Answer ... (a) Procedure, including evidence?
Pursuant to Article 25.2 of the Arbitration Act and if the parties do not agree on the procedure to be followed by the arbitrators in conducting the proceedings, the arbitrators may, subject to the provisions of that statute, conduct the arbitration in such manner as they deem appropriate. Such power includes that of determining the admissibility, relevance, materiality, taking (even ex officio) and evaluation of the evidence.
(b) Interim relief?
Unless the parties have agreed otherwise, the arbitrators may, at the request of any party, grant any interim measures deemed necessary in connection with the object of the dispute. The arbitrators may require the claimant to furnish sufficient security (Article 23.1 of the Arbitration Act). Decisions on interim relief will be treated as an award for the purpose of their enforcement and setting aside (Article 23.2 of the Arbitration Act).
Any interim measures are enforced by the court with jurisdiction in the place where the award is to be enforced or, failing that, by the court at the place where the measures are to carry legal consequences, as foreseen by Article 724 of the Civil Proceedings Act 2000 (Article 8.2 of the Arbitration Act).
(c) Parties which do not comply with its orders?
Pursuant to Article 31 of the Arbitration Act and unless otherwise agreed by the parties, if, in the absence of sufficient cause, in the arbitrators’ judgement:
- the claimant fails to communicate its statement of claim within the time limit, the arbitrators will terminate the proceedings, unless the respondent expresses its intention to apply for relief or remedy;
- the respondent fails to communicate its statement of defence within the time limit, the arbitrators will continue the proceedings without treating such failure in itself as an admission of the facts alleged by the claimant; or
- any party fails to appear at a hearing or to produce evidence, the arbitrators may continue the proceedings and make the award on the evidence before them.
(d) Issuing partial final awards?
Unless the parties have agreed otherwise, the arbitrators will rule on the dispute in a single award or in as many partial awards as they deem appropriate (Article 37.1 of the Arbitration Act).
(e) The remedies it can grant in a final award?
The Arbitration Act does not rule on the sorts of remedies that can be granted in a final award. Nonetheless, bearing in mind the nature of arbitration and the function assigned to it, as an alternative to court proceedings and rulings, it is clear that the remedies that can be granted in a final award are no different from those that can be granted in a court ruling.
A final award can thus either or cumulatively:
- order the defendant to pay a certain amount to the claimant and/or to do or not do something;
- create, modify or extinguish a certain right or obligation; and
- declare how a provision is to be interpreted or applied to certain facts involving certain parties at the request of a party, in terms that are binding on both parties.
The Arbitration Act contains no provisions on the sorts of interest that can be pursued or protected through arbitration, the rule being that all matters can be submitted to arbitration, with the exception of those that involve unrenounceable rights. Given that Article 37.1 of this statute grants the arbitrators the power to “rule on the dispute”, it must be understood that they also have the power to rule on the interests behind the dispute, provided that the dispute is arbitrable.