Session 1.

B and 2

International Arbitration Procedure from the
Commencement of Arbitration to the Award

Maria L. Rubert
Ndanga Kamau
Leyou Tameru

Addis Ababa, June 17, 2013
June 17, 2013
I. Introduction
I. Introduction: Where do we Start?
II. From the Arising of the Conflict to the Filing of the Request
I. Pre-Litigation Requirements
II. Arbitration Agreement: KISS Principle
III. Institutional vs. Ad Hoc Arbitration

III. From the Request to the Final Award
I. Request: A Comparison
II. Answer
III. Payment of Costs: the value of the institution and chart
comparison
IV. Flexibility/A typical arbitration
V. Default Proceedings
VI. Final Award: Importance of the Place of Arbitration
VII. Arbitration in Ethiopia





1
Introduction - Where do we start?
Key Elements, Flexibility and the Importance of Appointment of Arbitrators
Arbitration Clause:
Pre-litigation requirements?
Institutional?
Where? In which country? In which language?
What do I include in my Request for Arbitration?
Flexibility
Pre-dispute in drafting of arbitration clause; and
Upon the dispute by the Parties and in absence of Parties agreement
large discretion of the Tribunal subject to due process and equality of the
Parties.
Article 22.2 ICC In order to ensure effective case management, the
arbitral tribunal, after consulting the parties, may adopt such
procedural measures as it considers appropriate, provided that they
are not contrary to any agreement of the parties.
Introduction
2
Introduction - Where do we start?
16.1 SIAC The Tribunal shall conduct the arbitration in such manner as it considers
appropriate, after consulting with the parties, to ensure the fair, expeditious,
economical and final determination of the dispute.

17 DIAC
17.1 The proceedings before the Tribunal shall be governed by these Rules and, where
these Rules are silent, by any rules which the parties or, failing them, the Tribunal
may determine.
17.2 In all cases, the Tribunal shall act fairly and impartially and ensure that each party
is given a full opportunity to present its case.

17 UNCITRAL
Subject to these Rules, the arbitral tribunal may conduct the arbitration in such
manner as it considers appropriate, provided that the parties are treated with
equality and that at an appropriate stage of the proceedings each party is given a
reasonable opportunity of presenting its case. The arbitral tribunal, in exercising
its discretion, shall conduct the proceedings so as to avoid unnecessary delay and
expense and to provide a fair and efficient process for resolving the parties
dispute.


Introduction
3
The Constitution of the Arbitral Tribunal
Appointment of Arbitrators:

- Appointment Methods:
- 1 vs. 3 member tribunals: Better for the Parties to agree on Sole Arbitrator or to be chosen
by the institution?
- 3 member tribunal: each party appoints its co-arbitrator.
- Only requirement in choice of arbitrator (unless otherwise specified in arbitration clause or
rules): arbitrator must be independent of the parties and impartial. If not independent and
impartial, arbitrator can be challenged and removed.
- Multiple Parties Appointments.

- Appointment of their co-arbitrator is probably the most important the parties make in an
arbitration with choice of place of arbitration Importance at the preliminary phase of the
proceedings.

- Arbitrations are as good as their arbitrators
- Award Drafters;
- Influence on conduct and/or style. Ex: retired London judge vs. relatively young civil lawyer.





Introduction
4
The Constitution of the Arbitral Tribunal
Criteria in Selecting an Arbitrator:

Someone who is independent and impartial, but because of his profile, incl. background
and experience in similar cases, is likely to be predisposed to your case theory = a subtle
balance.
familiarity with languages relevant to the dispute
familiarity with governing law
familiarity with technical areas relevant to the dispute
experience as arbitrator seating in similar arbitrations
reputation, to command respect
expectations as to remunerations
availability
procedural approach
relationship with counsel on each side
residence
no conflict of interest
How to conduct due diligence on a candidate: word-of-mouth; check publicly available
sources of information (no database, but check their publications, awards available
publically); in large cases, interview candidates.




