions;and

(c) donations and gifts from the general public, institutions and organisations.

126. Objects of the Fund

Moneys of the Fund shall be applied for

(a) education of the general public on alternative dispute resolution;

(b) research and studies relating to the functions of the Centre;

(c) human resource development for alternative dispute resolution, and

(d) any other purposes as the Board in consultation with the Minister may determine.

127. Management of the Fund

(1) The Fund shall be managed by the Board which shall for this purpose include the Controller and Accountant-General or a representative of the Controller and Accountant-General.

(2) Moneys for the Fund shall be paid into a bank account opened by the Board with the approval of the Controller and Accountant-General.

(3) The provisions under sections 132 and 133 of this Act on accounts and audit and annual reports shall apply to the Fund

128. Functions of the Board in relation to the Fund

(1) The Board shall for the purpose of managing the Fund

(a) formulate policies to generate money for the Fund;

(b) determine the allocations to be made towards the objects of the Fund; and

(c) determine annual targets of the Fund.

(2) The Board may invest a part of the Fund as it considers appropriate in government securities or in a manner as may be approved by the Minister in consultation with the Minister responsible for Finance.

(3) Payments issued from the Fund shall be signed by any two of the following:

(a) the chairperson of the Board;

(b) the Executive Secretary; and

(c) one other member of the Board.

129.Executive Secretary

1) The President shall in accordance with article 195 of the Constitution appoint an Executive Secretary for the Centre.

(2) The Executive Secretary shall hold office on the terms and conditions specified in the letter of appointment.

(3) Subject to the directions of the Board, the Executive Secretary is responsible for the day to day administration of the Centre.

(4) The Executive Secretary shall maintain the register of arbitrators and mediators.

(5) The Executive Secretary shall perform any other functions that the Board may determine.

130. Appointment of other staff

(1) The Centre shall have other officers and staff as may be necessary for the effective performance of its functions.

(2) The President shall in accordance with article 195 of the Constitution appoint other members of staff who shall hold office on terms and conditions specified in their letters of appointment.

(3) Other public officers may be transferred or seconded to the Centre.

(4) The centre may engage the services of advisers on the recommendations of the Board.

131. Delegation of power of appointment

The President may in accordance with article 195(2) of the Constitution, delegate the power of appointment of public officers under this Act

132. Accounts and Audit

(1) The Centre shall keep books of account and proper records in relation to them in a form approved by the Auditor-General.

(2) The accounts of the Centre shall be audited by the Auditor-General within three months after the end of each financial year.

(3) The Auditor-General shall not later than three months after the receipt of the accounts, audit the accounts of the centre and forward a copy of the audit reports to the Minister.

(4) The financial year of the Centre is the same as the financial year of the Government.

133. Annual reports

(1) The Centre shall within one month after the receipt of the audit report submit to the Minister an annual report covering the activities and the operations of the Centre for the year to which the report relates.

(2) The annual report shall include the report of the Auditor-General.

(3) The Minister shall, within one month after the receipt of the annual report submit the report to Parliament with a statement that the Minister considers necessary.

(4) The Centre shall submit to the Minister any other reports which the Minister may require in writing.

134. Regulations

The Minister may on the advice of the Board make Regulations by legislative instrument to prescribe for

(a) conciliation, mediation, arbitration and other voluntary dispute resolution procedures;

(b) qualifications of persons who wish to be registered as arbitrators and mediators;

(c) the parameters for the determination of fees of conciliators, mediators and arbitrators;

(d) research, education and training procedures as well as the standards to be attained in these with respect to all forms of alternative dispute resolution;

(e) the functions of regional and district offices of the Centre;

(f) the role of the District Assemblies, Unit Committees and traditional customary institutions in achieving the object of the Centre;

(g) matters relating to customary arbitration;

(h) the arbitration rules of the Centre; and

(i) matters generally to give effect to the provisions of this Act.

135. Interpretation

In this Act, unless the context otherwise requires

“Alternative Dispute Resolution” means the collective description of methods of resolving disputes otherwise than through the normal trial process;

“appointing authority” means any person or authority including the Centre in whom parties to an arbitration agreement vest power to take any action for or on behalf of the parties, in relation to the arbitration;

“arbitration” means the voluntary submission of a dispute to one or more impartial persons for a final and binding determination;

“arbitration agreement” means an agreement to submit to arbitration present or future dispute;

“arbitration management conference” means a meeting held between the arbitrator and the parties to the arbitration under section 29 to resolve preliminary issues and set down a guideline for the arbitration;

“award” includes an arbitration award on agreed terms.

“arbitrator” means one or more impartial persons appointed or who can be appointed to offer a final and binding resolution to a dispute;

“arbitral tribunal” means an arbitration consisting of one or more persons;

“Board” means the board of Governors of the Centre referred to in section 117;

“Centre” means the Alternative Dispute Resolution Centre established in section 114;

“conciliation” means the submission by the parties of a dispute which is the subject of an arbitration during the cause of the arbitration to an impartial person who is not the arbitrator to facilitate the resolution of the dispute between the parties;

“conciliator” means an impartial person appointed to preside over a conciliation conference;

“Court” means the High Court;

“customary arbitration” means the voluntary submission of a dispute, whether or not relating to a written agreement for a final binding determination under Part Three of this Act;

“customary arbitrator” means an impartial person appointed or qualified to be appointed as an arbitrator in customary arbitration;

“expedited procedure” means the fast track arbitration procedure referred to in Part II;

“Fund” means the Alternative Dispute Resolution Fund established under section 125;

“mediation” means a nonbinding process under Part Two in which the parties discuss their dispute with an impartial person who assists them to reach are solution;

“mediator” includes an impartial person appointed or qualified to be appointed to assist the parties to satisfactorily resolve their dispute and employees and persons hired by that person;

“Minister” means the Minister responsible for Justice.

136. Modification of court rules

Upon the coming into force of this Act, any existing rules of court on arbitration shall apply subject to the provisions of this Act.

137. Repeals and savings

(1) The Arbitration Act, 1961 (Act 38) is repealed.

