Arbitration Rules
CONTENTS
| Article 1 : | Reference to the A.F.A. |
| Article 2 : | Request for arbitration and response |
| Article 3 : | Objections as to jurisdiction |
| Article 4 : | The arbitrator – independence and obligations |
| Article 5 : | Appointment of the Arbitral Tribunal |
| Article 6 : | Challenges and replacement of arbitrators |
| Article 7 : | Costs of arbitration |
| Article 8 : | Seat of the arbitration |
| Article 9 : | Competence |
| Article 10 : | Submission to the Tribunal, procedural rules and language |
| Article 11 : | Fact-finding measures |
| Article 12 : | Rules applicable to the merits |
| Article 13 : | Urgent proceedings |
| Article 14 : | The award |
| Article 15 : | Time-limit for rendering awards |
| Article 16 : | Signature and notification of the award |
| Article 17 : | Correction – Interpretation – Completion |
| Article 18 : | Enforcement of the award |
| Article 19 : | Application of these Rules |
| Article 20 : | Exécution de la sentence |
| Appendix : | Appendix to the A.F.A. rules relating to arbitration costs |
Article 1 : Reference to the A.F.A.
Article 1- §1
A matter may be referred to the Association Française d’Arbitrage (“A.F.A.”) by submitting a request for arbitration pursuant to an arbitration agreement or clause. The arbitration agreement must refer disputes to the A.F.A., and require that disputes which it covers be resolved in accordance with these Rules.
Article 1- §2
These Rules are incorporated into the parties’ arbitration agreement, and apply to all arbitrations submitted to the A.F.A.
Article 1- §3
Unless the parties have agreed otherwise, all requests for arbitration shall be examined and decided in accordance with these Rules (including the Appendix) in force on the date on which the Secretariat receives the request for arbitration.
Article 1- §4
No arbitration will proceed under these Rules if the parties have agreed to amend them in such a way that they might no longer be properly applied.
Article 2 : Request for arbitration and response
Article 2- §1
The request shall include the parties’ names, descriptions and addresses, a brief summary of the facts, the subject matter of the request, the Claimant’s proposal as to the number of arbitrators (and where there is more than one arbitrator, the Claimant’s nominated arbitrator), the arbitration agreement, and where relevant, the details of any agreement between the parties concerning the conduct of the arbitration.
Article 2- §2
The Secretariat shall immediately forward the request for arbitration to the Respondent, who shall have one month to submit a brief summary of the facts, any comments on the request as well as any counterclaims, the Respondent’s proposal as to the number of arbitrators (and where there is more than one arbitrator, the Respondent’s nominated arbitrator) as well as its comments on any agreement
Article 2- §3
Upon receipt of the Respondent’s answer, or in any event within eight days of the expiry of the time for the Respondent to file its answer, the file must be referred to the Arbitration Committee. The role of the Arbitration Committee is to ensure the proper application of these Rules.
Article 3 : Objections as to jurisdiction
If a plea as to the inexistence, nullity or inapplicability of the arbitration agreement is raised, it shall be a matter for the Arbitral Tribunal, once appointed, to decide on its jurisdiction. However, if the Arbitration Committee finds that no arbitration agreement referring to the A.F.A. exists, it shall inform the Parties that no arbitration can take place under the A.F.A Rules.
Article 4 : The arbitrator – independence and obligations
Article 4- §1
Whether nominated by a party or by the Arbitration Committee, an arbitrator must submit a declaration of independence to the Arbitration Committee at the time he or she accepts his or her appointment. The declaration must disclose any facts or circumstances which may, in the eyes of the parties, call into question the arbitrator’s independence.
Article 4- §2
The Arbitration Committee must inform the parties of any matters declared by the arbitrator, and must seek the parties’ comments, before deciding whether or not to confirm the arbitrator’s appointment.
Article 4- §3
Every arbitrator undertakes to conduct the arbitration he or she has accepted diligently and in accordance with these Rules.
Article 5 : Appointment of the Arbitral Tribunal
Article 5- §1
Unless the parties have otherwise agreed : • the Arbitration Committee shall determine the number of arbitrators ; • where more than one arbitrator is to be appointed, the Arbitration Committee shall take note of the parties’ nominations and/or invite the parties to make such nominations, within such time limit as it shall fix ; • subject to joint nomination by the parties or by the nominated arbitrators, the Arbitration Committee shall appoint the President of the Arbitral Tribunal, or where applicable, the sole arbitrator ; • no member of the Arbitration Committee or of the Board of the A.F.A. may be appointed as arbitrator by the Arbitration Committee.
For the purposes of the present Rules, the expression "Arbitral Tribunal" shall designate a Tribunal constituted of several arbitrators as well as a sole arbitrator.
