THE LMAA TERMS (2006) Download (Includes Schedules)
1. These Terms may be referred to as "the LMAA Terms (2006)".
2. In these Terms, unless the context otherwise requires,
(i) "the Association" means the London Maritime Arbitrators Association; "Member of the Association" includes full, retired and supporting members; "President” means the President for the time being of the Association or, where he cannot act, such other member of the Committee of the Association as he may designate;
(ii) "tribunal" includes a sole arbitrator, a tribunal of two or more arbitrators, and an umpire;
(iii) "original arbitrator" means an arbitrator appointed (whether initially or by substitution) by or at the request of a party as its nominee and any arbitrator duly appointed so to act following failure of a party to make its own nomination.
3. The purpose of arbitration according to these Terms is to obtain the fair resolution of maritime and other disputes by an impartial tribunal without unnecessary delay or expense. The arbitrators at all times are under a duty to act fairly and impartially between the parties and an original arbitrator is in no sense to be considered as the representative of his appointor.
4. These Terms apply to arbitral proceedings commenced on or after 1st January 2006. Section 14 of the Arbitration Act 1996 ("the Act") shall apply for the purpose of determining on what date arbitral proceedings are to be regarded as having commenced.
5. These Terms shall apply to an arbitration agreement whenever the parties have agreed that they shall apply and the parties shall in particular be taken to have so agreed:
(a) whenever the dispute is referred to a sole arbitrator who is a full Member of the Association and whenever both the original arbitrators appointed by the parties are full Members of the Association, unless both parties have agreed or shall agree otherwise;
(b) whenever a sole arbitrator or both the original arbitrators have been appointed on the basis that these Terms apply to their appointment. Whenever a sole arbitrator or both the original arbitrators have been appointed on the basis referred to at (b), such appointments or the conduct of the parties in taking part in the arbitration thereafter shall constitute an agreement between the parties that the arbitration agreement governing their dispute has been made or varied so as to incorporate these Terms and shall further constitute authority to their respective arbitrators so to confirm in writing on their behalf.
6. In the absence of any agreement to the contrary the parties to all arbitral proceedings to which these Terms apply agree:
(a) that the law applicable to their arbitration agreement is English law; and
(b) that the seat of the arbitration is in England.
7. (a) Subject to paragraph (b), the arbitral proceedings and the rights and obligations of the parties in connection therewith shall be in all respects governed by the Act save to the extent that the provisions of the Act are varied, modified or supplemented by these Terms.
(b) Where the seat of the arbitration is outside England and Wales the provisions of these Terms shall nevertheless apply to the arbitral proceedings, save to the extent that any mandatory provisions of the law applicable to the arbitration agreement otherwise provide.
THE ARBITRAL TRIBUNAL
8. If the tribunal is to consist of three arbitrators:
(a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so;
(b) the two so appointed may at any time thereafter appoint a third arbitrator so long as they do so before any substantive hearing or forthwith if they cannot agree on any matter relating to the arbitration, and if the two said arbitrators do not appoint a third within 10 working days of one calling upon the other to do so, the President shall, on the application of either arbitrator or of a party, appoint the third arbitrator;
(c) the third arbitrator shall be the chairman unless the parties shall agree otherwise;
(d) before the third arbitrator has been appointed or if the position has become vacant, the two original arbitrators, if agreed on any matter, shall have the power to make decisions, orders and awards in relation thereto;
(e) after the appointment of the third arbitrator decisions, orders or awards shall be made by all or a majority of the arbitrators; (f) the view of the chairman shall prevail in relation to a decision, order or award in respect of which there is neither unanimity nor a majority under paragraph (e).
9. If the tribunal is to consist of two arbitrators and an umpire:
(a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so;
(b) the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on any matter relating to the arbitration, and if the two said arbitrators do not appoint an umpire within 10 working days of one calling upon the other to do so, the President shall, on the application of either arbitrator or of a party, appoint the umpire;
(c) the umpire shall attend any substantive hearing and shall following his appointment be supplied with the same documents and other materials as are supplied to the other arbitrators;
(d) the umpire may take part in the hearing and deliberate with the original arbitrators;
(e) decisions, orders and awards shall be made by the original arbitrators unless and until they cannot agree on a matter relating to the arbitration. In that event they shall forthwith give notice in writing to the parties and the umpire, whereupon the umpire shall replace them as the tribunal with power to make decisions, orders and awards as if he were the sole arbitrator.