(2) Despite the repeal of the Arbitration Act, 1961 (Act 38)

(a) any instrument, agreement, Regulations and order made under that Act and in force immediately before the commencement of this Act shall continue to be in force, until otherwise legally altered, and

(b) any action commenced or pending before any court to which Act 38 applies shall continue and be dealt with under this Act.

138. Transitional provisions

Any body or association which is not a party to an arbitration agreement but which is responsible for

(a) appointing arbitrators;

(b) setting up arbitration panels or tribunals; or

(c) managing arbitration generally

in existence before the coming into force of this Act may upon the appointment of the Board of the Centre apply to be affiliated to the Centre.

SCHEDULES
FIRST SCHEDULE

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 1958(NEW YORK CONVENTION)

(Section 59 (1)(c)

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted at the Headquarters of the United Nations in New York on June 10, 1958.

 

Article I

  1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
  2. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
  3. When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships whether contractual or not, which are considered as commercial under the national law of the State making such declaration.

 

Article II

  1. Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
  2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
  3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall,at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

 

Article III

Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

 

Article IV

  1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application,supply:

(a) the duly authenticated original award or a duly certified copy thereof;

(b) the original agreement referred to in Article II or a duly certified copy thereof.

  1. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

 

Article V

  1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;or

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

  1. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of that country.

 

Article VI

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V (l)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security

 

Article VII

  1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.

 

  1. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.

 

Article VIII

  1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialised agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
  2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations.

 

Article IX

  1. This Convention shall be open for accession to all States referred to in Article VIII.
  2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

 

Article X

  1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.
  2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned whichever is the later.
  3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, the consent of the Governments of such territories.

 

Article XI

  1. In the case of a federal or non-unitary State, the following provisions shall apply:

(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States;

(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment;

(c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention,showing the extent to which effect has been given to that provision by legislative or other action.

 

Article XII

  1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
  2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.

 

Article XIII

  1. Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
  2. Any State which has made a declaration or notification under Article X may, at anytime thereafter, by notification to the Secretary-General of the United Nations,declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General.
  3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect.

 

Article XIV

A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.

 

Article XV

The Secretary-General of the United Nations shall notify the States contemplated in Article VIII of the following:

(a) Signature and ratification in accordance with article VIII;

(b) Accessions in accordance with article IX;

(c) Declarations and notifications under articles I, X and XI;

(d) The date upon which this Convention enters into force in accordance with Article XII;

(e) Denunciations and notifications in accordance with Article XIII.

Article XVI

  1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
  2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in Article VIII.
SECOND SCHEDULE

ALTERNATIVE DISPUTE RESOLUTION CENTRE RULES

ARBITRATION RULES

(Section 5(3), 8(2))

  1. Application of Rules

(1)Where parties to an agreement agree that a dispute in relation to that agreement be referred to arbitration by the Alternative Dispute Resolution Centre, the dispute shall be settled in accordance with these Rules subject to any modifications of the Rules that the parties may agree upon in writing; except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate,that provision shall apply.

(2) Where parties to an existing dispute file with the Centre a written agreement to submit the dispute to arbitration under these Rules or by the Centre, these Rules shall apply subject to any modification agreed on by the parties; except that where any of these Rules isin conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall apply.

2. Arbitral tribunal

A sole arbitrator or a panel constituted by the parties for the settlement of a dispute under these Rules shall be called an Arbitral Tribunal.

3. Administrator

Where parties agree to arbitration by the Centre, the Centre is the administrator of the arbitration.

4. Delegation of administrative duties

The administrative duties of the Centre under these Rules shall be carried out through officers or committees of the Centre.

5. Administration by regional, district offices of Centre

The Centre, may assign the administrative function of an arbitration to any of its office in the regions or districts.

(1) For the purposes of these Rules, any notice, including a notification,communication or proposal, is received if it is physically delivered to the addressee or if it is delivered at the addressee’s habitual residence, place of business or mailing address, or, if none of these can be found after making reasonable inquiry, then at the addressee’s last-known residence or place of business and notice is deemed to have been received on the day it is delivered.

(2) A notice required to be given under these Rules may be given by telephone, telex,facsimile, e-mail or any other means of electronic communication.

(3)A notice given through telephone or any other verbal mode permitted under sub-rule (2) shall be confirmed in writing which shall state the names, addresses (including e-mail addresses) and telephone numbers of the parties.

(4) Failure to confirm a notice in writing under sub-rule (3) does not invalidate the proceedings.

7. Initiation of arbitration

(1)A party who intends to initiate arbitration proceedings with the Centre (the‘claimant’) shall give to the other party (the ‘respondent’) a notice of arbitration.

(2) The notice of arbitration shall include

(a) a copy of the arbitration agreement;

(b) a demand that the dispute be referred to arbitration;

(c) the names and addresses of the parties;

(d) a reference to the arbitration clause or the separate arbitration agreement that is invoked;

(e) a reference to the contract out of or in relation to which the dispute arises;

(f) the statement of claim, stating the general nature of the claim and an indication of the amount involved, if any;

(g) the relief or remedy sought; and

(h) a proposal as to the number of arbitrators if the parties have not previously agreed on the number of arbitrators.

(3) The notice of arbitration may also include

(a) the proposals for the appointment of an arbitrator, and

(b) the notification of the appointment of an arbitrator referred to in rule 14.

(4) The claimant shall at the time of service of the notice on the respondent, file 2 copies of the notice at an office of the Centre upon paying the appropriate administrative fee.

(5) Arbitration proceedings commence on the date on which the notice is received by the respondent.

(6) Within seven days after a notice has been filed with the Centre, the Centre shall inform the other party of the filing of the notice.

(7) The respondent shall within fourteen days of being served with a notice under subsection (1), file an answer in duplicate with the Centre and serve the claimant with a copy of the answer.

(8) Where an answer includes a counterclaim, the notice of the counterclaim, the amount involved, if any, and the remedy sought shall be stated in the counterclaim.

(9) A respondent who makes a counterclaim in an answer shall pay the appropriate administrative fee to the Centre.

(10) The failure of a respondent to file an answer within time shall

(a) be assumed to be a denial of the claim; and

(b) not stay the arbitration proceedings.

(11) Unless the Centre in consultation with the parties determine otherwise, the Expedited arbitration Procedure provided for under Schedule III of this Act shall be applied in a case where the total sum claimed, exclusive of interest and arbitration costs, does not exceed US$100,000 or its equivalent in cedis.

