BREXIT TRIBUNALS

 

"  The  BREXIT   Tribunal  "

   
(within the AKD-CAE Arbitration Institute)
 
 


 
  
INTERNATIONAL ARBITRATION RULES
In force as from 1.12.2018



 
Preamble
 
This set of rules (the “Rules”) governs the functioning of the so-called “BREXIT TRIBUNAL”, a department within the AKD-CAE Arbitration Institute (www.arbitragekamer.be/start-nl) with the particular aim to introduce a pragmatic, flexible, confidential, business-minded and solution-oriented approach to potential Brexit consequences.

Arbitration is a suitable forum to handle Brexit-related conflicts, especially since the 1958 New York Convention (= nearly worldwide enforcement system) will continue to apply for arbitral awards whereas the Brussels I Bis Regulation would no longer apply to public court rulings that are rendered in the UK and that are to be executed in the EU or vice versa

The fact that a problem would be handled in an arbitration forum does not exclude that the correlating decision could include the best solution that was found by the parties (e.g. with the help of a professional facilitator). The BREXIT tribunal will focus on helping parties to solve their problem (e.g. by appointing a conciliator, mediator or other helpful interventions). If the problem can be solved, the settlement will be converted into a decision of the arbitration tribunal and should become nearly worldwide enforceable under the said New York Convention. If no settlement was found, the arbitration tribunal will take a decision without any significant loss of time.

The unique approach makes that persons and legal entities want and can use these Rules also for the resolution of conflicts arising in various other contexts that may not be related to Brexit.

Parties can seek recourse to these Rules by use of the following recommended standard clause.

           "  Any dispute arising out  or in relation to the agreement(s) between the parties and/or any dispute
              that can be related
directly or indirectly to Brexit circumstances
shall be finally
              settled through arbitration by the Brexit Tribunal in accordance with the International Arbitration
              Rules of the AKD-CAE Arbitration Institute in force at the time of commencement of arbitration.”


These Rules do not affect other procedural rules of the AKC-CAE Arbitration Institute that may exist for other disputes.
 

Article 1: The AKD-CAE Arbitration Institute

The AKD-CAE Arbitration Institute is an independent body responsible for the administration of disputes. The Office address of this Arbitration Institute is located at Avenue Louise 146, 1050 Brussels, Belgium. The Arbitration Institute is registered with the Belgian Crossroadbank of Undertakings under n° 0879.185.333. The Secretariat of the AKD-CAE Arbitration Institute can be contacted on secretariaat@arbitragekamer.be.
 

Article 2: Supplementing provisions

The present Rules can be supplemented, at the discretion of the arbitrators, by the Belgian Arbitration Law or by international arbitration standards and arbitration practices. The arbitrators have a wide appreciation margin for the identification of such standards and practices. Such practices and standards can e.g. relate to the consolidation of procedures, dealing with multiple contracts, urgency situations, interim relief, third Party funding, etc.
 

Article 3: Registration fees

For the submission of a claim, as well as for the submission of a counterclaim, a registration fee must be paid.. The registration fee amounts to 2000 EUR (excl VAT). This fee serves to contribute to the administrative costs of the AKD-CAE Arbitration Institute.
 

Article 4: Conduct of the Parties

The AKD – CAE Arbitration Institute, the Arbitral Tribunal and the Parties shall act in an efficient, expeditious and good faith manner and always make reasonable efforts to ensure that any award is legally recognised and enforceable.
 

Article 5: Written Communications

All written submissions, requests and communications presented by the Parties, as well as all documents and evidences attached, shall be sent by each Party to (1) all the other Parties, (2) to the members of the Arbitral Tribunal, and (3) to the (secretariat of the) AKC-CAE Arbitration Institute simultaneously.

The submissions, requests and communications shall be done by e-mail with request for proof of receipt.

Parties are responsible to inform about any change of address and any change of representative
.
All submissions, requests and communications from a Party shall be done by the counsel indicated by the Party, unless that Party would represent itself in the arbitration procedure.

The date and time of the submissions, requests and communications shall be determined according to Brussels time.

