CELEX: 51988PC0423
Language: en
Date: 1988-07-25
Title: Draft PROCEDURAL RULES ON THE ARBITRATION OF PUBLIC CONTRACTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND (Communication from the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (88) 423
Vol. 1988/0155
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Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 concernant
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar
1983 über die Freigabe der historischen Archive der Europäischen Wirtschaftsgemeinschaft und
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                      COM(88 > 423 final
                                      Brussels , 25 July 1988
                               Draf t
     PROCEDURAL RULES ON THE ARBITRATION OF PUBLIC CONTRACTS
            FINANCED BY THE EUROPEAN DEVELOPMENT FUND
               ( Communication from the Commission )
 ---pagebreak---                                      1
                    COMMUNICATION FROM THE COMMISSION TO THE COUNCIL
           relating to the Procedural Rules on the Arbitration of public
           contracts financed by the European Development Fund .
1.     Already in the case of contracts financed by the European Development Fund
   in the framework of the first Association Convention between the European
   Economic Community and the African and Malagasy States , signed ot Yaounde on
   yhe 20th of july 1963 , arbitration was the chosen method for the settlement
   of disputes under such contracts . An arbitration douse was to thot end inclu
   ded in all financial conventions , which gave competence to the Court of
   Arbitration of the International Chamber of Commerce . The same method for
   settling disputes was also chosen later on without exception .
   That is why Article 238 of the third Lom6 Convention provides that :
   1 . Any dispute orising between the authorities of an ACP Stote and a contractor
       supplier or provider of services , candidate or tenderer , on the occasion
       of the placing or performance of o contract financed by the Fund shall be
       settled by arbitration in accordance with procedural rules adopted by the
       Council of Ministers .
 ---pagebreak---                                         2
    2 . The procedurol rules referred in paragraph 1 shall be odopted by decision
        of the Council of Ministers not later than its first meeting following the
        entry into force of this Convention , after consultation of the ACP-ECC
        Committee referred to in Article 193 .
                                                        {
    3i As a transitional measure pending the implementation of the decision
        provided for in paragraph 2 , the finol decision on all disputes shall be
        taken in accordance with the rules , on conciliation and arbitration of the
        International Chamber of Commerce .
    In order to facilitate the study of the droft for these Procedural Rules
    it has seemed expedient to prepare a brief commentary on its contents .
    Such a commentary is therefore the purpose of this document .
2 . It is generally recognised that the advantages of arbitration , i .e . , rapidity
    and discretion of proceedings , qualification of arbitrators , have greatly
    contributed to the spread of this method of settlement of disputes in today 's
    business world . Specially in the case of international trode where a law or
    a jurisdiction adapted to the needs of such field does not really exist and
    whdre recourse is increasingly mode to ways , customs and corporative rules
    of an international nature .
    In the majority of therossociated countries , public contracts are public law
    contracts subject , on the grounds of their legal nature , to local laws , no
    matter which the nationality of the tenderer or the contractor is . Now , the
    recourse to the State courts contemplated by those laws is a sorce of serious
    apprehension for foreign companies involved in disputes concerning such
    controcts , due to the variety , complexity and even slow pace of proceedings
    taken place before such courts .
 ---pagebreak---                                      3
Article 238 of the Lom6 Convention is precisely intended to tockle these
concers by making arbitration compulsory for the settlement of disputes rela
ted to those contracts .
These draft Procedural Rules have been prepared making use of , and taking
inspiration from a text which has a great authority , the Arbitration Rules of
the United Nations Commission on the International Trade Law(UNCITRAL ) .
These Rules are intended to organise arbitration in a field very neor to that
of the public contracts financed by the European Development Fund . To derive
inspiration from it , at the same time making a partially original draft , was
a useful thing to do , particularly considering that it has been ratified by
numerous countries , among which all the European Communities Member States .
We shall now outline the main features of the procedural organisation establ_i
shed by thid draft .
It is important , however , to start out ley saying that the draft does not
intend to set up a permanent arbitration organ
                   '-1
 ---pagebreak---                                          A
5. We shall now briefly refer to the conduct of proceedings set out in the draft
   stressing its main features and peculiarities .
   The proceedings as a whole have only to a limited extent been institutionalised
   in the sense that the agreed nature of ordinary arbitration is very marked in
   the text .
   It is a compulsory arbitration , i .e . , the parties to a dispute originating in
   an European Development Fund financed contract are bound to use it . The
   compulsory nature of this use entails the obligation , for national Courts of
   Member States and relevant associated countries , to rule that they have not
   jurisdiction if such a dispute is brought before them , with the exception of
   interim or protective measures which are necessary in relation to the parties
   interests .
   The draft foresees a pre-contehtious phase in the hope that in many cases it
   will suffice to settle the dispute , at the price of reciprocal concessions .
   It is furthermore one of the principles often mentioned concerning interna -
   tional'arbitration that the parties , prior to initiating the proceedings ,
   must exhaust the internal administrative proceedings provided for by the
   local laws . It should be noted that in cases where recourse to administrative
   proceedings is not available to the applicant , the draft has established a
   'notification of the complaints' and a sufficient period of time for the
   study and response to such complaints .