8. Change or amendment of claim

(1)A party who after filing a claim desires to make a new claim or amend the claim shall file the new claim or amended claim with the Centre and serve the other party with a copy.

(2) A party served with a new or amended claim shall within seven days from the date of being served, file an answer with the Centre.

(3) A new claim or an amendment to a claim shall not be made after the appointment of an arbitrator, except with the consent of the arbitrator.

9. Administrative conference

A party or the Centre may before the appointment of an arbitrator request for the holding of an administrative conference with representatives of the Centre and the parties or their representatives to

(a) organise and expedite the arbitration,

(b) study and discuss the administrative issues involved in the case,

(c) determine the most suitable means of appointing an arbitrator, and

(d) consider mediation as a means of resolving the dispute.

10. Number of arbitrators

(1)The parties may agree on the number of arbitrators and if the parties within fourteen days of the service of the notice of arbitration on the respondent, do not agree on the number of arbitrators, three arbitrators shall be appointed.

(2) Where the arbitration agreement provides for the appointment of an even number of arbitrators

(a) the arbitrators shall within fourteen days of their appointment appoint an additional arbitrator to be the umpire;

(b) if the arbitrators are unable to appoint the additional arbitrator within the specified time, the Centre shall appoint the additional arbitrator to be the umpire.

11. Appointment of arbitrators

(1) If the parties in their agreement name an arbitrator or specify a method of appointment of an arbitrator, that designation shall be followed, except that the parties shall provide the Centre with the full names, addresses, nationalities and qualifications of the arbitrators named by them.

(2) If the parties do not name an arbitrator or provide a method for the appointment of an arbitrator, but have provided for the appointment of a sole arbitrator, either party may propose to the other party

(a) the full names, addresses, nationalities and qualifications of one or more persons, one of whom would serve as the sole arbitrator, or

(b) that the Centre should appoint the sole arbitrator.

(3) If within fourteen days of a proposal being made under subrule (2)(a) the parties are unable to reach an agreement, the appointment of the sole arbitrator shall be made by the Centre.

(4) Where the arbitration agreement requires the appointment of three arbitrators and the parties have not specified the method of appointment or where the parties have not agreed on the number of arbitrators,

(a) each party shall appoint one arbitrator; and

(b) the appointed arbitrators shall appoint the third arbitrator who shall be the umpire.

(5)Where the arbitrators appointed by the parties fail to appoint an umpire, the umpire shall be appointed by the Centre.

(6)Where under subrule (4), a party who is given notification of appointment of arbitrator does not within fourteen days of the notification appoint an arbitrator and notify the other party of the appointment, that other party shall request the Centre to appoint the second arbitrator.

(7) If the arbitration agreement does not specify a period of time for the appointment of an arbitrator, the Centre shall request the parties to make the appointment within fourteen days and if any party or all the parties fail to make the appointment the Centre shall appoint the arbitrator.

(8) A party who has to appoint an arbitrator may request from the Centre a list of arbitrators from the register of arbitrators, from which the party may make the appointment,and Centre shall provide the list.

(9) Where the Centre has to appoint an arbitrator,

(a) the Centre shall, after the filing of the notice of arbitration, submit to each party at the same time an identical list of five persons from the register, and

(b) each party shall within seven days from the submission of the list cross out any two names to which the party objects and number the remaining names in order of preference and return the list to the Centre.

(10) If a party fails to return the list within the specified time, all persons on the list shall be considered acceptable to that party and the Centre shall be entitled to appoint any of the persons on the list.

(11) The Centre shall, in accordance with the order of preference indicated on the returned lists, appoint the arbitrator and notify the arbitrator and the parties within seven days of the appointment.

(12) The appointed arbitrator shall within seven days of being notified, inform the Centre of the acceptance or rejection of the appointment.

(13) If

(a) the parties fail to agree upon any of the persons named,

(b) the acceptable arbitrator is unable to act, or

(c) for any other reason the appointment cannot be made from the submitted list,the Centre shall appoint the arbitrator from among persons on the register without the submission of an additional list to the parties.

12. Nationality of arbitrator in international arbitration

In an international arbitration, unless the parties agree otherwise, the choice of arbitrators shall reflect the nationality of the parties, except that a sole arbitrator shall be of neutral nationality.

13. Considerations in the choice of arbitrator by the Centre

The Centre in appointing an arbitrator shall have regard

(a) to any qualification required of the arbitrator by the arbitration agreement or agreed upon by the parties,

(b) to the independence and impartiality of the person intended to be appointed,and

(c) in the case of a sole arbitrator in an international arbitration, to the neutral nationality of the person intended to be appointed.

14. Description of proposed arbitrator

Where a party or the Centre appoints an arbitrator, it shall give the full name, address,nationality and qualification of the arbitrator to the other party and the Centre or to both parties as is appropriate.

15. Disclosure by proposed arbitrator

(1) The Centre shall require a person appointed as an arbitrator to disclose in writing any circumstances likely to affect that person’s independence or impartiality including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with any of the parties or their counsel, and the arbitrator shall make the disclosure to the Centre and the parties.

(2) The Centre shall notify the parties of any disclosure made under subrule (1).

16. Challenge of arbitrator

(1)A party may challenge the appointment of an arbitrator if

(a) there are circumstances that raise doubts as to the independence or impartiality of the arbitrator, or

(b) the arbitrator does not possess the qualifications agreed on by the parties.

(2)A party may only challenge an arbitrator appointed by that party or in whose appointment that party has participated for reasons which that party becomes aware of after the appointment.

17. Challenge procedure

(1)Parties to a dispute may within fourteen days of the appointment of the arbitrator jointly challenge the arbitrator by filing a written statement of the reasons of the challenge with the arbitrator and other members of the arbitral tribunal and the Centre.

(2) The Centre on receipt of a challenge under subrule (1) shall replace the challenged arbitrator.

(3) A party may challenge an arbitrator in writing with stated reasons, to the arbitrator, the other members of the arbitral tribunal and the Centre, within fourteen days of the appointment of the arbitrator.

