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General commercial arbitration

ARBITRATION CLAUSE

The Canadian Commercial Arbitration Centre (hereinafter the “Centre”) recommends that all parties wishing to make reference to arbitration by the Centre in their contracts use the following standard clause:

« Any dispute which arises in the course of or following the performance of the present contract will be definitively settled under the auspices of The Canadian Commercial Arbitration Centre, by means of arbitration and to the exclusion of courts of law, in accordance with its General Commercial Arbitration Rules in force at the time this contract is signed and to which the parties declare they have adhered. »

When a problem arises during the performance of a contract and a resulting dispute risks losses of time and money, arbitration can provide just the right tool for settling it. This applies to commercial disagreements that may occur in all areas of economic activity.

Since commercial arbitration is conducted by specialists, takes place out of court, behind closed doors, and is wound up rapidly, this makes it possible to respect the confidentiality of the case and to obtain an economic and final decision that is immediately enforceable.

The General Commercial Arbitration Rules unite flexibility with efficiency and thereby enable parties to agree freely on the number of arbitrators, their identity, the extent of their assignment and procedures to be followed. The Centre only intervenes when there is some disagreement between the parties or in order to provide material assistance and ensure respect for the Rules or proper arbitral proceedings. Furthermore, parties that use the Centre's arbitration rules may also take advantage of its secretarial and consultant services.

ISCOPE OF APPLICATION

  1. These rules apply to the arbitration of disputes when the parties refer explicitly thereto.
  2. Subject to statutory provisions from which the parties may not derogate, the arbitration agreement between the parties is completed by provisions contained in these rules.

IIDEFINITIONS AND GENERAL PROVISIONS

  1. In these rules:
    • « Centre » : means the Canadian Commercial Arbitration Centre incorporated under Part III of the Québec Companies Act (R.S.Q., ch. C-38) or any person or committee to whom the by-laws of the Centre entrust the management of arbitral matters;
    • « Arbitration agreement » : means a written agreement under which the parties decide to submit to arbitration an existing or eventual dispute arising out of a defined legal relationship, whether contractual or not, as well as a statutory provision having the same effect;
    • « Arbitral tribunal »: means a sole arbitrator or a panel of arbitrators confirmed or appointed by the Centre in order to settle a dispute in accordance with the present rules.
  2. When the context allows, the arbitral tribunal interprets the provisions of the Code of Civil Procedure, Book VII (R.S.Q., ch. C-25) and the provisions of these rules by taking into account:
    1. the Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law on June 21, 1985;
    2. the Report of the United Nations Commission on International Trade Law on the work of its eighteenth session held in Vienna from the third to the twenty-first day of June 1985;
    3. the Analytical Commentary on the draft text of a Model Law on international commercial arbitration contained in the report of the Secretary-General presented to the eighteenth session of the United Nations Commission on International Trade Law.
  3. An arbitration agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.

    The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

  4. The general purpose of the Centre is to ensure the enforcement of these rules and it enjoys all necessary powers to do so.
  5. When, under these rules, the Centre is required to perform some act, it must do so with utmost speed by taking into consideration the parties' interest in seeing an equitable, rapid and cost-effective settlement of the dispute. Its decisions are final and without appeal.
  6. The Centre may ex-officio or if required by the arbitral tribunal or the parties, extend any time limit provided under these rules.
  7. No action may lie against the Centre for any act performed in good faith within the exercise of its functions granted under these rules.
  8. In all circumstances the parties shall be treated equally and each party shall be given a full opportunity of presenting his or her case.

IIINOTICES AND TIME PERIODS

  1. A notice by virtue of these rules must be transmitted by whatever rapid means allowing evidence of its reception. It must be sent to a party, his or her mandatary or authorized representative.
  2. A notice is deemed to have been received if it has been delivered to the addressee personally, to his or her elected domicile, at his or her ordinary residence, or sent to his or her last known address.
  3. A delay begins to run from the date of reception of the notice. If the last day of a delay falls on a holiday or non-working day, the delay is extended to the next following working day. Holidays and non-working days that occur during the delay are counted.

