| ||||||||||||||||||||
|
|
|
Rules of the International Arbitration Court of the Juridical Centre IUS Adopted by the Juridical Centre IUS on December 30, 2001 (in force as of April 12 2002.)* * The Rules of the International Arbitration Court of the Juridical Centre IUS dated December 25, 1993 are invalid as from April 12, 2002. Legal Address of the International Arbitration Court of the Juridical Centre IUS: Office 01, 69 Tole Bi Street, Almaty 480091, Republic of Kazakhstan; tel.: 63 22 11, 50 35 51; fax: 63 04 97; E-mail: ius@lorton.com; www.ius.escort.kz Arbitration clause* * Arbitration clause incorporated in the agreement (contract) and stipulating arbitral proceedings according to these Rules, shall be declared by the agreement independent of other terms of this agreement (contract). The arbitration clause shall survive the invalidity of this agreement (contract) by the Arbitration. A) Model Arbitration Clause "Any dispute, controversy or claim arising out of or relating to this contract or the breach, termination, invalidity thereof, shall be finally settled by the International Arbitration Court of the Juridical Centre IUS in accordance with its Rules." As required the parties may make the following additions to the clause: The arbitration shall be composed of ... arbitrators (a sole arbitrator). The place of arbitration shall be ... The language to used in the arbitral proceedings shall be ... B) Model Governing Law Clause This Contract (agreement, treaty) shall be governed by the substantive law of ... (insert jurisdiction) I. General Provisions 1.1. The International Arbitration Court of the Juridical Centre IUS, hereinafter referred to as "Court", is an Arbitration court. 1.2. The Court is established with purposes of settling property disputes between organisations, between citizens, and between citizens and organisations, irrespective of their location, citizenship, or subject of property. 1.3. The Court shall act according to these Rules. 1.4. When considering foreign participation disputes as well as investment disputes, the Court shall be an arbitration body formed according to the UNCITRAL Arbitration Rules. 1.5. The Court shall accept disputes for settlement if there is an agreement in writing between the parties to refer the dispute to the Court. 1.5.1. The term "agreement in writing" shall include the arbitration clause in a contract or an arbitration agreement (arbitral entry) signed by the parties or contained in the correspondence of the parties, irrespective of the means of correspondence (telegraph, fax, e-mail, etc.). 1.6. The disputes referred to the Court shall be settled according to the substantive law defined by the parties' agreement. 1.6.1. In the absence of such agreement the applicable law shall be the law of the country where the final award will be made. 1.7. By agreeing to arbitral proceedings the parties shall undertake to execute any award of the Court immediately and thereby waive their right to appeal. II. Organisation of the Court 2.1. The Court shall consist of the Chairman, the Deputy Chairman, the arbitrators and the secretariat. 2.2. The Chairman of the Court, and in his absence the Deputy Chairman, shall represent the Court in all state bodies, organise the Court's activity and perform other functions stipulated by these Rules. 2.3. The arbitrators shall be persons included in the list of arbitrators and having indispensable special knowledge in the field of private law and arbitration. 2.3.1. The arbitrators' inclusion into or exclusion from the list shall be made by the Chairman of the Court after previous consultations with the members of the Court. 2.4. The secretariat of the Court shall keep the records of the Court. The secretariat shall be appointed by the Chairman of the Court. 2.5. Arbitration Working Language The Arbitration* after its appointment shall decide the issue on the language or languages to be used in the specific arbitral proceedings that also shall apply to the statement of claim and any further written or oral statements. * The term "Arbitration" herein means the arbitrators chosen by the parties or appointed by the Court for specific proceedings. 2.6. Documents Submitted by the Parties 2.6.1. The party wishing to institute arbitral proceedings (hereinafter "Initiating Party") shall file with the Court the statement of claim stating: а) the date and number of the statement of claim; b) the names of the Court and the parties, c) the full mailing addresses and bank details of the parties; d) the amount in dispute, if the dispute is subject to evaluation; e) the specific relief sought; f) the circumstances on which the claimant relies and the evidence thereof; g) a reasonable estimation of claims; h) the rules of the legislative and other legal acts the claimant bases on; i) a list of the documents annexed to the statement of the claim. 2.6.2. In addition, the Initiating Party shall submit to the Court: а) the originals or duly certified copies of the documents annexed to the statement of claim; b) the evidence of forwarding a copy of the notice of claim to the participants of the arbitral proceedings; c) the evidence of existence of the agreement of the parties to refer the dispute to the Court. 