   Only after unsuccessful recourse to internal administrative proceedings or
   notification of complaints , may the parties initiote the arbitration pro¬
   ceedings .
 ---pagebreak---                                     - 5 -
   The law applicable to the substance of the dispute is that designated by the
   parties . As for the law applicable to the proceedings , the draft imposes to
   the parties its own procedural mechanisms . The latter are precise and '
                                  i
   include all essential points of any proceedings . They are intended to facili ¬
   tate a quick progress and avoid abusive procedural monouvres . It is the parties
   themselves or foiling agreement between them , the Arbitral Tribunal that will
   have to determine the procedural rules to be applied in cases not contemplated
   by the draft .
   The system of selection and nomination of arbitrators shows again the agreed
   nature of the arbitral organisation in the draft . It is not doubt of importance
   for the parties to be able to chose freely amongst people specially qualified
   to examine their disputes and rule on them .
6. The draft has set up a procedure- which is mostly written- with the aim of
   moking quick progress of proceedings while at the same time making arbitration
   easy and less expensive to the parties . In this respect , care has been taken
   to ensure that , from the beginning , introductory documents are as complete as
   possible , thus excluding the system of additional written statements , which
   has been largely criticized.lt was also indispensable , in this respect , that
   full equality of the parties is ensured on the occasion of the exchange of
   such essential documents and , in particular , that the rights of the defendant
   are fully respected .
 ---pagebreak---                                       6
   The draft has not excluded , however , the possibility of additional information
   in cases where the parties or the arbitrators seem it necessary . The informa ¬
   tion can , on the other hand , be requested or obtained always ensuring equal
   treatment to both parties . It can be .- foreseen that oral proceedings are held .
   The draft confers on the tribunal the power to rule on its own jurisdiction
   in accordance with a principle definitively admitted by the doctrine and the
   relevant jurisprudence and which is the logical consequence of the lack of
   jurisdiction on the side of the national Courts .
7. Conclusions
   Given its structures which tend to provide simple fast and efficient
   proceedings , the Draft Procedural Rules on Arbitration will help to further
   the settlement of the unavoidable conflicts that important and sophisticated
   contracts will no doubt entail , thus contributing to a desirable enlargement
   of competition .
   It will also be an element towards the success of the work of harmonisation
   of the rules and technicol and legal prescriptions whose economic , social and
   political consequences ore of the utmost importance .
 ---pagebreak---                                              - A-
                                   TABLE       OF    CONTENTS
CHAPTER I  -   INTRODUCTORY RULES
        Article 1      Scope of application
        Article 2      Exhaustion of preliminary proceedings , time limits for requests
                       for arbitration
        Artide 3       Applicable law , amiable compositeur
        Artide 4       Language of the proceedings
        Artide 5       Venue of proceedings
        Artide 6       Notice , calculation of periods of time
        Artide 7       Representation and assistance
CHAPTER II - THE ARBITRAL TRIBUNAL
        Artide 8       Number of arbitrators
        Artide    9     - Nationality of arbitrators
        Artide 10      Appointment of a sole arbitrator
        Artide 11      Appointment of three arbitrators
        Artide 12      Documents that have to be furnished to the Appointing Authority
        Articles 13 to
            16      - Challenge of arbitrators
        Article 17 - Replacement of an arbitrator
 ---pagebreak---                                          - 4       _
 CHAPTER III - ARBITRATION PROCEDURE
      Article 18 -  General dispositions
     Article 19 -   Notice of arbitration
     Article 20 -   Statement of claim
     Article 2 \ -  Statement of defence
     Article 27. -  Amendments to the claim or defence
     Article 23 -   Pleas as to the jurisdiction of the arbitrât tribunal
     Article 24 -   Further written statements
     Article 25 -   Periods of time
     Article  26 -  Evidence
     Article  27 - Oral proceedings
     Article  26 -  Interim measures of protection
     Article  29-  Experts
     Article  30-  Default
     Article  51 -  Closure of hearings
     Article  32 - Waiver of rules
CHAPTER IV - THE AWARD
     Article 33 -  Decisions
     Article 34 -  Form and effect of the award
     Article 35 - Enforcement of th » award
     Article 36 - Settlement or other grounds for termination
     Article 37 - Interpretation of the award
     Article 38 -   Correction of the award
     Article 39 -   Additional award
     Articles 40 to
           42    -  Costs
     Article 43 - Deposit of costs
                                                                          /
 ---pagebreak---       _ A tjLTL. -
CHAPTER I - INTRODUCTORY RULES
 ---pagebreak---                                                                                    Λ
                                4
                                 Article 1
                            Scope of application
1 . Any dispute arising between the authorities of an ACP State and a
    contractor, supplier or provider of services, candidate or tenderer,
    on the occasion of the placing or performance of a contract financed
    by the European Development Fund shall be settled by arbitration In
    accordance with these Procedural Rules .
                                  Article 2
               Exhaustion of preliminary proceedings , time limits for requests
                                  for arbitration
1.   A dispute may be referred to the arbitration procedure provided for
     in these Rules only after recourse to the internal administrative
    proceedings provided for by the law of the ACP State whose administration
     1s a party to the dispute , has been , or is deemed to have been, exhausted .