IVNOTICE OF ARBITRATION

  1. The party intending to submit a dispute to arbitration must notify the Centre in writing. In particular, the notice contains:
    1. the names, capacities and addresses of the parties or their mandataries or authorized representatives, if need be;
    2. a summary of the substance of the dispute and, when relevant, the amount of the claim ensuing therefrom ;
    3. a proposal as to the number and qualifications of the arbitrators.
    The Arbitration agreement, as well as documents and information of such nature as to establish the facts clearly, must also be joined to the notice.
    The Centre is seized of such arbitration upon the date when the notice is received.
  2. If the Centre deems the notice to be admissible in its form, it notifies the defendant thereof, who shall then have fifteen (15) days following its reception to answer in writing. In the opposite case, it notifies the plaintiff.
  3. The defendant's written answer must be addressed to the Centre and contain particularly:
    1. his or her own summary version of the facts;
    2. his or her opinion as to the plaintiff's allegations;
    3. if such be the case, any cross-demand;
    4. an answer as to the proposal concerning the number and qualifications of the arbitrators.
  4. Any relevant documents and information must be joined to this answer.
    The Centre gives notice of the defendant's answer to the plaintiff and grants him or her, in the event that the answer contains a cross-demand, a fifteen-day delay to answer thereto.

  5. The failure of one party to answer a notice of arbitration within the delay has no effect of preventing the arbitration. In such a case, the Centre proceeds as stipulated under theses rules.

VNUMBER AND APPOINTMENT OF ARBITRATORS

  1. The parties may agree to submit their dispute to one (1) or three (3) arbitrators.
  2. Unless otherwise agreed by the parties as to the number of arbitrators:
    • a sole arbitrator is designated;
    • three (3) arbitrators are designated for any dispute involving an amount equal to or more than $1,000,000.00.
  3. When a dispute does not involve a specific sum of money, the Centre decides on the number of arbitrators according to the nature of the dispute unless otherwise agreed by the parties.
  4. The Centre submits to the parties one or more names of arbitrators from a list of arbitrators accredited for the purpose of arbitration pursuant to the present Rules. After consulting with the parties, the Centre appoints the arbitrator(s).
  5. When the Centre confirms or appoints an arbitrator, it takes into account such person's availability, qualifications, as well as any other consideration needed to guarantee the constitution of an independent, impartial and competent arbitral tribunal.
  6. The arbitrators enjoy the same immunity as do judges.
  7. The Centre gives notice to the parties and arbitrators of the constitution of the arbitral tribunal after having verified with the designated persons their acceptance of the assignment when more than one arbitrator is appointed. The arbitrators inform the Centre within five (5) days following this date of the name of the person among them who will act as president. In the absence of such selection, the Centre appoints a president ex-officio.

VIRECUSATION AND REVOCATION OF ARBITRATORS

  1. An arbitrator must immediately inform the parties and the Centre of any valid causes such that may raise doubts as to his or her impartiality, independence or qualifications.
  2. An arbitrator may be recused only if circumstances exist that give rise to justifiable doubts as to his or her impartiality, independence or qualifications for settling a dispute.

    Parties may recuse an arbitrator appointed by them or in whose appointment they have participated, only for reasons of which they become aware after the appointment has been made.

  3. The party who intends on recusing an arbitrator must refer this question to the Centre and send it a written statement of his or her reasons. The Centre must make its decision known following consultation with the arbitral tribunal and parties.
  4. An application to recuse suspends delays provided for other arbitral procedures until the Centre gives notice of its decision to the arbitral tribunal and to the parties.
  5. If an arbitrator becomes unable to perform his or her functions or for other reasons does not perform them in a reasonable manner, the arbitrator's mandate terminates by his or her resignation or by his or her revocation agreed upon by the parties. In the event of disagreement between parties, any one of them may request that the Centre make the appropriate decision.
  6. The appointment of a substitute arbitrator, following a vacancy in the arbitral tribunal, is carried out in accordance with sections 22 to 25.
  7. Once a vacancy has been filled, the arbitral tribunal decides if it is appropriate to recommence any or all of the proceedings.

