Domestic Arbitration Rules of Procedure
Parties should examine these Rules to ensure that all the provisions are suitable and appropriate in the circumstances. Parties may agree to modify these Rules. Any necessary modifications of these Rules must be stated in writing and signed by all the parties.
Part 1 – General Provisions
Rule 1 – Interpretation
- “Rules” means these Domestic Arbitration Rules of Procedure
- In these Rules,
- terms and phrases have the same meanings as defined in or contemplated by the Arbitration Act,
- “Act” means the Arbitration Act, 1950 (UK)
Rule 2 – Applicability of the Rules
- These Rules are deemed to apply by virtue of the provisions of the Arbitration Act and by agreement of the parties.
- Unless the parties to an arbitration otherwise agree, these rules for the conduct of domestic arbitrations apply to that arbitration and the Parties shall be deemed to have made these Rules a part of their Arbitration agreement.
- Where the rules referred to in subsection (2) are inconsistent with or contrary to the provisions in any enactment governing an arbitration, the provisions of that enactment shall prevail.
- If any of these Rules, or modification of these Rules agreed to by the Parties, is determined to be in conflict with a provision of applicable law, the provision of law will govern over the Rule in conflict, and no other Rule will be affected.
- The parties shall notify the Arbitrator in writing of any agreement to modify the Rules upon commencement of the arbitration or as soon as any such agreement is made thereafter.
Rule 3 – Representation
- The Parties, whether natural persons or legal entities, may be represented by counsel or any other person of the Party’s choice. Each Party shall give prompt written notice to the Arbitrator and the other Parties of the name, address, telephone and fax numbers and email address of its representative. The representative of a Party may act on the Party’s behalf in complying with these Rules.
- A Party shall give prompt written notice to the Arbitrator and the other Parties of any change in its representation, including the name, address, telephone and fax numbers and email address of the new representative. Such notice shall be accompanied by the written consent of the former representative, if any, and of the new representative and shall state the effective date of the new representation.
Rule 4 – Communications
- Parties to an arbitration under these Rules may deliver any written communications required or permitted under these Rules personally, by mail, by facsimile or by any other means of telecommunication which provide a record of delivery. Communications shall be considered received when delivered to a party’s address for delivery.
- The Arbitrator may permit electronic filing and service of documents in an Arbitration. If the Arbitrator permits electronic filing the Parties shall maintain and regularly monitor a valid, usable and live email address for the receipt of all documents. Any document filed electronically shall be considered as filed when the transmission to the Arbitrators Electronic Filing System is complete. Any document e-filed by 11:59 p.m. shall be deemed filed on that date. Upon completion of filing, the Arbitrator shall issue a confirmation receipt that includes the date and time of receipt. The confirmation receipt shall serve as proof of filing.
- For documents that are not filed electronically, service by a Party under these Rules is effected by providing one signed copy of the document to each Party and one to the Arbitrator. Service may be made by hand-delivery or by post. Service by any of these means is considered effective upon the date of deposit of the document.
- In computing any period of time prescribed or allowed by these Rules for a Party to do some act within a prescribed period after the service of a notice or other document on the Party and the notice or document is served on the Party only by mail, three (3) calendar days shall be added to the prescribed period.
- The address for service shall be the party’s address as stated in the Submission to Arbitrate. A party may change its address for service by giving written notice to the other parties and the Arbitrator.
Rule 5 – Ex Parte Communications
- No Party may have any ex parte communication with the Arbitrator, except as provided in section (2) of this Rule.
- The Arbitrator may authorize any Party to communicate directly with the Arbitrator by email or other written means as long as copies are simultaneously forwarded to the other Parties.
Rule 6 – Time
- In these Rules, where the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.
- In these Rules, in the calculation of time, the first day shall be excluded and the last day included.
- The Arbitrator may, at any time, extend or abridge a period of time required in these Rules.
Rule 7 – Fees
- The commencement fees and fees for arbitrations conducted under these Rules are set out in the Fee Schedule at Appendix A hereto hereinafter referred to as “the Fee Schedule”.
- The full amount of the commencement fee as set out in the Fee Schedule shall be paid to the Arbitrator by the party presenting the claim.
- Commencement Fees are non-refundable.
- Each party shall pay his own share of the arbitration fee.
- Where a party does not pay his required fees or any part thereof any other party may pay the outstanding amount to ensure that the arbitration proceeds and in such a case the Arbitrator may award as costs against the non-paying party any such fees that that party owes in respect of the arbitration.