10. Notwithstanding the terms of any appointment of an arbitrator, unless the parties otherwise agree the jurisdiction of the tribunal shall extend to determining all disputes arising under or in connection with the transaction the subject of the reference, and each party shall have the right before the tribunal makes its award (or its last award, if more than one is made in a reference) to refer to the tribunal for determination any further dispute(s) arising subsequently to the commencement of the arbitral proceedings.
11. Provisions regulating fees payable to the tribunal and other related matters are set out in the First Schedule. Save as therein or herein otherwise provided, payment of the tribunal’s fees and expenses is the joint and several responsibility of the parties. An arbitrator or umpire shall be entitled to resign from a reference in the circumstances set out in paragraph (C) of the First Schedule.
12. (a) It shall be for the tribunal to decide all procedural and evidential matters subject to the right of the parties to agree any matter. However, the normal procedure to be adopted is as set out in the Second Schedule.
(b) In the absence of agreement it shall be for the tribunal to decide whether and to what extent there should be oral or written evidence or submissions in the arbitration. The parties should however attempt to agree at an early stage whether the arbitration is to be on documents alone (i.e. without a hearing) or whether there is to be an oral hearing.
13. (a) In all cases the procedure set out in paragraphs 1 to 14 of the Second Schedule should be adopted.
(b) Applications for directions should not be necessary but, if required, they should be made in accordance with the Second Schedule.
(c) Arbitrations on documents alone
Following completion of the steps covered by paragraphs 1 to 4 of the Second Schedule, if it has been or is then determined by the tribunal or agreed by the parties that the case is to be dealt with on documents alone, the tribunal will then give notice to the parties of its intention to proceed to its award and will so proceed unless either party within seven days requests, and is thereafter granted, leave to serve further submissions and/or documents.
(d) Oral hearings
If it is determined or agreed that there shall be an oral hearing, then following the fixing of the hearing date a booking fee will be payable in accordance with the provisions of the First Schedule.
POWERS OF THE TRIBUNAL
14. In addition to the powers set out in the Act, the tribunal shall have the following specific powers to be exercised in a suitable case so as to avoid unnecessary delay or expense, and so as to provide a fair means for the resolution of the matters falling to be determined:
(a) The tribunal may limit the number of expert witnesses to be called by any party or may direct either that no expert be called on any issue(s) or that no expert evidence shall be called save with the leave of the tribunal.
(b) Where two or more arbitrations appear to raise common issues of fact or law, the tribunals may direct that the two or more arbitrations shall be conducted with and heard concurrently. Where such an order is made, the tribunals may give such directions as the interests of fairness, economy and expedition require including:
(i) that the documents disclosed by the parties in one arbitration shall be made available to the parties to the other arbitration upon such conditions as the tribunals may determine;
(ii) that the evidence given in one arbitration shall be received and admitted in the other arbitration, subject to all parties being given a reasonable opportunity to comment upon it and subject to such other conditions as the tribunals may determine.
(c) If a party fails to comply with a peremptory order of the tribunal to provide security for costs, then without prejudice to the power granted by section 41(6) of the Act, the tribunal shall have power to stay that party’s claim or such part of it as the tribunal thinks fit in its sole discretion.
15. (a) The tribunal may decide at any stage that the circumstances of the arbitration require that there should be a preliminary meeting to enable the parties and the tribunal to review the progress of the case; to reach agreement so far as possible upon further preparation for, and the conduct of the hearing; and, where agreement is not reached, to enable the tribunal to give such directions as it thinks fit.
(b) A preliminary meeting should be held in complex cases including most cases involving a hearing of more than five days’ duration. Exceptionally more than one preliminary meeting may be required.
(c) All preliminary meetings (whether required by the tribunal or held on the application of the parties) should be preceded by a discussion between the parties’ representatives who should attempt to identify matters for discussion with the tribunal, attempt to reach agreement so far as possible on the directions to be given, and prepare for submission to the tribunal an agenda of matters for approval or determination by it.
(d) Before the preliminary meeting takes place the parties should provide the tribunal with a bundle of appropriate documents, together with information sheets setting out the steps taken and to be taken in the arbitration, a list of any proposed directions whether agreed or not and an agenda of matters for discussion at the hearing. The information sheets should include estimates of readiness for the hearing and the likely duration of the hearing.
(e) There is set out in the Third Schedule a guidance document indicating topics which may be appropriate for consideration before and at the preliminary hearing.