Introduction
5
From the Arising of the Conflict to the Filing of the Request
I. Pre-Litigation Requirements

10.1 In the event of any disputes or differences arising out of or in connection
with this Agreement, including any question regarding its existence,
validity or termination, the Parties shall use their best endeavors to settle
such disputes or differences. To this effect they shall consult and
negotiate with each other, in good faith and with understanding of their
mutual interests to reach a just and equitable solution satisfactory to
both Parties. If they do not reach such solution within a period of fifteen
(15) calendar days, then the dispute or difference shall be finally settled
by arbitration in accordance with the Rules of Commercial Conciliation
and Arbitration of the Dubai International Arbitration Center
(DIAC). []

6
II. Arbitration Agreement: KISS Principle
GOOD

Any dispute arising out of the formation, performance, interpretation, nullification,
termination or invalidation of this contract or arising therefrom or related thereto in any
manner whatsoever, shall be settled by arbitration in accordance with the provisions set
forth under the DIAC Arbitration Rules (the Rules), by one or more arbitrators appointed in
compliance with the Rules.

BAD

(1) Any dispute or controversy arising out of this contract shall be settled by arbitration
according to the ICC Rules of Arbitration. The seat of the arbitration shall be: (i) in case
a payment obligation is in dispute, Paris, France; (ii) in case of a breach of contract,
Zurich, Switzerland; (iii) in case of contract interpretation, Berlin, Germany.

(2) All disputes arising out of or in connection with this contract shall be decided by an
umpire. The umpire shall be a national of Switzerland who is fluent in English and
Spanish, with an engineering degree, substantial experience as an international
arbitrator, and at least 20 years experience as an executive of an international energy
company.

From the Arising of the Conflict to the Filing of the Request 7
III. Institutional vs. Ad Hoc Arbitration
Functions of the Arbitral Institution:

Collecting payment by parties to arbitrators; and
Appointment of Tribunal
Decide on challenges to arbitrators
Support arbitrators
Scrutinize awards (ICC, SIAC)

UNCITRAL RULES Appointing authority is the PCA.

PURELY AD HOC

Pros and Cons **Save in a limited number of instances, institutional arbitration
is worth its administrative cost.

From the Arising of the Conflict to the Filing of the Request
8
III. From the Request to the Final Award

I. Request: A Comparison
II. Answer
III. Payment of Costs: the value of the institution and chart
comparison
IV. Flexibility/A typical arbitration
V. Particularities: Emergency Arbitrator/Interim Measures
VI. Default Proceedings
VII. Final Award: Importance of the Place of Arbitration
VIII. Arbitration in Ethiopia

9
I. Request: A Comparison

International Chamber of Commerce (ICC)

1. A party wishing to have recourse to arbitration under the Rules shall submit its Request for Arbitration (the
Request) to the Secretariat at any of the offices specified in the Internal Rules. The Secretariat shall notify
the claimant and respondent of the receipt of the Request and the date of such receipt.

2. The date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the
date of the commencement of the arbitration.

3. The Request shall contain the following information:
a) the name in full, description, address and other contact details of each of the parties;
b) the name in full, address and other contact details of any person(s) representing the claimant in the
arbitration;
c) a description of the nature and circumstances of the dispute giving rise to the claims and of the basis
upon which the claims are made;
d) a statement of the relief sought, together with the amounts of any quantified claims and, to the extent
possible, an estimate of the monetary value of any other claims;
e) any relevant agreements and, in particular, the arbitration agreement(s);
f) where claims are made under more than one arbitration agreement, an indication of the
arbitration agreement under which each claim is made;
g) all relevant particulars and any observations or proposals concerning the number of arbitrators and
their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an
arbitrator required thereby; and
h) all relevant particulars and any observations or proposals as to the place of the arbitration, the
applicable rules of law and the language of the arbitration.

