Arbitration Rules for Conduct of Arbitrations by Peter Annis
No Copyright is Claimed on These Rules
NOTE: The parties have the option of applying these Rules or the ADRIC rules. In any event these Rules do not apply to a three-panel arbitration. In essence the Rules are intended to particularize the procedural expectations and commitments that parties should consider in agreeing to go forward with any arbitration.
Regardless of the source of accepted rules, they apply as modified by the parties and are based on the understanding that the parties will retain Peter Annis [hereafter ‘the Tribunal’] as a single arbitrator to conduct their Arbitration, urgent interim Arbitration, or Med/Arb in accordance with an Arbitration agreement, including as the parties and Tribunal have agreed to vary, or if no written agreement, voluntarily submit to Arbitration.
Article 1 – Scope of Application
- As the parties have agreed that the Tribunal shall decide disputes between them as an arbitrator, such disputes shall be determined in accordance with the Tribunal Rules (the ‘Rules’ or ‘Tribunal’s Rules’), as varied or limited by the parties’ Arbitration Agreement, and other modifications that the parties and Tribunal agree on.
- The Rules are intended to convey much of the substance of the Uncitral Arbitration Rules and the Arbitration Rules of the ADR Institute of Canada, Inc. [ADRIC], and are often guided by the Ontario Rules of Civil Procedure, RRO 1990, Reg 194 where indicated or appropriate, and conducted in a quasi-judicial environment, with counsel being present or past members of a Canadian Law Society, representing the parties and pleading in English, French or bilingually.
- The Tribunal Rules are subject to limitations enumerated at subsection 3.1 of the Arbitration Act, 1991, SO 1991, c 17 [”the Act”], (equality and fairness of arbitration), (extension of time limits for awards), (setting aside awards on various grounds), (declaration of invalidity of arbitration) and (enforcement of award).
- The purpose of the Rules and the Tribunal’s role is to enable parties to reach a just, timely, and cost-effective determination of their disputes with some degree of privacy as agreed on. This recognizes features that distinguish arbitration from proceedings in the courts: particularly a normally limited right of appeal; the application of more flexible, limited, timely procedures; and less fulsome reasons supporting awards, all as is appropriate in the circumstances, the arbitration agreement and the direction of the parties and Tribunal.
Article 2 – Disputes, Extent and Confidentiality
- Prior to retaining the Tribunal, it is recommended that the parties should have recourse to non-binding, privileged discussions and good faith negotiation, preferably if time allows under the guidance of a mediator to resolve any dispute, controversy or claim arising out of or in any way connected with the Dispute. This recognizes that a reasonable settlement is nearly always the preferred outcome for so many reasons.
- Any such unsettled disputes, controversies or claims (a “Dispute”) before the Tribunal may be subject to determination pursuant to the Rules as finally applied in accordance with the agreement of the parties.
- The scope of the Arbitration proceeding and to which these Rules apply, shall be limited to that agreed on by the parties, which in most cases is subject to an Arbitration agreement, unless varied by them.
- Subject only to laws and exceptions to the contrary, the parties agree that the award and determination of the Arbitration shall be final and binding on all parties.
- Subject to the parties’ agreement, the Arbitration proceedings and award are private, the maintaining of which privacy shall be a condition of anyone participating in or observing the Arbitration proceedings, except when disclosure is legally required, or to a ‘person’ affected by the proceedings, and then only to the extent required and going forward, and in any case for the legitimate purpose of the disclosure.
Article 3 – Interim Arbitrator for Urgent Matters Before the Tribunal’s Appointment
- For the most part interim urgent matters occur prior to the appointment of the arbitrator but can be required when there is a challenge to an arbitrator. Given that the courts maintain a jurisdiction in such matters and are usually available on short notice to hear urgent motions, in many cases this is probably the more practical choice of forum.
- As the parties have agreed to appoint the Tribunal as a condition for going forward, should these Rules be applicable they cannot apply to urgent matters conducted by the Tribunal before the agreement on the arbitrator’s appointment, only after, and pursuant to the arbitration agreement. If in the other instance relating to an arbitrator challenge of the Tribunal where an interim urgent arbitrator might be necessary, [Articles 6, 7 and 8] describes steps ensuring the interim tribunal’s rapid appointment.
