Rules of Procedure

Based on the Decision of the Board of Governors of the American Chamber of Commerce in Kosovo on establishing the Alternative Dispute Resolution Center and appointing its Board of Directors,


On its meeting of 19th of April, 2011, The Board of ADR Center adopts 

 

KOSOVO Arbitration Rules 2011

 

Section I. Introductory rules

 

Scope of application

 

Article 1


  1. These Rules shall govern domestic and international arbitration of disputes in respect of a defined legal relationship, whether contractual or not, where an agreement refers to arbitration pursuant to these Rules under the auspices of  the Alternative Dispute Resolution (ADR) Center at the American Chamber of Commerce in Kosovo . In the following text, such ADR Center shall be referred to as an ‘arbitration institution’.
  2. These Rules shall apply subject to such modification as the parties may agree.
  3. Unless the parties have agreed otherwise these Rules shall apply to all arbitral proceedings in which the statement of claim is submitted on or after the date of entry into force of these Rules.
  4. These Rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.

 

Notice and calculation of periods of time

 

Article 2


  1. A notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission.
  2. If an address has been designated by a party specifically for this purpose or authorized by the arbitral tribunal, any notice shall be delivered to that party at that address, and if so delivered shall be deemed to have been received. Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorized.
  3. In the absence of such designation or authorization, a notice is:
    (a)       Received if it is physically delivered to the addressee; or
    (b)       Deemed to have been received if it is delivered at the place of business, habitual residence or mailing address of the addressee.
  4. If, after reasonable efforts, delivery cannot be effected in accordance with paragraphs 2 or 3, a notice is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.
  5. A notice shall be deemed to have been received on the day it is delivered in accordance with paragraphs 2, 3 or 4, or attempted to be delivered in accordance with paragraph 4. A notice transmitted by electronic means is deemed to have been received on the day it is sent, except that a notice of arbitration so transmitted is only deemed to have been received on the day when it reaches the addressee’s electronic address.
  6. For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

 


The Representation and assistance

 

Article 3

 

Each party may be represented or assisted by persons chosen by it. The names and addresses of such persons must be communicated to all parties and to the arbitral tribunal. Such communication must specify whether the appointment is being made for purposes of representation or assistance. Where a person is to act as a representative of a party, the arbitral tribunal, on its own initiative or at the request of any party, may at any time require proof of authority granted to the representative in such a form as the arbitral tribunal may determine.

 

Designating appointing authorities

 

Article 4

 

Unless the parties have already agreed on the choice of an appointing authority, the appointing authority shall be the body designated as such under the organizational rules of the arbitration institution.

 

Section II. Composition of the arbitral tribunal

 

Number of arbitrators

 

Article 5


  1. If the parties have not previously agreed on the number of arbitrators, the appointing authority shall decide whether the case shall be referred to a sole arbitrator or to a three-member arbitral tribunal, taking into account all relevant circumstances.
  2. As a rule, the appointing authority shall refer the case to a sole arbitrator, unless the complexity of the subject-matter and/or the amount in dispute justify that the case be referred to a three-member arbitral tribunal.
  3. For purposes of these Rules, the expression „arbitral tribunal“ includes a sole arbitrator or a three-member arbitral tribunal.

 

Appointment of arbitrators (articles 6 to 9)

 

Article 6


  1. The parties may appoint the arbitrators who are on the list of the  arbitration institution.
  2. The parties may also appoint persons to be arbitrators who are not on such list of arbitrators, provided that any such person provide a brief statement of his past and current professional experience.  Such statement must also be provided if an arbitrator is appointed by an appointing authority other than the appointing authority designated by the arbitration institution.
  3. The appointment of an arbitrator shall become effective when it has been confirmed by the arbitration institution in accordance with Article 12 of these Rules. Accordingly, any reference to appointment under these Rules shall be deemed to be a nomination until confirmed by the arbitration institution.