2.6.3. All documents to the case shall be submitted in written form, duly executed, one copy for each party and two copies for the Court. 2.6.4. The Arbitration may order that the arbitration agreement and any documents submitted as proof to the case shall be accompanied by a translation into the working language of the arbitral proceedings in writing. 2.6.5. As required, before the commencement of the arbitral proceedings the parties shall sign the arbitration entry on the Arbitration composition, place and time of the hearing. 2.7. Term of the Arbitral Proceedings The Court shall take measures in order to terminate the arbitral proceedings, commenced upon the composing of the Arbitration, within twenty days. 2.8. Arbitration Costs and Fees Arbitration costs and fees, their amount, order of depositing and distribution between the parties shall be determined by the Provision for Arbitration Costs and Fees Payable as Indemnification incorporated herein (see the Appendix 1). III. Arbitration Composition Procedure 3.1. The Arbitration composition procedure shall be initiated by the Initiating Party by submitting the evidence of the other party's consent to such proceedings to the Court (separate written agreement or presence of the arbitration clause in the agreement). 3.2. Composition of the Arbitration 3.2.1. The Arbitration may consist of one or three arbitrators. 3.2.2. The Arbitration composition and procedure of its establishment shall be determined by the parties in the arbitration agreement. 3.2.3. Where the parties have not determined in the arbitration agreement the number and composition of the Arbitration and/or the procedure of its establishment, the Initiating Party shall: а) appoint one arbitrator from the list of the Court; b) send the other party, along with the statement of claim, the general list of the arbitrators of the Court* for appointment of other arbitrator; c) enclose with the statement of claim the letter stating the name of the arbitrator appointed by the Initiating Party and request to the other party to appoint the other arbitrator within fifteen days from the receipt of the list. * The list of arbitrators shall be sent by any means which provide the confirmation of the receipt by the other party, for example, by registered letter with return receipt, international mail that provides the record of receipt by the addressee. 3.2.4. If the other party fails to appoint an arbitrator within the term specified in subparagraph c), paragraph 3.2.3, the Initiating Party shall have the right to request the Chairman of the Court to establish the composition of the Arbitration for the case. 3.2.5. If the parties have not appointed the third arbitrator the latter shall be appointed by two arbitrators appointed by the parties. 3.2.6. If for any reason the appointment of the arbitrators cannot be made by the parties within thirty days from the date of filing of the statement of claim, the arbitrators shall be appointed by the Chairman of the Court. 3.3. Arbitrators' Impartiality and Independence 3.3.1. Each arbitrator, invited to consider the case, shall sign a declaration of absence of any circumstances likely to give rise to justifiable doubts as to his impartiality and independence. 3.3.2. A person asked to accept appointment as an arbitrator shall, in a written statement, disclose the parties any facts and circumstances likely to give rise to justifiable doubts of the Arbitration as to his impartiality and independence. 3.3.3. If an arbitrator becomes aware of any facts and circumstances referred to in paragraph 3.3.1, in the course of the arbitral proceedings, he must immediately, in writing, inform the other arbitrators and the parties thereof. 3.3.4. An arbitrator shall be entitled to notify of a challenge involving sufficient reasons for that. 3.3.5. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality and independence. 3.4. In the event that an arbitrator is prevented from de jure or de facto fulfilling his duties or fails to perform his functions in an adequate manner, the Chairman of the Court shall be entitled to replace the arbitrator, as agreed by the parties. IV. Arbitral Proceedings 4.1. Place of Arbitration 4.1.1. Unless the parties have agreed upon the place where the arbitral proceedings are to be held, such place shall be determined by the Arbitration. 4.1.2. The Arbitration may: а) determine the location of the arbitral proceedings within the country agreed upon by the parties; b) conduct arbitrators travelling sessions to inspect the evidence for a claim and to hear witnesses. 4.1.3. The parties shall be given sufficient notice to enable them to be present at such inspection. 4.1.4. The arbitration award shall be made at the place of arbitration. 4.2. Interim Measures 4.2.1. At the request of the claimant the Arbitration may take any interim measures to secure the claim. 4.2.2. The arbitration award on interim measures shall be made in the form of an order or a preliminary award. 4.3. Statement of Defence 4.3.1. The respondent shall, prior to the beginning of arbitral proceedings, submit a Statement of Defence for each claim to the claimant and the arbitrators. 