The Chamber
Arbitration rules. Reproduced in full as they were settled by Advocate Raynos Gumbo. Cite a rule by its number, or link to it: every rule on this page carries an anchor.
These rules shall be amended from time to time as the situation demands and dictates
Application of rules
These rules shall apply to all commercial and investment disputes that arise during the course of doing business in Africa.
In the event that parties agree that other rules apply to their dispute, these rules shall be excluded and the arbitrators shall proceed to apply the rules agreed to by the parties.
Parties to a commercial or investment dispute may be represented during the proceedings by their legal representatives or any persons of their choice having an understanding of the issues or qualified to represent the parties as the case may be.
Any person who shall represent a party to arbitration proceedings handled by this chamber shall be required to provide to the arbitrators proof of such authority at least a day before appearing. Provided that a representative for good cause shown may declare his or her authority viva voce and supply written proof thereafter.
The tribunal shall in the conduct of all arbitration proceedings observe the rules of natural justice and shall ensure that parties are treated equally throughout the proceedings.
The equal treatment of parties shall include but not limited to:-
Giving both parties full opportunity to present their cases without any hindrances.
Giving both parties the right to present evidence by calling their witnesses or by presenting relevant documents to prove their cases.
Ensuring that parties exchange all relevant documents.
Giving parties sufficient notices to attend proceedings and any subsequent hearings of adjourned proceedings.
Allowing both parties the opportunity to sum up their cases and file closing submissions or heads of argument as the case may be.
Allowing parties to engage the services of translators and or interpreters to avoid language barriers.
Ensuring that the award is communicated to both parties at their chosen domicilium citandi et executandi and through their chosen method of service. If parties are represented it shall be sufficient to deliver the award to their chosen representatives unless the party concerned expressly prohibits service through his/ her representative.
Any documents commencing action or any subsequent pleadings shall be filed electronically addressed to the registrar of the chamber.
The documents shall use font number 12 and shall contain a heading clearly showing the parties to the dispute identified as claimants and respondents as the case may be.
The claimant shall deliver a statement of claim showing the nature of his/her/ its claim giving full particulars of how the claim arose, whether any damages are being claimed, whether interest is being claimed and the rate of interest as well as the relief being sought.
The claimant may include in the claim the following other documents in support of the claim.
Any invoices, receipts or agreements entered into by the parties.
Witness statements outlining the nature of evidence to be led from witnesses.
Expert reports supporting the clam showing full names of the experts and their qualifications and organizations.
Any other relevant materials which tend to support the claimant’s case shall be filed as annexures to the statement of claim. Provided that where a party needs to attach as an exhibit any document, the party may file the full document or an extract or relevant part of the said document.
Only certified copies shall be filed as supporting documents and the original may be produced to the tribunal where there are disputes regarding the authenticity of the certified copy.
Once the chamber registrar has received a statement of claim from a claimant, he /she shall allocate a number to the case which shall run in sequence from number 1 of a particular year. This number shall be quoted by both parties or all parties in the case of multiple proceedings on all documents or pleadings to be filed under that case.
The registrar shall stamp the document and allocate it a number and send it back to the claimant who shall upon receipt, send it to the respondent or respondents as the case may be.
The claimant shall file with the registrar of the chamber, the return of service which shall be filed electronically. It shall be sufficient proof of service to return a copy of the portion stamped by the respondent or a sworn statement showing how service was effected. If service was effected through the sheriff of the High Court or the police there should be some written proof showing how service was effected and to who including the date on which such service was effected.
Once the other party is served with a statement of claim he/she/it should file with the registrar of the chamber within 5 days (or any such longer period as may be authorized by the chamber registrar in writing) opposing papers or any such other answer to the claim.
Upon receipt of the opposing papers or any such other answer to the statement of claim, the registrar of the chamber shall within 2 days and in liaison with the parties summon the parties for a virtual meeting to discuss pre-arbitration issues. Parties may hold a physical meeting if its convenient or possible to do so.
A party shall not fail to attend a pre-arbitration hearing without any justifiable cause.
If a party fails to attend a pre-arbitration hearing without a reasonable explanation the tribunal may proceed to hear the preliminary issues and proceed on a latter date with the arbitration proceedings. The road map of the arbitration Proceedings may be determined in the absence of the defaulting party.
The official language in all proceedings shall be English.