- Conversely, if the Tribunal is appointed as an interim arbitrator prior to the appointment of an ‘Agreement administrator, to uphold an arbitration agreement, the first and most important step for the party or parties in either case, is to communicate with the Tribunal as quickly as possible. Urgent procedures tend to vary wildly and evolve rapidly, requiring equally timely responses to limit and stay ahead of them. If retained as an interim arbitrator, the Tribunal will work with the party or parties on an expedited basis to establish the earliest timetable and most appropriate procedure to resolve an urgent interim dispute, ultimately with recourse to an interim award if required.
- If the parties agree, the Tribunal as the interim urgent arbitrator may engage in some form of preliminary process mediation (as opposed to a more substantively driven mediation) that if not settled provides a rapid means to present facts and issues to decide an urgent dispute more expeditiously.
Article 4 – Notice of Arbitration
- The party or parties initiating recourse to Arbitration (the “applicant”) shall provide the other party or parties (the “respondent[s]”) with a written notice of Arbitration.
- Arbitral proceedings commence on the date on which the notice of Arbitration is received by the respondent.
- The notice of Arbitration naming the Tribunal as the arbitrator should normally comprise the following (preferably in electronic copyable PDF format):
- A demand signed by all the parties that the dispute be referred to Tribunal for the purposes of an Arbitration of the dispute in accordance with the Rules as agreed on by the parties and the Tribunal
- Copies of any applicable Arbitration agreement, contract clauses or documents referencing an agreement to arbitrate.
- The names and complete coordinates of the parties and representatives which may be used for communications and service of documents.
- A brief explanation and description of the remedies being sought and the nature of the dispute, any monetary claims, or other contentious tangible or intangible subjects of dispute.
- Copies of documents that are singularly relevant to the dispute.
- The agreed qualifications of the Arbitrator.
- The proposed or agreed language of the Arbitration and place or mode of hearing;
- Any variations of these rules or agreements regarding issues or choices of proceeding set out in the matters to be discussed in the initial meeting, or elsewhere in the Rules.
- Any preferred or required timetable for the start and completion of the Arbitration after the initial meeting, normally not to exceed 30 days after the hearing is completed or declared not required.
- Any other matter or issue that the parties wish to bring to the Tribunal’s attention.
Article 5 – Pleas as to the Jurisdiction of the Tribuna
- A plea that the arbitral tribunal does not have jurisdiction on any issue shall be raised no later than in the statement of defence or, with respect to a counterclaim, in the reply to the counterclaim. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of an arbitrator. A plea that the Tribunal is exceeding the scope of its authority shall be raised as reasonably soon or shortly thereafter as the matter alleged to be beyond the scope of its authority is recognized, failing which party may be considered to have waived the objection. The Tribunal may, in either case, admit a later plea if it considers the delay justified.
- The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the Tribunal that the contract is null shall not entail automatically the invalidity of the Arbitration clause.
Article 6 – Grounds to Challenge the Arbitrator’s Fitness to Presid
- The Tribunal shall at any time before and during the Arbitration without delay disclose any circumstances that could reasonably raise an apprehension of the Tribunal’s lack of impartiality or independence.
- The Tribunal may be challenged only if circumstances exist that give rise to justifiable doubts of impartiality or independence, or if the Tribunal does not possess the qualifications agreed to by the parties and Tribunal.
Article 7 – Challenge Procedure
- If the parties have not agreed on a procedure for challenging the arbitrator, a party who intends to challenge the Tribunal shall, within fifteen days after the appointment of the Tribunal, or after becoming aware of any circumstances referred to in Article 6-2, send a written statement of the reasons for the challenge to the Tribunal and other parties. A party’s involvement in appointing the Tribunal does not prevent it from challenging the arbitrator, unless amounting to waiver.
- Unless the other party agrees to the challenge, in which case the Tribunal must withdraw, the Tribunal shall decide on the challenge within 15 days after hearing any submissions regarding the challenge. If the challenge is not successful, the challenging party may, within thirty days after having received notice of the decision rejecting the challenge, request the appropriate Superior Court or other authority agreed to by the parties and arbitrator, to review the unsuccessful decision. The review decision is not appealable. While such an appeal is pending, the Tribunal may continue the arbitral proceedings and make an award if time is of the essence.