From the Request to the Final Award

10
I. Request: A Comparison

International Chamber of Commerce (ICC)

The claimant may submit such other documents or information with the Request as it
considers appropriate or as may contribute to the efficient resolution of the dispute.

4. Together with the Request, the claimant shall:

a) submit the number of copies thereof required by Article 3(1); and
b) make payment of the filing fee required by Appendix III (Arbitration Costs and
Fees) in force on the date the Request is submitted.

In the event that the claimant fails to comply with either of these requirements, the
Secretariat may fix a time limit within which the claimant must comply, failing which the
file shall be closed without prejudice to the claimants right to submit the same claims at a
later date in another Request.

5. The Secretariat shall transmit a copy of the Request and the documents annexed
thereto to the respondent for its Answer to the Request once the Secretariat has
sufficient copies of the Request and the required filing fee.


From the Request to the Final Award

11
I. Request: A Comparison

Singapore International Arbitration Centre (SIAC):

A party wishing to commence an arbitration (the "Claimant") shall file
with the Registrar a Notice of Arbitration which shall comprise:
a. a demand that the dispute be referred to arbitration;
b. the names, addresses, telephone number(s), facsimile number(s)
and electronic mail address(es), if known, of the parties to the
arbitration and their representatives, if any;
c. a reference to the arbitration clause or the separate arbitration
agreement that is invoked and a copy of it;
d. a reference to the contract out of or in relation to which the
dispute arises and where possible, a copy of it;
e. a brief statement describing the nature and circumstances of the
dispute, specifying the relief claimed and, where possible, an
initial quantification of the claim amount;

From the Request to the Final Award

12
I. Request: A Comparison (II)

Dubai International Arbitration Centre (DIAC)

4.1 Any party wishing to commence an arbitration under the DIAC Rules shall send to the Centre a
written request for arbitration ("the Request") which shall include
a. A demand that the dispute be referred to arbitration under the DIAC Rules;
b. The name in full, description and address, including telephone, fax number, email address and
other communication references of each of the parties to the arbitration and of the
representative of the Claimant;
c. A copy of the Arbitration Agreement invoked by the Claimant, together with a copy of the
contractual documentation in which the Arbitration Agreement is contained or in respect of
which the arbitration arises;
d. A brief description of the nature and circumstances of the dispute giving rise to the claim;
e. A preliminary statement of the relief sought and, to the extent possible, an indication of any
amount(s) claimed; and
f. All relevant particulars concerning the number of arbitrators and their choice in accordance with
Articles 8, 9, 10, 11, and 12, and if the Arbitration Agreement calls for party nomination of
arbitrators, the name, address, telephone and facsimile numbers and email address (if known)
of the Claimant's nominee.

4.2 The Request may also include:
a. The Statement of Claim referred to in Article 23;
b. A proposal as to the place of arbitration and the language of the arbitration; and
c. Any comments as to the applicable rules of law.



From the Request to the Final Award

13
I. Request: A Comparison (II)

2010 UNCITRAL

The party or parties initiating recourse to arbitration (hereinafter called the claimant) shall communicate to
the other party or parties (hereinafter called the respondent) a notice of arbitration.

2. Arbitral proceedings shall be deemed to commence on the date In which the notice of arbitration is
received by the respondent. The notice of arbitration shall include the following:
(a) A demand that the dispute be referred to arbitration;
(b) The names and contact details of the parties;
(c) Identification of the arbitration agreement that is invoked;
(d) Identification of any contract or other legal instrument out of or in relation to which the dispute
arises or, in the absence of such contract or instrument, a brief description of the relevant
relationship;
(e) A brief description of the claim and an indication of the amount involved, if any;
(f) The relief or remedy sought;
(g) A proposal as to the number of arbitrators, language and place of arbitration, if the parties have
not previously agreed thereon.
4. The notice of arbitration may also include:
(a) A proposal for the designation of an appointing authority referred to in article 6, paragraph 1;
(b) A Proposal for the appointment of a sole arbitrator referred to in article 8, paragraph 1;
(c) Notification of the appointment of an arbitrator referred to in article 9 or 10.

