EURO MEDITERRANEAN

INSTITUTE OF MEDIATION AND ARBITRATION

E.I.M.A

 

 

LOCAL, NATIONAL, EUROPEAN AND INTERNATIONAL SCOPE

 

 

 

Rules of arbitration

 

 

 

 

 

TITLE I - PRELIMINARY PROVISIONS

 

 

ARTICLE 1:

 

In order to ensure speedy, confidential, competent and quality service to the parties wishing to have recourse to arbitration, the E.M.I.A. has set forth these rules which are supplementary to the legal or statutory provisions and the substantive rules generally applicable to commercial arbitration and that shall define the main principles which is required to be complied by the parties having chosen, by the signature of an Arbitration Agreement, to settle any existing or potential dispute through arbitration.

An Arbitration Agreement may be in the form of either:

  • an arbitration clause, inserted in a contract under which the signatories decide to submit any dispute that may arise out of the contract to arbitration (Article 1442 of the Civil Procedure Code);
  • a separate agreement, under which the parties to an existing dispute decide to submit the same to the arbitration of one or several persons (Article 1447 of the Civil Procedure Code).

The above-mentioned Arbitration Agreement should be distinguished from the “Terms of Reference”, document signed by the parties under the Chamber’s control and drawn up as soon as the arbitrator(s) is/are appointed and that it shall, in particular:

  • specify the details of the dispute submitted to arbitration and the mission conferred upon the arbitrators;
  • state the addresses to which notifications and communications may regularly be made in the course or at the end of the proceedings;
  • indicate the applicable procedural rules and, if such is the case, whether the arbitrators  shall act as amiables compositeurs ;
  • determine the costs of the arbitration and the arbitrators’ initial fees as defined under TITLE III, Section III of these rules.

For an Arbitration Agreement to be enforceable, it is essential that the “Terms of Reference” be countersigned by the arbitrators, a formality that can only be accomplished once the parties have duly fulfilled their obligations under Article 19 of these rules (payment of the submission costs, administrative costs, advances on arbitration fees).

The term “arbitrator” used herein shall either refer to one or several arbitrator(s) depending on the number of arbitrators appointed by the parties to compose the Arbitral Tribunal.

The Arbitral Tribunal may at any point of time use its powers conferred to it under the arbitration agreement, and may in particular engage and pursue the procedure by default in accordance with Article 1456 Civil Procedure Code, if necessary.

 

 

TITLE II - REQUEST FOR ARBITRATION TO THE ARBITRAL CHAMBER

 

ARTICLE 2:

The dispute may be submitted to the Arbitral Chamber upon the request by one party or jointly by the signatories of the arbitration agreement, which is established to settle any existing or potential dispute among persons or companies.

 

ARTICLE 3:

When a dispute is referred to the Arbitral Chamber resulting from an arbitration clause, the requesting part(ies) shall state the details of the issues in dispute and the relief sought for that the Tribunal will have to decide upon.

 

ARTICLE 4:

Once the Arbitral Chamber is entrusted with the dispute it shall have the power to decide upon any claim in relation with the contractual relations submitted to arbitration and in particular on nullities or termination of contracts.

 

ARTICLE 5:

At the time of submitting their dispute to the Arbitral Chamber, the parties shall state their complete identity including their addresses, and the complete identity of their legal counsels and shall also include a power-of-attorney enabling their legal counsels to sign the Terms of Reference along with any amendment to it.

The power-of-attorney shall exclusively be given to an attorney-at-law as defined under Article 126-2 of the decree dated June 9th, 1972 amended by the decree 79-233 dated March 22nd, 1979 regarding the titles applicable to lawyers from Member States of the European Community and under the act nº90-1289 dated December 31st , 1990 modifying the status of legal careers.

 

 

TITLE III - CONSTITUTION OF THE ARBITRAL TRIBUNAL

 

 

SECTION I: APPOINTMENT OF THE ARBITRATORS

 

ARTICLE 6:

The Arbitral Chamber, the parties or their counsels duly empowered to represent them, shall receive from the Secretariat of the Chamber a list of six arbitrators selected on the basis of their competence on the subject-matter in dispute.

 

ARTICLE 7:

Each party or its counsel shall appoint, within fifteen days, an arbitrator from the list furnished to them.

 

ARTICLE 8:

If any of the parties fail to comply with the time-limit mentioned under Article 7 regarding the appointment of the arbitrator and upon the expiration of this fifteen-day time-limit, calculated in accordance with Articles 640, 641, 642 of the Civil Procedure Code, the President of the Arbitral Chamber shall appoint the arbitrator(s) itself.

 

ARTICLE 9:

The arbitral tribunal shall be composed of an uneven number of arbitrators and must include at least one lawyer or legal counsel.

