Chapter 6 Chapter 6 — Conduct of arbitral proceedings
33. Fair treatment of parties
The parties shall be treated with fairly and each party shall be given a reasonable opportunity to present its case.
34. Determination of rules of procedure(1) The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.(2) The parties are free to agree to adopt, in whole or part, the ADGM Arbitration Centre Arbitration Guidelines, regardless of the seat or the applicable rules of procedure.(3) In the absence of an agreement on the procedure to be followed, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.(4) In all cases, the arbitral tribunal must adopt procedures which are suitable to the circumstances of the particular case, avoid unnecessary delay and expense, and facilitate fair, efficient and expeditious conduct of the arbitration.(5) In exercising its discretion under subsection (4), the arbitral tribunal shall consider the use of technology in order to enhance the efficient and expeditious conduct of the arbitration including, as appropriate, for:(a) the submission, exchange or communication of documents by electronic means;(b) the use of electronic signatures for documents submitted, exchanged or communicated;(c) documents being provided in electronic searchable form;(d) the use of an electronic document review system for disclosure or document production;(e) the use of an electronic document management system for hearings;(f) the use of an online case management platform;(g) conducting hearings, in whole or in part, by video conference, telephone or other communication technology; or(h) enhancing by the use of any other technology the efficient and expeditious conduct of the arbitration.
35. Seat of arbitration(1) The parties are free to agree on the seat of arbitration.(2) If the parties have agreed that the seat of arbitration shall be the Abu Dhabi Global Market, no other connection with the Abu Dhabi Global Market is required for these Regulations to apply.(3) Failing the parties’ agreement on the seat of arbitration, the seat of arbitration shall be determined by (a) any arbitral or other institution or person vested by the parties with powers in that regard, or (b) the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties.(4) Notwithstanding the provisions of subsections (1) and (3), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.(5) For the purpose of subsection (4), a meeting may take place, in whole or in part, in person or by video conference, telephone or other communications technology (or any combination thereof) in one or more geographical places.
36. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
37. 37. Disclosure of a third-party funding agreement(1) A party shall notify every other party to the arbitral proceedings and any members of the arbitral tribunal (nominated or appointed) of the existence of any third-party funding agreement and the identity of the third-party funder in accordance with subsection (2).(2) Written notice under subsection (1) must be given:(a) where the third party funding agreement was entered into before or upon the commencement of the proceedings, immediately upon their commencement; or(b) where the third-party funding agreement was entered into after the commencement of proceedings, within seven (7) days of the date of the third-party funding agreement. If the notification was made prior to the constitution of the arbitral tribunal, the notice under subsection (1) must be given to any further arbitral tribunal members immediately following their nomination or appointment.(3) Unless otherwise agreed by the parties, the arbitral tribunal may, after consulting with the parties, order the disclosure of other details of the third-party funding agreement.
38. Consolidation orders(1) The parties are free to agree (a) that the arbitral proceedings shall be consolidated with other arbitral proceedings, or (b) that concurrent hearings shall be held, on such terms as may be agreed.(2) Unless the parties agree to confer such power on the tribunal, the tribunal has no power to order consolidation of proceedings or concurrent hearings.(3) Any consolidation order made under subsection (1) shall be without prejudice to the date on which any claim or defence was raised for the purpose of applying any limitation periods or similar rule or provision of law.
39. Joinder of Additional Parties(1) The parties are free to agree on the procedure for joining an additional party to an arbitration, provided always that the party to be joined is party to the arbitration agreement or has consented to joinder.(2) Absent such agreement, and before the confirmation or appointment of any arbitrator, the arbitral institution administering the arbitration or, where there is no such institution, the Court, may, upon the request of a party to the arbitral proceedings and if it considers that it is in the interests of justice to do so, allow one or more third parties to be joined to the arbitration, provided such person:(a) is a party to the arbitration agreement; or(b) has consented to joinder in writing,unless the arbitral institution administering the arbitration or, where there is no such institution, the Court finds, after giving all parties, including the party or parties to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties.(3) No additional party may be joined after the confirmation or appointment of any arbitrator, unless all parties, including the additional party, otherwise agree.
40. Language(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. In the absence of such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings.(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.
41. Statements of claim and defence
The parties are free to agree whether any, and if so what form, of the written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended. In the absence of such agreement, this shall be determined by the arbitral tribunal having regard to the matters set out in section 33(5).
42. 42. Summary disposal of claims, counterclaims and defences(1) Unless otherwise agreed by the parties, a party may apply to the arbitral tribunal in writing at any time for the summary disposal of part or the whole of a claim, counterclaim or defence, on the basis that any other party has no real prospect of success in respect of the relevant part or whole of the claim, counterclaim or defence.(2) The arbitral tribunal shall, in its full discretion, decide whether to allow the application to proceed. If the application is allowed to proceed, the arbitral tribunal shall, after giving the parties an opportunity to make representations, decide the application.(3) The arbitral tribunal shall issue any summary determination that is made pursuant to this section in the form of an award.