(4) The Centre on receipt of a challenge from a party shall communicate the challenge to the other party who shall within seven days of the communication send a response to the Centre.

(5) If the other party endorses a challenge raised by one party, the Centre shall replace the challenged arbitrator.

(6) If the other party objects to the challenge, and the challenged arbitrator does not resign, the Centre shall hold a hearing with the parties and the challenged arbitrator within seven days of the objection, and determine whether the challenged arbitrator should be maintained or replaced.

(7) The decision of the Centre as to whether a challenged arbitrator over whom there is no agreement should be maintained or replaced shall be binding on the parties.

(8) An arbitrator who is challenged may withdraw, but the withdrawal of an arbitrator does not imply an acceptance of the validity of the challenge.

18. Revocation of an arbitrator’s authority

(1) The parties may agree on the circumstances under which the appointment of an arbitrator may be revoked.

(2) Unless the parties have agreed on the circumstances for revocation, the appointment of an arbitrator shall only be revoked

(a) by the parties acting jointly, or

(b) by the Centre acting on the application of a party.

(3)A party may at any time during arbitral proceedings apply to the Centre on notice to the other party for the revocation of the arbitrator’s appointment on the grounds that

(a) there is sufficient reason to doubt the arbitrator’s impartiality,

(b) the arbitrator does not possess the qualification required by the arbitration agreement,

(c) the arbitrator is physically or mentally incapable or there is justifiable doubt as to the arbitrator’s capacity of conducting the proceedings, or

(d) the arbitrator has refused or failed to

(i) properly conduct the proceedings, or

(ii) use reasonable despatch in conducting the proceedings or making an award.

(4) If within seven days of the submission of an application under subrule (3) there is no objection from the other party, the Centre shall invite the applicant and the arbitrator fora hearing and if satisfied with the grounds of the application revoke the appointment of the arbitrator.

(5) If the other party objects to the application, the Centre shall within seven days of the receipt of the objection invite the parties and the arbitrator to a hearing to consider the application and objection on their merits.

(6) The Centre at a hearing under this rule may maintain or revoke the appointment of the arbitrator.

(7) A party dissatisfied with the decision of the Centre in respect of an application under this rule may with leave of the Court repeat the application to the Court, which may maintain or revoke the appointment as it finds appropriate.

(8) Unless the Centre or the Court decides otherwise, an application under this rule shall not serve as a stay of the arbitral proceedings.

(9) If the Centre or the Court revokes the appointment of an arbitrator, the Centre or the Court may make an order as it considers appropriate in respect of the arbitrator’s fees or expenses.

19. Termination of mandate of arbitrator

The mandate of an arbitrator shall terminate if

(a) the arbitrator’s appointment is revoked;

(b) for any reason the arbitrator is unable to perform the arbitrators functions, or

(c) the arbitrator withdraws from office, resigns or dies.

20. Filling of vacancy

(1) If the position of an arbitrator becomes vacant the parties may agree on

(a) whether and how the vacancy is to be filled; and

(b) whether the previous proceedings should stand.

(2)Where there is no agreement between the parties under subrule (l), the Centre shall appoint another arbitrator in accordance with these Rules.

(3) Upon the appointment of an arbitrator under subrule (2), to fill a vacancy in an arbitration which has

(a) a sole or a presiding arbitrator, the appointed arbitrator shall in consultation with the parties decide whether to adopt the previous proceedings or to start afresh; or

(b) more than one arbitrator, the previous proceedings may be adopted or the proceedings may start afresh where the tribunal and the parties agree.

21. Duties and powers of arbitral tribunal

(1) An arbitral tribunal shall

(a) be fair and impartial to the parties; and

(b) give each party the opportunity to present its case.

(2) Subject to this Act, an arbitral tribunal may conduct the arbitration in a manner that the arbitrator considers appropriate but shall avoid unnecessary delay and expense and adopt measures that will expedite the resolution of the dispute.

(3) Subject to the right of parties to agree on any matter, the arbitral tribunal shall decide on matters of procedure and evidence.

(4) Matters of procedure and evidence include but are not limited to

(a) the time and place for holding any part of the proceedings;

(b) the questions that should be put to and answered by respective parties and how the questions should be put; and

(c) the application or non-application of the strict rules of evidence as to admissibility, relevance or weight of any material sought to be tendered and how such material should be tendered.

(5) The arbitral tribunal may determine the time within which directions are to be complied with.

(6) The parties may agree to permit an arbitrator to

(a) consolidate one arbitral proceedings with other arbitral proceedings;

(b) hold concurrent hearings.

(7) An arbitral tribunal may admit as evidence, an affidavit or statutory declaration concerning the matters in evidence (whether the affidavit or statutory declaration was made in any other proceeding or in contemplation of the matter in reference) except that a copy of the affidavit or statutory declaration shall be given to the party against whom it is made,three days prior to its admission and the person whose evidence is so taken may at any time be cross-examined by the party against whom the evidence is given.

(8) An arbitral tribunal may employ an accountant to examine accounts connected with the matters in reference, and act upon any statement of accounts given by the accountant without being obliged to verify it.

(9) An arbitral tribunal may engage a legal assessor to sit with the arbitrator and may act on the advice of the assessor.

(10) An arbitral tribunal may at any stage of the proceedings obtain the opinion of counsel upon any question of law arising in the course of the reference and act upon the opinion.

(11) An arbitral tribunal may cause maps, plans and measurements to be made and taken as the arbitral tribunal considers necessary or expedient and the costs and expenses of making the maps, plans and measurements shall be at the discretion of the arbitrator.

(12) An arbitral tribunal may from time to time make an award upon any question in dispute between the parties, that may have arisen in the proceeding, and the tribunal shall not by so doing terminate the authority of the tribunal until all matters relating to the questions in dispute have been finally disposed of and any separate award shall be observed and performed without waiting for another award.

(13) An arbitral tribunal may order the execution of any document by a party to the arbitration for the purpose of giving effect to the award of the tribunal and to direct by whom and at whose expense that document must be prepared and executed.

22. Powers of umpire

(1)An umpire may

(a) sit with the arbitrators and may from time to time examine witnesses, and

(b) decide any question as to the admissibility of evidence upon which the arbitrators differ or are in doubt and except as provided in this subrule the umpire shall not interfere with the arbitration until a matter is referred to the umpire.

