ICSAS 1 Tier Commodity Arbitration Rules

THE ARBITRATION AGREEMENT
Parties to a contract who wish to have any dispute arising out of that contract referred to arbitration under the following Rules are recommended to insert in the contract an arbitration clause in the following form.

“ Any dispute arising out of or in connection with this contract shall be determined in arbitration under English law in accordance with the Single Tier Arbitration Rules of the International Commodity & Shipping Arbitration Service, which jurisdiction is recognised and accepted by the parties to this contract. ”

PRELIMINARY
1 Any dispute arising out of or in connection with a contract which the parties have agreed shall be subject to the Single Tier Arbitration Rules (“the Rules”) of the International Commodity & Shipping Arbitration Service (“ICSAS”) shall be referred to and determined by arbitration in accordance with the Rules in force at the time when the dispute is referred to arbitration. Unless the parties have otherwise expressly agreed the governing law of the contract is English law.

2 The procedural law of the arbitration is English law and wherever the arbitration may take place the juridical seat of the arbitration is England.

3 The language of the arbitration is English. It is the responsibility of the party who relies on a document in a foreign language to provide an English translation of the document.

4 References in the Rules to the masculine gender include the feminine gender and, where appropriate, companies, corporations and other legal entities.

THE REFERENCE TO ARBITRATION, TIME LIMITS AND APPOINTMENT OF ARBITRATORS
5 The Dispute - Time Bar

(i) The party who wishes to refer a dispute (as defined in Rule 1) to arbitration (“the Claimant”) shall give notice to the other party (“the Respondent”) and to ICSAS of his intention to do so.

(ii) The said notices shall be given not later than 12 months from the date of the shipment of the goods, or, where the contract does not involve shipment, the date of the delivery or collection of the goods, or, in the event of non-performance of the contract, not later than 12 months from the last day of the shipment/delivery/collection period agreed under the contract (including any agreed extension period).

(iii) If the Claimant fails to give the said notices within the time limited by Rule 5(ii), the claim shall be deemed waived and shall be absolutely barred.

6 Within 7 days of giving the said notices the Claimant shall appoint an arbitrator and shall give notice of the appointment to the Respondent and to ICSAS.

7 Within 14 days of receiving the Claimant’s notice of the appointment of an arbitrator the Respondent shall appoint an arbitrator and shall give notice of the appointment to the Claimant and to ICSAS.

8 Either party may apply in writing to the Secretary for the time being of ICSAS (“the Secretary”) for an arbitrator to be appointed on his behalf and such appointment will thereupon be made and notified to the parties by ICSAS.

9 If either party fails to appoint an arbitrator and to give notice of the appointment in accordance with the provisions of these Rules (or fails to make an application to the Secretary under Rule 8) the Secretary will make an appointment on behalf of the party in default and the appointment will be notified to the parties by ICSAS.

10 The Secretary will appoint a third arbitrator and will give notice of the appointment to the parties and to the other two arbitrators. Thereupon the three arbitrators, appointed in accordance with the provisions of these Rules, will constitute the Tribunal. The third arbitrator will act as Chairman of the Tribunal.

11 The parties may agree that the Claimant’s appointed arbitrator shall act as sole arbitrator. On such agreement being made the Claimant shall notify ICSAS accordingly.

12 The sole arbitrator or the three arbitrators as the case may be are referred to in these Rules as “the Tribunal”.

13 Appointed arbitrators must have the following qualifications:

(i) they must have been employed for a period of not less than 10 years by a business engaged, either as trading principals or as brokers, in a physical commodity market
  AND
(ii) they must have acted as arbitrators under the auspices of a recognised arbitration forum for a period of not less than three years.

14 ICSAS maintains a list of persons who have been admitted as members of the ICSAS Panel of Arbitrators ( “the Panel”). Any arbitrator appointed under these Rules shall be a member of the Panel. Applications for membership of the Panel may be made to the Secretary in writing by a prospective arbitrator, who must demonstrate that he or she is qualified under Rule 13. Admission to membership of the Panel is at the sole discretion of the ICSAS.

