martes, 28 de enero de 2014

Procedural Order. Untimely Extension Request.

Procedural order Nº […] 

I.1. In this procedural order, the tribunal considers the issues arisen from the request of February 14, 2013, made by [the respondent] to the effect that the tribunal grants an extension of the time period to submit the answers to the interrogatories submitted by [the claimant] to the witnesses [...]

I.2. The deadline to submit the answers to these interrogatories was February 18, 2013 (paragraph II.4 of procedural order Nº 6, of January 16, 2013).

I.3. On February 14, 2013, near to 14:00 hours, [respondent] sent an email accompanied by a statement that it would not deliver the witnesses’ answers on time, for “a meeting in [...] is being carried out, a convention [...] in which officers, employees, clients and distributors of said company are participating”. The witnesses to which this procedural order refers are included in the assistants.

1.4. That since the witnesses were very busy, they could not entertain the presentation of evidence.

I.5. Requested an extension of at least fifteen days to present the answers in writing.

I.6. On February 18, 2013, [the respondent], without authorization from the tribunal, failed to submit the answers to the interrogatories of these witnesses and announced that it would do so within a fifteen day period.

I.7. On February 21, as per the invitation of the arbitrator [the claimant] made its comments, both to the request of the respondent, and to the failure of delivering the answers of the witnesses.

I.8 [The claimant] argued that it submitted its claim memorials since November 5, 2012, presenting the evidence and accompanying the questionnaires. That [respondent] was timely informed of the date in which it was to submit the answers and that the extension request was untimely.

I.9. That it knows that the convention to which [respondent] refers ended on February 16, 2013.

I.10. That the tribunal should give the parties equal treatment and that to grant the requested extension would provide [respondent] with advantages to which it has no right.

I.11. [Claimant] requested that the request of [the respondent] be dismissed.

II. Decisions

II.1. The tribunal starts from the premise that the agreed procedural calendar binds both the parties and the tribunal, and that it is not justified for a party to unilaterally separate from it; allowing such conducts would frustrate the certainty provided by the procedural calendar. The foregoing, in prejudice of the procedure consistency and the convenience of rationalizing the use of time and costs.

II.2. Conducts such as in this case, compromise the fundamental principles of arbitration to give the parties the opportunity to present their cases in equal conditions. Parties shall refrain from untimely putting the tribunal between the alternative of compromising equal treatment or acting with little flexibility; all that in benefit of obtaining an award that is fair, valid and enforceable.

II.3. It is true that there can be situations that justify modifications to the calendar and other procedural orders, and that the tribunal should deal with the. But such requests should be made taking into account that the arbitrators have commitments and a workload that prevents an immediate reaction in all cases. The parties should provide the tribunal with a reasonable opportunity to review their requests hearing both of them; without facing a dilemma, as in this case happened, if it does not act immediately upon its request. If [the respondent] knew the deadline to submit the answers beforehand, as well as the event it alleges prevented the witnesses to answer, it could have raised its request with anticipation.

II.4. On the other hand, if the request is not resolved by the tribunal by the deadline to submit the answers, [the respondent] was not authorized to default. Much less to announce unilaterally that it would use the requested extension.

II.5. In view of the foregoing, and as an exception, taking into account that the tribunal was not able to answer its request, [respondent] is authorized to submit the missing testimonies on February 25, 2013, at the latest.

II.6. The arbitrator wishes to convey to the parties that in the future he will not be able to act with the flexibility with which it is acting in this procedural order.

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