- The Tribunal’s withdrawal from the Arbitration after a challenge, whether required or not, does not imply acceptance of the validity of the grounds for the challenge.
Article 8 – Substitution of an Arbitrator
- Where the Tribunal’s office becomes vacant, a substitute arbitrator shall be appointed pursuant to any procedure in the Arbitration agreement or agreed upon by the parties.
- Otherwise, a party may apply to the Ontario Superior Court of Justice pursuant to paragraphs 16(2) & (3)(a) of the Arbitration Act, 1991 for the appointment of a substitute arbitrator and for the Court to remain seized of the application to give directions about the conduct of the Arbitration until the substitute arbitrator is appointed and able to proceed with the Arbitration.
- As a further alternative to paragraph 2, the following procedure may be adopted for the appointment of a substitute arbitrator:
- Within 14 days of the termination of the Tribunal’s mandate, or any additional time agreed to, the parties shall attempt to jointly appoint a substitute arbitrator, or agree on a ‘deciding appointing authourity’, who will assist the parties agree on a substitute arbitrator, and if not successful after 7 days from appointment, shall designate the substitute arbitrator from the parties choices and who has previously agreed to act in that capacity, if appointed.
- If the parties are unable to agree pursuant to subparagraph (a), either party on giving notice may request that a substitute arbitrator be designated by the ADR Institute of Canada Inc., or any similar reputable Canadian ADR association. The Arbitration association, once engaged may give any binding direction or take any necessary interim procedure until the substitute arbitrator is appointed.
- If the parties are unable to agree pursuant to subparagraph (a), either party on giving notice may request that a substitute arbitrator be designated by the ADR Institute of Canada Inc., or any similar reputable Canadian ADR association. The arbitration association, once engaged may give any binding direction or take any necessary interim procedure until the substitute arbitrator is appointed.
- Upon appointment, the substitute arbitrator should resume the proceedings at the stage, where the Tribunal left off and in accordance with the previous Tribunal’s procedures, unless the parties and substitute arbitrator otherwise agree.
Article 9 – Exclusion of Liability
- Save for intentional wrongdoing, the parties waive to the fullest extent permitted under the applicable law, any claim against the Tribunal and any person appointed by the Tribunal based on any act or omission in connection with the Arbitration.
Article 10 – Communications between the Tribunal and Parties
- Except as provided in section 2 below, the Tribunal shall not communicate with any party to the dispute except in the presence of other party.
- The Tribunal may communicate with the parties separately for the purpose of establishing the procedure to be followed or setting the time of a meeting; other exceptions to the general rule shall only be made with the consent in writing of all parties. If a communication by the Tribunal is to one party is in writing, a copy shall be sent to the other party.
- Where either party sends any written communication to the Tribunal, that party shall deliver a copy of such communication to the other party.
- PAny communication that is required or permitted to be given to the Tribunal or either party shall be in writing and shall be delivered, preferably by email unless otherwise authourized and requesting an immediate acknowledgement of receipt, or other means agreed to by the Tribunal.
Article 11 – Notice & Time
- A notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission. Transmission by email is preferred unless otherwise authourized and requesting an acknowledgement of receipt.
- If after reasonable efforts, delivery cannot be effected in accordance with paragraph 1, a notice is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.
- For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period. The Tribunal shall finally resolve any dispute regarding adherence to time periods, including extensions where appropriate.
- The Tribunal may extend or abridge a period of time required in these rules or fixed or determined by itself, where it considers it to be appropriate to do so.
Article 12 – Preliminary Meeting
Unless the parties to the arbitration and the Tribunal otherwise agree, or agreement has already been achieved, the parties shall meet with the within one week of the Tribunal’s appointment:- to confirm the qualifications of the Tribunal to preside the Arbitration;
- to settle the location of the proceedings and the responsibilities for arrangement;
- to present the issues to be resolved by means of the Arbitration;
- to estimate the length of time the hearing might take and the number of witnesses likely to be produced;
- to determine any special logistical and related issues in undertaking the Arbitration, i.e. the personal or virtual components of meetings, hearings, and communications, evidence and exchange of expert witness reports, document and exhibit handling procedures preferred by the parties, the ‘record’, language, transcripts, special needs, etc.
