Arbitration Rules of the Swiss American
Chamber of Commerce
Recommended Agreement to Arbitrate
"All disputes arising out of the present
contract shall be finally decided by an Arbitral
Tribunal consisting of one arbitrator/three
arbitrators* according to the Arbitration Rules of
the Swiss American-Chamber of Commerce, Zurich.
The application of the IBA Rules of Evidence in
International Commercial Arbitration of the
International Bar Association is excluded/agreed
upon*."
* delete as applicable (see Article 17)
Table of Contents
- Scope of Application
- Composition of the Arbitral Tribunal
- Appointment of the Arbitral Tribunal
- Initiation of the Arbitration Proceeding
- Date of Institution of the Arbitration
Proceeding
- Constituting Order
- Advance against Costs
- Procedures
- Party Representation
- Written Submissions and Hearings
- Taking of Evidence
- Settlement
- Seat of the Arbitral Tribunal
- Language of Proceedings
- Deliberation and Arbitration Award
- Costs and Indemnities
- Recommended Agreement to Arbitrate
- Effective Date/Transitional Provision
1. Scope of Application
1.1 If the parties to a contract have
agreed in writing that disputes relating to such
contract shall be subject to the Arbitration Rules of the
Swiss American Chamber of Commerce (hereinafter
called "Chamber of Commerce"), such
disputes shall be subject to arbitration under the
following rules (hereinafter called "Rules of
Arbitration"). An agreement is deemed to be
"in writing", if it is signed by the
parties or contained in correspondence or any
other form of communication allowing proof of the
agreement by text. Electronic transmissions
permitting a lasting record of the agreement are
the equivalent of the written form.
1.2 The Arbitral Tribunal shall decide whether a
legally valid agreement to arbitrate exists, in particular if the validity of the agreement to
arbitrate is contested.
2. Composition of the Arbitral Tribunal
2.1 The Arbitral Tribunal shall consist of one
or three arbitrators (herein called "Arbitral
Tribunal") in accordance with the choice of
the parties.
2.2 If the parties have not made a decision
regarding this in the agreement to arbitrate, the
president of the Chamber of Commerce or his
delegate shall decide, considering the matter in
dispute, whether one or three arbitrators shall be
appointed.
2.3 The Arbitral Tribunal may, with the consent of
the parties, appoint a secretary, in particular in
complex and voluminous cases.
3. Appointment of the Arbitral Tribunal
3.1 If the parties have agreed upon a Arbitral
Tribunal consisting of one arbitrator, and if the
parties fail to agree upon such arbitrator within
the thirty-day time period fixed by the
secretariat of the Chamber of Commerce
(hereinafter called "Chamber
Secretariat") in accordance with Article 4.3,
an independent arbitrator from the list of
arbitrators of the Chamber of Commerce shall be
appointed by the president of the Chamber of
Commerce or his delegate upon request of one
party. The President of the Chamber of Commerce or
his delegate shall take into consideration the
nature of the dispute when taking a decision.
3.2 If the parties have agreed upon a Arbitral
Tribunal consisting of three arbitrators, each
party shall appoint one independent arbitrator.
The two arbitrators thus appointed shall, by
mutual agreement, choose a third independent
arbitrator, who shall preside over the Arbitral
Tribunal.
3.3 If one party fails to notify the other party
of its appointed arbitrator within thirty days
from the date of receipt of the name of the
arbitrator appointed by the other party, the
President of the Chamber of Commerce or his
delegate shall, upon request of a party, appoint
an independent arbitrator from the list of
arbitrators. The President or his delegate shall
take into consideration the nature of the dispute
when taking a decision.
3.4 If, within thirty days from the date of
appointment of the second arbitrator, the two
arbitrators fail to reach agreement on the
appointment of the presiding arbitrator of the
Arbitral Tribunal, the President of the Chamber of
Commerce or his delegate shall, upon request of a
party, appoint an independent presiding arbitrator
from the list of arbitrators. The President or his
delegate shall take into consideration the nature
of the dispute when taking a decision.
4. Initiation of the Arbitration Proceeding
4.1 The party wishing to initiate an
arbitration proceeding (hereinafter called
"Claimant") shall submit its written request for the
appointment of the Arbitral Tribunal in duplicate to the Chamber Secretariat.
The request shall contain:
a) Names and addresses of the parties;
b) Request for arbitration accompanied by the agreement to arbitrate;
c) Appointment of an arbitrator, or in case of a sole arbitrator, a proposal as to the sole arbitrator;
d) Claim for relief;
e) Short summary of the Claimant's position.
