Authority for
Rules
The Council of The Institute of Arbitrators
& Mediators Australia resolved at a meeting on 22 November 2001
that, where any two or more parties have agreed between them that a
dispute arising or having arisen between them shall be submitted to
expert determination in accordance with The Institute of
Arbitrators & Mediators Australia Expert Determination Rules,
the Rules numbered 1 to 17 hereafter shall apply.
PART I:
PRELIMINARY
RULE 1:
Definitions
In these Rules:
'The Institute' is the
Institute of Arbitrators & Mediators Australia.
'Agreement' is any agreement
between the parties embodying a submission of present or future
disputes to expert determination.
'the costs of the Process'
includes the fees and expenses of an Expert or Nominee, any
Nomination Fee or other fee payable to the Institute of Arbitrators
& Mediators Australia or other nominating body, and costs for
such things as room hire and transcript.
'days' means normal working
days and shall exclude Saturdays, Sundays and public
holidays.
'the Dispute' means the
disputed issues for expert determination in accordance with these
Rules.
'Expert' means a person who
has accepted appointment to determine the Dispute in accordance
with these Rules.
'Nominee' means a person who
has been nominated by the Institute or agreed by the parties as
Expert but who has not accepted appointment as Expert.
'Preliminary Conference'
means a meeting appointed to deal with procedural or administrative
matters in connection with expert determination of the
Dispute.
'the Process' means expert
determination of the Dispute in accordance with these
Rules.
RULE 2: Appointment of the
Expert
1. Unless otherwise agreed in writing by the
parties, the Process shall be conducted:
a. by a person agreed between the parties;
or
b. if the parties are unable to agree on the
identity of the person to be appointed, by a person nominated by
the Institute,
who accepts appointment as Expert.
2. Subject to any written agreement of the
parties to the contrary, the provisions of Schedule A shall
apply.
3. The Nominee shall, within seven (7) days
of receiving advice of his or her nomination or agreed appointment,
give written notice to the parties of the time and place of a
Preliminary Conference to be held in accordance with Rule 8, which
the parties or their duly authorized representatives shall
attend.
4. Prior to that Preliminary Conference, the
Nominee may advise any conditions he or she wishes to impose
(including provision of security for the fees and expenses of the
Nominee) and request the agreement of the parties to such
conditions.
5. On the parties agreeing to any such
conditions, the Nominee shall accept appointment and shall then be
deemed to have entered on the reference as Expert.
RULE 3: Agreement to be
Bound
1. The parties agree that the Expert is an
expert in the subject matter of the Dispute.
2. Unless otherwise agreed in writing by the
parties, the determination of the Dispute by the Expert shall be
final and binding between the parties.
RULE 4: Application of
Rules
1. These Rules are subject to any law which
governs expert determination in the place where the Process is
held, and to any agreement between the parties in relation to the
Process.
2. Otherwise, where the parties to a dispute
have agreed to expert determination in accordance with these Rules,
they are thereby bound to comply with these Rules
unless:
a. any part thereof is held to be void or
voidable, in which case that part shall be severed from the
remainder of the agreement; or
b. the parties agree in writing to modify the
application of these Rules.
PART II: The
procedure
RULE 5: Role of the
Expert
1. The Expert shall determine the Dispute as
an expert in accordance with these Rules and according to
law.
2. The parties agree that:
a. the Expert is not an arbitrator of the
matters in dispute and is deemed not to be acting in an arbitral
capacity;
b. the Process is not an arbitration within
the meaning of any statute.
3. The Expert shall adopt procedures suitable
to the circumstances of the particular case, avoiding unnecessary
delay and expense, so as to provide an expeditious cost-effective
and fair means of determining the Dispute.
4. The Expert shall be independent of, and
act fairly and impartially as between the parties, giving each
party a reasonable opportunity of putting its case and dealing with
that of any opposing party, and a reasonable opportunity to make
submissions on the conduct of the Process.
5. Any dispute arising between the parties in
respect of any matter concerning these Rules or the Process,
(including the Expert's jurisdiction) shall be submitted to and
determined by the Expert.
RULE 6: General Duty of
Parties
1. The parties shall do all things reasonably
necessary for the proper, expeditious and cost-effective conduct of
the Process.
2. Without limiting the generality of the
foregoing, the parties shall:
a. be represented at any Preliminary
Conference or meeting convened by the Expert by a person or persons
with authority to agree on procedural matters;
b. comply without delay with any direction or
ruling by the Expert as to procedural or evidentiary matters;
and
c. where appropriate, take without delay any
necessary steps to obtain a decision of a Court on a preliminary
question of jurisdiction or law
RULE 7:
Confidentiality
1. The Expert the parties and all advisers
and representatives of the parties shall:
a. except as provided in paragraph 2 of this
Rule, keep all information disclosed during the Process
confidential;
b. sign Confidentiality Agreements in the
terms of this Rule.