Article 5- §2
In all cases of failure to nominate an arbitrator, the Arbitration Committee shall proceed to appoint such arbitrator on its own initiative.
Article 5- §3
If the parties have nominated arbitrators of different nationalities, then, unless the parties agree otherwise, the arbitrator nominated by the Arbitration Committee must be of a nationality other than those of the parties and of the arbitrators nominated by them.
Article 5- §4
When the parties are of different nationalities, any sole arbitrator nominated by the Arbitration Committee shall be of a nationality other than those of the parties.
Article 5- §5
The Arbitration Committee appoints the arbitrators nominated by the parties after consideration of their statement of independence. Notice of such appointment is given to the parties.
Article 5- §6
An appointed arbitrator must be a current member of the A.F.A. before he or she assumes his or her functions. As a member, he or she is covered by the insurance policy subscribed by the A.F.A.
Article 5- §7
In the event of multiple parties, and of disagreement concerning the nomination of arbitrators, the Arbitration Committee will appoint the arbitrator or arbitrators, as required.
Article 5- §8
Decisions of the Arbitration Committee concerning the composition of the Arbitral Tribunal (including decisions on challenges and replacement of arbitrators in accordance with article 6) are final. The Arbitration Committee will not give the parties reasons for its decisions.
Article 6 : Challenges and replacement of arbitrators
Article 6- §1
Whether nominated by a party or by the Arbitration Committee, an arbitrator’s appointment may be challenged within 30 days following notice of appointment and, in any event, within 30 days following the date when the facts giving rise to the challenge become known to the challenging party.
Article 6- §2
The challenge shall be submitted to the Arbitration Committee, which shall consider the parties’ submissions and make a final decision.
Article 6- §3
The time limit to render an award shall be suspended from the date a challenge is submitted to the Arbitration Committee, to the date following notification to the parties and the arbitrators of the Arbitration Committee’s decision.
Article 6- §4
If the challenge is allowed, a new arbitrator shall be appointed to replace the challenged arbitrator in accordance with the procedure set out in article 5.
Article 6- §5
These conditions also apply to the replacement of an arbitrator by the Arbitration Committee if an arbitrator dies or resigns (and the arbitrator’s resignation is accepted).
Article 6- §6
The Arbitration Committee shall also replace any arbitrator who has ceased to perform his duties in accordance with these Rules, or who fails to perform his duties (even when the arbitrator concerned has resigned and his resignation has not been accepted).
However, the Arbitration Committee may decide not to replace an arbitrator if circumstances warranting his replacement arise when the proceedings are nearly concluded. In that case, the proceedings will continue until the final award is issued by the Arbitral Tribunal.
Each of the arbitrators must be given the opportunity to participate in all the Arbitral Tribunal’s meetings and in its deliberations on the draft award.
Article 7 : Costs of arbitration
Article 7- §1
The Arbitration Committee shall determine, and where necessary, review the amount of the deposit sufficient to cover the costs of the arbitration. The costs of the arbitration include the costs of any fact-finding measures, including the fees of experts, as well as all other expenses incurred in the conduct of the arbitration proceedings including the expenses of the Tribunal, administrative expenses of the A.F.A. and the arbitrators’ fees. These last two items are calculated in accordance with the Appendix to these Rules.
Article 7- §2
Where the claims made by the parties are not quantified, the Arbitration Committee shall set the amount of the advance in accordance with what it considers to be appropriate.
Article 7- §3
Advances, including any additional advances, must be paid by the parties in equal shares. Should a party fail or refuse to pay its share of the advance, the defaulting party’s share may be paid by another party (or parties). If the advance is not paid in full, the arbitral proceedings shall be deemed to have been abandoned in respect of the claims for which the advance has not been paid.
Article 7- §4
Where there is a counterclaim, the Arbitration Committee may, at the request of a party, require that separate advances be paid in respect of each of the principal claim and the counterclaim.
Article 7- §5
All new or additional claims shall be notified by the Arbitral Tribunal to the Arbitration Committee which may decide to fix an additional advance and the manner in which it shall be paid. The provisions of article 7- §3 shall apply in such a case.
Article 7- §6
If the Arbitration Committee requires that the parties supplement the advance, and the supplement is not paid by the parties by the time it is due to be paid, the arbitration proceedings shall be deemed to have been abandoned in accordance with and subject to the provisions of article 7- §3 above.
Article 7- §7
During the proceedings, the Arbitration Committee may amend its decisions in the light of comments made by the parties or the arbitrators, or as required by the circumstances of the case.