VIIJURISDICTION OF THE ARBITRAL TRIBUNAL

  1. Arbitration is carried out by the arbitral tribunal which pronounces decisions in its own name.
  2. The arbitral tribunal may rule on its own jurisdiction, including any question relating to the existence or validity of the arbitration agreement. Any ruling by the arbitral tribunal as to contingent invalidity of the contract, shall not invalidate ipso jure the arbitration agreement.
  3. An exception raising lack of jurisdiction of the arbitral tribunal shall be urged not later than the submission of the statement of defence. A party is not precluded from raising such an exception by the fact that he or she has appointed or participated in the appointment of an arbitrator. An exception to the effect that the arbitral tribunal is exceeding the scope of its authority is raised as soon as the alleged matter occurs. The arbitral tribunal may, in either case, allow a later exception if it considers the delay justified.

    As a general rule, the arbitral tribunal may rule on a jurisdictional exception at the time it is raised. It may, however, continue arbitral proceedings and rule on this exception in the final award.

  4. Any party who knows that a provision of the present rules from which the parties may derogate or any condition stated in the arbitration agreement has not been respected, and who nonetheless pursues the arbitration without formulating an objection promptly or within the delay provided, if such be the case, is deemed to have waived his or her right to raise an objection.
  5. The arbitral tribunal may not order any provisional or conservatory remedies. Such remedy may be sought from a competent judicial authority.

    A petition for provisional or conservatory remedies to a judicial authority does not interrupt arbitral proceedings and does not in any way constitute a waiver of the right to avail oneself of this agreement.

VIIICONDUCT OF ARBITRAL PROCEEDINGS

  1. The Centre shall refer a dispute to the arbitral tribunal following payment to the Centre of the amount reserved for administrative fees as assessed by the Centre and stipulated in the appended fee schedule. This amount includes participation in arbitral expenses and arbitrators' fees. The arbitral tribunal shall only rule on claims for which a reserve for expenses has been paid to the Centre.
  2. If a cross-demand is formulated, the Centre may assess separate reserves for the main claim and the cross-demand.
  3. In the course of arbitration, the Centre may assess parties for an additional amount as a reserve for expenses.
  4. Each party shall pay half of the reserve for expenses within fifteen (15) days following the notice that is given to him or her. One party may, however, substitute for another in the case where a defaulting party does not pay his or her share of the reserve, in order to allow the tribunal to proceed.
  5. A party who substitutes for another party can ask the tribunal to proceed ex parte. The decision to proceed ex parte or not belongs to the tribunal.
  6. Unless otherwise agreed by the parties, the arbitral tribunal determines the procedure governing the conduct of the arbitration. It possesses all requisite powers for exercising its jurisdiction, including the prerogative for appointing an expert.
  7. Any decision by an arbitral tribunal in the course of arbitration is made by a majority and in the presence of all the arbitrators. However, procedural issues may be settled by the president if he or she is authorized to do so by all of the arbitrators.
  8. A written ruling by the arbitral tribunal must be signed by all of the arbitrators. If one of the arbitrators refuses to sign or cannot sign, the others must record that fact and the decision has the same effect as if it were signed by all of them.
  9. The arbitral tribunal to whom a dispute is referred must convene all parties to a pre-hearing that shall be held within thirty (30) days after such referral in order to decide especially upon:
    1. the applicable rules of law and evidence and if they grant arbitrators the power of amiables compositeurs;
    2. the rules of procedure to be followed;
    3. whether or not it be necessary to visit the premises or to inspect property;
    4. the number of witnesses and experts who will be heard;
    5. the means for transmitting notices and documents which must be the most rapid available;
    6. the schedule for arbitral tribunal working sessions;
    7. the means for citing witnesses and receiving their depositions.
    The arbitral tribunal remains competent for settling any issue that would not have been raised or would not have been the object of an agreement between the parties.
    The parties may also, at the time of the pre-hearing, complete the presentation of their allegations, and furnish, if the arbitral tribunal consents thereto, any amendment or revision of the arbitration notice, the answer to this notice, the cross-demand and the answer to this claim.
    A copy of the minutes of the pre-hearing shall be transmitted immediately to the Centre.
  10. The arbitral tribunal proceeds with the arbitration if a party defaults in presenting his or her allegations, in appearing at a hearing or in submitting evidence in support of his or her allegations. The arbitral tribunal terminates the arbitration if the party who has submitted the dispute to arbitration defaults in presenting his allegations, unless the other party objects thereto.
  11. Any arbitration meeting shall take place in the offices of the Centre or in any other place chosen by the latter, unless the arbitral tribunal decides otherwise.