 

Article 7


  1. If the parties have agreed that a sole arbitrator is to be appointed and if within 30 days after receipt by all other parties of a proposal for the appointment of a sole arbitrator the parties have not reached agreement thereon, a sole arbitrator shall be appointed by the appointing authority.
  2. The appointing authority shall appoint the sole arbitrator as promptly as possible. In making the appointment, the appointing authority shall use the following list-procedure, unless the parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case:
    (a)       The appointing authority shall communicate to each of the parties an identical list containing at least three names;
    (b)       Within 15 days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which it objects and numbered the remaining names on the list in the order of its preference;
    (c)        After the expiration of the above period of time the appointing authority shall appoint the sole arbitrator from among the names approved on the lists returned to it and in accordance with the order of preference indicated by the parties;
    (d)       If for any reason the appointment cannot be made according to this procedure, the appointing authority may exercise its discretion in appointing the sole arbitrator.

 

Article 8


  1. If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the arbitral tribunal.
  2. If within 30 days after the receipt of a party’s notification of the appointment of an arbitrator the other party has not notified the first party of the arbitrator it has appointed, the first party may request the appointing authority to appoint the second arbitrator.
  3. If within 30 days after the appointment of the second arbitrator the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by the appointing authority in the same way as a sole arbitrator would be appointed under Article 7.

 

Article 9


  1. For the purposes of Article 8, paragraph 1, where three arbitrators are to be appointed and there are multiple parties as claimant or as respondent, unless the parties have agreed to another method of appointment of arbitrators, the multiple parties jointly, whether as claimant or as respondent, shall appoint an arbitrator.
  2. In the event of any failure to constitute the arbitral tribunal under these Rules, the appointing authority shall, at the request of any party, constitute the arbitral tribunal and, in doing so, may revoke any appointment already made and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator.

 

Acceptance of Mandate of Arbitrator and Disclosures

 

Article 10

  1. Every arbitrator must be and remain independent of the parties involved in the arbitration.
  2. Each  person who is approached in connection with his or her possible appointment as an arbitrator shall, without undue delay, notify the arbitration institution of his or her acceptance of the appointment as arbitrator and declare whether he or she fills the conditions agreed upon by the parties. He or she shall also disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. The arbitration institution shall inform the parties accordingly.
  3. If circumstances are apparent from an arbitrator’s declaration, which are likely to give rise to doubts as to his impartiality or independence or his fulfillment of agreed qualifications, the arbitration institution grants the parties an opportunity to comment within an appropriate time-limit.
  4. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances.

 

Confirmation of Arbitrator

 

Article 11

 

  1. The arbitration institution may confirm the proposed arbitrator as soon as the arbitration institution receives the arbitrator’s declaration of acceptance, and no circumstances likely to give rise to doubts regarding the impartiality or independence of an arbitrator or his fulfillment of agreed qualifications are apparent from the declaration, or if within the time-limit set by Article 13.1 no party objects to the confirmation of that arbitrator.

 

  1. In the event of a challenge pursuant to Article 13.1 , which a party elects to pursue as provided in Article 13.4, a decision by the arbitration institution to reject the challenge of the proposed arbitrator shall be considered a confirmation of such arbitrator.

 

  1. Upon confirmation of all arbitrators, the arbitral tribunal is constituted. The arbitration institution informs the parties of the constitution of the arbitral tribunal.

 

 

Challenge of arbitrators (articles 12 to 14)

 

Article 12

  1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.
  2. A party may challenge the arbitrator appointed by it only for reasons of which it becomes aware after the appointment has been made.
  3. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his or her performing his or her functions, the procedure in respect of the challenge of an arbitrator as provided in Article 13 shall apply.