     Recourse to administrative proceedings shall be deemed to have been
    exhausted if no final decision has been issued by the administration
    within one hundred and twenty days of the dste o * receipt of the initial
    application .
 ---pagebreak---                                 » 2 »
2.  In cases where recourse to administrative proceedings is not available
    to the applicant , a dispute nay be referred to arbitration only after
    the applicant has given notice of his complaints to the opposing
    party .
    The opposing party shall have one hundred and twenty days from the date of
    receipt of notification of the complaints to take any action thereon which he
    considers fit .
3. The notice of arbitration provided for in Article 19 of these Rules
   shall be barred unless 1t has been notified to the other party not later than
    90 days after the receipt of the decision closing the administrative proceedings
    or where appropriate , after the expiry of the one hundred and twenty days
    provided for in the second subparagraph of paragraphs ( 1 ) and < 2).
                                Article 3
                   Applicable law, amiable compositeur
1. The Arbitral Tribunal shall apply the law designated by the parties as
   applicable to the substance of the dispute . Failing such designation,
   the arbitral tribunal shall apply the law determined by the conflict
   of laws rules which it considers applicable .
   The Arbitral Tribunal may not decline to give judgment on the ground
   that the law is silent or obscure .
   The Arbitral Tribunal shall decide as amiable compositeur or ex aequo et
   bono only if the parties have expressly authorized the arbitral tribunal
   to do so
   In all cases, the Arbitral Tribunal shall decide in accordance with the
   terms of the contract and shall take into account the usages of the trade
   applicable to the transaction .
 ---pagebreak--- The arbitration proceedings shall be conducted in accordance
with these Rules .     In the absence of agreement between the parties ,
any procedural awtter which is not provided for In this Regulation
shall'be decided by the Arbitral Tribunal which shall ensure In
particular, In such a case, that the principle of equality between
parties 1s observed .
                             Article 4
                    Language of the proceedings
Arbitration proceedings shall be conducted and the award made 1n the
language of the contract whose award procedure or terms gave rise to
the dispute .
The Arbitral Tribunal may order that any documents annexed to the
statement of claim or statement of defence , and any supplementary
documents or exhibits submitted in the course of the proceedings , delivered
1n their original language , shall be accompanied by a certified translation
1n the language of the proceedings .
                            Article 5
                       Venue of proceedings
Arbitration proceedings shall be conducted at the place agreed upon
by the parties . In the absence of agreement between the parties , they
shall be conducted 1n      iSeneva
The Arbitral Tribunal may hold hearings and meetings for
consultation among Its swmbers at any place 1t deems appropriate , having
regard to the circumstances of the arbitration .
 ---pagebreak---                                 - 4 -
3. The Arbitral Tribunal may meet at any place it deems appropriate for
   the inspection of goods , other property or documents . The parties shall
   be given sufficient notice to enable then to be present at such
   inspection .
4. The award shall be made at the place of arbitration .
                                Article 6
                 Notice , calculation of periods of time
1. Any notice provided for in these Rules shall be served by registered
   letter or physically delivered to the addressee with acknowledgment of
   receipt in both cases . Notice shall be deemed to have been received on
   the day it is so delivered .
2. For the purposes of calculating a period of time under these Rules ,
   such period shall begin to run on the day following the day when a
   notice , notification , communication or proposal is received . If the
   last day of such period is an official holiday or a non-business day
   at the residence or place of business of the addressee , the period is
   extended until the first business day which follows . Official holidays
   or non-business days occurring during the running of the period of time
   are included in calculating the period .
 ---pagebreak---                            - 5 -
                           Article 7
                 Representation and assistance
The parties may be represented or assisted by persons of their choice .
The names and addresses of such persons must be communicated in writing
to the other party . Such communication must specify whether the appointment
is being made for purpose of representation or assistance .
 ---pagebreak--- CHAPTER II THE ARBITRAL TRIBUNAL ---pagebreak---                          - 6 -
                            Article  8
                       Number of arbitrators
If within fifteen days from receipt by the respondent of the
notice of arbitration provided for In Article 19 the parties have not
agreed that there shall be only one arbitrator, three arbitrators shall
be appointed .
                            Article 9
                        Nationality of arbitrators
The arbitrator or arbitrators chosen shall have the nationality of one
of the signatory States of the ACP-EEC Convention in force at the time
of their appointment .
 ---pagebreak---                                 - V -
                                Artide 'ù
                  Appointment of a sole arbitrator
1. If a sole arbitrator 1s to be appointed, either party may propose to
   the other the names of one or more persons , one of whom would serve
   as the sole arbitrator and the name or names of one or more institu ¬
   tions or persons , one of whom would serve as appointing authority .
2. If within thirty days after receipt by a party of a proposal made 1n
   accordance with paragraph 1 the parties have not reached agreement on the
   choice of a sole arbitrator , the sole arbitrator shall be appointed by
   the appointing authority agreed upon by the parties . If no appointing
   authority has been agreed upon by the parties , or if the appointing
   authority agreed upon refuses to act or falls to appoint the arbitrator
   within sixty days of the receipt of a party 's request therefor, either
   party may request the Secretary-General of the Permanent Court of Arbitra ¬
   tion at The Hague to designate an appointing authority .