From the Request to the Final Award

14
II. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$100K

One Arbitrator Three Arbitrators



DIAC US $ 9,387 US $ 22,760
SIAC US $ 10,781 US $ 23,439
Swiss US $ 13,000 US $ 25,000
ICC US $ 15,425 US $ 35,544
From the Request to the Final Award

15
III. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$1 M

One Arbitrator Three Arbitrators



DIAC US $39,683 US $ 97,449
SIAC US $47,084 US $124,364
Swiss US $60,834 US $ 144,584
ICC US $61,094 US $139,851
From the Request to the Final Award

16
III. Payment of Costs: the value of the institution and chart comparison

Average fees + arbitral institution administrative costs in a claim for US$10 M

One Arbitrator Three Arbitrators



DIAC US $105,887 US $ 204,850
SIAC US $114,801 US $263,103
Swiss US $183,112 US $ 417,778
ICC US $170,799 US $397,366

From the Request to the Final Award

17
How can you control costs and time in Arbitration?
Arbitration Agreement:
Keeping clauses simple to avoid ambiguities, minimizing the risk to spend time and
sources on clarifying the arbitration clause;
Selection and Appointment of Arbitrators: 1 vs. 3 members tribunals; specifications
may delay tracking the right candidates;
Fast-Track/Expedited procedures: pros and cons. [Better to be agreed upon the
registration of the arbitration. **The SIAC Expedited Procedure can be applied if
requested by one party without the agreement of the other one;
Time-Limits for rendering the Final Award: pros and cons;

Once the dispute has arisen:
- Selection of Counsel with experience and time.
- Sole Arbitrator if appropriate given nature of case (with time and case-
management skills!)


From the Request to the Final Award

18
Request for
Arbitration
(Article 4)
Answer to Request
for Arbitration
(Article 5)
Payment of Costs /
Constitution
Arbitral Tribunal
(A. 12-13)
Transmission of File
Article 16 Rules

Parties Additional
Exchange of
Submissions
Statement of
Defense
Statement of Claim
Case Management
Conference
(timetable to be
agreed) A. 24
Hearing A. 26
Post Hearing
Submissions
Closing of
Proceedings (A. 27)
Final Award
Articles 30-35
30 days
?
?
Terms of
Reference
A. 23
Civil vs.
Common
IV. Flexibility/Typical ICC Arbitration (The Rules say)
2
months
?
When Award
to be made?
Request for
Arbitration
Answer to
Request and
Counterclaims
Extension for
Answer
Reply to
Counterclaims
Constitution of
the tribunal
Terms of
Reference
Memorial
Counter
Memorial
Response Rebuttal
Hearing of
Witness
Hearing on the
Merits
Awards
IV. Flexibility/Typical ICC Arbitration (Practice tells)
4 months
Preliminary Phase
9 months
Written Phase
4 months
Hearing Phase
6 months
Deliberation
Phase
30 days
120 days
700 days
510 days
390 days
Civil
Four rounds of submissions;
Limited or none;
Shorter hearings;
Witness Examination Tribunal
more active;
No document production or
limited;
Likely to accept hearsay and relax
on questioning;
Inclination toward Tribunal-
appointed experts;
Witness conferencing (Tribunals
lead).
Common
Three rounds of submissions;
More permissive;
Longer hearings;
Witness Examination by Counsel
Tribunal less active;
Permission of document production
requests;
Intervention to prevent leading
questions, etc.
Less inclined to tribunal-appointed
experts;
Less inclined to propose witness
conferencing (if so, Parties Counsel
to lead).
Civil vs. Common
IBA
RULES
ICC Article 23: Terms of Reference

