SCHEDULES
Article 46
SCHEDULE 15ARBITRATION RULES
Primary objective
schedule 15 paragraph 1 1.—(1) The primary objective of these arbitration rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within four months from the date the arbitrator is appointed pursuant to article 46 (arbitration) of the Order.
(2) The parties will first use their reasonable endeavours to settle a dispute amicably through negotiations undertaken in good faith by the senior management of the relevant parties. Any dispute which is not resolved amicably by the senior management of the relevant parties within 20 business days of the dispute arising, or such longer period as agreed in writing by the parties, are to be subject to arbitration in accordance with the terms of this Schedule.
term the respondent term the claimant (3) The arbitration will be deemed to have commenced when a party (“the claimant”) serves a written notice of arbitration on the other party (“the respondent”).
Time periods
schedule 15 paragraph 2 2.—(1) All time periods in these arbitration rules will be measured in business days and this will exclude weekends, bank and public holidays.
(2) Time periods will be calculated from the day after the arbitrator is appointed which will be either—
schedule 15 paragraph 2 2 a (a)the date the arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or
schedule 15 paragraph 2 2 b (b)the date the arbitrator is appointed by the Secretary of State.
Timetable
schedule 15 paragraph 3 3.—(1) The timetable for the arbitration will be that set out in sub-paragraphs (2) to (4)unless amended in accordance with paragraph 5(3).
(2) Within 15 days of the arbitrator being appointed, the claimant is to provide both the respondent and the arbitrator with—
schedule 15 paragraph 3 2 a (a)a written statement of claim which describes the nature of the difference between the parties, the legal and factual issues, the claimant’s contentions as to those issues, and the remedy it is seeking; and
schedule 15 paragraph 3 2 b (b)all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.
(3) Within 15 days of receipt of the claimant’s statements under sub-paragraph (2) by the arbitrator and respondent, the respondent is to provide the claimant and the arbitrator with—
schedule 15 paragraph 3 3 a (a)a written statement of defence responding to the claimant’s statement of claim, its statement in respect of the nature of the difference, the legal and factual issues in the claimant’s claim, its acceptance of any element(s) of the claimant’s claim, and its contentions as to those elements of the claimant’s claim it does not accept;
schedule 15 paragraph 3 3 b (b)all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports; and
schedule 15 paragraph 3 3 c (c)any objections it wishes to make to the claimant’s statements, comments on the claimant’s expert report(s) (if submitted by the claimant) and explanations for the objections.
(4) Within five days of the Respondent serving its statements under sub-paragraph (3), the claimant may make a statement of reply by providing both the respondent and the arbitrator with—
schedule 15 paragraph 3 4 a (a)a written statement responding to the respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;
schedule 15 paragraph 3 4 b (b)all statements of evidence and copies of documents in response to the respondent’s submissions;
schedule 15 paragraph 3 4 c (c)any expert report in response to the respondent’s submissions;
schedule 15 paragraph 3 4 d (d)any objections to the statements of evidence, expert reports or other documents submitted by the respondent; and
schedule 15 paragraph 3 4 e (e)its written submissions in response to the legal and factual issues involved.
Procedure
schedule 15 paragraph 4 4.—(1) The arbitrator is to make an award on the substantive difference based solely on the written material submitted by the parties unless the arbitrator decides that a hearing is necessary to explain or resolve any matters.
(2) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.
(3) Within five days of receiving the last submission, the arbitrator will notify the parties whether a hearing is to be held and the length of that hearing.
(4) Within 10 days of the arbitrator advising the parties that they will hold a hearing, the date and venue for the hearing will be fixed by agreement with the parties, save that if there is no agreement the arbitrator must direct a date and venue which they consider is fair and reasonable in all the circumstances. The date for the hearing is to be not less than 35 days from the date of the arbitrator’s direction confirming the date and venue of the hearing.
(5) A decision will be made by the arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the arbitrator, then any expert(s) attending the hearing may be asked questions by the arbitrator.
(6) There will be no process of examination and cross-examination of experts, but the arbitrator may invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the arbitrator’s questions. Prior to the hearing the procedure for the expert(s) will be that—
schedule 15 paragraph 4 6 a (a)at least 20 days before a hearing, the arbitrator will provide a list of issues to be addressed by the expert(s);
schedule 15 paragraph 4 6 b (b)if more than one expert is called, they will jointly confer and produce a joint report or reports within 10 days of the issues being provided; and
schedule 15 paragraph 4 6 c (c)the form and content of a joint report will be as directed by the arbitrator.
(7) Within 10 days of a hearing or a decision by the arbitrator that no hearing is to be held the parties may by way of exchange provide the arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The arbitrator must take these submissions into account in the award.
(8) The arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which they are appointed, unless both parties otherwise agree to an extension to the date for the award.
(9) If a party fails to comply with the timetable, procedure or any other direction then the arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before them attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction.
(10) The arbitrator’s award must include reasons. The parties will accept that the extent to which reasons are given is to be proportionate to the issues in dispute and the time available to the arbitrator to deliver the award.
Arbitrator’s powers
schedule 15 paragraph 5 5.—(1) The arbitrator has all the powers of the Arbitration Act 1996(1), including the non- mandatory sections, save where modified by these Rules.
(2) There is to be no discovery or disclosure, except that the arbitrator will have the power to order the parties to produce such documents as are reasonably requested by another party no later than the statement of reply, or by the arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing.
(3) Any time limits fixed in accordance with this procedure or by the arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the arbitrator. In the absence of agreement, the arbitrator may vary the timescales and/or procedure—
schedule 15 paragraph 5 3 a (a)if the arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then; and
schedule 15 paragraph 5 3 b (b)only for such a period that is necessary to achieve fairness between the parties.
(4) On the date the award is made, the arbitrator will notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the arbitrator’s fees and expenses.
Costs
schedule 15 paragraph 6 6.—(1) The costs of the arbitration are to include the fees and expenses of the arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the arbitration.
(2) Subject to sub-paragraph (3), the arbitrator will award recoverable costs on the general principle that each party should bear its own costs.
(3) The arbitrator may depart from the general principle in sub-paragraph (2) and make such other costs award as it considers reasonable where a party has behaved unreasonably as defined within the National Planning Practice Guidance or such other guidance as may replace it.
Confidentiality
schedule 15 paragraph 7 7.—(1) Subject to sub-paragraphs (2) and (3), any arbitration hearing and documentation is to be open to and accessible by the public.
(2) The arbitrator may direct that the whole or part of a hearing is to be private or any documentation to be confidential where it is necessary in order to protect commercially sensitive information.
(3) Nothing in this paragraph prevents any disclosure of a document by a party pursuant to an order of a court in England and Wales or where disclosure is required under any enactment.