21. Appointment of substitute arbitrator
(1) Where the mandate of an arbitrator terminates under Article 19 or 20 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate:
(a) subject to any process agreed between the parties in the Arbitration Agreement, or thereafter, the parties may agree with the arbitrator as to his liabilities and entitlement (if any) to fees and expenses; and
(b) a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced, unless otherwise agreed by the parties.
(2) If or to the extent that there is no agreement in accordance with Article 21(1)(a) as to the consequences of resignation, an arbitrator who resigns in the circumstances set out in Article 21(1) may, upon written notice to the parties, request the DIFC Court of First Instance to make an order relieving him of any liability incurred by reason of his resignation together with such order as the DIFC Court of First Instance thinks appropriate with respect to his entitlement (if any) to fees and expenses, which orders shall be subject to no appeal.
22. Liability of Arbitral Tribunal and others
No arbitrator, employee or agent of an arbitrator, arbitral institution, officer of an arbitral institution or appointing authority shall be liable to any person for any act or omission in connection with an Arbitration unless they are shown to have caused damage by conscious and deliberate wrongdoing. This Article does not affect any liability incurred by an arbitrator by reason of his resigning.
CHAPTER 4 – JURISDICTION OF ARBITRAL TRIBUNAL
23. Competence of Arbitral Tribunal to rule on its jurisdiction
(1) The Arbitral Tribunal may 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 which 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 and void shall not by itself determine the invalidity of the arbitration clause.
(2) A plea by a respondent or other party that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of his defence or, for another party, his first written statement in the Arbitration. A party is not precluded from raising such a plea by the fact that he 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) of this Article either as a preliminary question or in an award on the merits. If the Arbitral Tribunal
rules as a preliminary question that it has jurisdiction, any party may request, subject to any process agreed between the parties, within thirty days after having received notice of that ruling, the DIFC Court of First Instance to decide the matter, which decision shall not be subject to appeal; while such a request is pending, the Arbitral Tribunal may continue the arbitral proceedings and make an award.
24. Power of Arbitral Tribunal to order interim measures
(1) The following provisions shall apply unless the parties have expressly agreed in writing that the Arbitral Tribunal shall not have power to order interim measures:
(a) The Arbitral Tribunal may, at the request of a party, order any party to take such interim measures of protection as the Arbitral Tribunal may consider necessary in relation to an arbitration. The Arbitral Tribunal may order any claiming or counterclaiming party to provide appropriate security in connection with such measure, including security for the legal or other costs of any other party by way of deposit or bank guarantee or in any other manner and upon such terms as the Arbitral Tribunal considers appropriate. Any request made to the Arbitral Tribunal shall be simultaneously copied to all other parties to the Arbitration.
(b) An interim measure is any temporary measure, whether in the form of an award or in another form, made by the Arbitral Tribunal at any time prior to the issuance of the award by which the dispute is to be finally decided. For the purposes of this Article reference to an interim measure includes orders that a party:
(i) maintain or restore the status quo pending determination of the dispute;
(ii) provide a means of preserving assets out of which a subsequent award may be satisfied or other means for securing or facilitating the enforcement of such an award;
(iii) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to any party or to the arbitral process itself; or
(iv) preserve evidence that may be relevant and material to the resolution of the dispute.
(c) The party requesting an interim measure under any of paragraphs (b)(i), (ii) and (iii) of this Article shall satisfy the Arbitral Tribunal that:
(i) harm which will not be adequately reparable by an award of damages is likely to result if the interim measure is not ordered and that harm will substantially outweigh the harm, if any, that is likely to result to the party opposing the interim measure if the measure is ordered; and
(ii) 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.
(d) With regard to a request for an interim measure under paragraph (b)(iv) of this Article, the requirements in paragraph (c) of this Article shall apply only to the extent the Arbitral Tribunal considers appropriate.
(e) The party requesting an interim measure may be liable for any costs and damages caused by the measure to any other party if the Arbitral Tribunal later determines that, in the circumstances, the measure should not have been granted. The Arbitral Tribunal may award such costs and damages at any point during the proceedings.
(f) 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.
(2) With the written permission of the Arbitral Tribunal a party in whose favour an interim measure has been granted may request from the DIFC Court of First Instance an order enforcing the Arbitral Tribunal’s order or any part of it. Any request for permission or enforcement made under this Article shall be simultaneously copied to all other parties. Unless the Arbitral Tribunal at any time directs otherwise, the party making a request to the DIFC Court of First Instance under this Article shall be entitled to recover in the Arbitration any legal costs and DIFC Court of First Instance fees reasonably incurred thereby.
(3) The DIFC Court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the DIFC, as it has in relation to proceedings in courts. The DIFC Court shall exercise such power in accordance with its own procedures. 10
CHAPTER 5 – CONDUCT OF ARBITRAL PROCEEDINGS
25. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.
26. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the Arbitral Tribunal in conducting the proceedings.
(2) In the absence of such agreement, the Arbitral Tribunal may, subject to the provisions of this Law, conduct the Arbitration in such manner as it considers appropriate. The power conferred upon the Arbitral Tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
27. Seat of the Arbitration
(1) The parties are free to agree on the Seat of the Arbitration. In the absence of such agreement, where any dispute is governed by DIFC law, the Seat of the Arbitration shall be the DIFC.
(2) Notwithstanding the provisions of paragraph (1) of this Article, the Arbitral Tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.
28. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to Arbitration is received by the respondent.
29. Language
(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. In the absence of such agreement, the Arbitral Tribunal shall determine 11
the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall thereafter apply to any written statement by a party, any hearing and any award, decision or other communication by the Arbitral Tribunal.
(2) The Arbitral Tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the Arbitral Tribunal.
30. Statements of claim and defence
(1) Within the period of time agreed by the parties or determined by the Arbitral Tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
(2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the Arbitral Tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.
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