Parties may agree to the use of other languages such as French, Swahili or others subject to approval by the tribunal.
Parties are entitled to use the services of interpreters and translators. The chamber shall keep a list of approved interpreters and translators from which parties may choose from. Provided that parties may choose any other translators who are certified and may not necessarily be on the chamber’s list.
All documents intended for use in any proceedings conducted by the chamber shall be translated into the procedural language or the language chosen by the parties. Record of proceedings shall be kept in the official procedural language. Where interpreters are employed in any proceedings they shall interpret all testimonies in the procedural language for purposes of the record. Translation of a document need not involve translation of the entire document. Translation of part of the document or the relevant part will suffice unless the other party shows that it will be prejudiced if only part of the document is translated.
For purposes of these rules time shall be reckoned from the next day excluding the date on which documents were received and excluding further, weekends and public holidays.
If a party fails to perform a required procedural step within the time allowed by these rules the party shall be automatically barred and shall not be allowed to file any further pleadings with out the express consent of the other party or without the approval of the Tribunal upon giving a satisfactory explanation for failure to comply with the rules. If no such explanation is given or if it is given and considered to be insufficient, the Tribunal shall proceed to determine the matter on the available evidence. Provided that in the interests of fairness the Tribunal shall not unnecessarily and without justification refuse to hear the defaulting party or proceed without giving him/ her/ it a reasonable opportunity to explain him/herself or itself as the case may be.
Within 5 working days after parties have filed all their pleadings the Tribunal shall be constituted in accordance with the agreement in the arbitration agreement by the parties. If the parties have not agreed on a procedure for the appointment of arbitrators the chamber shall appoint arbitrators using a procedure deemed fair to both parties. The president of the chamber for any given time shall appoint the arbitrator or arbitrators and shall forthwith notify the parties of such appointment and should the parties have any objections such objections should be raised with the President on the very day of receipt of the notice of appointment and in any case not latter than close of business on the next business day from the date such notice is received.
The chamber shall maintain a list of qualified arbitrators from which to choose arbitrators who are most suitable in terms of qualification to handle a particular dispute.
Once an arbitrator has been appointed either by the President of the chamber or by the parties he/ she should accept such appointment in writing and shall declare therein that he/ she is not conflicted to handle and determine the matter arising from any association or knowledge of the parties or one of the parties or arising from the fact that he/ she handled a case involving the same parties before. If an arbitrator declares that he/ she is conflicted in one way or the other, the President of the chamber or the party responsible for the appointment of the arbitrator or arbitrators shall appoint another or other arbitrators who is or who are not conflicted, within two working days.
Once an arbitrator has accepted appointment and signed the declaration aforementioned in writing the registrar of the chamber shall within two working days of receiving such written notice of acceptance and of the fact that the concerned arbitrator/s is duly or are duly appointed to preside over their dispute advise the parties in writing of this fact. On the other hand if an arbitrator has not accepted appointment the parties should be notified within two working days and the procedure in rule 9.1 shall apply.
Should there be changes regarding circumstances relevant to whether an arbitrator is conflicted or not or should an arbitrator discover new facts that were not known to him/her at the time he/ she declared that he/ she was not conflicted such arbitrator should declare in writing to the parties to determine the suitability of the concerned arbitrator to continue on the matter. If it is noted that such an arbitrator is no longer suitable to continue on the matter another arbitrator shall be appointed to hear the matter de novo.
Prior to the commencement of arbitration proceedings a party responsible for the appointment of an arbitrator or by the mutual consent of both or all the parties to the arbitration proceedings may reverse and withdraw his/ her appointment of a particular arbitrator for any reason which he/ she is not compelled to disclose. Parties may agree to withdraw a particular arbitrator and appoint another to replace the withdrawn arbitrator. The procedure for the appointment of an arbitrator contained in the arbitration agreement or these rules shall be adhered to when appointing a new arbitrator following the withdrawal of one.
Once all the arbitrators have been duly appointed in terms of the agreement of the parties or in terms of these rules the tribunal shall be duly constituted and the registrar of the chamber shall without undue delay notify the parties of the constitution of the tribunal.
Each member of the Tribunal in the case of a situation where there is more than one arbitrator shall be served with copies of the pleadings filed by the parties.
The Registrar of the chamber shall at the earliest opportunity invite the parties to appear before the tribunal for a pre-arbitration session.