- Entities whose interests are not adverse with respect to the issues in dispute shall be treated as a single Party for the purpose of assessment of fees. The Arbitrator shall determine whether the interests between entities are adverse considering such factors as whether the entities are represented by the same attorney and whether the entities are presenting joint or separate positions at the Arbitration.
- All outstanding fees and disbursements shall be paid prior to the release of the arbitration award.
- Each party will be required to deposit with the Arbitrator in trust an equal amount as an advance for the anticipated costs of the arbitration.
- If the required deposits are not made within 15 days after receipt of the request from the Arbitrator, the Arbitrator shall inform the parties in order that another party may make the required payment.
- If the required deposits are not made, the Arbitrator may order the suspension or termination of the proceeding.
- After the final award has been made, the claim withdrawn, a settlement reached or the arbitration abandoned, the Arbitrator shall apply any deposits it holds to the costs of the arbitration. The Arbitrator will render an accounting to the parties and return any unexpended balance.
Part 2 – The Arbitrator
Rule 8 – Number of Arbitrators
Unless the parties have agreed otherwise, the arbitration shall be before a single arbitrator.
Rule 9 – Independence and Impartiality
- The Arbitrator shall be and remain at all times wholly independent and impartial.
- Upon accepting an appointment as arbitrator, The Arbitrator shall sign a statement declaring that she knows of no circumstance likely to give rise to justifiable doubts as to her independence or impartiality and that she will disclose any such circumstance to the parties should any arise after that time and before the arbitration is concluded. A copy of the statement shall be provided to each party.
Rule 10 – Disqualification of the Arbitrator as a Witness or Party
The Parties may not call the Arbitrator or any employee of the Arbitrator as a witness in any pending or subsequent litigation or other proceeding involving the Parties and relating to the dispute that is the subject of the Arbitration.
Rule 11 – General Powers of the Arbitrator
Without limiting the generality of any other Rule which confers jurisdiction or powers on the arbitrator and unless the parties at any time agree otherwise, the Arbitrator may:
- order an adjournment of the proceedings from time to time;
- make a partial award;
- make an interim order or award on any matter with respect to which it may make a final award, including an order for costs, or any order for the protection or preservation of property that is the subject matter of the dispute;
- order inspection of documents, exhibits or other property, including a view or physical inspection of property;
- at any time extend or abridge a period of time fixed or determined by it, or any period of time required in these Rules;
- order any party to provide security for the legal or other costs of any other party by way of a deposit or bank guarantee or in any other manner the Arbitrator thinks fit;
- order that any party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation;
- make an award ordering specific performance, rectification, injunctions and other equitable remedies.
Part 3 – The Process
Rule 12 – How to Commence Arbitration
- Parties to a dispute may submit a dispute to arbitration by filing a Joint Submission to Arbitrate with the Arbitrator. The Joint Submission to Arbitrate shall contain:
- the names of the parties to the dispute and counsel, if represented, together with their addresses for service;
- a statement of the matter to be arbitrated;
- the remedy sought and, where possible, a precise estimate of the amounts claimed and counter-claimed;
- any modification of these Rules which has been agreed to by the parties.
- The required commencement fee as set out in the Fee Schedule must accompany the Joint Submission to Arbitrate.
- The Joint Submission to Arbitrate must be signed by the parties to the dispute.
Rule 13 – Commencement Date
- The Arbitration is deemed commenced when the Arbitrator issues a Commencement Letter based on the existence of a post-dispute Joint Submission to Arbitrate fully executed by all Parties.
- The Arbitration is deemed commenced when the Arbitrator issues a Commencement Letter based on the existence of a post-dispute Joint Submission to Arbitrate fully executed by all Parties.
- The issuance of the Commencement Letter confirms that the requirements for commencement have been met and that the Arbitrator has received the required payment.
- The date of commencement of the Arbitration is the date of the Commencement Letter.
Rule 14 – Preliminary Meeting
- The arbitrator shall within 14 days of appointment convene a preliminary meeting with the Parties and/or their counsel or representatives.