(2) Unless the arbitration is deadlocked, the arbitral tribunal shall make decisions,orders and awards.

(3)If the arbitration is deadlocked, the arbitral tribunal shall give notice of the deadlock in writing to the parties and the umpire shall then make decisions, orders and awards as a sole arbitrator.

(4) If when the arbitration is deadlocked, the arbitral tribunal fail to give notice, or if one arbitrator fails to join the others in giving the notice, a party may upon notice in writing to the other party and the arbitral tribunal request the Centre to order that the umpire replace the arbitrators to make decisions, orders and awards.

23. Arbitration management conference

(1)An arbitral tribunal shall within fourteen days of being appointed and upon giving seven days written notice to the parties, conduct an arbitration management conference with the parties or their representatives in person or through electronic or other telecommunication media to determine

(a) the issues to be resolved by arbitration;

(b) the date, time, place and estimated duration of the hearing;

(c) the need for discovery, production of documents or the issue of interrogatories and to establish how this should be done;

(d) the law, rules of evidence and the burden of proof that is to apply to the proceedings;

(e) the exchange of declaration regarding facts, exhibits, witnesses and other related issues;

(f) whether there is the need to resolve issues of liability and damages separately;

(g) whether the summary of evidence of parties should be oral or in writing;

(h) the form of the award;

(i) costs and arbitrator’s fees bearing in mind the relevant fees of the Centre; and

(j) any other issue relating to the arbitration.

(2) The decisions of an arbitration conference shall be in writing and shall be served on the parties and Centre within two days immediately after the conference.

(3)An arbitral tribunal may hold further arbitration conferences as are considered necessary upon four days written notice to the parties.

 

24. Conciliation conference

(1) The Centre may with the consent of the parties at any time during the arbitration process, arrange a conciliation conference to facilitate the resolution of the dispute, except that an arbitrator in the action shall not be the conciliator.

(2) A conciliation conference shall be informal and unless the parties otherwise agree only the parties and the conciliator shall be present at the conference.

(3)A conciliation conference shall not, unless the parties decide otherwise, last for more than seven days.

(4) The conciliator shall be a person appointed jointly by the parties or where the parties are unable to make the appointment, appointed by the Centre.

(5) The parties may request the Centre to provide them with a list of conciliators from which to make an appointment.

(6) The conciliator shall take every necessary step to resolve the differences between the parties.

25. General provisions governing proceedings

(1)Subject to these Rules, an arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated fairly and at every stage of the proceedings, each party is given a full opportunity for presenting that party’s case.

(2) If a party so requests at any stage of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument.

(3) In the absence of a request by a party, the arbitral tribunal shall decide whether to hold such hearings or whether to conduct the proceedings on the basis of documents and other materials.

(4) Documents or information supplied to the arbitral tribunal by one party shall at the same time be communicated by that party to the other party.

26. Place of arbitration and place of award

(1) Unless the parties have agreed upon the place where the arbitration is to be held,the place shall be determined by the arbitral tribunal, having regard to the circumstances of the arbitration.

(2) Where the parties agree only on the country in which arbitration is to be held, the arbitral tribunal may hear witnesses and hold meetings for consultation among its members at any place it considers appropriate in the country, having regard to the circumstances of the arbitration.

(3)The arbitral tribunal may meet at any place it considers appropriate for the inspection of goods, other property or documents, except that the parties shall be given sufficient notice to enable them to be present at an inspection.

(4) The award shall be made at the place of arbitration.

27. Language

(1)Except as otherwise agreed by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings.

(2) The determination shall apply to the claim, the answer and any further written statements and, if oral hearings take place, to the language or languages to be used in the hearings.

(3) The arbitral tribunal may order any document annexed to the claim or answer and any supplementary documents or exhibits submitted in the course of the proceedings, to be delivered in their original language, to be accompanied by a translation into the language or languages agreed upon by the parties or determined by the tribunal.

28. Plea to the jurisdiction of the arbitral tribunal

(1)An arbitral tribunal shall rule on objections to its jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement.

(2) An arbitral tribunal shall determine the existence or the validity of the contract of which the arbitration clause forms a part.

(3) For the purposes of this rule, an arbitration clause which forms part of a contract and which provides for arbitration under these Rules shall be treated as an agreement independent of the other terms of the contract.

(4) A decision by an arbitral tribunal that the contract is void shall not invalidate the arbitration clause.

(5) A plea that an arbitral tribunal does not have jurisdiction shall be raised not later than in the answer or, with respect to a counterclaim, in the reply to the counterclaim.

(6) An arbitral tribunal shall rule on an objection to its jurisdiction as a preliminary question and where the objection is rejected, the tribunal shall proceed with the arbitration and make an award.

29. Further written statements

(1)An arbitral tribunal shall decide which further written statements, in addition to the claim and the answer are required from or may be presented by the parties and shall fix the periods of time for communicating these statements.

(2) The periods of time fixed by the arbitral tribunal for the communication of further written statements shall not exceed twenty-one days, except that the arbitral tribunal may extend the time limits if it concludes that an extension is justified.

30. Evidence and hearings

(1)A party has the burden of proving the facts relied on to support the claim or answer of the party.

(2) An arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within a period of time specified by the arbitral tribunal,summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in that party’s claim or answer.

(3) At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within a period of time determined by the tribunal.

(4) In the event of oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place of the hearing.

(5) If witnesses are to be heard, each party shall, at least fourteen days before the hearing, communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses that party intends to present, the subject upon, and the languages in which, the witnesses will give their evidence.

(6) An arbitral tribunal shall make arrangements for the translation of oral statements made at a hearing and for a record of the hearing if either is considered necessary by the tribunal under the circumstances of the case, or if the parties have agreed to this and have communicated that agreement to the tribunal at least fourteen days before the hearing.

(7) Hearings shall be in private unless the parties agree otherwise.

(8) The arbitral tribunal may require a witness to retire during the testimony of other witnesses and the tribunal is free to determine the manner in which witnesses are examined.

31. Interim measures of protection

(1)At the request of either party, an arbitral tribunal may take any interim measures it considers necessary in respect of the subject-matter of the dispute, including measures forthe conservation of goods that form the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.