1. As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence
of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall
include the following particulars:
a. the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party
in the arbitration;
b. the addresses to which notifications and communications arising in the course of the arbitration may be made;
c. a summary of the parties respective claims and of the relief sought by each party, together with the amounts of any quantified
claims and, to the extent possible, an estimate of the monetary value of any other claims;
d. unless the arbitral tribunal considers it inappropriate, a list of issues to be determined;
e. the names in full, address and other contact details of each of the arbitrators;
f. the place of the arbitration; and
g. particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal
to act as amiable compositeur or to decide ex aequo et bono.
2. The Terms of Reference shall be signed by the parties and the arbitral tribunal. Within two months of the date on which the file has
been transmitted to it, the arbitral tribunal shall transmit to the Court the Terms of Reference signed by it and by the parties. The
Court may extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is
necessary to do so.
3. If any of the parties refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to
the Court for approval. When the Terms of Reference have been signed in accordance with Article 23(2) or approved by the Court,
the arbitration shall proceed.
4. After the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the
limits of the Terms of Reference unless it has been authorized to do so by the arbitral tribunal, which shall consider the nature of
such new claims, the stage of the arbitration and other relevant circumstances.

Terms of Reference and Provisional Timetable
22
DIAC Article 22 + Article 216 of the UAE Code of Procedure

22 Within thirty days from the date of the transmission of the file to the Tribunal, as provided
in Article 18, the Tribunal shall, notify the parties of the date of a preliminary meeting
with them and the venue thereof. The Tribunal shall fix a timetable for the submission of
documents, statements and pleadings as hereinafter provided.

216 (a) If the award was issued without, or was based on invalid terms of reference or an
agreement which has expired by time prescription, or if the arbitrator has exceeded his
limits under the terms of reference.

UNCITRAL 17.2

As soon as practicable after its constitution and after inviting the parties to express their views,
the arbitral tribunal shall establish the provisional timetable of the arbitration. The arbitral
tribunal may, at any time, after inviting the parties to express their views, extend or abridge any
period of time prescribed under these Rules or agreed by the parties.

Terms of Reference and Provisional Timetable
23
V. Particularities: Emergency Arbitrator/Interim Measures

Emergency Arbitrator/Procedure

DIAC ARTICLE 29

A party that needs urgent interim or conservatory measures that cannot await the constitution of an
arbitral tribunal (Emergency Measures) may make an application for such measures pursuant to the
Emergency Arbitrator Rules in Appendix V. Any such application shall be accepted only if it is received
by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and
irrespective of whether the party making the application has already submitted its Request for
Arbitration.

The emergency arbitrators decision shall take the form of an order. The parties undertake to comply
with any order made by the emergency arbitrator.
The emergency arbitrators order shall not bind the arbitral tribunal with respect to any question, issue
or dispute determined in the order. The arbitral tribunal may modify, terminate or annual the order or
any modification thereto made by the emergency arbitrator.

The arbitral tribunal shall decide upon any partys requests or claims related to the emergency
arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims
arising out of or in connection with the compliance or non-compliance with the order.




From the Request to the Final Award

24
V. Particularities: Emergency Arbitrator/Interim Measures

Emergency Arbitrator/Procedure

DIAC ARTICLE 29
Article 29(1)-29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the Emergency
Arbitrator Provisions) shall apply only to parties that are either signatories of the arbitration agreement
under the Rules that is relied upon for the application or successors to such signatories.

The Emergency Arbitrator Provisions shall not apply if:

the arbitration agreement under the Rules was concluded before the date on which the Rules came into force;
the parties have agreed to opt out of the Emergency Arbitrator Provisions; or
the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory
interim or similar measures.

The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or
conservatory measures from a competent judicial authority at any time prior to making an application for such
measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Any application for such
measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the
arbitration agreement. Any such applications and any measures taken by the judicial authority must be
notified without delay to the Secretariat.