2. The obligation of confidentiality under
sub-paragraph a of paragraph 1 above shall apply except:
a. if disclosure is compelled by
law;
b. to the extent necessary to give effect to
the Agreement or to enforce any determination of the
Expert.
RULE 8: Preliminary
Conference
1.Unless otherwise agreed by the parties, the
Expert shall convene a Preliminary Conference with the parties, in
person or by teleconference, to be held as soon as practicable
after reference of the Dispute to the Process.
2. The purpose of the Preliminary Conference
is to:
a. discuss and agree on the issues in
dispute, or formulate a procedure by which those issues can be
clarified and agreed;
b. plan and agree on how the Process should
proceed, including a timetable for provision of submissions,
documents and any other evidentiary material;
c. make arrangements for Confidentiality
Agreements to be signed by all persons taking part in the Process,
in accordance with Rule 7;
d. make such other planning and
administrative arrangements as may be required in relation to the
Process, including in respect of the terms of appointment of the
Expert.
RULE 9: Conduct of the
Process
1. Subject to any rule of law or equity or
written agreement of the parties to the contrary, and the
requirements of Rule 5, the Expert shall make such directions or
rulings in relation to the Process as he or she sees
fit.
2. Subject to any written agreement of the
parties to the contrary, and without limiting the generality of
paragraph 1 of this Rule, the directions and rulings made by the
Expert may include directions or rulings in relation to:
a. identifying or clarifying the issues in
dispute, by preparation of a joint statement of issues or
otherwise;
b. provision of submissions, documents and
any other evidentiary material relied upon by the
parties;
c. provision of any further submissions and
evidentiary material which the Expert considers
appropriate;
d. meetings between the parties, their
representatives and/or experts engaged by the parties, whether or
not such meetings are attended by the Expert,
including the times by which any such steps
shall be taken.
3. If the parties agree in writing (in the
Agreement or otherwise), the procedure in Schedule B shall
apply.
RULE 10: The Expert's
Determination
1. As soon as reasonably practicable after
receiving the submissions and evidentiary material from the parties
pursuant to Rule 9, the Expert shall determine the Dispute between
the parties and notify such determination in writing to the
parties.
2. Unless otherwise agreed between the
parties, the Expert's determination shall contain a statement of
reasons in such form as the Expert considers reasonably
appropriate, having regard to the amount and complexity of the
Dispute.
3. Unless otherwise agreed between the
parties, the Expert's determination may include for the payment of
interest on any monetary sum determined, in such amount as the
Expert considers reasonable.
4. Where the Expert's determination
contains:
a. a clerical mistake;
b. an error arising from an accidental slip
or omission;
c. a material miscalculation of figures or a
material mistake in the description of any person, thing or matter;
or
d. a defect of form,
the Expert may correct the
determination.
PART III: GENERAL
RULE 11: Contractual
Obligations
Where the Dispute arises out of or in
connection with a contract between the parties, the parties shall
continue to perform their contractual obligations notwithstanding
the existence of the Process.
RULE 12: Waiver of Right to
Object
1. Subject to any rule of law or equity or
written agreement of the parties to the contrary, if a party to the
Process takes part, or continues to take part, in the Process
without making within a reasonable time thereafter any
objection:
a. that the Expert lacks substantive
jurisdiction;
b. that the Process has been improperly
conducted,
c. that there has been any other irregularity
affecting the Expert or the Process,
then that party shall be deemed to have
waived its right to make such objection later, before a Court,
unless it shows that, at the time it took part or continued to take
part in the Process, it did not know and could not with reasonable
diligence have discovered the grounds for the objection.
2. Subject to any Statute Law or principle of
common law or equity, or written agreement of the parties to the
contrary, where the Expert rules that he or she has substantive
jurisdiction and a party to the Process who could have questioned
that ruling in a Court does not do so within any time fixed by the
Expert (or if no time is fixed, within a reasonable time), then
that party shall be deemed to have waived any right it may
otherwise have had to later object to the Expert's substantive
jurisdiction on any ground which was the subject of that ruling,
and shall be deemed to have submitted to the Expert's
jurisdiction.
RULE 13: Costs
1. Unless otherwise agreed by the parties,
each party shall pay its own costs of or incidental to the
Process.
2. Unless otherwise agreed by the parties,
the parties shall be jointly and severally liable for the costs of
the Process, and shall pay those costs in equal shares.