(2) Interim measures may be in the form of an interim award and the arbitral tribunal shall be entitled to require security for the costs of the measures.

32. Experts

(1)An arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal and a copy of the expert’s term of reference,established by the tribunal, shall be communicated to the parties.

(2) The parties shall give the expert any relevant information or produce for the expert’s inspection any relevant documents or goods that the expert may require of them and any dispute between a party and an expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for determination.

(3) Upon receipt of the expert’s report, the arbitral tribunal shall send copies of the report to the parties, who shall be given the opportunity to express their opinion on the report; and a party may examine any document on which the expert has relied upon in the report.

(4) An expert, after delivery of a report, may at the request of either party, be heard at a hearing where the parties shall have the opportunity to be present and to cross-examine the expert, and at this hearing either party may present expert witnesses in order to testify on the points in issue.

(5) The provisions of rule 30 (Evidence and hearings) are applicable to a hearing under this rule.

33. Default

(1) If one of the parties, duly notified under these Rules, fails to appear at a hearing,without showing sufficient cause for the failure, the arbitral tribunal may proceed with the arbitration.

(2) If one of the parties, duly invited to produce documentary evidence, fails to do so within the specified period of time, and without showing sufficient cause for the failure, the arbitral tribunal may make the award on the evidence before it.

34. Closure of hearings

(1)An arbitral tribunal may inquire of the parties if they have any further proof to offer or witnesses to be heard or submissions to make and, if there are none, it may declare the hearings closed.

(2) An arbitral tribunal, if it considers it necessary owing to exceptional circumstances, may on its own motion or upon application of a party, re-open the hearing sat any time before the award is made.

35. Waiver of Rules

A party who knows that any provision of, or requirement under, these Rules has not been complied with and yet proceeds with the arbitration without promptly stating the objection to the non-compliance, shall be deemed to have waived the right to object.

36. Decisions

(1)When there are three or more arbitrators, any award or decision of the arbitral tribunal shall be made by a majority of the arbitrators.

(2) The provisions of rule 22 shall apply where the arbitration is deadlocked.

37. Form and effect of the award

(1) The arbitral tribunal in addition to making a final award, may make interim,interlocutory, or partial awards.

(2) An award shall be in writing and shall be binding on the parties.

(3) Except as otherwise provided under these Rules or as the parties otherwise agree,the arbitral tribunal shall state the reasons upon which the award is based.

(4) An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made.

(5) Where there are three arbitrators and any of them fails to sign, the award shall state the reason for the absence of the signature.

(6) Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal and the award may be made public only with the consent of both parties.

(7) If the law of the arbitration agreement requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by the law.

38. Applicable law

(1)An arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute and failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules it considers applicable.

(2) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

39. Settlement or other grounds for termination

(1) If before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or,if requested by both parties and accepted by the tribunal, record the settlement in the form of an arbitral award on agreed terms and the arbitral tribunal is not obliged to give reasons for such an award.

(2) If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in subrule (1), the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings and the arbitral tribunal may issue the order unless a party raises justifiable grounds of objection.

(3) Copies of the order of termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties.

(4) The provisions of rule 37 subrules (2), (4) and (7) shall apply to an arbitral award on agree terms.

40. Interpretation of the award

(1)Within thirty days after the receipt of an award, either party, with notice to the other party, may request the arbitral tribunal to give an interpretation of the award.

(2) The interpretation shall be given in writing within fourteen days after the receipt of the request and shall form part of the award.

41. Correction of the award

(1)Within thirty days after the receipt of an award, either party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical error, or any errors of similar nature.

(2) The arbitral tribunal may within thirty days after the communication of the award, make such corrections on its own initiative.

(3) Corrections shall be in writing, and the provisions of rule 37 subrules (2) to (7),shall apply.

42. Additional award

(1)Within thirty days after the receipt of the award, either party, with notice to the other party, may request the tribunal to make an additional award in respect of claims presented in the arbitral proceedings but omitted from the award.

(2) If the arbitral tribunal considers the request for an additional award to be justified and considers that the omission can be rectified without any further hearings or evidence, it shall complete its award within thirty days after the receipt of the request.

(3) When an additional award is made, the provisions of Rule 37 subrules (2) to (7),shall apply.

43. Costs and fees

(1)An arbitral tribunal shall fix the costs of the arbitration in its award; and the term‘costs’ for this purpose means

(a) the fees of the arbitrators and umpire to be stated separately as to each arbitrator and to be fixed by the arbitral tribunal itself in accordance with this rule;

(b) the travel and other expenses incurred by the arbitrators;

(c) the costs of expert advice and of other assistance required by the arbitral tribunal;

(d) the travel and other expenses of witnesses to the extent that those expenses were approved by the arbitral tribunal;

(e) the costs for legal representation and assistance of the successful party if these costs were claimed during the arbitral proceedings, and only to the extent that the arbitral tribunal determines that the amount of these costs is reasonable; and

(f) any fees and expenses of the Centre.

(2) The fees of the arbitral tribunal shall be reasonable in amount, taking into account the amount in dispute, the complexity of the subject-matter, the time spent by the arbitrators and any other relevant circumstances of the case.

(3) An arbitral tribunal in fixing its fees shall take into account any list of fees issued by the Centre.

(4) Where the Centre has not issued a list of fees for arbitrators in international cases,a party may at any time request the Centre to furnish a statement that sets out the basis for establishing fees which is customarily followed in international cases in which the Centre appoints arbitrators and if the Centre consents to provide that statement, the arbitral tribunal in fixing its fees shall take the information into account.

(5) Except as provided in subrule (6), the costs of arbitration shall be borne by the unsuccessful party, except that the arbitral tribunal may apportion each of the costs between the parties, if it determines that apportionment is reasonable taking into account the circumstances of the case.

(6)With respect to the costs of legal representation and assistance referred to in subrule (1)(e), the arbitral tribunal, taking into account the circumstances of the case, may determine which party shall bear the costs or any apportion of the costs between the parties,if it determines that apportionment is reasonable.

(7) When an arbitral tribunal issues an order for the termination of arbitral proceedings or makes an award on agreed terms, it shall fix the costs of arbitration.