From the Request to the Final Award

25
SIAC Article 5 Expedited Procedure

5.1 Prior to the full constitution of the Tribunal, a party may apply to the Centre in writing for the arbitral
proceedings to be conducted in accordance with the Expedited Procedure under this Rule where any of the
following criteria is satisfied:
the amount in dispute does not exceed the equivalent amount of S$5,000,000, representing the aggregate
of the claim, counterclaim and any setoff defence;
the parties so agree; or
in cases of exceptional urgency.

5.2 When a party has applied to the Centre under Rule 5.1, and when the Chairman determines, after considering
the views of the parties, that the arbitral proceedings shall be conducted in accordance with the Expedited
Procedure, the following procedures shall apply:

The Registrar may shorten any time limits under these Rules;

The case shall be referred to a sole arbitrator, unless the Chairman determines otherwise;
Unless the parties agree that the dispute shall be decided on the basis of documentary evidence only, the Tribunal
shall hold a hearing for the examination of all witnesses and expert witnesses as well as for any argument;
The award shall be made within six months from the date when the Tribunal is constituted unless, in exceptional
circumstances, the Registrar extends the time; and
The Tribunal shall state the reasons upon which the award is based in summary form, unless the parties have agreed
that no reasons are to be given.

V. Particularities: Emergency Arbitrator/Interim Measures
From the Request to the Final Award

26
V. Particularities: Emergency Arbitrator/Interim Measures
ICC Arbitration Rules Article 28

Conservatory and Interim Measures
1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the
arbitral tribunal may, at the request of a party, order any interim or conservatory measure it
deems appropriate. The arbitral tribunal may make the granting of any such measure subject
to appropriate security being furnished by the requesting party. Any such measure shall take
the form of an order, giving reasons, or of an award, as the arbitral tribunal considers
appropriate.

2. Before the file is transmitted to the arbitral tribunal, and in appropriate circumstances even
thereafter, the parties may apply to any competent judicial authority for interim or
conservatory measures. The application of a party to a judicial authority for such measures or
for the implementation of any such measures ordered by an arbitral tribunal shall not be
deemed to be an infringement or a waiver of the arbitration agreement and shall not affect
the relevant powers reserved to the arbitral tribunal.

Any such application and any measures taken by the judicial authority must be notified without delay
to the Secretariat. The Secretariat shall inform the arbitral tribunal thereof.
From the Request to the Final Award

27
V. Particularities: Emergency Arbitrator/Interim Measures
DIAC Article 31

Interim and Conservatory Measures of Protection

31.1 Subject to any mandatory rules of the applicable law, at the request of a party, the Tribunal may
issue any provisional orders or take other interim or conservatory measures it deems necessary,
including injunctions and measures for the conservation of goods which form part of the subject
matter in dispute, such as an order for their deposit with a third person or for the sale of
perishable goods. The Tribunal may make the granting of such measures subject to appropriate
security being furnished by the requesting party.

31.2 Measures and orders contemplated under this Article may take the form of an interim or
provisional award.

31.3 A request addressed by a party to a competent judicial authority for interim or conservatory
measures, or for security for the claim or counter-claim, or for the implementation of any such
measures or orders granted by the Tribunal, shall not be deemed incompatible with, or a waiver
of, the Arbitration Agreement.

31.4 Any such request and any measures taken by the competent judicial authority must be notified
without delay to the Centre by the party making such a request or seeking such measures. The
Centre shall inform the Tribunal thereof.


From the Request to the Final Award

28
V. Particularities: Emergency Arbitrator/Interim Measures
SIAC Article 26

26.1 The Tribunal may, at the request of a party, issue an order or an award granting an
injunction or any interim relief it deems appropriate. The Tribunal may order the
party requesting interim relief to provide appropriate security in connection with the
relief sought.

26.2 A party in need of emergency interim prior to the constitution of the Tribunal may
apply for such relief pursuant to the procedures set forth in Schedule 1.

26.3 A request for interim relief made by a party to a judicial authority prior to the
constitution of the Tribunal, or in exceptional circumstances thereafter, is not
incompatible with these Rules.