- The preliminary meeting agenda may include all or any of the following:
- Identification of the issues in dispute
- The exchange of information and the schedule for disclosure
- The procedure to be followed
- The scheduling of the hearing
- The attendance of witnesses
- The pre-marking of exhibits, the preparation of joint exhibit lists and the resolution of the admissibility of exhibits
- Fees, costs and deposits
- Time periods for steps to deal with any other matters that will assist the parties to settle their differences or assist the arbitration to proceed in an efficient and expeditious manner
- Such other matters as may be requested by the Parties or that the Arbitrator may deem necessary
- The preliminary meeting may take place by conference telephone call
- The arbitrator shall record any agreements or orders made at the preliminary¬ meeting and shall, within 7 days of the meeting send a copy of that document to each of the parties
Rule 15 – Scheduling and Location of Hearing
- The Arbitrator, after consulting with the Parties shall determine the date, time and location of the Hearing. The Arbitrator and the Parties shall attempt to schedule consecutive Hearing days if more than one day is necessary
- The Arbitrator, in order to hear a third-party witness, or for the convenience of the Parties or the witnesses, may conduct the Hearing at any location
Rule 16 – Exchange of Information
- Within 21 days of the commencement of the arbitration, the claimant shall deliver a written statement to the respondent and the Arbitrator. The statement should include:
- a description of all matters and amounts being claimed;
- the facts supporting the claim(s) made;
- the issues to be determined;
- the relief or remedy sought.
- Within 21 days of receipt of the claimant’s statement, the respondent shall deliver a written statement of defence
- At the time a respondent submits its statement of defence, it may make counterclaims or assert a set-off
- The claimant has 14 days from receipt of the respondent’s defence to deliver a written reply and defence to the counterclaim if applicable
- The Parties shall cooperate in good faith in the voluntary exchange of all non-privileged documents and other information including but not limited to electronically stored information, copies of all documents in their possession or control on which they rely in support of their positions and names of individuals whom they may call as witnesses at the Arbitration Hearing and such exchange shall be completed at least 21 days before the hearing
- The exchange of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the receiving Party and convenient and economical for the producing Party
- In cases where the hearing has been waived each party shall deliver all the documents upon which it intends to rely, including witness statements, together with the statements indicated at sub-rules (1), (2) and (3) of this rule
Rule 17 – Amendment of Claim
The Arbitrator may allow a party to amend or supplement its claim or counterclaim or defence during the course of the arbitration, unless the Arbitrator considers the delay in amending or supplementing the claim to be prejudicial to another party or considers that the amendment or supplement goes beyond the terms of the arbitration agreement.
Rule 18 – Agreed Statement of Facts
The parties shall, within a period of time specified by the Arbitrator, identify those facts which are not in dispute and submit to the Arbitrator an agreed statement of facts.
Rule 19 – Experts
- An expert’s report shall include a statement of the expert’s opinion, the facts upon which the opinion is based, and a description of the qualifications of the expert
- Subject to the direction of the Arbitrator:
- A party intending to rely on the opinion of an expert shall deliver a copy of the expert’s report to each party and the Arbitrator no less than 21 days before the hearing
- A party who objects to the admissibility of all or any part of a report shall notify the party relying on the report no less than 14 days before the hearing
- An expert whose report has been delivered under sub-rule (a) shall attend the hearing for oral examination, if requested no less than 5 days before the hearing
- The arbitrator may direct the parties’ experts to meet and to prepare a joint report identifying those matters which are not in dispute and those which are in dispute
- The arbitrator may appoint one or more experts to report on specific issues and may direct a party to give an expert any relevant information or to provide access to any relevant documents, goods or property in its control or possession for inspection, subject to the following:
- The Arbitrator shall first notify the parties of its intention, and invite the parties’ submissions in respect of the proposed terms of reference and identity of the expert
- The Arbitrator shall deliver a copy of the expert’s report to each party and give each party the opportunity to challenge all or any part of the report in a manner determined by the Arbitrator
- At the request of a party, the expert shall make available for examination all documents, working papers, goods or other property in the expert’s possession which the expert used in the preparation of the report
Rule 20 – Hearings and Evidence
- The Arbitrator may conduct the arbitration in the manner it considers appropriate but each party shall be treated fairly and shall be given full opportunity to present its case
- The Arbitrator shall strive to achieve a just, speedy and economical determination of the proceeding on its merits
- The Arbitrator shall determine the order of proof, which will generally be similar to that of a court trial
- The Arbitrator may require witnesses to testify under oath
- Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product
- The Arbitrator shall consider evidence that he or she finds relevant and material to the dispute, giving the evidence such weight as is appropriate. The Arbitrator may be guided in that determination by principles contained in the general Rules of Evidence as set out in the Evidence Act or any other applicable rules of evidence
- ) The Arbitrator may limit testimony to exclude evidence that would be immaterial or unduly repetitive, provided that all Parties are afforded the opportunity to present material and relevant evidence
- Where the parties have opted to waive the hearing, The Arbitrator may receive and consider witness affidavits or other recorded testimony even though the other Parties have not cross-examined the witnesses
- The Hearing, or any part thereof, may be conducted by telephone or video conference with the agreement of the Parties or at the discretion of the Arbitrator
- Each party shall prove the facts on which it relies
- Subject to the direction of the Arbitrator;
- the parties shall exchange statements of witnesses no less than 21 days before the hearing, if any;
- the written statement of each witness shall be signed by the witness and, if the Arbitrator so directs, duly sworn or declared;
- a witness shall attend the hearing for oral examination if requested to do so no less than 5 days before the hearing;
- if a witness is requested but fails to attend the hearing, the Arbitrator may refuse to receive the written statement as evidence or place such weight on the evidence as it considers appropriate.
