Answer ... (a) Procedure, including evidence?
If the parties fail to agree on the rules of the arbitration proceedings, the arbitral tribunal may, subject to the Arbitration Act, conduct the proceedings as it deems appropriate, including with regard to the right to determine the admissibility, relevance and weight of any proposed and adduced evidence (Article 31).
In such terms, the Arbitration Act provides, for example, that the tribunal may decide on the language and place of arbitration (Article 34), and whether the proceedings will be conducted through hearings or through the exchange of documents and other materials (Article 36(1)). Likewise, the arbitral tribunal may:
- appoint one or more experts to report to it on specific issues; or
- require a party to give the expert any relevant information or produce, or provide access to, any relevant documents, goods or other property for inspection (Article 38(1)).
In any event, the arbitral tribunal may request legal assistance from the competent court with regard to the taking of evidence. The arbitrators may participate in the procedure of taking evidence before the court (Article 39(1)).
(b) Interim relief?
The tribunal has the authority under the Arbitration Act to order interim measures, at any party’s request, unless the parties have agreed to divest the tribunal of such authority. The tribunal may grant a variety of interim measures, such as ordering the parties to:
- maintain or restore the status quo pending determination of the dispute;
- take action that would prevent, or refrain from taking action that is likely to cause, current or future harm or prejudice to the arbitral process;
- preserve assets out of which the subsequent award may be enforced; or
- preserve evidence that may be relevant to the resolution of the dispute (Article 21).
In the interim measures context, the tribunal may:
- impose an obligation on the party requesting an interim measure to provide appropriate security (Article 24);
- require the parties promptly to disclose any change in the facts on the basis of which the interim measure was requested or ordered (Article 25);
- modify, suspend or terminate an interim measure upon the application of any party or, in exceptional circumstances and with prior notice to the parties, of its own initiative (Article 23); and
- at any point during the proceedings, award costs and damages to the party suffering such costs and damages owing to an interim measure ordered against it, provided that the tribunal establishes that such interim measure should not have been granted previously (Article 26).
(c) Parties which do not comply with its orders?
In general, tribunals do not have the authority to compel the parties to comply with tribunal orders, (ie, to enforce their own orders). However, tribunals may use the usual tools - such as drawing adverse inferences and exercising discretion in allocating costs - to ensure the parties’ procedural discipline. Likewise, within its power to conduct the proceedings as it deems fit, the tribunal may in certain cases suspend the proceedings pending a party’s compliance with its orders (eg, in case of interim measures).
The Arbitration Act provides another tool where one of the parties fails to appear at a hearing or to produce documentary evidence within the relevant timeframes. In such cases the tribunal may continue the proceedings and render its award based on the evidence that has been submitted to it (Article 37).
(d) Issuing partial final awards?
Under the Arbitration Act, tribunals are authorised to issue partial awards (Article 43(2)). However, the Arbitration Act sets out no requirements or further guidance. Although the Civil Procedure Act is not directly applicable to arbitration, it does provide general rules for civil proceedings in Montenegro, which – applied to arbitration – allow a partial award to be rendered where part of a claim or one or several of multiple claims before the tribunal are ripe for final adjudication (Article 335 of the Civil Procedure Act).
(e) The remedies it can grant in a final award?
The Arbitration Act does not anticipate the types of remedies which can be granted in a final award. The tribunal is free to decide on the requests of the parties and to issue an award within the scope of their petitions and the underlying arbitration agreement, to the extent that such requests are not contrary to Montenegrin public policy, assuming that the seat of the arbitration is in Montenegro.
The Arbitration Act does not contain provisions regarding interest. This matter might be considered a part of the applicable substantive law to the dispute. As such, arbitral tribunals applying Montenegrin law can award default interest, if so requested, under the Montenegrin Default Interest Act.