From the Request to the Final Award

29
V. Particularities: Emergency Arbitrator/Interim Measures

UNCITRAL Arbitration Rules Article 26

1. The arbitral tribunal may, at the request of a party, grant interim measures.

2. An interim measure is any temporary measure by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal
orders a party, for example and without limitation, to:

a. Maintain or restore the status quo pending determination of the dispute;

b. Take action that would prevent, or refrain from taking action that is likely to
cause, (i) current or imminent harm or (ii) prejudice to the arbitral process
itself;

c. Provide a means of preserving assets out of which a subsequent award
may be satisfied; or

d. Preserve evidence that may be relevant and material to the resolution of
the dispute.



From the Request to the Final Award

30
V. Particularities: Emergency Arbitrator/Interim Measures

UNCITRAL Arbitration Rules Article 26

3. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy
the arbitral tribunal that:

a. Harm not adequately reparable by an award of damages is likely to result if
the measure is not ordered, and such harm substantially outweighs the harm that
is likely to result to the party against whom the measure is directed if the
measure is granted; and

b. There is a reasonable possibility that the requesting party will succeed on
the merits of the claim. The determination on this possibility shall not affect
the discretion of the arbitral tribunal in making any subsequent
determination.

4. With regard to a request for an interim measure under paragraph 2 (d), the
requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral
tribunal considers appropriate.



From the Request to the Final Award

31
V. Particularities: Emergency Arbitrator/Interim Measures

UNCITRAL Arbitration Rules Article 26

5. The arbitral tribunal may modify, suspend or terminate an interim measure it has
granted, upon application of any party, or in exceptional circumstances and upon
prior notice to the parties, on the arbitral tribunals own initiative.

6. The arbitral tribunal may require the party requesting an interim measure to provide
appropriate security in connection with the measure.

7. The arbitral tribunal may require any party promptly to disclose promptly any
material change in the circumstances on the basis of which the interim measure was
requested or granted.

8. The party requesting an interim measure may be liable for any costs and damages
caused by the measure to any party if the arbitral tribunal later determines that, in
the circumstances then prevailing, the measure should not have been granted. The
arbitral tribunal may award such costs and damages at any point during the
proceedings.





From the Request to the Final Award

32
V. Particularities: Emergency Arbitrator/Interim Measures

UNCITRAL Arbitration Rules Article 26

9. A request for interim measures addressed by any party to a judicial authority shall
not be deemed incompatible with the agreement to arbitrate, or as a waiver of that
agreement.





From the Request to the Final Award

33
VI. Default Proceedings

Most institutions expressly allow the continuation of the proceedings in the event a party
fails to appear:

ICC 6.8 if any of the Parties refuses of fails to take part in the arbitration or any stage thereof, the
arbitration shall proceed notwithstanding such refusal or failure.
DIAC 32.3 The Tribunal may also proceed with the arbitration and make the award if a party, without
showing good cause, fails to avail itself of the opportunity to present its case within the period of time
determined by the Tribunal.

UNCITRAL
30.1 If, within the period of time fixed by these Rules or the arbitral tribunal, without showing
sufficient cause:

(a) The Claimant has failed to communicate its statement of claim, the arbitral tribunal shall issue
an order for the termination of the arbitral proceedings, unless there are remaining matters
that may need to be decided and the arbitral tribunal considers it appropriate to do so;

(b) The Respondent has failed to communicate its response to the notice of arbitration or its
statement of defence, the arbitral tribunal shall order that the proceedings continue,
without treating such failure in itself as an admission of the claimants allegations; the
provisions of this subparagraph also apply to a claimants failure to submit a defence to a
counterclaim or to a claim for the purpose of a set-off.



From the Request to the Final Award

34
VI. Default Proceedings

UNCITRAL

30.2 If a party, duly notified under these Rules, fails to appear at a hearing,
without showing good cause for such failure, the arbitral tribunal may
proceed with the arbitration.
30.3 If a party, duly invited by the arbitral tribunal to produce documents,
exhibits or other evidence, fails to do so within the established period
of time, without showing sufficient cause for such failure, the arbitral
tribunal may make the award on the evidence before it.