Article 13

  1. A party that intends to challenge an arbitrator shall send notice of its challenge within 15 days after it has been notified of the appointment of the challenged arbitrator, or within 15 days after the circumstances mentioned in Articles 11 and 12 became known to that party.
  2. The notice of challenge shall be communicated to all other parties, to the arbitrator who is challenged, to the other arbitrators and to the arbitration institution. The notice of challenge shall state the reasons for the challenge.
  3. When an arbitrator has been challenged by a party, all parties may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his or her office. In neither case does this imply acceptance of the validity of the grounds for the challenge.
  4. If, within 15 days from the date of the notice of challenge, all parties do not agree to the challenge or the challenged arbitrator does not withdraw, the party making the challenge may elect to pursue it and seek a decision on the challenge by the arbitration institution. In that case, within 15 days of notice by the party making the challenge to pursue the challenge, the other party and the challenged arbitrator shall submit a response to the challenge.
  5. The arbitration institution shall make a decision on the challenge without undue delay.  Such decision shall be final.

 

Replacement of an arbitrator

 

Article 14

  1. Subject to paragraph 2, in any event where an arbitrator has to be replaced during the course of the arbitral proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided for in Articles 7 to11 that was applicable to the appointment or choice of the arbitrator being replaced. This procedure shall apply even if during the process of appointing the arbitrator to be replaced, a party had failed to exercise its right to appoint or to participate in the appointment.
  2. If, at the request of a party, the appointing authority determines that, in view of the exceptional circumstances of the case, it would be justified for a party to be deprived of its right to appoint a substitute arbitrator, the appointing authority may, after giving an opportunity to the parties and the remaining arbitrators to express their views: (a) appoint the substitute arbitrator; or (b) after the closure of the hearings, authorize the other arbitrators to proceed with the arbitration and make any decision or award.

 

Repetition of hearings in the event of the replacement of an arbitrator

 

Article 15

 

If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions, unless the arbitral tribunal decides otherwise.

 

Exclusion of liability

 

Article 16

 

Save for intentional wrongdoing, the parties waive, to the fullest extent permitted under the applicable law, any claim against the arbitrators, the appointing authority, the arbitration institution and any person appointed by the arbitral tribunal based on any act or omission in connection with the arbitration.

 

Section III. Arbitral proceedings

 

General provisions

 

Article 17


  1. Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.  
  2. As soon as practicable after its constitution and after inviting the parties to express their views, the arbitral tribunal shall establish the provisional timetable of the arbitration, which shall be provided to the parties and, for information, to the arbitration institution. The arbitral tribunal may, at any time, after inviting the parties to express their views, extend or abridge any period of time prescribed under these Rules or agreed by the parties. The arbitral tribunal shall provide the revised timetable to the arbitration institution. 
  3. If at an appropriate stage of the proceedings any party so requests, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials.  
  4. All communications to the arbitral tribunal by one party shall be communicated by that party to all other parties and the arbitration institution. Such communications shall be made at the same time, except as otherwise permitted by the arbitral tribunal if it may do so under applicable law.  
  5. The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration.  

 

Place of arbitration

 

Article 18


  1. If the parties have not previously agreed on the place of arbitration, or if such designation is unclear or incomplete, the place of arbitration shall be Kosovo unless  the arbitration institution determines, having regard to the circumstances of the case and after giving the paties the opportunity to make written comments, that another seat is more appropriate. The award shall be deemed to have been made at the place of arbitration.
  2. The arbitral tribunal may meet at any location it considers appropriate for deliberations. Unless otherwise agreed by the parties, the arbitral tribunal may also meet at any location it considers appropriate for any other purpose, including hearings. In any case, the arbitral tribunal should notify the arbitration institution about such locations and, if parties are expected to be present at them, to give them sufficient notice.

 

Language

 

Article 19


  1. Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to the statement of claim, the statement of defense, and any further written statements and, if oral hearings take place, to the language or languages to be used in such hearings.
  2. The arbitral tribunal may order that any documents annexed to the statement of claim or statement of defense, and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.
  3. Until the language of the proceedings had been determined, a claim, a defense and other documents can be submitted in the language of the main contract, of the arbitration agreement or in any language in the official use at the seat of the arbitral institution.
  4. If neither parties nor arbitrators can reach an agreement on the language of arbitration, the language of arbitration shall be determined by the arbitration institution.