- to review the Tribunal’s jurisdiction to consider and make interlocutory or procedural orders during the Arbitration as described in the Rules, including without limitation unless specified, authority to:
- determine any question of law or equity arising in or with respect to within the Arbitration;
- determine any question of fact or mixed fact and law;
- agree on a simplified procedure generally in accordance with the Ontario Rules of Civil Procedure;
- order particulars of facts, production of documents that are not privileged and that are in the possession, control, or power of a Party;
- give directions for, or order, the preparation and disclosure of lists of Documents for inspection or otherwise;
- give directions, or rule upon, refusals or objections arising from oral discovery;
- make orders regarding confidentiality or other conditions regarding any Document or class of Documents or other information produced or exchanged within the Arbitration;
- give directions to control the proceedings, including setting time limits, and limiting the number of witnesses, including conditions governing expert witness evidence and exchanges of reports, that a Party may call, where it is just under the circumstances;
- determine the order and the way any witnesses shall be examined;
- to interpret Procedural Orders issued, provide directions to enforce Procedural Orders or rule on the consequences of a failure to comply with Procedural Orders;
- to interpret the Parties’ agreements, including any dispute resolution provision, and the Arbitration Act;
- to appoint an interim arbitrator if one is required;
- to proceed by default or summary judgment;
- to determine any other matters pertinent to the conduct of the Arbitration, and determine appropriate procedures generally in accordance with those routinely used in civil proceedings under the Ontario Rules of Civil Procedure;
- confirm the Tribunal’s fees, payment schedule, including findings of default if fees and disbursements are not paid, and
- otherwise raised by the parties.
- to establish an adaptable and continuing joint schedule of procedures and responsibilities of the parties and Tribunal attaching to the Arbitration. This schedule should serve as an on-going procedural completion target as the Arbitration unfolds up to the completion of the Arbitration. It should reflect the parties’ reasonable expectations and the Tribunal’s commitment to deliver a sufficiently reasoned award in a timely and cost-effective process.
Article 13 – Place of Arbitration
If the parties and the Tribunal have not previously agreed on the place of Arbitration or for meetings, the place of Arbitration shall be determined by the Tribunal having regard to the circumstances of the case. The place of the hearing or meeting includes a virtual meeting, if the parties agree, or otherwise as the Tribunal decides is most appropriate. The award shall be deemed to have been made at the place of Arbitration, or if conducted virtually, at the Tribunal’s location unless agreed to be at another location by the parties.Article 14 – Language
Subject to an agreement by the parties, the Tribunal shall, promptly after its appointment, determine the language or languages to be used in all or some of the proceedings, including the requirement for translations and other issues related to language.Article 15 – Conduct of Arbitration
- Subject to these Rules, the Tribunal may conduct the Arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and impartiality and so long as that at an appropriate stage of the proceedings the parties are given a reasonable opportunity to present their case.
- The Tribunal shall conduct the proceedings so as to avoid unnecessary delay and expense subject to conducting a fair and efficient process for resolving the parties’ dispute.
- Subject to paragraph 4, the Tribunal will apply the standard onus, burden of proof of facts and be generally guided by court rules of evidence as in adversarial processes to determine the admissibility, relevance, materiality and weight of any evidence.
- The parties may agree that the Tribunal should adopt some form of the Amiable Composition rule, i.e. the power to seek an equitable resolution of their dispute, by setting aside or moderating, if necessary the standard rules which would otherwise be applicable, or the strict application of a contract. Procedurally, an appropriate application of the rule might be to agree that the Tribunal’s Amiable Composition power may extend to instances of a failure of a party to raise an issue, present or reply to evidence, or respond to a submission, which if not allowed may non-suit, or seriously depreciate the persuasive value of the party’s case.
Article 16 – Pleadings
- All pleadings and related official procedural documents, i.e. motions etc., addressed to the Tribunal shall:
- begin on the first page describing the following information: ‘Honourable Peter Annis Arbitral Tribunal’, Arbitration number (assigned by the Tribunal), description of the document (i.e., Statement of Claim}, the style of cause of the parties, and
- the contents of which should be described in numbered paragraphs and subparagraphs for each allegation, with titles where appropriate.