(8) No additional fees shall be charged by an arbitral tribunal for interpretation or correction or completion of its ward under rules 40, 41 and 42.

 

44. Deposits of costs

(1)An arbitral tribunal, on its appointment, may request each party to deposit an equal amount as an advance for the costs referred to in rule 43 (1)(a), (b) and (c).

(2) During the course of the arbitral proceedings the arbitral tribunal may request supplementary deposits from the parties.

(3)Where a party requests, and the Centre consents to provide a list of fees, the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the Centre which may make any comments it considers appropriate to the arbitral tribunal concerning the amount of deposits and supplementary deposits.

(4) If the required deposits are not paid in full within thirty days after the receipt of the request, the arbitral tribunal shall inform the parties in order that one or the other party may make the required payment.

(5) If payment is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings.

(6) After the award has been made, the tribunal shall render an account to the parties of the deposits received and return any unexpended balance to the parties.

THIRD SCHEDULE

EXPEDITED ARBITRATION PROCEEDINGS RULES OF THE CENTRE

(Section 60)

  1. Notice

(1) Notice to a party and the Centre may be by telephone, fax, e-mail, or other mode of electronic communication.

(2) A notice by telephone shall be confirmed in writing but a failure to confirm the notice in writing shall not invalidate proceedings.

2. Appointment of arbitrator in expedited arbitration

(1) If the claim or counterclaim does not exceed US$100,000 or its cedi equivalent, the Centre shall upon the submission of the dispute by a party appoint a sole arbitrator from the register of arbitrators of the Centre upon the payment of the applicable fee.

(2) Where the claim or counterclaim in issue exceeds US$100,000 or its cedi equivalent; or whatever the claim or subject matter, the parties agree to the resolution of the issue by expedited arbitration procedure, the Centre shall upon the notification under subrule 1(1) submit to the parties at the same time an identical list of five arbitrators upon payment by the applicant of the prescribed fee.

(3) Where a list is submitted to the parties as provided under subrule (2) each party shall peremptorily strike out two names on the list and number the arbitrators left on the list in order of preference and return the list to the Centre within seven days of receipt of the list.

(4) The Centre shall upon the receipt of the list appoint a single arbitrator from the returned list.

(5) If an arbitrator cannot be appointed from the list, the Centre shall without further reference to the parties appoint an arbitrator from the register.

(6) The Centre shall, whatever the claim to which the expedited procedure is applied,give notice of the appointment of an arbitrator to the parties who shall within three days of receipt of the notice communicate their objection to the appointment, if any, to the Centre.

(7)An objection to an arbitrator by telephone shall be confirmed in writing to the Centre with copies to the other party.

(8) If the appointment of an arbitrator is objected to, the Centre shall decide whether to retain that arbitrator or appoint a new arbitrator.

3. Date, time and place of hearing

(1) The arbitrator shall determine the date, time and place of hearing.

(2) the Centre shall give notice of the time of hearing to the parties not later than seven days before the hearing date.

(3) Except where the dispute is to be resolved by the submission of documents, the hearing shall be completed within one day.

(4) Where there is sufficient reason for doing so, the arbitrator may schedule an additional hearing to be held within three days of the end of hearing.

4. Time for award

Except the parties otherwise decide, the arbitrator shall make an award within seven days from the close of hearing.

FOURTH SCHEDULE

MEDIATION RULES OF THE CENTRE

(Section 66(3))

  1. Submission of dispute for mediation

(1)A party to a dispute whether or not there is a mediation agreement in respect of that dispute may initiate mediation with the Centre by

(a) filing 2 copies of a submission for mediation with the Centre;

(b) paying the prescribed fee; and

(c) serving each of the parties to the dispute with a copy of the submission.

(2) A submission shall contain

(a) a statement of the nature of the dispute, and

(b) the names, addresses and telephone numbers of the parties to the dispute.

2. Reference to mediation by court

(1)A court before which an action is pending may at any stage in the proceedings, if it is of the view that mediation will facilitate resolution of the matter or part of the matter indispute, and the parties desire mediation by the Centre, refer the matter or that part of the matter to the Centre for mediation.

(2) A reference under rule (1) shall state

(a) the nature of the dispute;

(b) the monetary value of the claim; and

(c) the remedy sought

and shall have attached copied of the pleadings and any other documents the court considers relevant.

(3) A reference under this rule shall serve as a stay of proceedings of the court action.

(4) Where a reference leads to a settlement of the dispute or a part of the dispute, the settlement shall be

(a) filed in the court;

(b) recorded by the court as a judgment of the court; and

(c) enforce by the court as its judgment.

(5) Where the reference does not lead to a settlement, the court shall continue with the proceedings from the point where the reference was made.

3. Appointment of mediator

(1) The Centre on receipt of a submission shall appoint a qualified person registered with the Centre to serve as a mediator in the dispute.

(2) Where the parties name a mediator or specify a method of appointing a mediator in an agreement, the Centre shall appoint the person named or follow the specified method.

(3) Unless the parties agree otherwise, the Centre shall appoint only one person to serve as mediator.

4. Mediator with interest

Except by the written consent of the parties, the Centre shall not appoint a person to serve as a mediator in a dispute if that person has a financial or personal interest in the outcome of the dispute.

5. Disclosure by mediator

(1) A person appointed a mediator shall disclose any circumstance relating to that person that is likely to

(a) create a presumption of bias; or

(b) affect the conduct of mediation before accepting the appointment.

(2) Where a disclosure is made under subrule (1), the Centre shall within seven days of the disclosure inform the parties.

(3) If a party upon being informed of a disclosure objects to the proposed mediator, the Centre shall appoint another mediator in substitution.

6. Termination of appointment for delay

The Centre may replace a mediator who fails to start work promptly.

7. Filling of vacancy in mediation

Unless the parties otherwise agree, the Centre shall appoint another mediator to replace a mediator who is unable to perform or vacates the post.

8. Powers of mediator

(1)A mediator shall do everything necessary to help the parties to satisfactorily resolve their dispute.

(2)  The mediator may conduct joint or separate meetings with the parties and make recommendations for settlement.