15 Arbitrators must be and must be seen to be impartial. A person is disqualified from acting as an arbitrator who has any interest, direct or indirect, in the transaction giving rise to the dispute, or who is associated with a party to the proceedings in any way which could reasonably give rise to suspicion of bias.

ARBITRATION PROCEDURE
16 The Claimant shall serve written submissions (in accordance with the provisions of Rule 19) setting out a statement of his case together with any supporting documents. If the Claimant fails to serve such submissions within three months of having referred the dispute to arbitration under Rule 5, the claim will be deemed to have been withdrawn unless, on the application of the Claimant, the Tribunal in its absolute discretion permits the arbitration to proceed.

17 On receipt of the Claimant’s submissions the Tribunal will issue directions regarding the future conduct and progress of the arbitration, which will include a timetable for the service of the Respondent’s submissions and any further submissions in reply.

18 At any time either party may apply to the Tribunal for further directions or for a variation of directions already given. Any application which either party wishes to make to the Tribunal shall be made through ICSAS. Any directions made by the Tribunal will be notified to the parties by ICSAS.

19 The party who is serving submissions shall effect service as follows:
(i) four copies of the submissions and any supporting documents shall be sent to ICSAS, but where the Tribunal consists of a sole arbitrator only two copies are required; and
(ii) one copy of the submissions and any supporting documents shall be sent to the other party.

20 Unless the parties otherwise agree there will be an oral hearing. After the Respondent’s submissions have been served the parties will be notified by ICSAS of the date, time and place of the hearing. Each party may appear personally at the hearing or may be represented by any agent whose name has been given to ICSAS and the other party before the hearing takes place. The agent may be a solicitor or a barrister.

21 If the parties have agreed that there is not to be an oral hearing ICSAS will notify the parties of the date when the Tribunal intends to determine the dispute. Dispute determination may take place at a meeting of the members of the Tribunal but the Tribunal may decide that a meeting is not necessary.

22 The Tribunal may consult a legal adviser (who may be the Secretary of ICSAS) and, if it does so, any information, opinion or advice offered by such person shall be confidential to the Tribunal and shall not be disclosed to the parties unless the Tribunal in its absolute discretion decides otherwise.

23 The Tribunal may, on application being made by the parties and only with the agreement of all parties, direct that two or more arbitration proceedings shall be consolidated or that there shall be concurrent hearings.

24 Apart from the powers given by the Rules the Tribunal will be acting under the powers given to arbitrators under the Arbitration Act 1996 (or under any statutory modification or re-enactment thereof for the time being in force). By and within the limits of the statutory provisions (and subject to the Rules) the Tribunal has full power to decide all procedural and evidential matters. The Tribunal will have in mind that the object of arbitration is to obtain the fair resolution of disputes without unnecessary delay or expense.

NOTICES
25 Where these Rules require one of the parties to give a notice to the other party or to ICSAS the following provisions shall apply:
(i) the notice shall be in writing;
(ii) any form of written communication (including facsimile and electronic mail) may be used;
(iii) subject to sub-Rules (v) and (vi) the notice is not given until it is received by the intended recipient;
(iv) there is no presumption of receipt of a notice sent by post;
(v) a notice may be given to ICSAS by delivering the same to the offices of ICSAS or by transmitting the same by facsimile and it is deemed to have been received on the date and at the time of its delivery or transmission as the case may be;
(vi) a notice may be given to the other party by delivering the same to the other party’s last known address or by transmitting the same to the other party’s facsimile number and it is deemed to have been received by the other party on the date and at the time of its delivery or its transmission as the case may be;
(vii) if the last day for giving a notice is a non-business day either in England and Wales or in the country where the party giving the notice carries on business or in the country where the other party carries on business, the notice shall be deemed to have been given in time if given on the next following business day.