- terminate with the names of representatives, the document’s date of composition, and date of delivery if known (i.e. by email) to all the parties and the Tribunal.
Article 17 – Statement of Claim & Submissions
- The applicant shall communicate its statement of claim in writing to the respondent and to the Tribunal within 14 days after the initial meeting, or no later than a date fixed by the Tribunal.
- The statement of claim shall include the following:
- A statement of each material fact and their relevant particulars supporting the claim, (i.e., no ‘bare’ pleadings) with the relief or remedy sought; and
- A statement of the points in issue and submissions in support of its claim, including the applicable law with reference to the applicable facts.
Article 18 – Statement of Defence or Statement of Defence and Counterclaim
- The respondent shall communicate in writing its statement of defence, which may include a pleading of set-off, to the applicant and to the Tribunal within 14 days after the delivery of the statement of claim.
- The statement of defence shall reply to the statement of claim in general accordance with the requirements of Article 17.
- In addition, the defense pleading is bound by the following rules: it should include the admission of any fact or particular of a fact; the failure to deny a fact or particular constitutes an admission unless unaware of it which should be stated; a bare denial of a fact is insufficient if intending to plead a different version of a fact or particular; affirmative defenses that defeat a claim or might take applicant by surprise, or raise an issue not in the applicant’s pleadings must be pled; and the denial of an agreement is construed only as a denial of making the agreement where the facts from which the agreement may be implied.
- In its statement of defence, the respondent may include a counterclaim, in which case the same rules apply as to the statement of claim, but the title ‘Counterclaim’ should be included with the defense heading of the document and should be inserted immediately after the defence pleadings and before the pleadings of the counterclaim.
- If a joinder of other parties is permitted, the foregoing provisions should be applied as is appropriate.
Article 19 – Defence to Counterclaim and Reply to Defence and Reply Pleadings
The applicant may provide a reply to the defence and defence to a counterclaim within 10 days of receipt of the defence and counterclaim; the respondent may provide a reply to the defence to the counterclaim within a further 7 days of receipt of the defence to the counterclaim.Article 20 – Third Parties
The Tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitratio as a party provided such person is a party to the arbitration agreement (or the non-participating parties agree to be bound by the award), unless the Tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The Tribunal may make a single award or several awards in respect of all parties so involved in the Arbitration.Article 21 – Amendments to Pleadings
During the course of the arbitral proceedings, a party may amend its pleadings unless the Tribunal considers it inappropriate to allow such amendment having regard to its validity, the delay in making it, prejudice to other parties, or any other circumstance that cannot be compensated by costs.Article 22 – Production of All Documents Relied On
- Unless the parties agree on, or the Tribunal orders, the production of relevant documents pursuant to Article 24, they are required within 10 days after the delivery of replies or statements of defense, whichever is later, to deliver a list [the ‘List’] of all the documents available to it on which it relies along with electronic copies of the documents.
- The requirement to list and produce additional documents intended to be relied on is a continuing obligation until the completion of the arbitration. Documents not listed will not be entered into evidence in the arbitration without the permission of the Tribunal.
- Within 10 days after disclosure of the List, every document in the party’s List in paragraph 1 requested by a party shall be provided unless privilege is claimed of the document.
Article 23 – Production of All Relevant Documents
- “Relevant document” includes any hard (i.e. paper), visual, audible, analog, digital or other form of conveyance or manifestation of information being, or capable of being, rendered comprehensible (i.e., from a chatbot) by the Tribunal that is ‘relevant’ to any matter in the Arbitration, while a document is deemed to be “in a party’s power” if the party is entitled to obtain the document or a copy or reproduction of it and the party seeking the document is not so entitled.
- Within 10 days after the delivery of statements of defense or replies, whichever is later, a party must deliver to all the parties a list of all the documents relevant to any matter in issue in the Arbitration, not to be introduced during cross-examination that is or has been in the possession control or power of the party whether privilege is claimed.
- The requirement to list and produce additional relevant documents is a continuing obligation until the completion of the Arbitration. Documents not listed will not be entered into evidence in the Arbitration without the permission of the Tribunal.
