viernes, 24 de enero de 2014

Provisional Procedural Calendar

Provisional Procedural Calendar

1. The […], in […] as per the initiative of the arbitrator, there was a meeting between the following persons:

The arbitrator […].

XXX was represented by […]. 

[YYY] was represented by […].

2. The purpose of the meeting was to establish the provisional procedural calendar and the procedural rules of the arbitration referred to above.

3. The Agenda for the meeting was the following

3.1. Brief information from each of the parties on their points of view concerning the nature and substance of the dispute. These presentations were only intended to inform the arbitrator, without them being considered as claims or defenses, for these shall be submitted pursuant to the procedural calendar.

3.2. Considerations on the procedural calendar and rules of procedure.

3.3. Determination of the amount, deposits and payments of the arbitrator’s fees.

4. [To fill in with summaries of what occurred at the meeting].

Provisional procedural calendar

7. The next point was the provisional procedural calendar. After an ample analysis, the following agreements were reached.

7.1 [With respect to this issue I suggest the parties to consider article 1439 of the Commerce Code] […] days after notification of procedural order 1, which shall contain the procedural calendar, [XXX] shall submit its claim memorial. In its claim memorial, [XXX] shall express all its arguments and grounds on law and facts in which its case is based. Moreover, [XXX], shall include all its documentary evidence, witness statements and expert opinions provided to support its case.

7.2. [With respect to this issue I suggest the parties to consider article 1432 of the Code of Commerce] [...] days after the notification of procedural order 1, [YYY] shall submit a memorial in which it shall explain its challenges with respect to the continuation of the arbitration, the arbitrator’s jurisdiction, existence and validity of the arbitration agreement.

7.3. [With respect to this issue I suggest the parties to consider article 1432 of the Code of Commerce] […] days after the notification of procedural order 1, [XXX] shall submit a memorial to defend against the memorial of [XXX] to which point 7.2 refers.

7.4. [With respect to this issue I suggest the parties to consider article 1429 of the Code of Commerce] With respect to the arbitrator’s challenge [I leave it blank to specify if there is a challenge against the arbitrator and the term in which it may be submitted or should have been exercised.] 

7.5. [With respect to this issue I suggest the parties to consider article 1439 of the Code of Commerce] […] days after having received the claim memorial, [YYY] shall submit its response memorial. In its response memorial, [YYY] shall include all its defenses, arguments and grounds on the law and the facts in which its case is based. Moreover, [YYY] shall include all its documentary evidence, witness statements and expert opinions provided to support its case.

7.6. Parties shall have a 10 day period, from the day of submission of the response memorial, or from the deadline to submit it, in which they will provide the other party with written requests to produce information that (i) is not in the possession of the party making the request, (ii) is reasonably expected that the party receiving the request has it, (iii) identifies the documents or categories of documents requested, (iv) is related to the disputed issues of the case, (v) is relevant to the resolution of the arbitration, and (vi) does not create a disproportionate burden on the party that received the request.

7.7. 10 days after receiving the petition, each party shall produce to the other the information that complies with the requirements listed in paragraph 7.6., and that is not protected by privilege, duty of confidentiality or commercial secret. With respect to the information that one party considers it should not produce, it shall provide a report detailing circumstances, with respect to each of the documents or categories of documents to which it refers. The parties shall negotiate during 10 days with respect to the information subject to the dispute and, if there is no agreement, they will have a 5 day period to submit the dispute to the arbitrator, who shall definitely resolve the outstanding issues.

7.8. 30 days after the exchange of documents process is ended, [XXX] shall submit its reply memorial to the response memorial. [XXX] may refer to the issues arising from the response memorial, as well as to the facts of which it learned due to the information received from its counterpart. Moreover, it shall include the additional evidence that is relevant in connection with the information received and the new issues arising from the response memorial. In case that due to lack of grounds it had not submitted expert witness statements with regards to damages and losses, it shall do so in this moment.

7.9. 30 days after receiving the second memorial from [XXX], [YYY] shall submit its reply memorial. This reply memorial shall refer to the issues contained in the reply memorial of [XXX] and, moreover, shall be limited to including the evidence it may have and is related with its reply memorial.

7.10. Once that the stage of written submissions referred to in paragraphs 7.1 to 7.6 has elapsed, the parties and the arbitrator shall decide if a hearing is necessary, as well as the time, place and circumstances in which it will occur.