4.3.2. In his statement of defence the respondent shall provide documentary proved answers to each claim or reference to the evidence which may be submitted in the course of the arbitral proceedings. 4.3.3. The respondent shall have right to make a counter-claim or to claim for the purpose of a set-off, arising out of the same contract. 4.3.4. The rules of action proceedings in the Court shall apply to a counter-claim. 4.4. Amendments to Claim or Defence 4.4.1. During the course of the arbitral proceedings either party may request to amend or supplement his claim or defence. 4.4.2. The Arbitration shall decide to accept or dismiss applications of the parties. 4.4.3. The amended claim shall not fall outside the scope of the arbitration clause or the arbitration agreement. 4.5. Pleas as to the Jurisdiction of the Arbitration 4.5.1. A plea that the Arbitration does not have jurisdiction shall be raised at the beginning of the arbitral proceedings at the latest. 4.5.2. The Arbitration shall have power to rule on objections that the Court has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the arbitration agreement. 4.6. Evidence 4.6.1. The parties shall have the burden of providing the facts relied on to support their claim or defence. 4.6.2. At any time during the arbitral proceedings the Arbitration may require the parties to produce documents, exhibits or other evidence within such period as the Arbitration shall determine. 4.6.3. The arbitral proceedings shall be made based upon all submitted documents, evidence and explanations of the parties, unless the parties in writing entrust the arbitrators to consider the case in their absence, on the basis of the documents submitted only. 4.7. Appointment of Experts 4.7.1. An expert shall be appointed when the circumstances important for making a case decision may be examined only on the basis of special scientific knowledge. 4.7.2. An expert may be appointed by the Arbitration upon the reasonable application of a party or on its own motion. 4.7.3. The Arbitration shall appoint a competent person indifferent to the case as an expert. 4.7.4. Each party participating in the arbitral proceedings shall have the right to determine the issues the experts shall report on. The final range of issues to be reported on shall be determined by the Arbitration. 4.7.5. If a party deviates from participation in or impedes the examination (fails to appear at the examination; fails to provide the experts with the materials required for the examination; disables the expert to examine the objects owned by such party), the Arbitration shall have the right to declare the fact, identification of which is the purpose of the examination, proven or disproved. 4.8. Default of party If any party duly notified of the place and the time of the hearing fails to appear at the arbitration hearing and fails to submit a reasonable application to postpone the hearing, such failure shall not prevent the Arbitration from proceeding. 4.9. Procedural Rights of the Parties 4.9.1. The parties or/and their authorised representatives participating in the arbitral proceedings shall have general procedural powers and act under the duly executed authority. 4.9.2. Special powers of the parties representatives (to refer the case to arbitration; to release the claim; to admit the claim; to change the subject-matter or ground of the claim; to conclude a settlement; to transfer power of attorney etc.) shall be expressly stipulated in the duly executed power of attorney. 4.10. Closing of Hearing 4.10.1. The Arbitration may, upon the application of a party or on its own motion, decide to reopen the hearings at any time before the award is made. 4.10.2. If the parties have no further proof to offer or submission to be made or witnesses to be heard, the Arbitration shall declare the hearings closed. V. The Award 5.1. Making and Form of the Award 5.1.1. A case shall be decided by the Arbitration considering the dispute, subject to payment of the arbitration fee by the parties. 5.1.2. If the dispute was considered by three arbitrators and they fail to decide it unanimously, the award shall be made by a majority. 5.1.3. The awards resolutive part shall be declared at the final sitting of the Arbitration. 5.1.4. The award shall be made in writing. 5.1.5. The award shall contain: а) the date on which and the place where the award was made; b) the composition and authorities of the Arbitration; c) the full official names of the parties, first, last and patronymic names, and the positions of their representatives; d) the nature of the dispute; e) the statements and explanation of the persons participating in the proceedings; f) the circumstances of the case established by court; g) the evidence the award is based upon; h) the law the Arbitration was governed in making the award; i) the content of the award; j) the distribution of amounts of the arbitration fee and others costs related to the proceedings; k) the term and order of execution of the award. 