Article 7- §8
The advance for arbitration costs must be paid to the A.F.A. within the time fixed by the Arbitration Committee, and is received by the A.F.A. as a deposit-holder. It is expressly provided that : • the parties authorise the A.F.A. to deduct from the deposit amounts in payment of invoices for the costs of the arbitration ; and • any balance remaining shall be reimbursed to the parties in proportion to their respective payments.
Article 7- §9
Claims for which the advance has been paid shall be submitted to the Arbitral Tribunal for determination.
Article 8 : Seat of the arbitration
Article 8- §1
Absent an agreement by the parties on the seat of the arbitration, the same shall be determined by the Arbitration Committee.
The Arbitral Tribunal has the power to rule on its jurisdiction.
Article 10 : Submission to the Tribunal, procedural rules and language
Article 10- §1
The Arbitral Tribunal shall acknowledge and record its constitution and the scope of the reference. It shall also note any challenge or reservation by the parties in this respect.
The Arbitral Tribunal shall take necessary steps to determine the procedure applicable in the arbitration, and to establish a timetable.
The Arbitral Tribunal shall invite the parties to sign minutes recording these matters, a copy of which shall be forwarded to the Arbitration Committee within two months following the submission of the case to the Tribunal in accordance with article 7- §9 above, subject to extension of time by the Arbitration Committee.
Article 10- §2
Where the arbitration agreement is silent, the Arbitral Tribunal shall determine the procedure to be adopted, including the language of the procedure, having regard to the nature of the dispute and its best possible resolution, taking into account, where applicable, its international character. The Arbitral Tribunal shall inform the parties of the procedure adopted.
Article 10- §3
The Arbitral Tribunal is not bound to comply with deadlines and other formal requirements that apply to courts, other than those specifically referable to arbitration.
Article 11 : Fact-finding measures
The Arbitral Tribunal has the broadest powers to investigate, even of its own motion, all matters for consideration and decision.
The Arbitral Tribunal may order any fact-finding measures, and shall set conditions and deadlines.
The Arbitral Tribunal shall inform the Arbitration Committee of any such measures. The Arbitration Committee alone has the power to fix an additional advance on the basis of the estimated costs of such measure. It shall also be informed in the event the initial estimate proves insufficient so that an additional advance may be fixed.
The measure will only be carried out or continued, as the case may be, once the relevant advance has been paid.
The Arbitral Tribunal shall, if necessary, request from the Arbitration Committee, pursuant to article 15- §2, an extension of the time limit to render an award, compatible with the time limit it has fixed for the fact-finding measure concerned.
Article 12 : Rules applicable to the merits
Article 12- §1
The Arbitral Tribunal shall decide the dispute in accordance with the rules of law chosen by the parties. In the absence of any such choice, the Arbitral Tribunal shall decide in accordance with the rules which it considers to be appropriate.
In all cases, the Arbitral Tribunal shall take account of the provisions of the contract and trade usages.
Article 12- §2
The Arbitral Tribunal shall rule as “amiable compositeur” if given the power to do so by the parties.
Article 13 : Urgent proceedings
Article 13- §1
Any party may request urgent relief.
a) If the Arbitral Tribunal has been constituted, any application for urgent relief shall be made to it.
b) If the Arbitral Tribunal has not yet been constituted, and the urgent relief requested is likely to affect the merits of the case, the Arbitration Committee may, without regard to the time limits prescribed by articles 2 and 3, constitute the Arbitral Tribunal. The Arbitral Tribunal shall organise the procedure and make its decision in accordance with what it considers to be the urgency in the matter.
c) If the Arbitral Tribunal has not yet been constituted and the urgent relief requested does not seem to affect the merits of the case, the Arbitration Committee may, without regard to the time limits prescribed by articles 2 and 3, appoint a sole Arbitrator with the task of organising urgent proceedings. For that purpose, he or she shall summon the parties by all appropriate means, and may take any appropriate and immediately enforceable measure which does not affect the merits of the case.
Article 13- §2
Under each of paragraphs 1 a), b) and c) above, the Arbitral Tribunal shall render its award as quickly as possible.
Article 13- §3
The sole Arbitrator shall determine the costs of proceedings conducted under sub-paragraph 1 c) above. He or she shall apportion those costs between the parties unless he or she decides that these costs shall be dealt with in the award on the merits.
Article 13- §4
In the case of proceedings under paragraphs 1 b) and 1 c) above, the payment of an advance is not required in order to submit the application to the Arbitral Tribunal or sole Arbitrator. The Arbitration Committee will nevertheless fix an advance. This must be paid by the most diligent party before the award is delivered to the Secretariat, which will only notify the parties of the award after the advance has been paid.
Article 14- §1
Where the Arbitral Tribunal comprises more than one arbitrator, it deliberates and rules by majority. In international cases, where there is no majority, the Chairman of the Tribunal shall decide alone.