3. The appointing authority shall , at the request of one of the parties ,
   appoint the sole arbitrator as promptly as possible . In making the
   appointment the appointing authority shall use the following list-
   procedure , unless both parties agree that the list-procedure should not
   be used or unless the appointing authority determines in Its discretion
   that the use of the list-procedure 1s not appropriate for the case :
   a ) At the request of one of the parties the appointing authority shall
       communicate to both parties an identical list containing at least
       three names ;
 ---pagebreak---  b ) Within fifteen days after the receipt of this 11st , each party
     •ay return the list to the appointing authority after having deleted
     the name or names to which he objects and numbered the remaining
     names on the list 1n the order of Ms preference ;
 c ) After the expiration of the above period of time the appointing
     authority shall appoint the sole arbitrator from among the names
     approved on the lists returned to 1t and 1n accordance with the order
     of preference indicated by the parties ;
d ) Zf for any reason the appointment cannot be made according to this
     procedure , the pppolnting authority may exercise Its discretion 1n
     appointing the sole arbitrator .
 In making the appointment , the appointing authority shall have regard
to such considerations as are likely to secure the appointment of an
Independent and impartial arbitrator of a nationality other than the
nationalities of the parties and who is reputed of high moral standing and
has a recognized competence in the field of law , technical knowledge
or finance .
                               Article 11
                   Appointaient of three arbltrators
If three arbitrators are to be appointed, each party shall appoint one
arbitrator . The two arbitrators thus appointed shall choose the third
arbitrator who will act as the presiding arbitrator of the tribunal .
If within thirty days after the receipt of a party 's notification of
the appointment of an arbitrator the other party has not notified the
first party of the arbitrator he has appointed :
 ---pagebreak---                                 - 9 -
   • > The first party stay request the appointing authority previously
       designated by the parties to appoint the second arbitrator ; or
   b ) If no such authority has been previously designated by the parties ,
       or if the appointing authority previously designated refuses to act
       or fails to appoint the arbitrator within thirty days after receipt
       of a party 's request therefor, the first party stay request the
       Secretary-General of the Permanent Court of Arbitration at The Hague
       to designate the appointing authority . The first party may then
       request the appointing authority so designated to appoint the second
       arbitrator . In either case , the appointing authority nay exercise its
       discretion in appointing the arbitrator .
3. If within thirty days after the appointment of the second arbitrator
   the two arbitrators have not agreed on the choice of the presiding
   arbitrator, the presiding arbitrator shall be appointed by an appointing
   authority in the same way as a sole arbitrator would be appointed under
   Articlë 10 .
                                Article 12
        Documents that have to be furnished to the Appointing Authority
1. When an appointing authority is requested to appoint an arbitrator
   pursuant to Articles 10 or 11 , the party which makes the request
   shall send to the appointing authority a copy of the notice of arbitration
   and a copy of the contract out or or in relation to which the dispute
   has arisen . The appointing authority may require from either party such
   information as it deems necessary to fulfil its function .
2. Where the names of one or more persons are proposed for appointment as
   arbitrators , their full names , addresses and nationalities shall be
   indicated, together with a description of their qualifications .
 ---pagebreak---                              Article 13
                      Challenge of arbltrators ( I ).
A prospective arbitrator shall disclose to those who approach him 1n
 connexion with h1s possible appointment any circumstances likely to give
 rise to justifiable doubts as to h1s Impartiality or Independence . An
arbitrator, once appointed or chosen, shall disclose such circumstances
 to the parties unless they have already been Informed by him of these
 circumstances .
                             Article 14
                      Challenge of arbltrators ( II )
Any arbitrator may be challenged if circumstances exist that give rise
to justifiable doubts as to the arbitrator 's Impartiality or Independence .
A party may challenge the arbitrator appointed by him only for reasons
of which he becomes aware after the appointment has been made .
                             Article 15
                      Challenge of arbltrators ( III )
A party who Intends to challenge an arbitrator shall send notice of his
challenge within fifteen days after the appointment of the challenged
arbitrator has been notified to the challenging party or within fifteen
days after the circumstances mentioned 1n Articles 13 and 14 became
known to that party .
The challenge shall be notified to the other party, to the arbitrator
who 1s challenged and to the other members of the arbitral tribunal . The
notif icatication shall be 1n writing and shall state the reasons for the
challenge .
 ---pagebreak---                                   -  Il -
3.  When an arbitrator has been challenged by one party, the other party
    may agree ito the -challenge . The arbitrator may also, after the challenge ,
    withdraw from hit' office . In neither case does this imply acceptance of
    the validity of the grounds for the challenge . In both cases the
   procedure provided in rticlelo or 11 shall be used in full for the
    appointment of the substitute arbitrator, even if during the process
    of appointing the challenged arbitrator a party had failed to exercise
    his right to appoint or to participate in the appointment .
                                  Article 16
                          Challenge of arbitrators ( IV )
1.  If the other party does not agree to the challenge and the challenged
   arbitrator does not withdraw, the decision on the challenge will be made :
   a ) When the initial appointment was made by an appointing authority ,
       by that authority ;
   b ) When the initial appointment was not made by an appointing authority,
       but an appointing authority has been previously designated, by that
       authority ;
   c ) In all other cases , by the appointing authority to be designated in
       accordance with the procedure for designating an appointing authority
       as provided for in Article 10.