4.2 Together with the request for the appointment of the Arbitral Tribunal, the registration fee shall be paid to the Chamber Secretariat.1
4.3 The Chamber Secretariat shall send a copy of the request to the other party mentioned in the request (hereinafter called "Respondent") and shall simultaneously set a time limit for the appointment of the party's arbitrator in the case of a Arbitral Tribunal consisting of three arbitrators or, in the case of a sole arbitrator, for the notification of acceptance of the Claimant's proposal or for the notification of a counterproposal by the Respondent. If the Respondent does not accept the Claimant's proposal for a sole arbitrator, the Chamber Secretariat shall set for the parties a time limit of 30 days to agree upon the designation of the sole arbitrator.
5. Date of Institution of the Arbitration Proceeding
The arbitration proceeding shall be deemed to be pending as from the date of receipt by the Chamber Secretariat of the request for the appointment of the Arbitral Tribunal. If the registration fee according to Article 4.2 is not paid, the request shall not be heard and the case shall no longer be pending.
6. Constituting Order
Following its appointment, the Arbitral Tribunal shall determine the most important procedural directives in a Constituting Order and set the time limits for the Claimant to submit its statement of claim.
7. Advance against Costs
7.1 The Arbitral Tribunal shall, in accordance with the Fee and Cost Schedule of the Chamber of Commerce as per Annex II attached to these Rules of Arbitration, fix an advance to secure the costs of the proceedings (fees of the Arbitral Tribunal, administrative costs of the Chamber of Commerce and value added tax, if any, etc.) and decide upon the amount of the advance to be paid by each party.
7.2 Should the course of the proceedings (counterclaim, time-consuming evidentiary proceedings, etc.) indicate that the original advance to secure the costs of the proceedings is not sufficient, the Arbitral Tribunal may increase the amount appropriately.
7.3 If one party fails to pay its share of the advance, the other party shall be free to either pay the entire advance or to withdraw from the arbitration procedure. In the event of such withdrawal, the parties shall no longer be bound by the arbitration agreement in regard to the dispute concerned.
7.4 If one party has posted the entire advance, the Arbitral Tribunal, in its final award, may grant that party a right of recourse against the opposing party.
7.5 Should the advance paid by the losing party not be sufficient to cover its share of the costs of the proceedings, the Arbitral Tribunal may draw upon the advance of the winning party to pay such uncovered portion of the costs. The Arbitral Tribunal shall grant the winning party a right of recourse against the losing party in this amount in accordance with Article 7.4.
7.6 To the extent that the Arbitral Tribunal does not need to draw upon the advance for current expenses, any substantial amounts of cash deposited shall be invested at interest, whereby the proceeds, less withholding tax, if any, shall be credited to the depositing party. The Arbitral Tribunal shall provide an accounting upon completion of the arbitration proceedings.
7.7 The place of payment shall be the Chamber Secretariat, which is entrusted with the administration of the deposited amounts.
8. Procedures
8.1 The procedures shall be determined by these Rules of Arbitration, the procedural directives established by the Arbitral Tribunal according to Article 6 of these Rules, and by further decisions of the Arbitral Tribunal. Agreements of the parties regarding the procedures, if any, shall be taken into account insofar as the Arbitral Tribunal considers them as practicable and expedient for the proceedings. In any case, the parties' equality of rights and their right to be heard must be guaranteed during the entire arbitration proceedings.
8.2 The Arbitral Tribunal shall apply the IBA Rules on the Taking of Evidence in International Commercial Arbitration as applicable at the Date of Institution of the Arbitration Procedure2 in so far as the parties agree upon their application.
8.3 If legal assistance by state authorities is necessary for the conduct of evidentiary proceedings before the Arbitral Tribunal, the Arbitral Tribunal or, with the consent of the Arbitral Tribunal, a party may request assistance from state authorities.
8.4 Upon request of a party, the Arbitral Tribunal may order provisional and conservatory measures. If the party concerned does not voluntarily submit to the ordered measures, the Arbitral Tribunal or a party may request assistance from state authorities.
8.5 The arbitration proceedings are confidential. All parties to the proceedings, party representatives, arbitrators etc. are obligated to keep secret all aspects of the arbitration proceedings, in particular the nature and contents of any party statements as well as opinions expressed by the Arbitral Tribunal.
9. Party Representation
Representation before the Arbitral Tribunal at the free choice of the parties is guaranteed.
10. Written Submissions and Hearings
10.1 Written submissions, including annexes, shall be submitted in duplicate to the presiding arbitrator, and with one copy to each arbitrator and to the secretary, if any, as well as to the opposing party. Annexes must be itemized in a list attached to the written submission and, in so far as the Arbitral Tribunal does not expressly waive such requirement, shall be submitted in the same number of copies as the written submissions.
10.2 In the statement of claim, the Claimant shall present its claims for relief, and shall substantiate them by submitting or by describing the evidence.
10.3 In its written answer, the Respondent shall address the claims for relief and the factual allegations made by the Claimant by submitting or by describing the evidence.
