The 100 Day Arbitration Procedure
The costs of some Adjudications are becoming prohibitive and the resulting Decision is not final and binding. To remedy this situation the Society has drafted a 100 day Arbitration Procedure which is intended to give a final and binding result within a limited time period. Arbitration also has the advantage that the arbitrator is empowered to award party costs. The Procedure is intended to be optional and there is a suitable agreement included in it to enable parties to use it if they so wish.
100 DAY ARBITRATION PROCEDURE
(for use in England and Wales and other jurisdictions)
THE SOCIETY OF CONSTRUCTION ARBITRATORS 1ST JULY 2004
© Society of Construction Arbitrators
- Where the parties and the appointed arbitrator agree to adopt this procedure the arbitrator shall have an overriding duty to make his Award deciding all matters submitted (excluding liability for costs) within 100 days from either; (a) the date on which the statement of defence (or defence to counterclaim, if there is one) is delivered to him or to the other party (whichever is later); or (b) if the statement of defence (or defence to counterclaim) has already been delivered); from the date on which the arbitrator gives his directions.
- Reference to days are calendar days unless otherwise noted. Any period set by this procedure that would end on a Saturday, Sunday or any public holiday at the seat of the arbitration will be deemed to end on the following working day.
- The arbitrator shall, as soon as he is appointed or on the adoption of this procedure if later, contact the parties' representatives by the most rapid and practical means (such as email or fax) to give them the opportunity to comment on the periods and dates to be ordered for the procedural steps in Rule 4.
Within 7 days of his appointment or of the adoption of this procedure if later, the arbitrator shall by directions establish a procedural timetable to include an overall period of no longer than 100 days to run from the service of the statement of defence (or defence to counterclaim, if there is one) or from the date that the arbitrator gives his directions (whichever is later) that shall provide for:
- service of any outstanding pleadings (including replies if considered necessary) and statements of witnesses and experts' reports, if not already served with the pleadings, within 7 days;
- service of all further documents relied on by a party, replies to statements of witnesses and experts' reports and service of any requests for disclosure of specific documents by the other party, within 14 days thereafter;
- subject to any ruling by the arbitrator on any issue as to disclosure of documents, service of copies of documents specifically so requested within 7 days of the request;
- no further documents or other evidence to be served by either party unless requested or permitted by the arbitrator;
- a date for an oral hearing or hearings not exceeding 10 working days, to commence not more than 28 days after conclusion of the foregoing steps;
- final written submissions (if ordered by the arbitrator) to be served simultaneously within 7 days from the end of the hearing;
- the arbitrator to make his Award within 30 days of the end of the oral hearing. The arbitrator may, if so agreed by the parties, direct shorter periods for any of the foregoing steps (and the period in Rule 8) and the period of 100 days may be reduced accordingly.
- For the purpose of achieving the foregoing maximum time periods, the parties agree to cooperate and to take every opportunity to save time where possible.
The arbitrator, for the purpose of achieving the foregoing time limits, may do any of the following at any time:
- order any submission or other material to be delivered in writing or electronically;
- take the initiative in ascertaining the facts and the law;
- direct the manner in which the time at the hearing is to be used;
- limit or specify the number of witnesses and/or experts to be heard orally;
- order questions to witnesses or experts to be put and answered in writing;
- conduct the questioning of witnesses or experts himself;
- require two or more witnesses and/or experts to give their evidence together.
- The parties may agree to extend the period of 100 days. The arbitrator has no such power save that the arbitrator or any party may apply to the Court under Section 50 of the Arbitration Act 1996 (Extension of time for making award) or under other powers available at the seat of the arbitration.
- Not later than 14 days before the Award is due, the arbitrator shall send to the parties his reasonable estimate of the total fees and expenses incurred and likely to be incurred up to the making of the Award (including VAT if applicable). Provided the parties have paid this sum to a stakeholder acceptable to the arbitrator with the monies held to the arbitrator's account (or to the arbitrator himself) the arbitrator shall have no lien over the Award.
- Unless they agree otherwise the parties shall make simultaneous submissions on costs to the arbitrator within 14 days of the date that the Award is published and the arbitrator shall make his Award on costs within 14 days of receipt by the arbitrator of the submissions.
100 DAY ARBITRATION PROCEDURE
Standard Adoption Clause
(1) The parties hereby agree to adopt the Society of Construction Arbitrators' 100 Day Arbitration Procedure for the following: †
* (i) any dispute which may arise out of or in connection with the Contract between the parties dated
* (ii) the dispute referred to in correspondence dated
* (iii) any cross-claim arising out of the dispute referred to in (2)
* (iv) the dispute referred to in Notice of Adjudication dated
* (v) any cross-claim arising out of the dispute referred to in (4)
(2) The parties by entering into this Agreement further agree not to refer or continue to refer to Adjudication any dispute falling within the matters to be referred to Arbitration above until the Arbitrator has delivered his Award on the matters referred to him.
(3) Where there is no other mechanism for appointment and the parties are unable to agree, the arbitrator shall be appointed on the application of either party by the President of the Society of Construction Arbitrators.
Signed by:_____________________ Claimant Date_____
____________________________ Respondent Date______
† The Arbitrator must also agree to adopt the 100 Day Arbitration Procedure
* Delete where inapplicable