2. If the appointing authority sustains the challenge, a substitute arbitrator
   shall be appointed or chosen pursuant to the procedure applicable to the
   appointment or choice of an arbitrator as provided in rticleslO to 12
   except that , when this procedure would call for the designation of an
   appointing authority, the appointment of the arbitrator shall be made
   by the appointing authority which decided on the challenge .
 ---pagebreak---                                   1C -
                              Article i ?
                     Replacement of an arbitrator
1. In the event of the death or resignation of an arbitrator during the
   course of the arbitral proceedings , a substitute arbitrator shall be
   appointed or chosen in accordance with the procedure provided for in Articles
   10 to 13 that was applicable to the appointment or choice of the arbitrator
   being replaced .
2. In the event that an arbitrator fails to act or in the event of the
   de jure or de facto impossibility of his performing his functions , the
   procedure in respect of the challenge and replacement of an arbitrator
   as provided in Articles 13 to 16 shall apply .
3. If an arbitratoris replaced , any hearings held previously may be repeated
   at the discretion of the arbitral tribunal .
 ---pagebreak---            Ί -Ζ      -
CHAPTER III - ARBITRATION PROCEDURE
 ---pagebreak---                                      I w "
                                   Article 13
                              6eneral Provisions
 1.  Subject to these Rules , the arbitral tribunal Bay conduct the arbitration
     1n such Banner as 1t considers appropriate , provided that the parties
     are treated with equality and that at any stage of the proceedings each
     party 1s given a full opportunity of presenting h1s case .
 2.  If either party so requests at any stage of the proceedings , the arbitral
     tribunal shall hold hearings for the presentation of evidence by witnesses ,
     Including expert witnesses , or for oral argument . In the absence of such
     a request , the arbitral tribunal shall decide whether to hold such hearings
     or whether the proceedings shall be conducted on the basis of documents
     and other materials .
3. All documents or Information supplied to the arbitral tribunal by one
    party shall at the same time he communicated by that party to the other
    party .
                                  Article 19
                             Notice of arbitration
1.  The party initiating recourse to arbitration ( hereinafter called the
    " claimant ") shall give to the other party ( hereinafter called the
    •• respondent ") a notice of arbitration .
2.  Arbitral proceedings shall be deemed to commence on the date on which
    the notice of arbitration Is received by the respondent .
 ---pagebreak---                                         14
3.     The notice of arbitration shall include the following :
       a ) A demand that the dispute be referred to arbitration ;
       b) The names and addresses of the parties and their nationality at the
            time of the notice ;
       c ) A reference to the contract out of or in relation to which the
            dispute arises ;
      d ) The general nature of the claim and an indication of the amount
            1nvolved/ if any ;
      e ) The relief or remedy sought ;
      f ) A brief statement , | with dates , of any administrative proceedings or
           .of the notice given of complaints , and the outcome of such steps ;
      g ) A proposal as to the number of arbitrators ( i.ew one or three ).
4.    The notice of arbitration may also Include :
      a ) The proposals for the appointment of a sole arbitrator and an
            appointing authority referred to in Article 10(1 );
      b ) The notification of the appointment of an arbitrator referred to in
            Article 11 •
      c ) The statement of claim referred to in Article 20 .
                                     Article 2ü
                                 Statement of claim
   1.     Unless the statement of claim was contained in the notice of arbitration,
      within a period of time to be determined by the arbitral tribunal the
 ---pagebreak---                                   - 16 -
3.  In hi * statement of defence , or at a later stage 1n the arbitral proceedings
    1f the arbitral tribunal decides that the delay was justified under the
    circumstances , the respondent may make a counter-claim arising out of
    the same contract or rely on a claim arising out of the same contract
    for the purpose of a set-off .
4.   Article 20(2 ) shall apply to a counter-claim and a claim relied on for the
     purpose of a set-off .
                                 Article ce
                    Amendments to the claim or defence
    During the course of the arbitral proceedings either party may amend
    or supplement his claim or defence unless the arbitral tribunal considers
    it inappropriate to allow such amendment having regard to the delay in
    making it or prejudice to the other party or any other circumstances .
                                 Article 23
             Pleas as to the jurisdiction of the arbitral tribunal
1. The arbitral tribunal shall have the power to rule on objections that
   it has no jurisdiction .
2. The arbitral tribunal shall have the power to determine the existence
   or the validity of the contract .    A decision by the arbitral
   tribunal     that   the  contract  is  null and void  shall   not  affect
   the application of these rules .
 ---pagebreak---                                       Vf -
3.     A plea that the arbitral tribunal does not have jurisdiction shall be
       raised not later than 1n the statement of defence or. with respect to a
       counter-claim, In the reply to the counter-claim .
4.     In general , the arbitral tribunal should rule on a plea concerning Its
       jurisdiction as a preliminary question . However, the arbitral tribunal
       may proceed with the arbitration and rule on such a plea 1n thel^flnal
       award .