7.11 The arbitrator may decide on the issues put before him in one or several awards, as he deems convenient.

7.11. At all times, by its own initiative or as per the request of a party, the arbitrator may modify this calendar.

Procedural rules

8.1 The arbitration shall be regulated by Section Four of Book Five of the Code of Commerce. In consequence, the arbitration will be conducted in accordance with the calendar stipulated above and the procedural rules stipulated hereunder. In any case, in absence of the parties’ agreement and in compliance with the provisions of Section Four of Book Five of the Code of Commerce, the arbitrator may conduct the proceeding in the manner it considers appropriate. This power granted to the arbitrator includes the determination on the admissibility, relevance and value of the evidence (article 1434 of the Code of Commerce). The arbitrator shall give the parties an equal treatment and the opportunity to defend their rights (article 1435 of the Code of Commerce). 


8.2. Parties shall make an effort so that their memorials, and its annexes, are clear, short and to the point. They shall avoid, as much as possible, repetitions and abuse of practices such as cutting, pasting and photocopying.

8.3. Parties shall submit their statements of facts in a detailed, clear and complete manner, and shall specifically respond to the fact statements made by the other party. However, parties are not obligated to follow the formalisms that are used in court, for they will rather have freedom to structure their memorials in the manner that is convenient for them.

8.4. Parties shall divide their statements of facts in paragraphs numbered consecutively. Moreover, they shall indicate with titles the chapters or sections in which their memorials are divided. It is convenient that each memorial includes, at the beginning, a table of contents.

8.5. After each presentation of facts, the parties shall identify, each time if possible, the evidence submitted or to be submitted in support of that presentation.

Electronic communications

8.6. Unless something else is agreed in specific cases, all communications, documents and their annexes, shall be sent by email, shared files or other similar methods. To such effect, the arbitrator and the parties will take advantage of the fact that the provisions of the Code of Commerce on electronic commerce allows to consider satisfied those formalities of written, signature, time and place of issuance and place and moment of reception, by means of data messages. To such purpose, the arbitrator’s, the General Secretariat’s and the parties’ addresses are the following:

a. Claimant:

b. Respondent:

c. Arbitrator:

URL or data of the shared files

[These addresses shall be filled in as its necessary in the case]

8.7. When submitting documents in terms of paragraph 8.6, and unless something different is agreed or determined by the arbitrator, it will not be necessary to submit, additionally, printed and signed documents. The parties shall refrain from sending printed documents and, in case these are sent and there are discrepancies, electronic versions shall prevail.

8.8. When a party submits a memorial or any communication more than once, it shall make the necessary indications for the arbitrator and the parties to know that it is a repetition and not a different document.

8.9. When the parties submit their documents and annexes by email to the specified addresses, the communications and annexes shall be deemed to have been submitted on the date in which the email was sent. The recipients shall acknowledge receipt and be responsible for the consequences produced by the omission to acknowledge receipt.

8.10. In connection with the electronic communications, it shall be understood:

8.11. That a communication satisfies the legal requirements of written form if the information contained in its text is accessible for further consultation.

8.12. That a communication or document attached to it satisfies the legal requirements of the signature if in accordance with the usages of electronic commerce, from the data contained in the email, attached document or communication, the author can be identified and it appears that he approves the contents. In all cases, if a party considers that an electronic communication it has knowledge of, should not be considered signed by said party, it shall express so with no delay. Lack of opposition or observations will cause the document to be deemed authentic.


8.13. Parties shall identify each document submitted to the arbitrator, including its annexes, with a different number. Each document submitted by the Claimant(s) shall begin with letters “[for example, C 1, C2, D 1, D 2]”, followed by the next number.

8.14. Parties shall submit all documents with a list that will indicate for each document, the number, date, type of document, author and, as the case may be, the recipient. They shall be organized and submitted with separators that allow for an easy consultation. When they are documents and annexes submitted electronically or through electronic memory devices, it shall be in electronic binders with table of contents that allow access in a similar way to the hard copy binders and annexes, without the need to make searches, or open the documents to determine their content.

8.15. Parties shall submit the memorials with those documents that refer expressly to it. In exceptional cases, and if it is appropriate taking into consideration all circumstances, the arbitrator may allow for a party to file additional documents at a later stage.

8.16. All documents shall be submitted in the language they were originally drafted. It is deemed necessary, the arbitrator shall ask the parties to translate those sections that are relevant. In this case, with the purpose of making its handling easier, the translations shall be numbered in the same way as the original document.

8.17. All documents submitted to the arbitrator, including originals and copies, shall be considered authentic and complete, unless they are objected without delay by the other party. The objections shall explain the alteration or falsification and offer the direct review of originals and adequate evidence to demonstrate the objection.