10.4 A counterclaim shall be brought and substantiated together with the written answer.
10.5 The Arbitral Tribunal shall decide on its competence with respect to adjudicating the counterclaim and, if necessary, set a time limit to submit a reply to the counterclaim.
10.6 The Arbitral Tribunal may order further exchanges of briefs.
10.7 The Arbitral Tribunal may at any stage of the proceedings order hearings.
11. Taking of Evidence
11. The Arbitral Tribunal may, at any stage of the proceedings, take evidence on particular or on all issues relevant to the dispute. The parties may comment on the result of the taking of evidence.
12. Settlement
12.1 With the consent of the parties, the Arbitral Tribunal may, at any stage of the proceedings, attempt to reach a settlement between the parties.
12.2 If the parties reach a settlement, the Arbitral Tribunal, at the request of a party, shall issue an award which contains the settlement. If no such request is received, the Arbitral Tribunal shall render only an award that the proceedings have been settled by an agreement between the parties.
13. Seat of the Arbitral Tribunal
13.1 If the agreement to arbitrate does not contain a provision regarding the seat of the Arbitral Tribunal, such seat shall be at the Secretariat of the Swiss American Chamber of Commerce in Zurich.
13.2 The Arbitral Tribunal shall decide on the location where the arbitration proceedings are to be held.
14. Language of Proceedings
If the agreement to arbitrate does not contain a provision regarding the language of the proceedings, the Arbitral Tribunal shall determine the
language(s) of the proceedings by taking into consideration all circumstances, particularly the language of the contracts from which the disputes have arisen.
15. Deliberation and Arbitration Award
15.1 The deliberations of the Arbitral Tribunal shall not be public. All arbitrators shall take part in the deliberations and the castings of vote. If a secretary has been appointed, such secretary may, with the consent of the Arbitral Tribunal, take part in the deliberations.
15.2 The arbitration award shall be made by a majority of votes cast. If no majority of votes is reached, the casting vote of the presiding arbitrator shall decide.
15.3 The Arbitral Tribunal shall make decisions in accordance with the applicable law, unless the Arbitral Tribunal has been given authority by the parties to decide by the application of equitable principles.
15.4 The arbitration award shall be made in writing and shall include the reasons for the decision unless waived by the parties. The arbitration award shall be signed by the sole arbitrator or, in the case of a Arbitral Tribunal composed of three arbitrators, by all three arbitrators or, if the case may be, by the majority of the arbitrators, noting the refusal of the minority.
15.5 At the request of a dissenting arbitrator, dissenting opinions of individual arbitrators shall be referenced in the arbitration award. The dissenting opinion shall be recorded in full text in the minutes.
15.6 A complete version of the arbitration award shall be kept on record with the Chamber Secretariat for a period of 10 years.
16. Costs and Indemnities
16.1 The arbitration award shall contain a decision on the amount and allocation of the costs of the arbitration proceedings, and on the indemnities for the the parties' expenses.
16.2 The Arbitral Tribunal shall determine the parties' indemnities considering the outcome of the dispute in an amount it deems appropriate. The parties' indemnities shall also include costs and expenses, including the costs of legal representation.
16.3 The compensation of the members of the Arbitral Tribunal and the Secretary, if any, shall be made in accordance with the Fee and Cost Schedule of the Swiss-American Chamber of Commerce Arbitration according to Annex II to these Rules of Arbitration. In addition, cash expenditures and clerical costs of the Arbitral Tribunal (including the costs of a court stenographer or recording clerk) shall be reimbursed.
17. Recommended Agreement to Arbitrate
"All disputes arising out of the present contract shall be finally decided by an Arbitral Tribunal consisting of one arbitrator/three arbitrators* according to the Arbitration Rules of the Swiss American Chamber of Commerce, Zurich. The application of the IBA Rules of Evidence in International Commercial Arbitration of the International Bar Association is excluded/agreed upon*."
* Delete as applicable.
18. Effective Date/Transitional Provision
These Rules of Arbitration were adopted by the Board of Directors of the
Swiss-American Chamber of Commerce on July 1, 1980 and revised on June 16, 2000.
They are applicable to all arbitration proceedings, which are brought before the
Chamber of Commerce after the date of the revision. Arbitration proceedings
which are pending at the time of the revision shall be completed according to
the old Rules of Arbitration.
Approved by the Board of Directors of the Swiss-American Chamber of Commerce on June 16, 2000.
ANNEX I: IBA Rules on the Taking of Evidence in International Commercial Arbitration
ANNEX II: Fee and Cost Schedule of the Swiss-American Chamber of Commerce
Arbitration
ANNEX III: Organizational Regulations of the Swiss-American Chamber of Commerce
Arbitration
|
