31. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties, the Arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearing shall be held, the Arbitral Tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.
(2) The parties shall be given sufficient advance notice as the Arbitral Tribunal shall decide of any hearing and of any meeting of the Arbitral Tribunal for the purposes of inspection of goods, other property or documents.
(3) All statements, documents or other information supplied to the Arbitral Tribunal by
one party shall be communicated to the other party. Also any expert report or evidentiary document on which the Arbitral Tribunal may rely in making its decision shall be communicated to the parties.
32. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance with Article 30(1), the Arbitral Tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with Article 30(1), the Arbitral Tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; or
(c) any party fails to appear at a hearing or to produce documentary evidence, the Arbitral Tribunal may continue the proceedings and make the award on the evidence before it.
33. Expert appointed by Arbitral Tribunal
(1) Unless otherwise agreed by the parties, the Arbitral Tribunal:
(a) may appoint one or more experts to report to it on specific issues to be determined by the Arbitral Tribunal; and
(b) may require a party to give the expert(s) any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the Arbitral Tribunal considers it necessary, the expert(s) shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.
(3) The expenses and costs of the expert(s) appointed by the arbitration tribunal pursuant to this Article shall be borne by the parties in accordance with any determination made by the Arbitral Tribunal in that respect, which determination shall be final and binding.
34. Court assistance in taking evidence
The Arbitral Tribunal or a party with the approval of the Arbitral Tribunal may request from the DIFC Court assistance in taking evidence. The DIFC Court may execute the request within its competence and according to its rules on taking evidence.
CHAPTER 6 – MAKING OF AWARD AND TERMINATION OF PROCEEDINGS
35. Rules applicable to substance of dispute
(1) The Arbitral Tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State or jurisdiction shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State or jurisdiction and not to its conflict of laws rules.
(2) In the absence of any designation by the parties, the Arbitral Tribunal shall apply the law determined by the conflict of laws rules which it considers applicable, provided that the parties shall be free to agree in writing that the Arbitral Tribunal may apply the law or rules of law which it considers to be most appropriate in the facts and circumstances of the dispute.
(3) In all cases, the Arbitral Tribunal shall make determinations in accordance with principles of equity and good conscience only if the parties have expressly authorised it to do so.
(4) In all cases, the Arbitral Tribunal shall make determinations in accordance with the terms of the contract and applicable law, and shall take into account the usages of the trade applicable to the transaction.
36. Decision making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the Arbitral Tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the Arbitral Tribunal.
37. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the Arbitral Tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the Arbitral Tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of Article 38 and shall state that it is an agreed award. Such an award has the same status and effect as any award made on the merits of the case.
38. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 37.
(3) The award shall state its date and the Seat of the Arbitration as determined in accordance with Article 27(1). The award shall be deemed to have been made at the Seat of the Arbitration.
(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this Article shall be delivered to each party.
(5) The Arbitral Tribunal shall fix the costs of the Arbitration in its award. The term "costs" includes only:
(a) The fees of the Arbitral Tribunal to be stated separately as to each arbitrator;
(b) The properly incurred travel and other expenses incurred by the arbitrators;
(c) The costs of expert advice and of other assistance required by the Arbitral Tribunal;
(d) The travel and other expenses of witnesses to the extent such expenses are
approved by the Arbitral Tribunal;
(e) Such other costs as are necessary for the conduct of the Arbitration, including those for meeting rooms, interpreters and transcription services;
(f) The costs for legal representation and assistance of the successful party if such costs were claimed during the Arbitration, and only to the extent that the Arbitral Tribunal determines that the amount of such costs is reasonable;
(g) Any fees and expenses of any arbitral institution or appointing authority.
39. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an order of the Arbitral Tribunal in accordance with paragraph (2) of this Article.
(2) The Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and the Arbitral Tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings; or
(c) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
(3) The mandate of the Arbitral Tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of paragraph (5) of this Article and of Articles 40 and 41(4).
(4) The Arbitral Tribunal may refuse to deliver a final award or an order for termination of the arbitral proceedings in accordance with paragraph (2) of this Article to the parties until its fees and expenses are paid in full.
(5) Subject to any process agreed between the parties in the Arbitration Agreement, if the Arbitral Tribunal refuses to deliver an award or order to the parties until its fees and expenses are paid, any party to the arbitral proceedings may request the DIFC Court of First Instance to determine, by such means as the DIFC Court of First Instance considers appropriate, the amount of the fees and expenses properly payable to the
Arbitral Tribunal.
40. Correction and interpretation of award; additional award
(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties:
(a) a party, with notice to the other party, may request the Arbitral Tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, may request the Arbitral Tribunal to give an interpretation of a specific point or part of the award.
If the Arbitral Tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.
(2) The Arbitral Tribunal may correct any error of the type referred to in paragraph (1)(a) of this Article on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties or in respect of an agreed award made under Article 37, a party, with notice to the other party, may request, within thirty days of receipt of the award, the Arbitral Tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the Arbitral Tribunal considers the request to be justified, it shall make the additional award within sixty days.
(4) The Arbitral Tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award under paragraph (1) or (3) of this Article.
(5) The provisions of Article 38 shall apply to a correction or interpretation of the award or to an additional award.
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