The pre-arbitration session shall discuss all or some of the following:
The fees for arbitration and the method of charging such fees including the stage or stages at which such fees will be paid.
The procedure of the arbitration process. Parties may choose to proceed under these rules or prefer Ad Hoc procedures or may choose any other rules of other arbitration institutions.
Parties should at the pre-arbitration proceedings discuss and arrange for interpreters and translation of documents including the issue of whether a single procedural language will be used or parties will adopt two languages. If two languages are adopted parties should agree on the translation of all documents into two languages. Interpreters should interpret proceedings for purposes of the records into the two languages and the award shall be produced in those two agreed procedural languages.
The pre-arbitration proceedings should cover issues such as how parties would file their pleadings including heads of argument, general length of the heads of argument including general format thereof, whether parties need to physically attend hearings or whether the hearings can be held virtually, exchange of documents to be used in support of the claim and for the respondents and inspection of such documents before the hearing, including making of copies for such documents, the recordings of proceedings, handling of confidential information, representation of the parties and any other matter as may be relevant on the procedure of the arbitration.
The pre-arbitration session shall be held within 7 days from the date parties are notified of the constitution of the Tribunal.
At the close of the pre-arbitration session the Tribunal shall issue an order indicating the agreement by the parties and such order shall bind the parties and provide a road map for the arbitration proceedings.
An arbitrator may resign at any time giving full reasons for such resignation.
Upon the resignation of an arbitrator a replacement or new arbitrator shall be appointed following the agreed procedure by the parties or in accordance with these rules and the matter shall be heard de novo.
The arbitration proceedings shall be commenced through the registrar of the chamber by issuing a notice to the parties indicating the date, venue and time when proceedings will be held. If parties are legally represented the notice shall be served on their legal representatives.
Upon receipt of a notice in rule 14.1 above a party or his/ her legal representative shall acknowledge receipt by stamping and signing and returning a copy thereof to the chamber registrar as proof of receipt of the commencement of arbitration proceedings.
At the hearing of arbitration proceedings parties may be represented at their own expense by legal practitioners of their choice or by any other persons qualified to appreciate the proceedings.
Arbitration proceedings shall be informal but guided by the rules of natural justice and the need to allow each party to fully present their case and the equal treatment of parties.
The Tribunal shall direct the proceedings and assist the parties to present their cases and gather sufficient evidence to enable it determine the case from an informed basis.
The case may be adjourned to another date to allow parties to fully present their cases. Parties shall be notified by the Tribunal of the next hearing date including the venue and time. Arbitration proceedings shall not be postponed sine die due to the need to resolve the issues swiftly and effectively in order for the process to be cost effective.
Unless the situation is beyond the control of the Tribunal all commenced arbitration proceedings should be finalized by the rending of the award within 21 days inclusive of weekends from the date proceedings commenced. Parties in consultation with the Tribunal may agree to extend this period. In all cases it cannot be extended beyond 30 days from the date proceedings are commenced.
Parties have a right to sum up their cases in closing submissions. Such submissions may take the form of heads of argument outlining the law on any issues the arbitrator/s is/are required to rule on.
The tribunal may before hearing the matter engage the parties in case management conferences which shall act to some extent as pre-trial conferences to define the issues that emerge from the papers and narrow down the issues for determination. This shall cover also issues where parties converge and any other issues relevant to the proceedings.
All Tribunal members should participate in all hearings to enable them to deliberate effectively before a decision which is final and binding is taken.
The Tribunal shall regulate its own proceedings when it comes to determining the procedure for deliberation including the venue for such deliberation and the recording of proceedings.
Where one arbitrator is involved the decision of the Tribunal shall be taken by the arbitrator concerned after evaluating all the evidence before him or her and determining on all the issues placed before him/ her for determination.
Where there are three or more members of the Tribunal a decision of the Tribunal shall be that of the majority vote. All the members should vote and if a member is not present to vote or abstains from voting those should count as negative votes.
The Tribunal may make procedural decisions during the course of arbitration proceedings including giving interim orders where applied for by either party. The arbitrator/s shall determine on the admissibility of documents always being guided by the flexibility of arbitration proceedings and not relying on strict rules of civil procedure as applied in the courts.
Where there are technical issues to be determined the arbitrator/s may appoint an expert or a team of experts to evaluate the issues and issue a report to the arbitrator/s which report shall be written in such a language as would be easily understood by the Tribunal and the parties.