The President of the Arbitral Chamber shall appoint the third arbitrator which shall constitute, along with the arbitrators selected by the parties, the Arbitral Tribunal.

The third arbitrator shall preside over the Arbitral Tribunal.

If both parties have appointed the same arbitrator, the President of the Arbitral Chamber shall appoint the other arbitrators.

If both parties have decided to appoint a sole arbitrator and fail to agree on the same arbitrator, the President of the Chamber shall appoint him/her, in compliance with the provisions of the first paragraph hereinbefore.

 

ARTICLE 10:

The parties may request the Arbitral Chamber to constitute the Arbitral Tribunal, immediately upon receipt of the reference of the dispute by the Chamber.

 

ARTICLE 11:

The constitution of the Arbitral Tribunal must be completed within one month from the submission of the dispute to the Arbitral Chamber.

 

ARTICLE 12:

If the requesting parties intend to submit their dispute to a sole arbitrator, they shall explicitly so request within the time-limit stipulated under Article 7.

 

 

SECTION II: THE ARBITRATORS’ STATUS

 

ARTICLE 13:

The arbitrators appointed in compliance with section I shall accept their responsibility within seven days from the notification made by the Chamber’s secretariat.

Notice of the acceptance is given to the parties or their counsel.

Where one or several arbitrators refuse to accept the responsibility conferred to them, a new appointment procedure shall be organized.

 

ARTICLE 14:

The selected arbitrators shall inform the parties of any fact that might lead one party to challenge them, in particular any direct or indirect, past or present business connections.

Such responsibility shall be accepted only by the express consent of the parti(es).

 

ARTICLE 15:

Where the appointment of one or several arbitrator(s) is challenged, the contesting party shall submit the dispute to the President of the Arbitral Chamber who shall decide upon such appointment, within fifteen days from the submission. The decision of the President of the Arbitral Chamber shall be final and not appealable.

The party shall submit to the Secretariat of the Arbitral Chamber a written statement elucidating the facts, supported by necessary evidence(s) challenging the said appointment.

 

ARTICLE 16:

If the President of the Arbitral Chamber is convinced, he/she shall then organize a new appointment procedure, in accordance with the rules set forth under section I of this title.

 

ARTICLE 17:

Where an arbitrator is prevented from fulfilling his functions for any reason whatsoever, he shall then be immediately replaced by adopting the similar procedure as set out under Section I of this title.

This provision shall not be applicable where the name of an arbitrator is specifically set out in the Arbitration Agreement as drafted before the submission of the dispute to the Arbitral Chamber.

In that case, and if the parties do not agree on the appointment of the new arbitrators, they shall be appointed in compliance with Article 1444 of the Civil Procedure Code (appointment by the President of the Tribunal de Grande Instance), unless the Arbitration Agreement provides that the appointment shall be made by the President of the Tribunal de commerce.

 

 

SECTION III: THE ARBITRATORS’ FEES

 

ARTICLE 18:

Upon communication of the list mentioned under Article 6 or upon receipt of the submission’s request by the Arbitral Chamber as provided under Article 10, the parties or their counsel shall be informed of:

  • the fees related to the submission of the dispute to the Chamber, that shall not, under any circumstances, be refundable and an estimate of the fees for conduct of the arbitration procedure;
  • a reminder of the rules regarding the arbitrator’s fees and payment method.

 

ARTICLE 19:

1/ When a dispute is submitted to the Chamber, and an arbitral procedure is to be conducted, a retainer fee in the amount of 1.500 euros shall be paid as preliminary fees, which shall be used to cover administrative costs and arbitrators’ fees. If there is no procedure contemplated, the fees described here shall not be refunded.

The payment shall be made:

  • where the said parties have signed a convention submitting an existing dispute to the Chamber, in equal proportion by the parties;
  • by the claimant where the submission is made via an arbitration clause.

 

2/ Regarding administrative costs fixed in accordance with the rates approved by the Directing Committee, the parties shall:

  • where the parties have signed a convention submitting an existing dispute to the Chamber, share them equally on the day the said convention is signed or at the latest on the day the “Terms of Reference” are signed;
  • where the submission is made via an arbitration clause, the claimant shall pay those costs in advance, upon the submission of the dispute to the Chamber and at the latest on the day the “ Terms of Reference”  are signed.

 

3/ Regarding the arbitrators’ fees, the parties shall use the rates approved by the Arbitral Chamber’s Directing Committee and that shall be notified to them upon submission of the dispute to the EIMA.

The arbitrators’ fees shall cover a procedure involving the study of legal briefs and supporting evidence, and the hearing of the parties or their counsels, as well as the hearing or examination of experts or witnesses, without any particular investigation work.