Rule 21 – Confidentiality and Privacy
- Unless otherwise agreed by the parties or required by law, all hearings, meetings, and communications shall be private and confidential as between the parties and the Arbitrator
- The Arbitrator shall maintain the confidential nature of the Arbitration proceedings and the Award, including the Hearing, except as necessary in connection with a judicial challenge to or enforcement of an Award, or unless otherwise required by law or judicial decision
- The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets or other sensitive information
- Subject to the discretion of the Arbitrator or agreement of the Parties, any person having a direct interest in the Arbitration may attend the Arbitration Hearing
- The Arbitrator may exclude any non-Party from any part of a Hearing
Rule 22 – Waiver of Hearing
The Parties may agree to waive the oral Hearing and submit the dispute to the Arbitrator for an Award based on written submissions and other evidence as the Parties may agree.
Rule 23 – Default of a Party
- If the claimant is properly notified but fails to attend the hearing, the Arbitrator may proceed to render a final award with or without a hearing
- If the respondent fails to deliver its statement of defence or is properly notified but fails to attend the hearing, the Arbitrator may proceed with the hearing. The final award shall be made on the basis of the evidence received
- The Arbitrator may not render an Award solely on the basis of the default or absence of the Party, but shall require any Party seeking relief to submit such evidence as the Arbitrator may require for the rendering of an Award
Rule 24 – Settlement Offers and Consent Awards
- A party making a formal offer to settle shall deliver a sealed copy of the offer to the Arbitrator
- If the offer is not accepted the Arbitrator shall hold the sealed offer without ascertaining its terms until after the substantive issues in dispute have been decided
- The Arbitrator shall ascertain the terms of the offer before deciding on issues of cost
- If, at any stage of the Arbitration process, all Parties agree upon a settlement of the issues in dispute and request the Arbitrator to embody the agreement in a Consent Award, the Arbitrator shall comply with such request, unless the Arbitrator believes the terms of the agreement are illegal or undermine the integrity of the Arbitration process
- If the Arbitrator is concerned about the possible consequences of the proposed Consent Award, the Arbitrator shall inform the Parties of that concern and may request additional specific information from the Parties regarding the proposed Consent Award. The Arbitrator may refuse to enter the proposed Consent Award and may withdraw from the case
Rule 25 – Arbitrator Assisted Mediation
At any time before the hearing the Parties may agree in writing to seek the assistance of the Arbitrator in reaching a settlement of their dispute. Where the Parties submit the matter to the Arbitrator for settlement assistance, the Parties will be deemed to have agreed that the assistance of the Arbitrator in such settlement efforts will not disqualify the Arbitrator from continuing to serve as arbitrator of a settlement is not reached and such assistance shall not be argued before a reviewing court as a basis for challenging the Award.
