Evolution has created several ways of defying the unsettling consequences of disputes. In the animal kingdom, where survival is dependent on mutual respect, harmony and assistance, there is a need to maintain beneficial relationships. For example, chimps kiss and embrace after fights. As we have evolved, so have our dispute resolution methods. Arbitration is a significant development in the way trade disputes are settled between two parties. In this article, we will discuss the evolution of the Abu Dhabi Commercial Conciliation and Arbitration Centre (the ADCCAC) and its policies and procedures.
We must take note that parties that are desirous of employing arbitration as a preferred choice of dispute resolution mechanism must incorporate a model clause into their contracts and agreements. This clause in the agreement must state specifically that in case of any dispute that is a result of the execution, interpretation or termination of the contract, the parties will attempt to resolve the dispute in accordance with the Rules of the ADCCAC.
The first step for the either party is to file a request for arbitration to the ADCCAC with details such as names, addresses, means of communication for the parties to the dispute along with several copies of documents and relevant supporting materials. The ADCCAC collects a fee of one thousand dirhams at the time of the request for arbitration. This fee is non refundable even if the request is withdrawn or not pursued.The respondent is granted twenty one (21) days from the date of receiving the request with his preliminary defence along with relevant supporting evidence or any objection concerning the validity or applicability of the arbitration agreement. The respondent also has the right to include any remarks or comments he may have regarding the number and choice of arbitrators in case these issues have not been already agreed upon by the parties. The respondent also submits his appointed arbitrator’s details, any comments regarding the venue and language of arbitration along with any counterclaims or any opposing demands that are associated with the dispute. It is imperative to note that at this stage, the failure of the respondent to reply to the arbitration request or designate its own arbitrator within the designated 21 days shall not prevent the ADCCAC from commencing the arbitration proceedings and appointing a panel in case the arbitration agreement provides for the parties to designate its own arbitrators and the respondent has failed to do the same. It shall be deemed that the respondent has waived the right prescribed for the respondent to designate its said arbitrator. The director of ADCCAC may grant the respondent an additional fourteen (14) days to submit his response at his discretion.
If the agreement between the parties specifies the number of arbitrators, the centre will allow for the same number but in case this has not been agreed to, the default is the appointment of a single arbitrator. The individual/s nominated as arbitrator must indicate in writing his/her acceptance or state any facts such as conflict of interest which may prevent their neutrality to the matter at hand. In the course of the arbitration proceedings, if there exist new circumstances that may affect his/her impartiality or independence, the arbitrator must state the same at the earliest available opportunity. We must take note that post the appointment and acceptance of the arbitrator, the arbitrator cannot be challenged unless there seem to be specific circumstances that arise which raise justifiable doubts over the arbitrator’s neutrality or independence. A challenge request must be then submitted to the director of the ADCCAC stating the reasons for the challenge along with supporting documents and evidence within a period of fourteen (14) days from the date of the challenge party being advised of the arbitrator’s appointment. If the concerned arbitrator does not step down he shall submit his observation to the director within a period of ten (10) days from the date on which he receives the challenge notice.
An arbitrator shall be replaced by another in the course of arbitration proceeding in the event of death, renunciation or upon the party’s agreement to dismiss him or upon the committee’s acceptance of his challenge in accordance with the previous article, or upon terminating his task pursuant to the following paragraph.
According the revised rules which were issued in the year 2013 by the ADCCAC, the language of arbitration should be Arabic unless the parties have agreed otherwise. If the disputing parties have previously agreed to the application of law of a particular country, the substantive rules of that country shall be applied provided they do not conflict with the laws of the country. In all cases, the arbitrator decides the disputes in line with the terms of the contract and takes into consideration the related applicable commercial laws and customs.
If the parties have not previously agreed upon a place where the arbitration shall be conducted the place of arbitration shall be Emirate of Abu Dhabi unless another venue has been specified by the committee taking into consideration all arbitration related issue and circumstances including the observation of the parties. In all cases the arbitral award shall be deemed issued at the venue of arbitration.
The centre shall in return for services rendered by it collect a proportional fee of 15% calculated on the fees of the arbitration panel’s specified in article 43 or article 44 as applicable.
In the course of the arbitration proceedings, if the parties reach a settlement, the terms of the settlement should be submitted to the panel. In such cases, the panel issues an award on the mutually agreed terms of the amicable terms of the settlement thus bring the arbitration proceedings to a close. The consensual award has the same binding force as that of awards that are adjudicated in the process of arbitration.
We must understand that alternative dispute resolution mechanisms such as arbitration have gained momentum in all jurisdictions not only because they are deemed cost effective but also because these methods seem to provide better opportunities for the parties to come to a mutually beneficial settlement. ADCCAC since its inception has revised its rules which saw a particular increase in the number of cases being registered at the centre especially those related to real estate and construction disputes. As the methods of dispute resolution have evolved so has the ADCCAC. In our experience with the centre, it allows a streamlined and effective approach which will continually contribute to its success.
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