                                   Article 24
                              Further written statements
       The arbitral tribunal shall decide which further written statements ,
       in addition to the statement of claim and the statement of defence ,
      shall be required from the parties or may be presented by them and
      shall fix the periods of time for communicating such statements .
                                   Article 25
                                 Perlods of t1me
      The periods of time fixed by the arbitral tribunal for the communication
      of written statements ( Including the statement of claim and statement of
      defence ) should not exceed forty-five days . However, the arbitral tribunal
      may extend the time-limits If It concludes that an extension 1s justified .
                                   Article   26
                                    Evidence
  1 . Each party shall have the burden of proving the facts relied on to support
      his claim or defence .
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 2.  The arbitral tribunal nay , if it considers it appropriate , require
     a party to deliver to the tribunal and to the other party, within such
     a period of tine as the arbitral tribunal shall decide , a summary of
     the documents and other evidence which that party intends to present
     in support of the facts in issue set out in his statement of clain or
     statement of defence .
3.   At any time during the arbitral proceedings the arbitral tribunal nay
     require the parties to produce documents , exhibits or other evidence
    within such a period of tine as the tribunal shall deternine .
                                 Article 27
                             Oral proceedings
1.  In the event of an oral hearing , the arbitral tribunal shall give the
    parties adequate advance notice of the date , time and place thereof .
2.  If witnesses are to be heard, at least fifteen days before the hearing
    each party shall communicate to the arbitral tribunal and to the other
    party the names and addresses of the witnesses he intends to present ,
    the subject upon and the languages in which such witnesses will give
    their testimony .
3.  The arbitral tribunal shall make arrangements for the translation of
    oral statements made at a hearing and for a record of the hearing if
    either is deemed necessary by the tribunal under the circumstances of
    the case , or if the parties have agreed thereto and have communicated
    such agreenent to the tribunal at least fifteen days before the hearing .
4.  Hearings shall be held in camera unless the parties agree otherwise .
    The arbitral tribunal nay require the retirement of any witness or
    witnesses during the testimony of other witnesses . The arbitral tribunal *
    is free to determine the manner in which witnesses are examined , without
     prejudice to the right of each party to cross-examine witnesses presented by
     the other party at their request .
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  5.    Evidence of witnesses may also be presented in the form of sworn written
        statements signed by them . However, at the request of either party and
        with the leave of the Tribunal , such witnesses may be heard at a hearing
        where the parties shall have the opportunity to be present and to
        Interrogate the witnesses .
6.    The arbitral tribunal shall determine the admissibility, relevance,
      materiality and weight of the evidence offered .
                                    Artide 26
                       Interim measures of protection
1.    At the request of either party, the arbitral tribunal may take any .
      interim measures it deems necessary in respect of the subject-matter
     of the dispute, including measures for the conservation of the goods
     forming the subject-matter in dispute, such as ordering their deposit
     with a third person or the sale of perishable goods . The arbitral tribunal
      may also order the deposit of a sum of money or the provision of any
      security to secure the whole or any part of the amounts in dispute . In the
      event of disobedience , the tribunal shall be entitled to draw the logical
       conclusions .
2.     Interim measures may    be     established in the form of an interim award .
      The arbitral tribunal shall be entitled to require security for the costs
      of such measures .
3.   A request for Interim measures addressed by any party to a judicial
     authority shall not be deemed incompatible with these Rules ,
     or as a waiver of the same .
                                   Article 29
                                     Experts
1.   The arbitral tribunal may appoint one or more experts to report to it ,
     in writing, on specific issues to be determined by the tribunal . A copy
     of the expert 's terms of reference , established by the arbitral tribunal ,
     shall be communicated to the parties .
     The arbitral tribunal will however as far as possible limit the number of
     experts to the minimum necessary to determine the facts .
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2.  The parties shall give the expert any relevant information or produce
    for his inspection any relevant documents or goods that he may require
    of them . Any dispute between a party and such expert as to the relevance
    of the required information or production shall be referred to the
    arbitral tribunal for decision .
3. Upon receipt of the expert 's report , this arbitral tribunal shall
    communicate a copy of the report to the parties who shall be given the
   opportunity to express , in writing, their opinion on the report . A party
    shall be entitled to examine any document on which the expert has relied
    in his report .
4.  At the request of either party the expert , after delivery of the report ,
   may be heard at a hearing where the parties shall have the opportunity
   to be present and to interrogate the expert . At this hearing either party
   may present expert witnesses in order to testify on the points at issue .
   Article 27 shall be applicable to such proceedings .
                                Article 30
                                  Default
1. If , within the period of time fixed by the arbitral tribunal , the
   claimant has failed to communicate his claim without showing sufficient
   cause for such failure , the arbitral tribunal shall issue an order for
   the termination of the arbitral proceedings . If , within the period of
   time fixed by the arbitral tribunal , the respondent has failed to
   communicate his statement of defence without showing sufficient cause
   for such failure , the arbitral tribunal shall order that the proceedings
   continue and may make an award even if a defence has by then not been
   submitted .
2. If one of the parties , duly notified under these Rules , falls to appear
   at a hearing, without showing sufficient cause for such failure , the
   arbitral tribunal may proceed with the arbitration .