The report produced by the expert/s should be served on the parties who shall be allowed to comment on it by way of written submissions and where necessary a party may request to have the expert/s summoned by the Tribunal so that he/she could be cross examined by the parties.
Any witness called by any party shall be called at the expense of the concerned party and shall give his/ her evidence before the Tribunal and can be questioned by the other party or parties and the Tribunal may question him/ her to seek clarification on his/ her evidence. This is the case also with witnesses who would have filed written statements outlining their evidence. They may be called for examination if there are portions of their evidence which is being challenged by the other party or if the Tribunal requires clarification on any parts of the evidence.
The Tribunal may determine that parties may resort to the use of technology for purposes of examining any witness; otherwise a witness shall attend in person at the hearing for the purposes of examination.
Witnesses may give their evidence under oath or under an affirmation.
While arbitration proceedings should be informal and flexible a party may raise a preliminary point/s which goes to the root of the dispute including the question of jurisdiction and the fact that the dispute falls outside the terms of reference of the Tribunal and that the Tribunal is not competent to decide the dispute.
A party wishing to raise preliminary points shall do so in writing and serve a copy to the register of the chamber at least two or three days from the date of the hearing. A copy should be served on the other party or parties at least two days before the hearing.
A party served with preliminary points may file his/ her response thereto a day before the hearing otherwise he/ she may make his/her submissions viva voce on the hearing date.
All preliminary points should be put in one document to enable the Tribunal to make one decision on such points.
The Tribunal must first determine on the points in limine before hearing the merits of the matter.
The Tribunal may request parties to file written heads of argument before determining on the preliminary points and may fix a date, time and venue for the determination on preliminary issues.
Where the same parties have more than one claim handled by the chamber parties may for expedience purposes if the issues for determination are essentially the same agree to have the claims consolidated and determined pari passu.
The parties in consultation with the Registrar of the chamber may agree on the modalities and form of such consolidation as will enable the arbitrator/s to deal with every aspect and every issue to be determined upon.
where there is more than one claim pending before the chamber and such matters may not for one reason or the other be consolidated parties may agree to have specific procedural aspects of the matters separated and handled by different arbitrators who may give depending on the evidence different awards.
The parties shall in the case of consolidated proceedings liaise with the Registrar for an agreed procedure to be followed in the hearing of the proceedings.
The Tribunal shall have power to grant interim measures or provide provisional relief in any of the following circumstances.
To protect the rights of a party in situations where urgency is proven in order to prevent permanent or irreparable harm to the party concerned.
Restoration of the status quo ante.
Preservation of critical evidence that may be lost if such relief is refused.
The party applying for provisional relief shall do so in writing stating clearly the grounds for such application and the harm to be suffered by it if the relief sought is not granted. The Tribunal shall determine the issue of provisional relief in accordance with the dictates of the pleaded case and such decision shall be final serve where the arbitration agreement provides for an appeal to the courts or other Tribunals.
For purposes of these rules a party shall be in default.
Where they fail to file any pleading or document in terms of the period agreed in these rules without any reasonable excuse.
Where a party fails to appear at a hearing when he/ she was duly served with the relevant notice showing the venue, date and time of the hearing.
Where a party is in default for purposes of these rules the Tribunal shall first determine the reasons for the default. If a party provides good and sufficient reasons for the default , the Tribunal shall condone him/ her and proceed with the proceedings. Where however a party who is in default fails to provide good and sufficient reasons for the default the innocent party shall apply to the Tribunal to determine the issues before it based on available evidence. The fact that the other party is in default shall not be the sole basis for ruling in favour of the innocent party. A Tribunal may well rule in favour of the party in default if there are grounds to do so.
Costs shall cover individual legal fees (if applicable) incurred by each party, administrative costs associated with the running of the hearing by the chamber and fees and expenses for the Tribunal.
Each party shall provide a bill of costs incurred on the case and the Tribunal shall allocate the costs between the parties.
Costs shall follow the result. The Tribunal may order punitive costs If a party conducted itself during the proceedings as to leave the Tribunal with no option but to frown at such conduct which may include bearing all the costs of the other party.
The Tribunal should provide a reasoned basis for the allocation of costs which shall be part of the award.
The Tribunal shall have power to award interest and damages where justified and prayed for by a party.