The arbitrators’ fees may be estimated on a basis exceeding the base rate, depending on the legal and technical difficulties that may arise, on the financial aspects at stake, on the arbitrators’ competence, repute and on the time necessary to accomplish their mission.

This estimate shall be submitted to the parties’ consent and shall be specified in the “Terms of Reference” as drafted initially or as amended.

The parties shall pay in equal share half the advance amount as specified upon signature of the “Terms of Reference”, unless it is explicitly provided otherwise under this agreement.

In addition to this first advance on fees, the Chamber may, in the course of the proceedings, request one or several advances on fees that shall be paid in equal shares.

All payments (costs, fees, advances on fees) shall be made to the Secretariat of the Arbitral Chamber.

 

ARTICLE 20:

The mission of the arbitral tribunal shall commence upon enforcement by the parties of all their obligations under Article 19.

The time limit of the mission, provided under Article 27, shall start to run on the day the “Terms of Reference” is completed in accordance with TITLE I, article 1.

The secretariat shall notify the arbitrators and the parties by submitting a copy of the “Terms of Reference”.

 

ARTICLE 21:

Where a party fails to pay the requested advances on fees, any other party may substitute the failing party and pay the said advances on its behalf.

 

ARTICLE 22:

Where no payment is made, the arbitral procedure is suspended during a three-month period.

On the expiry of this time limit, and if no payment has still occurred, the Arbitral Chamber shall pronounce the avoidance of the “Terms of reference” and of the arbitration agreement.

This decision shall give jurisdiction to civil courts, the advance on fees and the costs paid by the parties shall not be refundable by the arbitrators or the Chamber.

 

ARTICLE 23:

The arbitral award shall fix the total costs and fees and decide which of the parties shall bear them in what proportion.

In order to do so, the arbitral tribunal shall beforehand submit to the President of the Arbitral Chamber, along with the notification provided under Article 45, a detailed brief regarding the costs of arbitration. The President of the Arbitral Chamber shall fix the total amount and shall notify it to the tribunal in the course of its deliberation.

 

 

SECTION IV: PLACE OF THE ARBITRATION

 

ARTICLE 24:

Unless provided otherwise under the arbitration agreement, the arbitration shall take place at the Arbitral Chamber’s headquarters, or in any other place selected by the President of the Arbitral Chamber, or failing which, by the arbitral tribunal itself.

 

ARTICLE 25:

Where several hearings must be conducted in different locations or States, the award shall be deemed to have been rendered at the Arbitral Chamber’s headquarters.

 

 

SECTION V: LANGUAGE OF THE ARBITRATION

 

ARTICLE 26:

The language of arbitration shall be French, unless it is provided by the parties that the language of arbitration shall be English.

 

 

 

SECTION IV: TIME-LIMITS OF THE ARBITRATION

 

ARTICLE 27:

The arbitrators shall render their award within a six-month time-limit, starting from the constitution of the Arbitral Chamber or from the signature of the “Terms of Reference”, which may provide a different time-limit.

 

 

TITLE IV - THE ARBITRAL PROCEDURE

 

 

SECTION I: APPLICABLE RULES OF LAW

 

 

ARTICLE 28:

Regardless of the provisions of the arbitration agreement or of the law chosen by the parties, the arbitral tribunal shall have the exclusive power to rule on any challenge regarding its own competence.

 

ARTICLE 29:

The arbitral award shall be annulled if the arbitrator does not comply with the following fundamental rules:

 

  • each party shall have the opportunity to present its case in the presence of the other;
  • each party’s evidence and legal claims must have been communicated to the other party in advance, to give them a reasonable opportunity to challenge them or to respond.

 

ARTICLE 30:

Unless provided otherwise under the arbitration agreement or under the “Terms of Reference”, the procedure shall, where these rules or any related texts are silent, be governed by the national law of the arbitration’s location.

 

 

SECTION II: THE PROCEEDINGS

 

SUB-SECTION I: HEARINGS

 

ARTICLE 31:

Notwithstanding the provisions under Article 29 1/ and 2/, the arbitral award shall be enforceable against the party who refuses to present its case and to appear in person or to be duly represented.

 

ARTICLE 32:

The Arbitral Tribunal may declare the default of a party only after the said party has been summoned to present its case and to appear before the tribunal.

The Arbitral Tribunal shall make sure that the summonses have been duly served on the failing party.

Where the procedure is pursued by default, the failing party may re-enter the proceedings as it stands and shall not present any argument directly or indirectly related to its absence during the course of the proceedings.

 

ARTICLE 33:

Where a party fails to present its case or to appear before the Arbitral Tribunal, the award shall be enforceable if the said party was duly represented at the time the dispute was submitted to the Arbitral Chamber.