RULE 14: Extension of Limitation
Period
1. If, during the Process, a limitation
period for bringing any proceedings in relation to the Dispute
expires, the parties agree that:
a. the limitation period will be extended by
the number of days from the date of reference of the Dispute to the
Process to the date of the Expert's determination in accordance
with these Rules;
b. they will not rely, in any arbitral or
judicial proceedings on the expiry of a limitation period other
than as calculated in accordance with this Rule.
RULE 15: Subsequent
Proceedings
1. The Expert shall not, without the written
consent of the parties, accept an appointment to act as arbitrator,
or act as advocate or adviser to any party, in any subsequent
arbitral or judicial proceedings arising out of or in connection
with the Dispute.
2. The parties agree that:
a. the Expert will not be called upon to give
evidence or produce documents in any subsequent arbitral or
judicial proceedings arising out of or in connection with the
Dispute, by subpoena or otherwise;
b. with the exception of the Expert's
determination, the Expert's papers will not be the subject of a
subpoena to give evidence or produce documents in any subsequent
arbitral or judicial proceedings arising out of or in connection
with the Dispute.
RULE 16: Counting of
Days
1. For the purpose of counting days under
these Rules, such period shall begin to run on the day following
the day when notice, notification, communication or proposal is
actually received or deemed to be received under paragraph 2 of
this Rule, whichever is earlier. If the last day of such period is
a public or official holiday or a non-business day at the residence
or place of business of the addressee, then the period is extended
until the first business day which follows.
2. Any such notice, notification,
communication or proposal which is posted is deemed to have been
received on the second day following the day of posting. Any such
notice, notification, communication or proposal which is sent by
facsimile or other means of telecommunication or electronic
transmission is deemed to have been received on the day of
transmission.
RULE 17: Liability for acts or
omissions
The parties agree that the Expert, the
Institute and its officers and employees are not liable to any
party for or in respect of any act or omission in the discharge or
purported discharge of their respective functions under these Rules
unless such act or omission is shown to have been
fraudulent.
SCHEDULE A
RULE A1: Inability to Agree on Person
to be Appointed
1. This Rule applies to the extent that it is
not inconsistent with the Agreement.
2. Any party may, by notice in writing
(hereafter called the Notice of Dispute), give notice that it
requires a dispute to be referred to expert determination, and call
on the other parties to the dispute to agree on the identity of the
person to be appointed as Expert.
3. The Notice of Dispute shall be served at
the address for such party or parties specified in the Agreement.
Unless otherwise provided in the Agreement, service may be effected
personally, by mail, or by facsimile or other means of
telecommunication or electronic transmission.
4. Unless otherwise agreed between the
parties, if no agreement has been reached on the identity of the
person to be appointed as Expert within ten (10) days after service
of the Notice of Dispute or deemed receipt of same, then the
dispute, unless settled, shall be and is hereby referred to expert
determination by an Expert nominated by the Institute in accordance
with this Schedule.
5. If the parties agree in writing that the
giving of notice under this Rule shall not be required, then the
parties may jointly call for nomination of an Expert by the
Institute in accordance with this Schedule.
RULE A2: Exercise of Power of
Nomination by the Institute
1. Where the Institute is to exercise powers
to nominate persons to act as Experts, those powers shall be
exercised by:
a. the President of the Institute;
or
b. the Senior Vice-President of the Institute
or the Chair of any Chapter, to which the power of appointment is
delegated in any particular case or cases.
2. Where the Institute is to nominate an
Expert:
a. the party giving a Notice of Dispute shall
also provide evidence that it has deposited with the Institute of
Arbitrators & Mediators Australia the prescribed Nomination
Fee; or
b. if the parties agree in writing that the
giving of notice under Rule A1 shall not be required then, unless
the parties otherwise agree, they shall jointly deposit with the
Institute of Arbitrators & Mediators Australia the prescribed
Nomination Fee.
3. The Nomination Fee shall be the sum of
$330.00 or such other sum as prescribed by the Institute from time
to time.
4. Lodgement of the prescribed Nomination Fee
shall be a pre-requisite to the nomination of an Expert by the
Institute.
RULE A3: Call for
Nomination
1. This Rule applies to the extent that it is
not inconsistent with the Agreement.
2. Where a Notice of Dispute has been given
pursuant to the Agreement or pursuant to Rule A1, and such dispute
has not been settled within the time provided, any party may
thereafter request the Institute in writing to nominate an Expert
and, in so doing, shall submit the following to the
Institute:
a. a copy of the Notice of
Dispute;
b. a copy of the Agreement containing the
submission to expert determination;
c. the names and addresses of the parties to
the dispute;
d. a brief description of the nature of the
dispute containing such particulars of the dispute as will permit
the Institute to nominate an appropriate Expert.