Unless explicitly otherwise decided by the Arbitral Tribunal;
  •      Time period specified under the rules or determined by yhe Arbitral Tribunal shall start to                                      run on the day following the date a communication is deemed.
  •      When the following day is an official holiday or a non-working day in Belgium, the period of time shall                 commence on the first following business day.
  •      Official holidays and non-working days count in the time period.
  •      If the last day of the granted time period is an official holiday or a non-working day in Belgium, the end               of the time period shall be considered the day after.  

Article 6: Confidentiality

The AKD – CAE Arbitration Institute, the Arbitral Tribunal, the Parties and their representatives, as well as any person participating in the proceedings, shall maintain the confidentiality of the arbitration procedure and the arbitral award, unless otherwise expressly agreed by all Parties to the dispute.
 

Article 7: Limitation of Liability

The arbitrators, the experts appointed by the Arbitral Tribunal, the AKD – CAE Arbitration Institute and its employees shall not be liable to any person for any act or omission in connection with the arbitration.
 

Article 8: Request for Arbitration

Any Party wishing to initiate arbitration under the Rules of the AKD – CAE Arbitration Institute shall first submit to its institutional e-mail address (secretariaat@arbitragekamer.be) a written Request for Arbitration.

The Request for Arbitration shall contain:
  1. The full name, description, e-mail addresses and physical addresses, as well as any other contact information, of each of the Parties and their known representatives;
  2. A summary of the nature and circumstances of the dispute;
  3. The relief that is sought;
  4. An estimated monetary amount of the dispute;
  5. Comments on the number of arbitrators and the appointment procedure;
  6. Comments on the language of the procedure;
  7. Comments on the place and applicable law of the proceedings;
  8. A copy of the arbitration agreement;
  9. The proof of payment of the AKD – CAE Arbitration Institute Registration Fee.
If the Registration Fee is not paid by the Claimant, the AKD-CAE Arbitration Institute will set a time period of maximum 30 days within which the Claimant shall pay the fee. In the absence of a payment, the Request for Arbitration will be dismissed (= deemed as not being complete).

The Arbitration shall be deemed to commence only when the AKD – CAE Arbitration Institute receives the complete Request for Arbitration with all the requirements above settled.

The AKD-CAE Arbitration Institute will then communicate to the Respondent and forward the Request for Arbitration to the Respondent.
 

Article 9: Answer and Counterclaims

Within 30 days from receipt of the Request of Arbitration from the AKD-CAE Arbitration Institute, the Respondent shall submit to the AKD – CAE Arbitration Institute institutional e-mail address (secretariaat@arbitragekamer.be) a written Answer to the Request for Arbitration.

The Answer to the Demand for Arbitration shall contain:
  1. The full name, description, e-mail addresses and physical addresses, as well as any other contact information, of each of the Parties and their known representatives;
  2. A summary of the nature and circumstances of the dispute;
  3. The relief that is sought;
  4. An estimated monetary amount of the dispute;
  5. Comments on the number of arbitrators and the appointment procedure;
  6. Comments on the language of the procedure;
  7. Comments on the place and applicable law of the proceedings;
  8. The proof of payment of the AKD – CAE Arbitration Institute Registration Fee. 
The AKD-CEA Arbitration Institute will then forward the Answer to the Request for Arbitration to the Claimant.

The Respondent´s failure to submit an Answer to the Request for Arbitration shall not prevent the arbitration to proceed.

If the required Registration Fee is not paid by the Respondent, the Secretariat will set a time period of maximum 30 days within which the Respondent shall pay it. In the continued absence of payment, the arbitration procedure will continue but any financial counterclaim will not be adjudicated and automatically be dismissed.
 

Article 10: Modification of claims

Either Party may at any time prior to the closing of the hearing modify, amend or exclude its claims. The value in dispute shall remain the highest amount claimed by either Party.

If claims are increased, the increased amount will only be adjudicated if the correlating registration fee is paid. If claims are reduced no reimbursement of registration fees can be due.
 

Article 11: Constitution of the Arbitral Tribunal

If all Parties to the procedure agree to the appointment of a sole arbitrator, such arbitrator will be appointed by the AKD-CAE Arbitration institute.