Statement of claim

 

Article 20


  1. The claimant shall communicate its statement of claim in writing to the arbitration institution. The proceedings shall be deemed to commence on receipt of the statement of claim by the arbitration institution. The arbitration institution shall deliver the statement of claim to the respondent without undue delay.
  2. Unless the parties come to a different agreement, the statement of claim includes the notice of arbitration.
  3. The claimant shall submit one copy of the statement of claim together with enclosures for each respondent, each arbitrator and the arbitration institution.
  4. The statement of claim shall include the following particulars:
    (a) The names and contact details of the parties;
    (b) Identification of the arbitration agreement that is invoked;
    (c) A brief description of the dispute;
    (d) A statement of the facts supporting the claim;
    (e) The points at issue;
    (f) The relief or remedy sought;
    (g) The legal grounds or arguments supporting the claim;
    (h) The amount in dispute at the time of submission of the statement of claims,     unless the claims are not related exclusively to a specific sum of money;
    (i) A proposal as to the number of arbitrators, language and place of arbitration, if the parties have not previously agreed thereon.
     (j) If a decision by three arbitrators is requested, the nomination of an arbitrator and contact details of that person.
     (k) If a sole arbitrator is to be appointed, the proposal regarding the arbitrator to be appointed and contact details of that person.
  5. A copy of any contract or other legal instrument out of or in relation to which the dispute arises and of the arbitration agreement shall be annexed to the statement of claim.
  6. The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them.

 

Statement of defense


Article 21


  1. The respondent shall communicate its statement of defense in writing to the arbitration institution within a period of time to be determined by the arbitration institution.
  2. The statement of defense shall reply to the particulars (b) to (k) of the statement of claim (Article 20, paragraph 4). The statement of defense should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them.
  3. In its statement of defense, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it.
  4. The provisions of Article 20, paragraphs 3 to 6, shall apply to a counterclaim, and a claim relied on for the purpose of a set-off.

 

Amendments to the claim or defense

 

Article 22

 

During the course of the arbitral proceedings, a party may amend or supplement its claim or defense, including a counterclaim or a claim for the purpose of a set-off, unless the arbitral tribunal considers it inappropriate to allow such amendment or supplement having regard to the delay in making it or prejudice to other parties or any other circumstances. However, a claim or defense, including a counterclaim or a claim for the purpose of a set-off, may not be amended or supplemented in such a manner that the amended or supplemented claim or defense falls outside the jurisdiction of the arbitral tribunal.

 

Transmitting of the file to the arbitral tribunal

 

Article 23

 

The arbitration institution shall transmit the statements of claim and defense and other documents to the members of the arbitral tribunal as soon as a statement of claim or counterclaim have been received in due form, the arbitrators have confirmed acceptance of their mandate and their objectivity, and the deposit for costs has been paid.

 

Pleas as to the jurisdiction of the arbitral tribunal

 

Article 24


  1. The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null shall not entail automatically the invalidity of the arbitration clause.
  2. A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defense or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.
  3. The arbitral tribunal may rule on a plea referred to in paragraph 2 either as a preliminary question or in an award on the merits. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court.

 

Further written statements

 

Article 25

 

The arbitral tribunal shall decide which further written statements, in addition to the statement of claim and the statement of defense, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.

 

Periods of time

 

Article 26

 

The periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defense) should not exceed 45 days. However, the arbitral tribunal may extend the time limits if it concludes that an extension is justified.

