ARBITRATION: Appointment Of Arbitrator

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CONTENT Learning Outcomes Introduction Governing Laws Arbitration Act 2005 KLRCA Arbitration Rules

PWD 2010

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Learning Outcomes

At the end of the lecture students should be able to explain and relate the procedures for the appointment of arbitrators under the Arbitration Act 2005, the KLRCA Arbitration Rules, the PWD 2010 standard form of contract.

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Learning Outcomes

Arbitration Act 2005 PWD 2010

KLRCS Rules
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Introduction
Generally, it may be said that construction works are breeding grounds for disputes.
There are various factors that can give rise to many disputes in construction works, inter alia: unfair risk allocation, unrealistic expectations and schedules, poorly prepared contract documents, financial issues, communication problems, and even the economy
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Introduction Methods of resolving disputes in construction contracts: Litigation

Arbitration

Mediation Adjudication (CIPAA) Negotiation

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Introduction There are many advantages (as well as disadvantages) of using arbitration as a method of resolving disputes. One of the advantages is, the parties may appoint the arbitrator of their choice that will resolve their dispute (award). It is believed that an arbitrator is a better judge to make decisions relating technical disputes.

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Governing Laws
PAM Arbitration Rules

Arbitration Act 2005 Arbitration (Institutional) Rules

Arbitration Agreement/Clause
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UNCITRAL Arbitration Rules KLRCA Arbitration Rules

PAM 2006 PWD 2010 CIDB 2000 IEM xxxx

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Arbitration Act 2005

Appointment of Arbitrator

Number of Arbitrators Appointment of Arbitrators

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Arbitration Act 2005 Parties are free to determine number of arbitrators Default - international arbitration 3 arbitrators Default - domestic arbitration - 1 arbitrator

Section 12 Number of Arbitrators

Section 13 Procedure
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Appointment by default.....
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Section 12 (1) The parties are free to determine the number of arbitrators. (2) Where the parties fail to determine the number of arbitrators, the arbitral tribunal shall (a) in the case of an international arbitration, consist of three arbitrators; and (b) in the case of a domestic arbitration, consist of a single arbitrator.
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Section 13
(1) Unless otherwise agreed, no person shall be precluded by reason of nationality from acting as an arbitrator.

Nationality Procedure of appointment Failure to appointment

(2) The parties are free to determine the procedure.

(5) Appointment by the Director of KLRCA. (7) Appointment by the High Court.

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Clause 66

PWD 2010
Written Notice

Clause 66.1

Dispute

Person Named

Written Decision

Clause 66.2
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Person Named

Binding
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Clause 66

PWD 2010
Within 45 days from cl. 66.1 notice

Clause 66.3

No Decision

Arbitration Notice

OR

Within 45 days after decision

Not Satisfied
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Arbitration Notice
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Clause 66 Clause 66.3

See KLRCA Rules

PWD 2010 KLRCA

After 45 days from cl. 66.1 notice

Arbitration Rules Director of KLRCA

Parties fail to appoint

See KLRCA Rules

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Time line not clear

Director fails to appoint

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The High Court

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Clause 66

Notice: Content

Specify the Dispute (s)

Specify the Clause

Specify the Claim Nominate Arbitrators

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Interpretation Act 1967 Sending: The day after Computation of time 54. (1) In computing time for the purposes of any written law (a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
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Receive of Notice Receiving: The day after For the purpose of calculating a period of time .... such period shall begin to run on the day following the day when the notice is received.

Article 2: 6.

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Clause 67 Clause 67.1

Notice, ETC.

Language

Clause 67.2
Clause 67.3

Methods of service

Address

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Clause 67

Notice: KLRCA Rules A notice ... May be transmitted by any means of communication that provides ..... ...for a record of its transmission A notice ... May be transmitted by any means of communication that provides ..... ...for a record of its transmission

Article 2: 1. Article 2: 1.

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Clause 66

PWD 2010 Clause 66.1: If a dispute arises any party may refer it to person named in the Appendix Clause 66.3(a): If that person fails to make decision within 45 days (from date of notice); or Clause 66.3(b): if the parties are not satisfied with the decision

Condition Precedent Arbitration Notice

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Clause 66

PWD 2010 Article 3(2) UNCITRAL Arbitration Rules: the date the respondent receives the arbitration notice.

Date of Notice

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KLRCA Rules

Rules for Arbitration (as Revised in 2010)

Part I: Rules for Arbitration of KLRCA (as revised in 2010) Part II: UNCITRAL Arbitration Rules (as revised in 2010)

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KLRCA Rules: Appointing Authority

Part I Rules for Arbitration of KLRCA

Rule 2 2.

Parties may agree to use other than KLRCA as the Appointing Authority

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KLRCA Rules

Notices

Appointing Authority

Appointing Authority
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KLRCA Rules: Notices

One copy to the Director of KLRCA.

Rule 2 1.

All notices from one party to the other, a copy should be also served on the KLRCA Director

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KLRCA Rules: Notices

Time Line for Appointment of Arbitrator by Director of KLRCA. Rule 2 1. (a) Rule 2 1. (b)
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Within 40 days from notice of arbitration received by the respondent; or (as) had been agreed upon by the parties
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PAM 2006

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CIDB 2000

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IEM 2000

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Introduction There are many advantages as well as disadvantages of using arbitration as a method of resolving disputes.

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Introduction Generally, it may be said that construction works are breeding grounds for disputes. The first stage in the arbitration proceedings is the appointment of the arbitrator. It is usual for a claimant to include in the arbitration notice the nominees for appointment as arbitrator

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Governing Rules Generally, it may be said that construction works are breeding grounds for disputes. The first stage in the arbitration proceedings is the appointment of the arbitrator. It is usual for a claimant to include in the arbitration notice the nominees for appointment as arbitrator

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Introduction Arbitration is an important part of commercial life.

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