5.1.6. The Award, when it is made, shall be delivered or sent to the parties within five days. 5.2. Effect of the Award 5.2.1. The award made by the Arbitration shall be final. 5.2.2. The award shall be executed by the parties voluntarily within the period specified in the arbitral award. If no period is indicated in the award, the latter shall be carried out immediately. 5.2.3. The claimant shall the have right to apply to the relevant court for the issue of the executive document for the enforcement of the arbitration award. 5.3. Correction of the Award The Arbitration may on its own initiative or upon the application of a party correct any clerical error, misprint or other similar error in the text of the award. 5.4. Additional Award 5.4.1. Within ten days of receipt of the award, either party may request the Arbitration to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. The other party must be notified thereof. 5.4.2. If the Arbitration considers the request of the party for an additional award to be justified and considers that the omission can be rectified without any further hearings and evidence, it shall make an additional award within thirty days of receipt of the request. VI. Termination of the Arbitral Proceedings 6.1. The arbitral proceedings shall be terminated by the Arbitration order when: а) the claimant withdraws the statement of claim; b) an amicable agreement is reached between the parties and approved by the Arbitration; c) it is impossible to solve the case; d) the case remains without progress for more that three months owing to the claimants inaction. 6.2. The order on termination of the arbitral proceedings shall be made either by the Arbitration or by the Chairman of the Court if the Arbitration has not been formed. VII. Final Provisions 7.1. A party who knows that any provision of, or requirement under, these Rules have not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non-compliance, shall be deemed to have waived his right to object. 7.2. In its arbitral activity the Court shall be governed strictly by the principles and spirit of the Law, and shall make all reasonable efforts to make fair decisions. Appendix 1 Regulations for Arbitration Costs and Fees, Payable as Indemnification 1. Arbitration Fee The amount payable shall cover the expenses of the Juridical centre IUS related to the arbitral proceedings, and is intended to provide the fees of the arbitrators and the indemnification of the organisation's expenses throughout the term of the case's consideration. The criteria for the determination of the amount of the arbitration fee shall be the amount in dispute (see the Table of calculation of the arbitration fee). In determining the mentioned amount, the Arbitration Court's specialists shall pre-evaluate the complexity of the case. For the complexity of the case the fee may be fixed at a rate up to 39% of the arbitration fee, calculated according to the mentioned table. The case complexity fee shall be a part of the arbitration fee and may be assigned in cases of: а) the appointment by the parties of three (in exceptional cases more than three) arbitrators; b) the large volume of documents submitted by the parties (over 100 sheets); c) the presence of experts reports, or/and auditor's conclusions, in the case of the necessity to do them; d) the necessity of conducting arbitrators travelling sessions, etc. The arbitration fee shall be paid in tenge at the exchange rate of the National Bank of the Republic of Kazakhstan in which the Court maintains an account at the date of transfer of the arbitration fee. In the event that the claimant or other person transferring the arbitration fee is not a resident of the Republic of Kazakhstan, the arbitration fee shall be paid in US dollars or in euro. The arbitration fee shall be paid according to the agreement between the Court and the person depositing the arbitration fee, or as per invoice. In the event of the claim being withdrawn before the first hearing, the Arbitration or the Chairman of the Court shall make a decision on the arbitration fee. If the Court makes a decision that the Court has no jurisdiction in the dispute or recognises the arbitration clause as invalid, the arbitral fee shall be refunded to the claimant, less the costs incurred by the Court for the case. Table of calculation of the arbitration fee (US dollars)
2. Privileges In the event of a recurring appeal by any person during one year from consideration of the first dispute, a discount at a rate of 12% of the arbitration fee shall be established for such person if the new claim amount exceeds the equivalent of three hundred thousand US dollars. 3. Registration Fee When referring a claim to the Court the claimant shall pay the registration fee at a rate equivalent to the amount from one hundred to three hundred US dollars in tenge at the exchange rate of the National Bank of the Republic of Kazakhstan in which the Court maintains an account at the date of the submission of the statement of claim. If the claimant or other person transferring the registration fee is not a resident of the Republic of Kazakhstan, the arbitration fee shall be paid in US dollars or in euro.
Доступ к документам и консультации
от ведущих специалистов |