- A lawyer representative of a party shall certify that explanations have been provided to the client concerning the necessity of making full disclosure of all relevant documents and what kinds of documents are likely to be relevant to the allegations made in pleadings.
- Within 10 days after disclosure of the List, every document in the party’s List in paragraph 1 requested by a party shall be provided unless privilege is claimed of the document.
Article 24 – Request to Produce Unlisted or Privileged Documents
- A party may deliver to any other party and the Tribunal a Request to Produce documents not on the Lists of Documents provided pursuant to Articles 22 or 23.
- The requesting party must sufficiently identify and justify a claim to produce documents that it affirms reasonably to believe exist that are not Listed, or if on the List, are not privileged, and which are not in the requesting party’s possession, custody or control, such that there is a prima facie basis meriting the Tribunal’s intervention to require their production.
- If the party to whom the request is made objects to producing requested documents, and concerns arise about the Tribunal having knowledge or reviewing the documents when seized with the determination of the Arbitration, after consulting with the parties, the parties may choose or the Tribunal may appoint an independent impartial person, bound to confidentiality, to review and rule on the contested Documents, which ruling is binding on the parties, and who will report only the conclusion and ruling to the extent that it is relevant to the Arbitration.
- Otherwise, the Tribunal will hear the parties and rule whether the requested Documents are required to be produced.
Article 25 – Pre-Hearing Examinations and Written Questions
A party may conduct a pre-hearing oral examination, or be required to answer written questions, including their use by the parties, only if the parties agree, or the Tribunal so allows after hearing submissions and subject to any stipulations the Tribunal may impose on the conduct of such examinations or written questions.Article 26 – Witnesses & Expert Witnesses
- A party may serve a person with a notice issued by the Tribunal, requiring the person to attend and give evidence at the Arbitration at the time and place named in the notice, with the limitation that no person shall be compelled to produce information, property or documents or to give evidence in an Arbitration that the person cannot be compelled to produce or give in a court proceeding.
- Unless the Tribunal orders otherwise, in-chief evidence of a witness should be in written form sworn to or affirmed, with the witness being available for cross-examination if requested by a party.
- Unless the parties otherwise agree, the introduction of expert evidence and the requirements regarding their testimony and reports should be in general compliance with Rules Rule 4.1 and Rule 53.03 of the Ontario Rules of Civil Procedure subject to timing requirements for report exchanges and other reasonable limitations or additions of conditions agreed upon by the parties or determined by the Tribunal.
Article 27 – Agreed Statement of Facts, Chronology of Events
- Where the parties and Tribunal agree, or where the Tribunal may require, the parties shall provide an agreed statement of undisputed and disputed facts and their particulars for the purpose of the Tribunal’s assistance.
- Similarly in appropriate circumstances after consultation with the parties, the Tribunal may require a common chronology of events starting with the claimant, the respondent indicating any additional events and those contested or claimed not properly described in the chronology.
Article 28 – Mediation
If the parties so request, the Tribunal will suspend the arbitration to allow for a mediation, which should normally be conducted by a mediator other than the Tribunal. If the parties request the Tribunal conduct the mediation, which is not recommended, it shall be on the understanding that its dispute resolution procedures will be limited to a process form of mediation to avoid any apprehension of the Tribunal compromising or appearing to compromise its ability to conduct the Arbitration impartially if the dispute is not settled.Article 29 – Settlement Offers
Settlement offers, or discussions specifically related to them, must not be communicated to the Tribunal, except jointly, or after the award regarding matters of costs or for other relevant permissible purposes.Article 30 – Deposits and Defaulting Payment
- Within 15 days of the Tribunal’s appointment or during an extended Arbitration, the parties may be required to provide reasonable deposits towards the anticipated arbitration costs. Unless otherwise indicated, deposits shall be paid in equal amounts.
- If failing to pay a deposit within 15 days of the Tribunal providing notice of late payment, the defaulting parties may be suspended from participating in, or considered to have withdrawn or abandoned the Arbitration.
- A non-defaulting party may pay any unpaid deposit in which case the Arbitration will continue and not deemed to have been abandoned or withdrawn.
- The Tribunal may continue without a defaulting party being present and may make an award based on the evidence before it, if satisfied it is not prevented from doing so contrary to the Arbitration agreement and rules, as agreed upon by the parties.