 ---pagebreak---                                  - ci
3.  If one of the parties , duly Invited to produce documentary evidence ,
   falls to do so within the established period of time , without showing
   sufficient cause for such failure, the arbitral tribunal may make the
   award on the evidence before 1t .
                                Article  31
                            Closure of hearlngs
1. The arbitral tribunal may Inquire of the parties If they have any
   further proof to offer or witnesses to be heard or submissions to
   make and, If there are none , 1t may declare the hearings closed .
2. The arbitral tribunal may, 1f it considers 1t necessary owing to
   exceptional circumstances , decide , of its own motion or upon application
    by a party, to reopen the hearings at any time before the award 1s made .
                                Article 32
                             Waiver of rules
   A party who knows that any provision of , or requirement under , these
   Rules has 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 .
 ---pagebreak--- CHAPTER IV “ THE AWARD ---pagebreak---                                 - 22 -
                                Artide 33
                                 Decisione
1.  Where there are three arbitrators , any award or other decision of the
   arbitral tribunal ahall be Made by a Majority of the arbitrators .
   However, if there ■f’s no majorTty, the presiding arbitrator shall have a
    casting vote .
2. In the case of questions of procedure , when there is no Majority or
   when the arbitral tribunal so authorizes , the presiding arbitrator may
   decide on his own, subject to revision, if any , by the arbitral tribunal .
                                Article 34
                     FORK AND EFFECT OF THE AWARD
1. In addition to Making a final award , the arbitral tribunal shall be
   entitled to Make InteriM, interlocutory, or partial awards .
2. The award shall be oade in writing and shall be final and binding on the
   parties . The parties shall carry out the award without delay.
    Each signatory state of the ACP-EEC Convention applicable at the time of
   entry into force of these Rules shall recognize as binding every award made
   pursuant to the same and shall ensure that it is enforced in its territory .
3.  The arbitral tribunal shall state the reasons upon which the award is
   based, unless the parties have agreed that no reasons are to be given .
4. An award shall be signed by the arbitrators and 1t shall contain the
   date on which and the place where the award was Made . Where there are
   three arbitrators and one of theM falls to sign, the award shall state
   the reason for the absence of the signature .
5. The award May be Made public only with the consent of both parties .
6. Copies of the award signed by the arbitrators shall be communicated to
   the parties by the arbitral tribunal .
 ---pagebreak---                                    - 23 -
                               Artide 35
                          Enforcement of the award
”* * In order to obtain the recognition and enforcement of the award in the
     territory of a signatory State of the applicable ACP-EEC Convention ,
     the party concerned must present a certified copy of the award to the
     authority which that State has designated for the purpose . The order for
     enforcement shall be appended to the presented copy without any
     verification other than of the authenticity of the copy .
2.   Each signatory State shall within six months from the entry into force
     of these Rules inform the President of the ACP-EEC Council of Ministers
     of the authority which it has designated for this purpose and shall keep
     him informed of any changes .
     The enforcement of the award shall be regulated by the law relating
     to the enforcement of judgments which is in force in the State in whose
     territory the enforcement is carried out .
 ---pagebreak---                                  - 24 -
                                Article 56
                  SETTLEMENT OR OTHER GROUNDS FOR TERMINATION
1. If , before the award Is made , the parties agree on a settlement of the
   dispute , the arbitral tribunal shall either issue an order for the
   termination of the arbitral proceedings or, 1f requested by both parties
   and accepted by the tribunal , record the settlement 1n the form of an
   arbitral award on agreed terms . The arbitral tribunal Is not obliged to
    give reasons for such an award .
2.  If , before the award 1s made , the continuation of the arbitral proceedings
   becomes unnecessary or Impossible for any reason other than settlement under
    paragraph 1 , the arbitral tribunal shall Inform the parties that unless an
    objection 1s received within thirty days , it will Issue an order terminating
    the proceedings . Should either party obiect within the said thirty days,, the
    tribunal shall not issue such an order until it has heard the parties and
    determined that there are no justifiable grounds for objection .
3. Copies of the order for termination of the arbitral proceedings or of the
   arbitral award on agreed terms , signed by the arbitrators , shall be
   communicated by the arbitral tribunal to the parties . Where an arbitral
   award on agreed terms 1s made , Article 34 , paragraphs 2 and 4 , 5 and 6,
   shall apply .
                                Article 37
                        INTERPRETATION OF THE AWARD
1. Within thirty days after the receipt of the award, either party, with
   notice to the other party, may request that the arbitral tribunal give an
   Interpretation of the award .
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2. The Interpretation shall be given In writing within forty-five days after
   the receipt of the request . The Interpretation shall for* part of the
   award and Article 34(2 ) to ( 6 ) shall apply .
                                 Article Sti
                        CORRECTION OF THE AWARD
1. Within thirty days after the receipt of the award, either party , with
   notice to the other party, may request the arbitral tribunal to correct
   in the award any errors 1n computation, any clerical or typographical
   errors , or any errors of similar nature . The arbitral tribunal may within
   thirty days after the communication of the award make such corrections
   on its own Initiative .
2. Such corrections shall be in writing , and Article 34(2 ) to ( 6 ) shall
    apply .