INTEREST
26 In addition to the powers to award interest given by the Arbitration Act 1996 the Tribunal has the power to award damages (which may be expressed as interest) for the late payment of any sum due under a contract by way of a debt or damages (“the capital sum”). Such damages may be awarded even though the capital sum may have been paid before the commencement of arbitration proceedings under these Rules.
COSTS

27 The Tribunal has discretion with regard to awarding costs. In normal circumstances costs will follow the event. Therefore the losing party will usually be ordered to pay the fees, costs and expenses of the proceedings, including the reasonable costs of the winning party. Unless both parties have asked for an award of legal costs, if a party chooses to be represented by a lawyer the losing party will only in exceptional circumstances be ordered to pay the legal costs of the winning party.

FEES, COSTS AND EXPENSES OF THE ARBITRATION
28 Within 14 days of giving the notices referred to in Rule 5(i) the Claimant shall pay a Case Registration Fee to ICSAS, which will be non-refundable.

29 In respect of any application made pursuant to Rule 8, or of any appointment made pursuant to Rule 9, an Arbitrator Appointment Fee shall be payable to ICSAS by the applicant or by the defaulter as the case may be.

30 At any time during the course of the arbitration ICSAS may call upon the Claimant, and if the Respondent has served a counterclaim may also call upon the Respondent, to pay a deposit or a further deposit on account of the fees, costs and expenses of the arbitration. If the party who is required to pay a deposit fails to make payment, the Tribunal may in its absolute discretion stay the proceedings relating to the claim or counterclaim as the case may be until payment is made, or may issue an award dismissing the claim or counterclaim as the case may be, after giving notice of its intention to do so.

REMOVAL OF AN ARBITRATOR
31 The Secretary may remove an arbitrator on any of the following grounds:
(i) that circumstances exist that give rise to justifiable doubts as to his impartiality;
(ii) that he does not possess the qualifications required by the Rules;
(iii) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so;
(iv) that he has refused or failed properly to conduct the proceedings, or to use reasonable despatch in conducting the proceedings or making an award.

32 On the removal of an arbitrator under the provisions of Rule 31 the Secretary will appoint another arbitrator to fill the vacancy.

THE ARBITRATION AWARD
33 The Secretary, who will be a person who is or has been a practising solicitor or barrister, will be responsible for ensuring that the award is expeditiously drafted and finalised in accordance with the Tribunal’s determination of the issues raised in the arbitration.

34 The award will be a fully reasoned award. When it has been signed by the members of the Tribunal, and provided that no further sum is due in respect of the fees, costs and expenses of the arbitration, ICSAS will date the award and will issue a signed copy to each of the parties. If any further sum is due, the parties will be notified by ICSAS that the award is ready to be issued on payment of the said sum. On payment being made ICSAS will date and issue the award.

35 The date of an award is to be taken to be the date on which the award is made.

LIABILITY OF THE PARTIES TO ICSAS
36 Each party to an arbitration proceeding under these Rules shall be liable to ICSAS (jointly and severally with the other parties to the proceedings) for all the fees, costs and expenses of the proceedings. This joint and several liability of all parties applies notwithstanding that the Rules provide, or an award may direct, that one of the parties shall pay such fees, costs or expenses.

COURT PROCEEDINGS
37 Under the Arbitration Act 1996 the English court has certain powers both in relation to arbitral proceedings and in relation to the award, which the court may exercise on an application being made. The service of court proceedings relating to any such application under the said Act (or under any statutory modification or re-enactment thereof for the time being in force) upon a party to the arbitration by leaving the same at the offices of ICSAS and by posting a copy of the same to the party’s last known address shall be deemed good service, any rule of law or equity to the contrary notwithstanding.

38 The obtaining of an award under these Rules is a condition precedent to the right of either party to bring court proceedings against the other in respect of any of the matters which the parties have agreed to refer to arbitration under these Rules. This condition precedent is limited to the substantive issues. It does not apply to ancillary proceedings, such as proceedings brought to preserve assets.