 

Interim measures

 

Article 27


  1. The arbitral tribunal may, at the request of a party, grant interim measures.
  2. An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to:
    (a) Maintain or restore the status quo pending determination of the dispute;
    (b)Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;
    (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or
    (d) Preserve evidence that may be relevant and material to the resolution of the dispute.
  3. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that:
    (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and
    (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.
  4. With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate.
  5. The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.
  6. The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
  7. The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted.
  8. The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.
  9. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

 

Evidence

 

Article 28


  1. Each party shall have the burden of proving the facts relied on to support its claim or defense.
  2. Witnesses, including expert witnesses, who are presented by the parties to testify to the arbitral tribunal on any issue of fact or expertise may be any individual, notwithstanding that the individual is a party to the arbitration or in any way related to a party. Unless otherwise directed by the arbitral tribunal, statements by witnesses, including expert witnesses, may be presented in writing and signed by them.
  3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the arbitral tribunal shall determine.
  4. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.

 

Hearings

 

Article 29


  1. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.
  2. Witnesses, including expert witnesses, may be heard under the conditions and examined in the manner set by the arbitral tribunal.
  3. Hearings shall not be public unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses, including expert witnesses, during the testimony of such other witnesses, except that a witness, including an expert witness, who is a party to the arbitration shall not, in principle, be asked to retire.
  4. The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).

 

Experts appointed by the arbitral tribunal

 

Article 30


  1. After consultation with the parties, the arbitral tribunal may appoint one or more independent experts to report to it, in writing, on specific issues to be determined by the arbitral tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal, shall be communicated to the parties.
  2. The expert shall, in principle before accepting appointment, submit to the arbitral tribunal and to the parties a description of his or her qualifications and a statement of his or her impartiality and independence. Within the time ordered by the arbitral tribunal, the parties shall inform the arbitral tribunal whether they have any objections as to the expert’s qualifications, impartiality or independence. The arbitral tribunal shall decide promptly whether to accept any such objections. After an expert’s appointment, a party may object to the expert’s qualifications, impartiality or independence only if the objection is for reasons of which the party becomes aware after the appointment has been made. The arbitral tribunal shall decide promptly what, if any, action to take.
  3. The parties shall give the expert any relevant information or produce for his or her inspection any relevant documents or goods that he or she may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.
  4. Upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of the report to the parties, which shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his or her report.
  5. At the request of any party, the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing, any party may present expert witnesses in order to testify on the points at issue. The provisions of Article 28 shall be applicable to such proceedings.

 

Default

 

Article 31


  1. If, within the period of time fixed by these Rules or the arbitral tribunal, without showing sufficient cause the respondent has failed to communicate its statement of defense, the arbitral tribunal shall order that the proceedings continue, without treating such failure in itself as an admission of the claimant’s allegations; the provisions of this subparagraph also apply to a claimant’s failure to submit a defense to a counterclaim or to a claim for the purpose of a set-off.
  2. If a party, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.
  3. If a party, duly invited by the arbitral tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.

 

Closure of proceedings

 

Article 32


  1. The arbitral tribunal may inquire of the parties if they have any further proof to offer or witnesses to be heard or submissions to make and, if there are none or if the arbitral tribunal is satisfied that the record is complete, it shall declare the proceedings closed.
  2. When the arbitral tribunal has declared the hearings closed, it shall indicate to the arbitration institution an approximate date by which the draft award will be submitted to the arbitration institution for approval pursuant to Article 44. Any postponement of that date shall be communicated to the arbitration institution by the arbitral tribunal.
  3. The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own initiative or upon application of a party, to reopen the hearings at any time before the award is made.

 

Waiver of right to object

 

Article 33

 

A failure by any party to object promptly to any non-compliance with these Rules or with any requirement of the arbitration agreement shall be deemed to be a waiver of the right of such party to make such an objection, unless such party can show that, under the circumstances, its failure to object was justified.

 

Section IV. The award

 

Decisions

 

Article 34


  1. When there is more than one arbitrator, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.
  2. In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide alone, subject to revision, if any, by the arbitral tribunal.