Where the circumstances demand and upon request by either party the Tribunal may order payment of security for costs.
Where parties settle through negotiations between themselves before the Tribunal renders an award, upon the request of the parties the Tribunal may record the terms of the settlement and render an award reflecting the terms of settlement by the parties. Such an award shall for all intents and purposes have the same effect as any other award.
Every award rendered by this chamber shall be in writing and duly signed by the arbitrator/s who rendered it and showing the date on which it was rendered. Provided that the award shall be valid if signed by the majority of the members who rendered it.
The arbitrator/s shall give reasoned grounds upon which the award is based. No award shall be valid if reasons for the award were not provided by the arbitrator/s who rendered it. The award shall also state the place of the arbitration.
Parties shall be given a copy of the signed award not latter then 3 days from the date it was rendered and parties or their legal representatives should duly acknowledge receipt of same.
If parties consent thereto service or delivery of an award can be done electronically and receipt of same shall be deemed unless the contrary is shown to be the date on which it was sent.
A Tribunal may order the payment of interest at a rate determined by the Tribunal and on such other terms as the Tribunal deems fit.
A Tribunal shall have power unless the parties agree otherwise to make an interim award interlocutory or partial award or an additional award.
The mandate of the Tribunal shall terminate once a valid award determining all issues brought before the Tribunal is made.
If parties settle on all issues in dispute and the Tribunal records the terms of settlement and renders an award capturing all the terms of settlement the mandate of the Tribunal shall terminate at this stage and proceedings will also terminate at this stage.
A claimant may at any stage of the proceedings withdraw his/ her claim and the Tribunal may terminate proceedings subject to the issue of costs incurred up to the time of such withdrawal being tendered by the withdrawing party.
Proceedings may also be terminated if parties agree on taking such a course including on the issue of costs.
The Tribunal could issue an order for the termination of proceedings if their continuation has for any reason become unnecessary or impossible and the Tribunal shall in that order deal with the allocation of costs between the parties up to the time of such termination.
After the issuance of an award the arbitral Tribunal shall have residual powers to correct obvious errors on the award such as computation errors, spelling errors on the names of the parties and any clerical or typographical errors or similar errors.
A party who needs to have an error corrected shall make a request to the Tribunal and serve a copy of this request to the other party or parties within 2 working days from the date of the said request.
The Tribunal shall also after the rendering of an award have power upon request by either party and on notice to the other party to give an interpretation on a specific point or part of the award provided that the Tribunal shall not in giving such interpretation have a second bite of the cherry by introducing new issues or reasons for the award.
Where the Tribunal has omitted to determine certain issues which were presented before it an affected party may make a request in writing to the Tribunal to render an additional award covering the omitted claims.
The request shall be on notice to the other party which is expected to respond to the request either consenting or objecting to the relief sought within two working days from the date of receipt of such notice.
The Tribunal shall upon receipt of the response of the other party in terms of Rule 31:15 render an additional award on the omitted claims within 7 working days. The additional award shall be delivered to the parties in the same manner as the first award.
The Tribunal may if the time provided by these rules is not sufficient for purposes of correcting any errors or issuing an additional award extend such period by no more than 5 days in all cases.
Once an award has been rendered and all corrections of errors attended to and any additional awards rendered, the chamber shall not have any further jurisdiction on the dispute and any challenge on the award/s shall be in accordance with the model law and this covers issues of recognition and enforcement of the award.
The chamber shall provide assistance with administrative issues such as coordinating the arbitration process ,provision of secretarial services to the parties including typing and photocopying of documents and the venue for the arbitration process. Where the proceedings are going to be held virtually the chamber shall coordinate the entire process.
The chamber shall charge for these administrative expenses which shall be taken into consideration by the tribunal in the allocation of expenses between the parties.
The Registrar of the chamber shall at the end of the proceedings deliver to the Tribunal a full statement showing the itemized bill covering all administrative costs.
If a part fails to object where the other has not complied with any rule contained in these rules providing a time limit within which a certain action has to be taken the party so failing to raise an objection shall be deemed to have waived his/ her rights to object.
These Rules shall be amended from time to time as the situation demands and dictates.
Rule 4.1 files documents electronically with the chamber registrar, and rule 5.1 gives the case a number on receipt that both parties quote on everything filed under it afterwards. Filing costs USD50, and you need a WLS account because a case file is private to the parties.