3. If the parties agree in writing that the
giving of notice under Rule A1 shall not be required then, in
addition to the material referred to in paragraph 2 of this Rule,
they shall provide to the Institute of Arbitrators & Mediators
Australia a copy of their written agreement to that
effect.
4. Within ten (10) days after receipt of the
material submitted pursuant to paragraphs 2 or 3 of this Rule, or
such further information as to the nature of the dispute as the
Institute may reasonably require for the purposes of nomination,
the Institute shall nominate an Expert, and shall advise the
parties and the Nominee accordingly.
RULE A4: Further
Nomination
1.Where any party does not agree with the
conditions advised by the Nominee, then the Nominee shall notify
the parties in writing within two (2) days as to whether he or she
accepts appointment as Expert notwithstanding that disagreement. On
acceptance of appointment, the Nominee shall be deemed to have
entered on the reference as Expert.
2.Unless the parties otherwise agree in
writing, the Institute shall nominate a replacement Expert, within
ten (10) days of being called on to do so by a party,
if:
a. appointment is declined by a Nominee
pursuant to paragraph 1 of this Rule;
b. a Nominee nominated by the Institute does
not enter upon the reference as Expert within one (1) month of the
date of his or her nomination;
c. after entering on the reference, an Expert
shall die or shall otherwise become incapable by reason of ill
health or otherwise, or be debarred in law, from continuing on the
reference.
3.Where the Institute nominates a replacement
Expert pursuant to paragraph 2a of this Rule, then any dispute as
to the reasonableness of the conditions notified by the replacement
Expert shall be determined by the President of the Institute or his
or her nominee, which determination shall be final and
binding.
SCHEDULE B
The Process shall be conducted in the
following manner:
1. The claimant shall, within twenty one (21)
days of the date on which the Expert accepts appointment, provide
the following to each other party and to the Expert:
a. a statement in writing detailing the
nature of the dispute, the legal and factual issues involved, its
contentions in relation to those issues, and the quantum of its
claim;
b. all documents and other evidentiary
material on which it relies;
c. its written submissions on the legal and
factual issues involved in its claim.
2. Thereafter, each party other than the
claimant shall, within a further period of twenty one (21) days,
provide the following to each other party and to the
Expert:
a. a statement in writing indicating whether
or not it agrees with the claimant's written statement pursuant to
paragraph 1a and, if not, its statement of the nature of the
dispute (including any cross claim), the legal and factual issues
involved in the claimant's claim and any such cross claim, its
contentions in relation to those issues, and the quantum of any
such cross claim;
b. all documents and other evidentiary
material on which it relies;
c. its written submissions on the legal and
factual issues involved in the claimant's claim and any cross claim
brought by it.
3. Thereafter, any party may reply to written
material served pursuant to paragraph 2, within a further period of
twenty one (21) days, by providing the following to each other
party and to the Expert:
a. a statement in writing in reply indicating
whether or not it agrees with the written statement pursuant to
paragraph 2a and, if not, its reply as to the nature of the
dispute, the issues likely to arise and its contentions in relation
to same;
b. all documents and other evidentiary
material in reply to material served pursuant to paragraph
2b;
c. its written submissions in reply on the
legal and factual issues involved.
4. If a cross claim is made in accordance
with paragraph 2, then the cross claimant may reply, in the same
manner as set out in paragraph 3, to written material served in
respect of such cross claim pursuant to paragraph 3.
5. If the Expert considers it appropriate, he
or she may direct that expert reports not be served in accordance
with paragraphs 1b, 2b, 3b and 4 above and that, instead, the
experts retained by the parties are to be each provided with the
material otherwise served pursuant to paragraphs 1b, 2b, 3b and 4,
and then jointly confer (by a time fixed by the Expert) and produce
a joint report or reports (by a time fixed by the Expert) recording
the matters on which they agree, the matters on which they
disagree, and identifying the reasons for any such disagreement and
their respective contentions in relation to same.
6. If the Expert considers it appropriate, he
or she may direct that the experts retained by the parties attend
one or more Experts' Conclaves chaired by the Expert, so as to
narrow issues in dispute, which Conclaves are to be held at a time
and are to be conducted and recorded in a manner directed by the
Expert.
7. The Expert may make such other directions
or rulings as he or she considers reasonably appropriate, including
directions or rulings for further material or meetings pursuant to
sub-paragraphs 2c and 2d of Rule 9.
8. Any times fixed pursuant to this Schedule
B may be varied by agreement of the parties. In the absence of such
agreement, on proper cause being shown by a party, the Expert may
vary the times fixed on such terms as he or she considers
reasonable in the circumstances.