Need to document and provide reasonable periods and timings.

Article 5 (b) of the NY Convention:

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


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35
VII. Final Award: Importance of the Place of Arbitration

ICC (Article 31)

1. When the arbitral tribunal is composed of more than one arbitrator, an award is
made by a majority decision. If there is no majority, the award shall be made by the
president of the arbitral tribunal alone.
2. The award shall state the reasons upon which it is based.
3. The award shall be deemed to be made at the place of the arbitration and on the date
stated therein.

SIAC (Article 5.2 d)

The Tribunal shall state the reasons upon which the award is based in summary form,
unless the parties have agreed that no reasons are to be given.

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36
VII. Final Award: Importance of the Place of Arbitration


DIAC (Article 37.4 to 37.7):

37.4 The award shall state the date on which it was made, as well as the seat of arbitration.

37.5 The award shall state the reasons on which it is based, unless the parties have agreed
that no reasons should be stated and the law applicable to the arbitration does not require
the statement of such reasons.

37.6 The award shall be signed by the Tribunal. The signature of the award by a majority of
the arbitrators, or, in the case of paragraph (3), second sentence, by the Chairman, shall be
sufficient. Where there is more than one arbitrator and one of them fails to sign without
valid cause, the award shall state the reason for the absence of the signature.

37.7 If any arbitrator fails to comply with the mandatory provisions of any applicable law
relating to the making of the award, having been given a reasonable opportunity to do so,
the remaining arbitrators may proceed in his absence and state in their award the
circumstances of the other arbitrator's failure to participate in the making of the award.


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37
VII. Final Award: Importance of the Place of Arbitration


2010 UNCITRAL (Article 34)

1. The arbitral tribunal may make separate awards on different issues at different times.
2. All awards shall be made in writing and shall be final and binding on the parties. The parties
shall carry out all awards without delay.
3. The arbitral tribunal shall state the reasons upon which the award is based, unless the
parties have agreed that no reasons are to be given.
4. An award shall be signed by the arbitrators and it shall contain the date on which the award
was made and indicate the place of arbitration. Where there is more than one arbitrator
and any of them fails to sign, the award shall state the reason for the absence of the
signature.
5. An award may be made public with the consent of all parties or where and to the extent
disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation
to legal proceedings before a court or other competent authority.
6. Copies of the award signed by the arbitrators shall be communicated to the parties by the
arbitral tribunal.
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38
VIII. Arbitration in Ethiopia
Arbitral Process Appointment of Arbitrators

Ethiopian law recognizes party freedom and equality in appointing
arbitrators (Art 3331 Civil Code)
Default rule in Civil Code is 30 days to appoint arbitrator, otherwise court
appoints upon request (Art 3334(1) Civil Code)
Form requirements: Art 3326(2) Civil Code (i) written, (ii) signed by the
parties, (iii) witnessed
Default rule is two arbitrators (Art 3331(3) Civil Code)
Presiding arbitrator where there is an even number, parties appoint
presiding arbitrator (Art 3332 Civil Code)

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Arbitral Process Challenge and Disqualification

Challenge arbitrator (Art 3340)
An unsuccessful challenge can be appealed to a court (Art3342(3) Civil Code)

Arbitral Process Severability and Kompetenz-Kompetenz
Tribunals may not decide the validity of an arbitral agreement






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40
Contact Information
Maria L. Rubert
Cramer-Salamian LLP
PO Box 186549
Dubai, United Arab Emirates
Tel: +971 4 227 74 27
Email: rubert@cramer-salamian.com

Ndanga Kamau
King & Spalding LLP
1100 Louisiana Street, Suite 4000
Houston, TX 77002, USA
NKamau@KSLAW.com

Leyou Tameru
Leyou.tameru@gmail.com