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Commencement of Arbitration
Commencement of Arbitration
ARBITRATION
PROFESSOR JOSEPH MBADUGHA
OUTLINE
INTRODUCTION
NOTICE OF ARBITRATION
SAMPLES
CONCLUSION
INTRODUCTION
NOTICE OF ARBITRATION
of Commencement of Arbitration
-- it depends on the parties agreement
--where there is no agreement it depends on the rule or law governing the
arbitration
Under Article 3(2) UNCITRAL Arbitration Rules, it is commenced
on the date the notice is received by the Respondent. See also Article
1188(1) of the Polish CCP and Section 17 of Nigerias ACA with
similar provisions as the UNCITRAL Rules
Under the ICC, it is commenced the date the secretariat received the notice see
Article 4(2) of ICC Rules of Arbitration
.
When
is a notice received
.
Unless the parties agree otherwise, it is received when:
-- when delivered to the addressee personally or to his place of business, habitual
residence or mailing address
--or when sent to the addressees last known place of business, habitual residence or mailing
address by registered letter
See Article 3(1) UNCITRAL Model Law; Article 3(2) ICC Rules of Arbitration
NOTICE OF ARBITRATION 2
Form
It varies
Parties are free to choose the form
Where there is no agreement, it is determined by the
applicable rules or law
It may however include the following
. a demand that the dispute be referred to arbitration;
. the names and addresses of the parties
. a reference to the arbitration clause or the separate
arbitration agreement that is invoked
. a reference to the contract out of which the dispute arose
. the general nature of the claim and an indication of the
amount involved, if any
. the relief or remedy sought
NOTICE OF ARBITRATION 3
f. a proposal as to the number of arbitrators,
language and place if the parties have not
previously agreed on this
g. a proposal for appointment of a sole arbitrator
with a request to concur or with a request that
the respondent appoints its own arbitrator
Articles 3(2) (3)(g) UNCITRAL Arbitration Rules;
Articles 4(3) ICC Arbitration Rules
A SAMPLE OF NOTICE OF ARBITRATION
CONDITION PRECEDENT
Condition precedent to commencing arbitration
It may be:
A. Contractual: parties may agree that certain actions
be taken before arbitration, example attempt at
amicable settlement or mediation and conciliation
B. Statutory: a statute may require that before any
action is brought against certain parties a 3 or 1
months of the intention to sue such a party must
be given to it
C. Effect of non compliance
- It makes the notice and thus the arbitration
premature and incompetent
TIME LIMIT
Time within which to commence arbitration and/or time within
which to commence an action in respect of a given subject
It may be provided by law or contractual
Difference between both:
--statutory time limit prevails over contractual time limit in the
event of conflict between both
--contractual time limit may be dispensed with on grounds of
public policy
--contractual time limit may be extended but statutory cannot
Effects of time limit
-with respect to statutory time limit, it bars the right of action
-with respect to contractual time limit, it could bar the claim
or right of action or both depending on its wordings
Time starts running from the date the cause of action arose
PARTY TO COMMENCE
ARBITRATION
Various
ANSWER TO NOTICE OF
ARBITRATION
A respondent served with a notice of arbitration should
respond by serving an answer to the Claimant after a
careful evaluation of the notice with a view to finding
whether:
the notice is proper,
the dispute is within the scope of the arbitration
agreement or is arbitrable,
the claimant is a party to the agreement or a juridical
person
the notice is within time.
ANSWER TO NOTICE OF
ARBITRATION
The answer should contain the following:
ANSWER TO NOTICE
CONCLUSION
CAREFUL
ATTENTION TO
THE REQUIREMENTS FOR
COMMENCING AN
ARBITRAL PROCESS
SAVES TIME.
THANK
YOU
FOR YOUR
ATTENTION!!