                                 Article
                           ■ ADDITIONAL AWARD
1. Within thirty days after the receipt of the award , either party, with
   notice to the other party , may request the arbitral tribunal to make an
   additional award as to claims presented in the arbitral proceedings but
   omitted from the award .
2. If the arbitral tribunal considers the request for an additional award
   to be justified and considers that the omission can be rectified without
   any further hearings or evidence , 1t shall complete Its award within
   sixty days after the receipt of the request .
 ---pagebreak---                                - 26 -
3. When an additional award 1s Made ,   Article 34(2 ) to ( 6 ) shall apply .
                               Article 40
                                  Costs ( I )
   The arbitral tribunal shall fix the costs of arbitration 1n Its award .
   The tens "costs " includes only :
   a ) The fees of the arbitral tribunal to be stated separately as to each
       arbitrator and to be fixed by the tribunal Itself 1n accordance with
       Article 41 ;
   b ) The travel and other expenses Incurred by the arbitrators ;
   c ) The costs of expert advice and of other assistance required by the
       arbitral tribunal ;
   d ) The travel and other expenses of witnesses to the extent such expenses
       are approved by the arbitral tribunal ;
   e ) The costs for legal representation and assistance of the successful
       party 1f such costs were claimed during the arbitral proceedings , and
       only to the extent that the arbitral tribunal deteraines that the
       amount of such costs Is reasonable ;
   f ) Any fees and expenses of the appointing authority as well as the expenses
       of the Secretary-General of the Permanent Court of Arbitration at The
       Hague .
 ---pagebreak---                             Artide 41
                               Costs ( II )
 The fees of the arbitral tribunal shall be reasonable In amount , taking
 Into account the amount In dispute, the complexity of the subject-matter,
 the time spent by the arbitrators and any other relevant circumstances
of the case . In particular the GNP of the ACP State party to the proceedings .
 If an appointing authority has been agreed upon by the parties or :
designated by the Secretary-General of the Permanent Court of Arbitration
at The Hague , and 1f that authority has Issued a schedule of fees for
arbitrators In International cases which Its administers , the arbitral .
tribunal In fixing Its fees shall take that schedule of fees Into account
to the extent that 1t considers appropriate 1n the circumstances of the
case , and taking into account paragraph 1 .
If such appointing authority has not Issued a schedule of fees for
arbitrators in international cases , any party may at any time before the
arbitral tribunal issues any award fixing its costs request the
appointing authority to furnish a statement setting forth the basis for
establishing fees which is customarily followed in international cases
In which the authority appoints arbitrators . If the appointing authority
consents to provide such a statement , the arbitral tribunal 1n fixing its
fees shall take such Information Into account to the extent that 1t
considers appropriate In the circumstances of the case .
In cases referred In paragraphs 2 and 3, when a party so requests and the
appointing authority consents to perform the function , the arbitral
tribunal shall fix its fees only after consultation with the appointing
authority which may make any comment 1t deems appropriate to the arbitral
tribunal concerning the fees .
 ---pagebreak---                                     - 28 -
                                    Article 42
                                    Costs ( III )
1. Except as provided in paragraph 2, the costs of arbitration shall in
   principle be borne by the unsuccessful party . However , the arbitral
   tribunal nay apportion each of such costs between the parties if it
   determines that apportionment is reasonable, taking into account the
    circumstances of the case .
2. With respect to the costs of legal representation and assistance referred
   to in Article . 40(e ), the arbitral tribunal , taking into account
   the circumstances of the case , shill be free to determine whieh party
   shall bear such costs or nay apportion such costs between the parties if   *
   it determines that apportionment is reasonable .                          '
3. When the arbitral tribunal issues an order for the termination of the
   arbitral proceedings or makes an award on agreed terns , it shall fix
   the costs of arbitration referred to in Article 40 and Article 41(1 ),
   in the text of that order or award .
4. No additional fees may be charged by an arbitral tribunal for interpretation
   or correction or completion of its award under Articles 37 , 38 and 39 .
                                   Article 43
                              DEPOSIT OF COSTS
1. The arbitral tribunal , on its establishment , may request each party to
   deposit an equal amount as an advance for the costs referred to in
    Article 40(a ), ( b ) and ( c ).
2. During the course of the arbitral proceedings , the arbitral tribunal may
   request supplementary deposits from the parties for valid reasons .
 ---pagebreak---                                 - 29 -
3. If an appointing authority has been agreed upon by the parties or
   designated by the Secretary-6eneral of the Permanent Court of Arbitration
   at The Hague , and when a party so requests and the appointing authority
   consents to perform the function, the arbitral tribunal shall fix the
   amounts of any deposits or supplementary deposits only after consultation
   with the appointing authority which may make any comments to the arbitral
   tribunal which it deems appropriate concerning the amount of such deposits
   and supplementary deposits .
A. If the required deposits are not paid in full within thirty days after
   the receipt of the request , the arbitral tribunal shall so inform the
   parties in order that one or other of them may make the required payment .
   If such payment is not made, the arbitral tribunal may order the suspension
   or termination of the arbitral proceedings .
5. After the award has been made , the arbitral tribunal shall render an
   account4n§- to the parties of the deposits received and return any
   unexpended balance to the parties .