As soon as either Party requests the Arbitral Tribunal to consist of a panel of 3 arbitrators, both Parties can appoint an arbitrator from the AKD-CAE list of arbitrators (http://www.arbitragekamer.be/arbiters/arbiterslisting) or from the Association for International Arbitration VZW/ASBL list of arbitrators (https://www.arbitration-adr.org/membership/?a=list&t=all) and the AKD-CAE Arbitration Institute will choose and appoint the presiding arbitrator.

If (a) Part(y)(ies) fail(s) to appoint an arbitrator, the AKD-CAE Institute will choose and appoint the correlating arbitrator(s).

If there are more than 2 Parties in the procedure and at least one Party requests the Arbitral Tribunal to consist of a panel of 3 arbitrators, the AKD-CAE Institute will choose and appoint all 3 arbitrators.

Arbitrators must withdraw from adjudication if they believe that their independence and impartiality is at stake. The IBA Guidelines relating hereto will serve as guidance for the arbitrators.


Article 12: Mediation, Conciliation and other forms of Amicable Resolution tracks within the arbitral proceedings                                                                         

The Arbitrator(s) must at all times stimulate parties to reach an amicable solution for the problem and have the widest powers to issue helpful procedural orders and interim measures to that end. The Arbitrators may, of their own motion appoint one or more facilitators, who must be independent and impartial, to assist the parties in identifying what could be the best solution for the conflict at hand.
 
Either Party may at any stage of the proceedings formulate a request for mediation or conciliation or can propose any other amicable resolution track. The Arbitral tribunal will, if it deems such request to be reasonable in the circumstances at hand, suspend the arbitration and appoint a mediator or a conciliator or issue any other procedural order that best fits a proposed amicable resolution track.

The identity of the mediator or the conciliator reflects the agreement between the Parties or, failing such agreement between the Parties, is determined by the Arbitral Tribunal.

The amicable resolution attempt governs the entire conflict, meaning that the mere appointment of a mediator or conciliator can never have any influence on any jurisdictional or admissibility grounds.

The adjudicative proceedings are suspended as from the request for an amicable resolution track until the end of such amicable resolution track.

If the amicable resolution track is fully or partially successful (which means that Parties would have found a settlement agreement that settles at least part of their conflict), the correlating settlement agreement between the Parties can be converted into an arbitral award.

Any dispute that was submitted to the Arbitral Tribunal and that could not be settled will be further adjudicated by the Arbitral Tribunal.
 

Article 13: Arbitral Proceedings

The Arbitral Tribunal determines submission deadlines and the date(s) of hearings, taking into account the particularities of the conflict, the Request for Arbitration and the answer(s) of the Respondent(s).

At any stage of the procedure either Party may issue a written  request for a new or amending procedural order. The Arbitral Tribunal has a wide discretion and sees to it that the time line of proceedings meets the particularities of the case at hand (= fit the forum to the fuss).

At any stage of the procedure the Arbitral Tribunal can issue a new or amending procedural order to better fit the forum to the fuss.

Brussels is the place of arbitration, the seat of the Arbitration, the place where the arbitral awards are deemed to have been rendered and the place where the hearings are deemed to have taken place.
  

Article 14: Arbitration costs

Arbitration costs serve to cover the costs and fees of the Arbitrators, assistants and all experts that may be appointed by them.

Unless otherwise agreed with the Parties, Arbitrator fees amount to 200 EUR/hour (excl VAT) per arbitrator.

Parties must see to it that all invoices relating to arbitration costs are settled within 15 days of the date of invoice.

If an invoice for arbitration costs remains outstanding, the Arbitral Tribunal can deduct thereof that the arbitration procedure is suspended until full payment is received.


Article 15: Final allocation of registration fees and arbitration costs

Unless otherwise agreed by the Parties, the Arbitral Tribunal will determine in its final decision which Party is to finally carry the (advanced) registration fee(s) and arbitration costs.
 

Article 16: Appeal

Appeal is only possible if Parties explicitly agreed on such possibility, either prior to the arbitral proceedings or in the course of proceedings..
The burden of proof, relating to such agreement,  then lies on the party that lodges an appeal against the first instance ruling.

The deadline to lodge the appeal is 2 months counting as from the date on which the Arbitral award was rendered to the Parties.
 
The fore-going Rules will apply mutatis mutandis to the Appeal procedure.
Unless otherwise determined by the first instance Arbitral Tribunal, the Appeal procedure will not have suspensive effects.