 

ARTICLE 34:

Apart from being represented by their legal counsels, each party may choose to be assisted by any technical adviser or expert in the course of the proceedings as long as the Arbitral Tribunal and the parties are informed in advance and in good faith, the Arbitral Tribunal having the power to question, in the presence of all parties, any person attending an investigation hearing or the closing arguments.

 

ARTICLE 35:

The hearings shall not be held in public.

 

ARTICLE 36:

Notice of the hearings shall be made by the Arbitral Chambers at the parties’ chosen address or to their legal representative, by registered mail, fax or email.

 

ARTICLE 37:

Each party or their legal representative shall be given notice of any hearing and witness or expert examination thirty days prior to the date fixed by the Arbitral Tribunal.

Dislocation shall not be authorized, except under exceptional circumstances and with the expressed consent of the parties or their counsel, and in case of hardship or fortuitous event.

 

ARTICLE 38:

The Arbitral Tribunal may request from the President of the Arbitral Chamber that the presence of an interpreter or of a secretary during the hearings be permitted, the request having to be made in the above-mentioned timeframe.

 

 

SUB-SECTION II: DEPOSITIONS, INVESTIGATION MEASURES

 

ARTICLE 39:

The Arbitral Tribunal shall summon the witnesses to appear before itself by registered mail within the timeframe mentioned under Article 37.

Depositions shall be made in the presence of all parties.

 

ARTICLE 40:

The Arbitral Tribunal may, if necessary, order a technical investigation or call for an official report, but shall not request any external professional advice.

Investigation measures or calling of official reports shall be made in the presence of all parties.

The arbitrators shall determine the time-frame and the issues that the requested measure shall cover.

 

ARTICLE 41:

All investigations and reports shall be conducted under the Arbitral Chamber’s control, in particular regarding the determination of the deposit, charges, costs and fees, the compliance with the defined timeframe, and the possible follow-up of the called-upon advisors.

 

 

SUB-SECTION III: INTERIM AND CONSERVATORY MEASURES

 

ARTICLE 42:

The Arbitral Tribunal may, in the course of the proceedings, issue any interim and conservatory measure as it deems appropriate.

The decisions rendered by the Arbitral Tribunal with regard to these measures may be appealed separately apart from challenging the final award.

 

ARTICLE 43:

Where these measures concerns a security bond to make or a deposit in an escrow, the arbitral award shall enjoin to make the deposit in the hands of the Arbitral Chamber on an account specifically opened for the purpose of the dispute.

 

ARTICLE 44:

The President of the Arbitral Chamber shall exclusively relinquish the sums thus deposited to either party if an arbitral award and the proof of its enforceability are provided.

 

 

TITLE V - ARBITRAL AWARD

 

 

ARTICLE 45:

The Arbitral Tribunal shall notify the parties or their counsel of the date on which the Arbitral Tribunal shall adjourn the hearings to render its award and beyond which no additional claim, evidence or comment shall be entertained by the Arbitral Tribunal.

At the end of this session, the arbitral tribunal shall render its decision.

 

ARTICLE 46:

The arbitral award shall be written in French, unless it is specifically agreed by the parties that the procedure and the award shall be in English.

 

ARTICLE 47:

The arbitrators shall render their decision based on the rules that the parties may have agreed upon, unless the arbitration agreement or the “Terms of Reference” has conferred to them the power to rule as amiables compositeurs. In all cases, they shall apply any public policy rules deemed to apply to the dispute.

In all cases, the reasons upon which the award is made shall be explicitly stated.

 

ARTICLE 48:

 

The award shall be made after a strict confidential session among the arbitrators is held and approved by a majority.

 

ARTICLE 49:

The arbitral award shall be dated and signed by all the arbitrators comprising the Arbitral Tribunal.

 

ARTICLE 50:

The Arbitral Tribunal shall, within seven days, submit two original copies of the arbitral award to the Secretariat of the Arbitral Chamber, where it shall be registered.

 

ARTICLE 51:

The arbitral award shall be notified to each party and to their authorized counsels within fifteen days from its registration by a bailiff upon the request made by the Secretariat of the Arbitral Chamber.

 

ARTICLE 52:

Where the arbitration is strictly national, and the appeal is not excluded by the parties under the Arbitration Agreement or the “Terms of Reference”, the arbitral award shall be appealable except where the award has been rendered in amiable composition, unless, in that case, the parties should have expressly agreed to be able to do so.

 

 

TITLE VI - MISCELLANEOUS

 

ARTICLE 53:

Where these rules or the arbitration agreements are silent, the proceedings shall be governed by the fourth chapter of the Civil Procedure Code.