 

Form and effect of the award

 

Article 35


  1. The arbitral tribunal may make separate awards on different issues at different times.
  2. All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay.
  3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given.
  4. An award shall be signed by the arbitrators and it shall contain the date on which the award was made and indicate the place of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature. The arbitration institution shall certify that the award has been approved under the internal rules of the arbitration institution.
  5. An award may be made public with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority.
  6. Copies of the duly certified award signed by the arbitrators shall be communicated to the parties by the arbitration institution.

 

Applicable law, amiable compositeur

 

Article 36


  1. The arbitral tribunal shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate.
  2. The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so.
  3. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction.

 

Settlement or other grounds for termination

 

Article 37


  1. If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by the parties and accepted by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.
  2. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless there are remaining matters that may need to be decided and the arbitral tribunal considers it appropriate to do so.
  3. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated to the parties. Where an arbitral award on agreed terms is made, the provisions of Article 35, paragraphs 2, 4 and 5, shall apply.


Interpretation of the award

 

Article 38


  1. Within 30 days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation of the award.
  2. The interpretation shall be given in writing within 30 days after the receipt of the request. The interpretation shall form part of the award and the provisions of Article 35, paragraphs 2 to 6, shall apply.

 

Correction of the award

 

Article 39


  1. Within 30 days after the receipt of the award, a party, with notice to the other parties, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 30 days of receipt of the request.
  2. The arbitral tribunal may within 30 days after the communication of the award make such corrections on its own initiative.
  3. Such corrections shall be in writing and shall form part of the award. The provisions of Article 35, paragraphs 2 to 6, shall apply.

 

Additional award

 

Article 40


  1. Within 30 days after the receipt of the termination order or the award, a party, with notice to the other parties , may request the arbitral tribunal to make an award or an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal.
  2. If the arbitral tribunal considers the request for an award or additional award to be justified, it shall render or complete its award within 30 days after the receipt of the request. The arbitral tribunal may extend, if necessary, the period of time within which it shall make the award.
  3. When such an award or additional award is made, the provisions of Article 35, paragraphs 2 to 6, shall apply.

 

Section V. Confidentiality

 

Article 41


  1. Unless the parties expressly agree in writing to the contrary, the parties undertake as a general principle to maintian the confidentiality of the arbitral proceedings and to keep confidential all awards and orders as well as all materials submitted by another party in the framework of the arbitral proceedings not otherwise in the public domain, save and to the extent that a disclosure may be required of a party by a legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a judicial authority. This undertaking also applies to the arbitrators, experts, witnesses, persons acting on behalf of any person involved in the arbitral proceedings, the secretary of the arbitral tribunal and any person at the arbitration institution involved in the administration of the arbitral proceedings.
  2. The deliberations of the arbitral tribunal are confidential.
  3. An award may be published, whether in its entirety or in the form of excerpts or a summary, only under the following conditions:
    (a) A request for publication is addressed to an arbitration institution;
    (b) All references to the parties’ names are deleted; and
    (c) No party objects to such publication within the time–limit fixed for that purpose by the arbitration institution.

 

Section V. Expedited Procedure

 

Article 42


  1. The provisions on Expedited Procedure, set forth in paragraph 2 of this article, shall apply:
    (a) to all cases in which the amount in dispute representing the aggregate of the claim and the counterclaim (or any set-off defense) does not exceed EUR 100,000, unless the arbitration institution decides otherwise taking into account all relevant circumstances:
    (b) to all cases, irrespective of their value, if the parties agree to apply the provisions on Expedited Procedure.
  2. In the Expedited Procedure, the foregoing provisions of these Rules apply subject to the following modifications:
    (a) The arbitration institution may shorten the time-limits, including time-limits for the appointment of arbitrators;
    (b) The case shall be referred to a sole arbitrator, unless the arbitration agreement provides for a three-member arbitral tribunal. If the arbitration agreement provides for a three-member arbitral tribunal, the arbitration institution shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree to refer the case to a sole arbitrator, the fees of the three arbitrators shall be calculated in accordance with Article 8  of the Decision on Costs in Arbitration Proceedings.
    (c) Unless the parties agree that the dispute shall be decided on the basis of documentary evidence only, the arbitral tribunal shall hold no more than one hearing for the examination of the witnesses and expert witnesses as well as for oral argument. Upon request by the arbitral tribunal, the arbitration institution may exceptionally allow holding of another hearing.
    (d) The award shall be made within six months from the date when the arbitration institution transmitted the file to the arbitral tribunal. In exceptional circumstances, the arbitration institution may extend this time-limit.