(3) The mediator may where necessary and if the parties agree to pay the expenses,obtain expert advice on technical aspects of the dispute.

(4) A request for the services of an expert may be made by the mediator or by a party with the consent of the mediator.

(5) A mediator may end the mediation whenever the mediator is of the opinion that further mediation between the parties would not help resolve the dispute between the parties.

9. Representation in mediation

(1)A party may be represented by a lawyer, an expert or any other person chosen by the party.

(2) A party shall communicate in writing to the Centre and the other party the name and address of any representative within seven days of the representative’s appointment.

10. Date, time and place of mediation

(1) The mediator shall determine the date and time of each mediation session.

(2)Subject to the mediator choosing a convenient place, the Centre with the agreement of the parties, shall determine the place for the mediation.

11. Identification of issues in dispute

Not later than eight days before the first mediation session, each party shall present to the Centre and the other party, a memorandum setting out the party’s position with regard to the issues which require resolution.

12. Presentation of relevant documents and information

A party shall present documents and information required for the resolution of the dispute to the mediator at the first mediation session.

13. Attendance at mediation

Except where the parties agree and the mediator consents, a person who is not a party to the mediation shall not attend a mediation session.

14. Confidentiality of mediation

(1)Records, reports and the rather documents required in the course of mediation shall be confidential.

(2) A mediator shall not disclose confidential information given in the course of the mediation.

(3) A party to a mediation shall not rely on

(a) the record of the mediation;

(b) any evidence adduced at the mediation; or

(c) information obtained during the mediation

as evidence in court proceedings.

15. Suggestions by parties for settlement of dispute

Each party may, on that party’s own initiative or at the invitation of the mediator,submit to the mediator suggestions for the settlement of the dispute.

16. End of mediation

(1)A mediation ends when

(a) the parties execute a settlement agreement;

(b) the mediator makes a written declaration to the effect that further mediation is not worthwhile; or

(c) a party makes a written declaration to the effect that the mediation is terminated.

(2) The settlement at a mediation is binding on the parties only where the parties so agree.

17. Exclusion of liability

(1) The Centre or a mediator is not a necessary party in any court proceedings relating to the mediation.

(2) The Centre or a mediator is not liable to a party for an act or omission in respect of a mediation under this Act.

18. Mediation expenses

(1)A party to a mediation shall pay the expenses of its witnesses.

(2) The parties shall equally pay the expenses of the mediation including the expenses of

(a) the mediator;

(b) the representative of the Centre (if any); and

(c) witnesses and experts called by the mediator.

FIFTH SCHEDULE

ARBITRATION CLAUSES OR AGREEMENTS (SAMPLES)

(Section 2 (3 ))

  1. Clause referring future disputes to arbitration

Any dispute or difference between the parties in connection with this agreement shall be referred to arbitration.

2. Clause referring future disputes to a single arbitrator to be appointed by an appointing authority

Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by a sole arbitrator to be appointed by ....................... (name of the appointing authority).

3. Arbitration agreement referring future disputes to a single arbitrator

(1)Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by a sole arbitrator .................. (name of the arbitrator)and the arbitration shall be held in ................... (place of arbitration).

(2) The arbitrator shall be appointed by agreement between the parties or in default of agreement by the parties, be determined by the appointing authority.

(3) In the event of default by either party in respect of any procedural order made by the arbitrator, the arbitrator may proceed with the arbitration in the absence of that party and deliver the arbitration award.

4. Clause referring future disputes to two arbitrators

Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by two arbitrators, one to be appointed by each party.

5. Arbitration agreement referring future disputes to two arbitrators and an umpire

(1)Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by two arbitrators, and the arbitration shall be held in .................... (place of arbitration).

(2) Each party shall appoint one arbitrator, and the arbitrators so appointed shall appoint an umpire. The umpire shall attend all hearings, including preliminary meetings,but shall not be called upon to act unless the arbitrators appointed by the parties fail to agree.

(3) If either party fails to appoint an arbitrator within seven clear days after the other party has appointed an arbitrator and has served the defaulting party with a notice to make the appointment, the party who has appointed an arbitrator is entitled to appoint that arbitrator to act as sole arbitrator.

(4) The procedure to be followed in the arbitration shall be agreed upon by the parties or, in default of agreement, determined by the arbitrators or, if necessary, by the umpire.

(5) In the event of default by either party in respect of any procedural order made by the arbitrators or umpire, the arbitrators or umpire may proceed with the arbitration in the absence of that party and to deliver the award.

6. Clause referring future disputes to a tribunal of three arbitrators

Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by arbitration in ........................ (place of arbitration) by a tribunal of 3 arbitrators. Each party shall appoint one arbitrator and the third arbitrator shall be appointed by agreement between the arbitrators so appointed, or in default of agreement between them, by ..................... (the appointing authority).

7. Arbitration agreement referring future disputes to a tribunal of three arbitrators

(1)Any dispute or difference between the parties in connection with this agreement shall be referred to and determined by arbitration in ................... (place of arbitration).

(2) The arbitral tribunal shall consist of three arbitrators and shall be constituted as follows:

(a) the claimant shall nominate an arbitrator and may by notice in writing call on the other party to nominate an arbitrator within .......... days of the notice,failing which the second arbitrator shall at the request of the claimant be appointed by ................... (the appointing authority),

(b) the third arbitrator [who shall serve as umpire of the tribunal] shall be appointed by agreement between the two arbitrators appointed under (a) or, in default of agreement within days of the appointment of the second arbitrator, on the nomination of .......................... (the appointing authority) at the written request of either or both of the parties,

(c) where a vacancy arises because any arbitrator dies or resigns, refuses to act, or[in the opinion of the other arbitrators or the appointing authority] becomes incapable of performing the functions of office, the vacancy shall be filled by the method by which that arbitrator was originally appointed.

(3) The procedure to be followed in the arbitration shall be agreed by the parties or, in default of agreement, determined by the tribunal.

(4) In the event of default by either party in respect of any procedural order made by the tribunal, the tribunal shall have power to proceed with the arbitration in the absence of that party and to deliver its award.

(5) Any award or procedural decision of the tribunal shall if necessary be made by a majority vote. In the absence of a majority vote the umpire shall make an award or procedural decision as if the umpire were a sole arbitrator.

 

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