IXTHE ARBITRAL AWARD

  1. The arbitral tribunal must decide in accordance with the contractual stipulations, and must take into account applicable practices.
  2. The award is final and without appeal; the submitting of the dispute to this settlement entails waiving of any recourse to an administrative and judiciary instance which the parties may lawfully waive.
  3. If the parties settle the dispute while the arbitral tribunal is seized thereof, the latter will record the agreement in an arbitral award.
  4. The arbitral tribunal must make its award and deposit the original thereof with the Centre within a maximum period of six months from the date of the pre-hearing, and at the latest, two months after having decided to end the hearings.
  5. The award must be made in writing by a majority of voices. It must state the reasons on which it is based and be signed by all the arbitrators. If one of them refuses to sign or cannot sign, the others must record that fact and the award has the same effect as if it were signed by all of them.
  6. The award must state its date and the place of arbitration. It is deemed to have been made at that date and in that place.
  7. The award shall bind the parties from the moment when the Centre gives them a certified copy thereof. The Centre may refuse to transmit the award to the parties for as long as the aggregate of arbitral expenses has not been settled.
  8. Within fifteen (15) days of the award, the arbitral tribunal may ex-officio correct any clerical, computational or material error contained therein. The Centre shall give notice of such corrections to the parties. The correction shall be deemed to be an integral part of the award.
  9. A party may, within fifteen (15) days following the reception of an award, petition the Centre in order that the arbitral tribunal:
    1. correct any clerical, computational or material error contained in the award;
    2. make an additional award on some part of the claim omitted in the award;
    3. interpret, if the parties have so agreed, a specific part of the award.
  10. Once a claim formulated under section 57 has been referred by the Centre to the arbitral tribunal, it must make its own ruling within a period of fifteen (15) days. Any correction, addition or interpretation of the award shall be deemed to be an integral part thereof.

    If upon the expiry of this period, the tribunal has not made its ruling, a party may petition the Centre to decide on how to solve the difficulty.

  11. By submitting their dispute to these rules, the parties agree to participate in arbitration in good faith, pay arbitration expenses and carry out the enforcement of the award forthwith. The parties are responsible for the enforcement of the award.

XARBITRATION EXPENSES

  1. The Centre shall assess arbitration expenses. Such expenses include:
    1. fees for members of the arbitral tribunal, indicated separately for each arbitrator and assessed by the Centre;
    2. arbitrators' travel and subsistence allowances;
    3. expenses for any expertise or any other assistance agreed upon at the pre-hearing or requested by the arbitral tribunal;
    4. expenses for travel and other compensation paid to witnesses, insofar as these expenditures have been approved by the arbitral tribunal;
    5. expenses relating to facilities rental and other adjacent expenses;
    6. administrative fees charged by the Centre;
  2. Arbitration expenses are divided among the parties by the Centre equally among the parties.
  3. Notwithstanding the preceding section, the arbitral tribunal may, if circumstances so justify, amend the division of arbitration expenses.
  4. Unless the arbitral tribunal decides otherwise, considering each case on its merits, each party assumes its own expenses for legal representation and expertise.
  5. After the making the award, the Centre shall account to the parties for the use of monies held in deposit; it shall return to them any unspent balance after having made compensation for amounts due by each party under section 41.

XIFINAL SECTIONS

  1. These rules shall come into force on March 1st, 2008.