43. Hearings and written proceedings(1) Subject to any contrary agreement by the parties, the following provisions shall apply to hearings and written proceedings.(2) The arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument; whether the hearing is to be conducted, in whole or in part, in person, by video conference, telephone or other communication technology; or whether the proceedings shall be conducted on the basis of documents and other materials(3) Unless the parties have agreed that no hearing shall be held, the arbitral tribunal shall hold such hearings (whether in person, or by video conference or telephone or other communication technology) at an appropriate stage of the proceedings, after consulting the parties. If a hearing is held in person, a party shall be free to apply to the arbitral tribunal for one or more of its fact or expert witnesses to attend the hearing by video conference or telephone or other communication technology.(4) The parties shall be given sufficient advance notice as the arbitral tribunal shall decide of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.(5) All statements, documents, evidence or other information supplied to the arbitral tribunal by one party shall be communicated to the other party at the same time as it is supplied to the arbitral tribunal.(6) For the purpose of subsection (4), any statement, document, evidence or other information may be supplied or communicated electronically.(7) For the purpose of subsections (2) and (5), evidence includes any factual or expert evidence upon which a party relies.
44. 44. Party and Party Representative conduct(1) A Party Representative shall:(a) not engage in activities intended to obstruct or delay the arbitral proceedings, jeopardise the integrity of proceedings or the finality of any award;(b) not knowingly or recklessly make a false statement to the arbitral tribunal;(c) preserve and not knowingly conceal or destroy documents that are likely, or advise a party to conceal or destroy, documents that are likely to be relevant to the issues in dispute in the arbitration or which the arbitral tribunal has ordered to be produced; and(d) make sure that the party for whom he acts understands at all times that he must preserve and not conceal or destroy such documents.(2) If the arbitral tribunal (whether following a complaint by one party against another Party Representative or on its own initiative) and after giving the relevant Party Representative an opportunity to make representations, finds that a Party Representative contravened subsection (1), the arbitral tribunal may impose one or more of the following sanctions:(a) a written reprimand or caution to the Party Representative;(b) draw adverse inferences when assessing the evidence relied upon, or legal submissions made by, the Party Representative;(c) make an order or award on costs in relation to the conduct of the Party Representative against the party instructing the Party Representative; and(d) adopt any other appropriate measure that the arbitral tribunal considers necessary to preserve the fairness and integrity of the proceedings.(3) The arbitral tribunal’s decision under subsection (2) must be in writing, with reasons, and must be communicated to all parties to the arbitration.(4) The arbitral tribunal is in all cases entitled to consider the conduct of the parties and the Party Representatives when making any decision allocating the costs of the arbitration between the parties.
45. Confidentiality of arbitral proceedings and awards(1) Unless otherwise agreed by the parties, no party may publish, disclose or communicate any Confidential Information to any third party.(2) Nothing in subsection (1) prevents the publication, disclosure or communication of Confidential Information by a party:(a) if the publication, disclosure or communication is made:(i) to protect or pursue a legal right or interest of the party; or(ii) to enforce or challenge the award referred to in that subsection,in legal proceedings before a court or other judicial authority in or outside the Abu Dhabi Global Market;(b) if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is obliged by law to make the publication, disclosure or communication;(c) if the publication, disclosure or communication is required in order for a party to be in compliance with its financial reporting obligations or the rules of any listing authority or securities exchange;(d) if the publication, disclosure or communication is made to a professional or any other adviser of any of the parties;(e) if the publication, disclosure or communication is made to potential lenders or investors in connection with financing arrangements; or(f) if the arbitral tribunal determines that it is otherwise in the interests of justice that the publication, disclosure or communication of information be permitted.(3) Subject to any contrary agreement by the parties, nothing in subsection (1) prevents a party from disclosing or communicating Confidential Information to a third party who has a substantial legal or pecuniary interest in the outcome of the arbitral proceedings.
46. Default of a party
Unless otherwise agreed by the parties, if:(a) the arbitral tribunal is satisfied that there has been inordinate and inexcusable delay on the part of the claimant or counterclaimant in pursuing his claim, and that the delay:(i) gives rise or is likely to give rise to a substantial risk that it is not possible to have a fair resolution of the issues in that claim, or(ii) has caused, or is likely to cause, serious prejudice to the respondent,the arbitral tribunal may dismiss the claim. The arbitral tribunal may also terminate the proceedings if it considers it appropriate to do so;(b) without showing sufficient cause a party:(i) fails to attend or be represented at an oral hearing of which due notice was given, or(ii) where matters are to be dealt with in writing, fails after due notice to submit written evidence or make written submissions,
the arbitral tribunal may continue the proceedings in the absence of that party or, as the case may be, without any written evidence or submissions on his behalf, and may make an award on the basis of the evidence before it. If the arbitral tribunal terminates the proceedings under sub-paragraph (a) above, unless otherwise agreed by the parties, the arbitral tribunal may issue an award on costs in accordance with section 54 below.
47. Expert appointed by the arbitral tribunal(1) Unless otherwise agreed by the parties, the arbitral tribunal after consultation with the parties:(a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; and(b) may require a party to give the expert(s) any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert(s) shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him on the points at issue.(3) The expenses and costs of the expert(s) appointed by the arbitral tribunal pursuant to this section shall be borne by the parties in accordance with any determination or award made by the arbitral tribunal in that respect.(4) Any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.(5) For the purpose of this section, and subject to any contrary agreement by the parties, any report, document, information or evidence to be delivered or communicated to the arbitral tribunal, an expert, a party or parties may be delivered or communicated electronically.
48. Court assistance in taking evidence(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the Court, or any competent court, assistance in taking evidence, which shall include assistance with:(a) the examination of witnesses, either orally or in writing;(b) the production of documents;(c) the inspection, photographing, recording, preservation, custody or detention of any property; and(d) the taking of samples of any property and the carrying out of any experiment on or with any property.(2) The Court, or any competent court, may execute the request under subsection (1) within its competence and according to its rules on taking evidence.(3) Sections 30(2), (3) and (6) apply to this section mutatis mutandis.