Rule 26 – Withdrawal from Arbitration
- No Party may terminate or withdraw from an Arbitration after the issuance of the Commencement Letter except by written agreement of all Parties to the Arbitration
- A Party that asserts a claim or counterclaim may unilaterally withdraw that claim or counterclaim without prejudice by serving written notice on the other Parties and the Arbitrator. However, the opposing Parties may, within seven (7) calendar days of service of such notice, request that the Arbitrator condition the withdrawal upon such terms as he or she may direct in particular as relates to cost
Rule 27 – Closure of Hearings and Termination of the Proceedings
- When all relevant and material evidence and arguments have been presented the Arbitrator shall declare the Hearing closed. The Arbitrator may defer the closing of the Hearing until a date determined by the Arbitrator in order to permit the Parties to submit post-Hearing briefs and/or to make closing arguments. If post-Hearing briefs are to be submitted or closing arguments are to be made, the Hearing shall be deemed closed upon receipt by the Arbitrator of such briefs or at the conclusion of such closing arguments, whichever is later
- The arbitrator may order the termination of the arbitration where it finds that the proceedings have become unnecessary or impossible
Part 4 – Making The Award and Terminating The Proceedings
Rule 28 – The Award
- The Arbitrator shall render a Final Award within thirty (30) calendar days after the date of the close of the Hearing, or, if a Hearing has been waived, within thirty (30) calendar days after the receipt by the Arbitrator of all materials specified by the Parties
- In determining the merits of the dispute, the Arbitrator shall be guided by the rules of law agreed upon by the Parties. In the absence of such agreement, the Arbitrator shall be guided by the rules of law and equity that the Arbitrator deems to be most appropriate
- The Arbitrator may grant any remedy or relief that is just and equitable and within the scope of the Parties’ agreement, including, but not limited to, specific performance of a contract or any other equitable or legal remedy
- The Award shall consist of a written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim
- After the Award has been rendered, and provided the Parties have complied with sub-rule 7 of Rule 6 the Award shall be issued by serving copies on the Parties. Service may be made by mail, hand delivery or electronically
Rule 29 – High-Low or Bracketed Arbitration
- At any time before the issuance of the Arbitration Award, the Parties may agree, in writing, on minimum and maximum amounts of damages that may be awarded on each claim or on all claims in the aggregate. The Parties shall promptly notify the Arbitrator and provide to the Arbitrator a sealed copy of their written agreement setting out the agreed minimum and maximum amounts
- The Arbitrator shall render the Award in accordance with Rule 28 above
- In the event that the Award of the Arbitrator is between the agreed-upon minimum and maximum amounts, the Award shall become final as is. In the event that the Award is below the agreed-upon minimum amount, the final Award issued shall be corrected to reflect the agreed-upon minimum amount. In the event that the Award is above the agreed-upon maximum amount, the final Award issued shall be corrected to reflect the agreed-upon maximum amount
Rule 30 – Interest
On the basis of the evidence presented, the arbitration tribunal may order simple or compound interest to be paid in an award.
Rule 31 – Costs
- The arbitration tribunal shall determine liability for costs and may apportion costs between the parties
- In awarding costs, the arbitrator shall take into account the failure of any party to comply with these Rules or the orders of the Arbitrator. The Arbitrator provide reasons in the event it departs from the principle that costs follow the event
- Costs include:
- the fees of any expert appointed by the Arbitrator, including travel and other reasonable expenses incurred;
- the legal and other expenses reasonably incurred in relation to the arbitration by a party determined by the Arbitrator to be entitled to recover such costs; and
- the commencement fee
Rule 32 – Amendments and Corrections to the Award
- On the application of a party or on the Arbitrator’s own initiative, the Arbitrator may amend an award to correct:
- a clerical or typographical error
- an accidental error, slip, omission or other similar mistake, or
- an arithmetical error made in a computation
- An application by a party under sub-rule 1 of this Rule must be made within 14 days after the party is notified of the award
- The Arbitrator may make any necessary and appropriate corrections to the Award. The corrected Award shall be served upon the Parties in the same manner as the Award
- An amendment under rule sub-rule 1 of this Rule must not, without the consent of all parties, be made more than 30 days after all parties have been notified of the award
- ) Within 14 days after being notified of the award, a party may apply to the Arbitrator for clarification of the award
- On an application under sub-rule 5 of this Rule, the arbitrator may amend the award if the arbitrator considers that the amendment will clarify it
Rule 33 – Enforcement
Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Arbitration Act, The Eastern Caribbean Supreme Court Act, the Civil Procedure Rules and any other applicable law in the Federation of St. Kitts & Nevis. The Parties to an Arbitration under these Rules shall be deemed to have consented that judgment upon the Award may be entered in any court having jurisdiction thereof.
THE FEE SCHEDULE
|Value of Claim||Commencement Fee||Arbitration Fee
(per party per hour)
|Where the amount is unspecified||$250||$400|
|Up to $100,000||$250||$400|
|$100,000 – 500,000||$350||$500|
|$500,000 – 1,000,000||$450||$600|
|Submission Only Arbitration||$270||$2700 per party|
The fees indicated above are quoted in Eastern Caribbean Currency (XCD) and do not include 17% VAT.