- Deposit amounts shall be paid to the Tribunal if it considers such payments reasonable and appropriate for invoiced fees and disbursements incurred, returning any amount of deposit remaining to the credit of a party in the final accounting.
- Any dispute concerning fees and disbursements may be pursued with respect to the relevant cost provisions of the Ontario Rules of Civil Procedure.
Article 31 – Party’s Failure to Act [pursuant to the Arbitration Act]
- Failure to submit statement of claim
- Applicant commenced Arbitration: If the applicant alone commenced the Arbitration, but fails to deliver a statement of claim within the period of time specified under Article 17 (statement of claim), unless the party offers a satisfactory explanation, the Tribunal may make an award dismissing the applicant’s claim.
- Jointly commenced Arbitration: When the Arbitration was commenced jointly by all the parties, if any party does not submit a statement of claim or defence and counterclaim pleadings within the period of time specified under Article 18 (statement of defence), unless the non-compliant party offers a satisfactory explanation, the Tribunal may continue the Arbitration, without treating the failure of the non-compliant party to submit the required pleading as an admission of another party’s allegations.
- Failure to produce evidence or appear Jointly commenced Arbitration: If the Arbitration was commenced jointly by all parties and any party fails to produce documentary evidence pursuant to Articles 22 or 23, or to appear at a hearing pursuant to Article 26, the Tribunal may, unless the party offers a satisfactory explanation, continue the Arbitration and make an award on the evidence before it.
- Delay Applicant commenced Arbitration: In the case of undue delay of the Arbitration by the party [applicant] who commenced the Arbitration, the arbitral tribunal may make an award dismissing the claim or give directions for the speedy determination of the Arbitration and may impose conditions on its decision.
- These rules on default apply equally to counterclaims with appropriate changes.
Article 32 – Termination of Arbitration
An Arbitration is terminated, and the Tribunal shall make an order to that effect when:- the Tribunal makes a final award disposing of all matters in accordance with the Act;
- the Tribunal terminates the Arbitration for default under Article 31;
- the parties settle the dispute during Arbitration, including if a party so requests that the award record the terms of the settlement;
- the parties agree that the Arbitration should be terminated, or the Tribunal finds that continuation of the Arbitration has become unnecessary or impossible;
- the claimant withdraws the claim, unless the respondent objects to the termination and the Tribunal agrees that the respondent is entitled to obtain a final settlement of the dispute; or
- the Arbitration agreement provides that the Arbitration shall be conducted only by th
Article 33 – Awards
- The Tribunal shall decide the dispute in accordance with the Arbitration agreement and any contract, under which the dispute arose, and may also take into account any applicable usages of trade;
- The Tribunal may make more than one final award, disposing of one or more matters referred to Arbitration in each award;
- Unless the parties and the Tribunal agree otherwise, the Tribunal may order the parties to pay such interest and costs as is appropriate in the circumstances in general compliance with the Ontario Rules of Civil Procedure.
- Unless the parties and the Tribunal agree otherwise, the Tribunal will issue final awards within thirty days from the later of the closing of hearings or the payment of any outstanding deposits.
- An award shall be made in writing, dated and signed by the Tribunal, indicating the place where made, delivered to all parties, and, except in the case of an award made on consent, shall state the reasons on which it is based;
- A party may, within thirty days after receiving an award, request that the Tribunal explain any matter; and failing to do so, after a further fifteen days, apply to the court to order it to do so;
- The Tribunal may, (i) on its own initiative within thirty days after making an award, or (ii) at a party’s request made within thirty days after receiving the award, and (iii) without holding a hearing or meeting before rejecting either request:
- Correct typographical errors, errors of calculation and similar errors in the award; or
- amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal.
- Make an additional award to deal with a claim that was presented in the Arbitration but omitted from the earlier award.
Article 33: Simplified Arbitration Procedure
If the parties agree, the Arbitration will be conducted pursuant to a simplified procedure generally in accordance with Rule 76 of the Ontario Civil Procedure Rules as determined by the parties and Tribunal at the preliminary meeting.If requiring further information, you may contact me at the coordinates in the footer below or on the Terms page.