8.18. At the request of one of the parties, or by its own initiative, the arbitrator may order to any party to submit a document in its possession, or under its power or control. Said production request shall identify the document with precision and explain its relevance. The arbitrator shall have discretion to decide on said petition considering the legitimate interests of the other party, including confidentiality and concurring circumstances of the case. The arbitrator and the counterpart shall ensure the confidentiality of all documents submitted by the other party, of which they will make use solely in connection with this arbitration. The arbitrator may issue the procedural orders he deems convenient to establish the terms of said confidentiality. All the above, without prejudice to the rest of confidentiality obligations deriving from the arbitration.

8.19. The administration of the record will be in charge of the arbitrator. When a party or an authority requests a copy of the arbitration record, an electronic copy of the record handled by the arbitrator will be sufficient.


8.20. For each witness, a witness statement in writing and signed shall be submitted, unless the offering party cannot obtain it; which it must explain with due anticipation and explaining the circumstances and reasons it may have. The witness statement shall constitute the direct statement of the witness. When a party offers a statement by a witness that due to his relationship with the other party, a written statement cannot be obtained, when offering the witness statement that party shall propose a questionnaire for the witness, so that the other party shall obtain the answers; if necessary, these witnesses may provide their direct testimony at the hearing.

8.21. Any person may submit testimony as a witness, including officers, employees or any other representative of the parties.

8.22. Each party shall be responsible for the appearance of its own witnesses at the corresponding hearing, except when the other party has waived its right to question the witness and the arbitrator does not require its presence.

8.23. Each party shall bear with the expenses caused by the appearance of its witnesses. The arbitrator shall decide on the allocation of said expenses in the final award.

8.24. At the request of one of the parties, or by its own initiative, the arbitrator may require the appearance of a witness.

8.25. In case that a witness does not appear after a first summon, the arbitrator may order an additional summon if he considers that there was a sufficient motive to justify the absence and if the testimony was relevant.

8.26. The arbitrator may allow a witness to give testimony only in writing if the witness adduces a reason that suffices for not to appear at the hearing to which he was summoned, once the circumstances of the case have been reviewed. Exceptionally, the arbitrator may also take into account the testimony in writing of a witness that did not appear at the indicated date nor expressed any valid reason for not to appear.

8.27. The arbitrator may issue a procedural order with respect to the language in which the witnesses shall render their testimony and the requirements related to the translation of any testimony made in a language different to that of the arbitration.

8.28. In the hearing, the examination of witnesses shall proceed in the following manner:

8.29. The party that offered the witness may question the witness briefly, if such party deems it necessary to complete its witness statement.

8.30. The counterparty may then proceed to cross-examine the witness.

8.31. The party that offered the witness may afterwards make some questions in connection with the issues or aspects that were the content of the cross-examination; and

8.32. The arbitrator shall have the possibility of questioning the witness at any time prior, during or after the examination of any of the parties.

8.33. The arbitrator shall have discretion on the procedure to hear statements from the witnesses. The arbitrator may:

· reject the appearance of a witness if he considers that the facts on which he was going to provide a statement are proven or irrelevant;

· limit or eliminate a party’s right to examine a witness when he considers that a certain issue has been already demonstrated by other evidence or is irrelevant; or

· order that a witness appears again to make additional questions as he deems appropriate at any time,

· order the confrontation of witnesses.

9.34. The arbitrator may consider exceptions to these rules on witness testimony if he finds it justified or convenient to fulfill its mandate.


8.35. Each party may retain the services and submit the opinions of one or more experts to the arbitrator. The rules of paragraphs 8.20 and 8.22 to 8.34. above, shall apply by analogy to the experts opinions. It shall be understood that the witness testimony shall be substituted by an experts opinion, en which the opinion and conclusions of the expert, besides the facts, evidence, information and methodology used by the expert to reach his conclusions.

8.36. When the arbitrator deems convenient to appoint an expert, article 1442 of the Code of Commerce shall be followed. In consequence, the arbitrator may, by its own initiative or as per the requirement of one of the parties, appoint one or more experts. The arbitrator shall consult with the parties on the selection, mission and conclusions of said experts. The arbitrator may, on its own initiative or as per the request of one party, request the oral statement of said expert or experts. The guidelines mentioned in point 3 above shall apply analogically to said statements.


9.40. When he deems it convenient or appropriate to give the parties an opportunity to defend their rights and treat them equally, or for the efficient conduction of the arbitration, the arbitrator may eliminate or modify these rules. For that, he shall hear the parties and provide them with opportune knowledge of the corresponding determinations.

Point 3 of the agenda to be filled in with the result of the deliberation.

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