 

Section VII. Powers of the arbitration institution

 

Powers in the course of the proceedings

 

Article 43


  1. The arbitration institution, subject to its internal rules, may authorize one of its members to attend the hearings.
  2. The arbitration institution shall secure adequate legal assistance in all hearings where the sole arbitrator or at least one member of the arbitral tribunal is not a lawyer.
  3. The arbitration institution may, whilst respecting the right of decision-making of the arbitral tribunal on the merits of the dispute, draw the arbitrators’ attention to legal issues of importance for decision-making and especially issues relating to the content and form of the procedural actions which are being undertaken.

 

Approval of the award

 

Article 44

  1. Before signing the award, the arbitral tribunal is obliged to present to the arbitration institution the draft of the award for approval.  
  2. The arbitration institution may order alterations to the form of the draft presented. The arbitration institution, whilst respecting the right of decision-making of the arbitral tribunal on the merits of the dispute, is authorized to draw the attention of the arbitral tribunal to issues related to the merits of the dispute.  

 

Costs of proceedings

 

Article 45


  1. The  costs of arbitration proceedings (including the arbitrators’ fees, registration and administrative fees, advance payments of costs, presentation of evidence and other costs) shall be determined by the arbitration iinstitution  in accordance with the Decision  on Costs of Arbitration Proceedings in force at the time the arbitration proceeding is commenced.
  2. The arbitral tribunal may apportion such costs among the parties if it determines that such apportionment is reasonable, taking into account the circumstances of the case.

 

Entry into force

 

Article 46

 

These Rules shall come into effect on 01 July 2011.


 

Annex

 

Model arbitration clause for contracts

 

Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration under the auspices of the ADR Center at the American Chamber of Commerce in Kosovo in accordance with the KOSOVA Arbitration Rules 2011.

Note. Parties should consider adding:

(a)       The appointing authority shall be ... [name of institution or person
(b)       The number of arbitrators shall be ... [one or three];
(c)        The place of arbitration shall be ... [town and country];
(d)       The language to be used in the arbitral proceedings shall be ... .

(e)       The applicable substantive law is...............

 

 

Model statements of independence pursuant to Article 11 of the Rules

 

No circumstances to disclose

 

I am impartial and independent of each of the parties and intend to remain so. To the best of my knowledge, there are no circumstances, past or present, likely to give rise to justifiable doubts as to my impartiality or independence. I shall promptly notify the parties and the other arbitrators of any such circumstances that may subsequently come to my attention during this arbitration.

 

Circumstances to disclose

 

I am impartial and independent of each of the parties and intend to remain so. Attached is a statement made pursuant to Article 10 of the KOSOVA Arbitration Rules of (a) my past and present professional, business and other relationships with the parties and (b) any other relevant circumstances. [Include statement.] I confirm that those circumstances do not affect my independence and impartiality. I shall promptly notify the parties and the other arbitrators of any such further relationships or circumstances that may subsequently come to my attention during this arbitration.

Note. Any party may consider requesting from the arbitrator the following addition to the statement of independence:

I confirm, on the basis of the information presently available to me, that I can devote the time necessary to conduct this arbitration diligently, efficiently and in accordance with the time limits in the Rules.  


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