Article 14- §2
The Arbitral Tribunal shall fix the costs of the arbitration in its final award, and apportion them between the parties. At the request of the parties, the Arbitral Tribunal shall determine the reasonable costs borne by each of the parties in the arbitration, and apportion them.
Article 14- §3
Arbitration awards are final. Unless otherwise agreed by the parties, the application of these Rules entails the waiver by the parties of all rights of appeal or review that can be validly waived.
Article 14- §4 The arbitral procedure and the award are confidential.
Article 15 : Time-limit for rendering awards
Article 15- §1
The Arbitral Tribunal must render its final award within six months of the date of the minutes in which it records that the dispute has been submitted to it, in accordance with article 10- §1 above.
Article 15- §2 The Arbitration Committee may, however, extend, one or more times, the time limit for rendering an award by such period as requested by the Arbitral Tribunal, if it appears appropriate, in light of the circumstances and of the status of the proceedings. The time limit may also be extended upon the joint request of the parties.
Article 16 : Signature and notification of the award
Article 16- §1
The Arbitral Tribunal shall submit its draft award to the Arbitration Committee, which shall review it and make any observations as to form that it considers necessary.
Article 16- §2
Once the arbitration costs have been determined in accordance with articles 1 and 2 of the Appendix to these Rules, the Arbitral Tribunal shall initial, sign and date its award. The Arbitral Tribunal shall submit the award to the Secretariat. The Secretariat shall immediately notify the award to the parties by registered post (with acknowledgement of receipt), or by any other means which allow receipt to be verified. Notification shall be deemed effective if made at the address of the party which appears on the record of the arbitration.
Article 16- §3
Where the Arbitral Tribunal comprises more than one arbitrator, and an arbitrator refuses to sign the award, the other arbitrators shall record that fact at the time they sign the award. The award is then deemed to have been signed by all the arbitrators. In international cases, where there is no majority, the Chairman of the Arbitral Tribunal may sign alone.
Article 16- §4
At the request of a party, the Secretariat shall issue certified copies of the award.
Article 17 : Correction – Interpretation – Completion
Article 17- §1
The arbitral tribunal may, of its own motion or at the request of either party and, in the latter case, if it can still be reconvened, correct material errors which may affect its award.
Article 17- §2
A party may request that the Arbitral Tribunal interpret its award.
Article 17- §3
At the request of a party, the Arbitral Tribunal may complete its award if it has failed to rule on a head of claim.
Article 17- §4
In the cases provided in the previous paragraphs of this article, requests shall be addressed, within three months of notification of the award, to the Arbitration Committee which shall submit them to the Arbitral Tribunal, if it can still be reconvened.
The Arbitral Tribunal must rule on the request within three months of receiving it, subject to any time extension by the Arbitration Committee.
If the Arbitral Tribunal decides to correct, interpret or complete the award, it shall submit its draft decision to the Arbitration Committee in accordance with article 16- §1. Once it has been dated and signed by the Arbitral Tribunal, the secretariat shall notify the parties of the decision in accordance with article 16- §2.
Article 18 : Enforcement of the award
Article 18- §1
It is a matter for the parties to enforce the award.
Article 18- §2
The Secretariat shall endeavour to assist the parties to carry out any formalities required.
Article 19 : Application of these Rules
These Rules apply to any request for arbitration lodged on or after 1 January 2011.
Appendix to the A.F.A. rules relating to arbitration costs
1. The Arbitration Committee shall fix the arbitrators’ fees on receipt of the draft award subject to the scale set out in this Appendix, and within the limit of the advance or advances which it has set, unless the circumstances require that a higher or lower figure be set.
2. In accordance with article 14- §2 of the Rules, the Arbitral Tribunal shall then determine the total cost of the arbitration (as defined by article 7- §1 of the Rules), including administrative expenses of the A.F.A. calculated in accordance with the scale set out below, which it must then apportion.
3. The provisions relating to the current scale may be amended as necessary by the A.F.A. Board during the year. In such case, the A.F.A. Board will report on any amendments at the next General Meeting.
4. In the event that arbitral proceedings come to an end before a final award has been issued, the Arbitration Committee shall set the amount of the arbitration costs, as defined at article 7- §1 of the Rules, as it considers appropriate, taking into account all the information available to it. The Arbitration Committee shall, if applicable, order the return of any remaining balance of the advance. The previous paragraph also applies if the rbitration is concluded by an award rendered by consent of the parties. If the arbitral proceedings end before the advance is paid, the Arbitration Committee must determine the amount of the administrative expenses of the A.F.A. to be paid by the party or parties to the dispute.