16. It is the duty of the parties (a) to notify the tribunal immediately if the arbitration is settled or otherwise terminated (b) to make provision in any settlement for payment of the fees and expenses of the tribunal and (c) to inform the tribunal of the parties’ agreement as to the manner in which payment will be made of any outstanding fees and expenses of the tribunal, e.g. for interlocutory work not covered by any booking fee paid. The same duty arises if the settlement takes place after an interim award has been made. Upon being notified of the settlement or termination of any matter the tribunal may dispose of the documents relating to it.
17. Any booking fee paid will be dealt with in accordance with the provisions of paragraph (D)(1)(d) of the First Schedule. Any other fees and expenses of the tribunal shall be settled promptly and at latest within 28 days of presentation of the relevant account(s). Notwithstanding the terms of any settlement between them the parties shall remain jointly and severally responsible for all such fees and expenses of the tribunal until they have been paid in full.
18. If a case is for any reason adjourned part-heard, the tribunal will be entitled to an interim payment, payable in equal shares or otherwise as the tribunal may direct, in respect of fees and expenses already incurred, appropriate credit being given for the booking fee.
AVAILABILITY OF ARBITRATORS
19. (a) In cases where it is known at the outset that an early hearing is essential, the parties should consult and ensure the availability of the arbitrator(s) to be appointed by them.
(b) If, in cases when the tribunal has already been constituted, the fixture of an acceptable hearing date is precluded by the commitments of the original appointee(s), the provisions of the Fourth Schedule shall apply.
20. The time required for preparation of an award must vary with the circumstances of the case. The award should normally be available within not more than six weeks from the close of the proceedings. In many cases, and in particular where the matter is one of urgency, the interval should be substantially shorter.
21. The members of a tribunal need not meet together for the purpose of signing their award or of effecting any corrections thereto.
22. (a) An award will contain the reasons for it unless the parties agree otherwise.
(b) The parties may agree to dispense with reasons in which case notice shall be given to the tribunal before the award is made. [Note: the effect of such agreement is to exclude the court’s jurisdiction under Section 69 of the Act to determine an appeal on a question of law arising out of the award; see Section 69(1)]
(c) Where in accordance with paragraph (b) the parties have agreed to dispense with reasons the tribunal will issue an award without reasons together with a document which does not form part of the award but which gives, on a confidential basis, an outline of the reasons for the tribunal’s decision (hereafter called "privileged reasons").
(d) Unless the court shall otherwise determine, the document containing privileged reasons (referred to in paragraph (c)) may not be relied upon or referred to by either party in any proceedings relating to the award.
23. As soon as possible after an award has been made it shall be notified to the parties by the tribunal serving on them a notice in writing which shall inform the parties of the amount of the fees and expenses of the tribunal and which shall indicate that the award is available for sending to or collection by the parties upon full payment of such amount. At the stage of notification neither the award nor any copy thereof need be served on the parties and the tribunal shall be entitled thereafter to refuse to deliver the award or any copy thereof to the parties except upon full payment of its fees and expenses.
24. If any award has not been paid for and collected within one month of the date of publication, the tribunal may give written notice to either party requiring payment of the costs of the award, whereupon such party shall be obliged to pay for and collect the award within fourteen days.
25. (a) In addition to the powers set out in Section 57 of the Act, the tribunal shall have the following powers to correct an award or to make an additional award:
(i) The tribunal may on its own initiative or on the application of a party correct any accidental mistake, omission or error of calculation in its award.
(ii) The tribunal may on the application of a party give an interpretation of a specific point or part of the award.
(b) An application for the exercise of the powers set out above and in Section 57 of the Act must be made within 28 days of the award unless the tribunal shall think fit to extend the time.
(c) The powers set out above shall not be exercised without first affording the other parties a reasonable opportunity to make representations to the tribunal.
(d) Any correction or interpretation of an award may be effected in writing on the original award or in a separate memorandum which shall become part of the award. It shall be effected within 90 days of the date of the original award unless all parties shall agree a longer period.
26. If the tribunal considers that an arbitration decision merits publication and gives notice to the parties of its intention to release the award for publication, then unless either or both parties inform the tribunal of its or their objection to publication within 21 days of the notice, the award may be publicised under such arrangements as the Association may effect from time to time. The publication will be so drafted as to preserve anonymity as regards the identity of the parties, of their legal or other representatives, and of the tribunal.
SERVICE OF DOCUMENTS
27. Where a party is represented by a lawyer or other agent in connection with any arbitral proceedings, all notices or other documents required to be given or served for the purposes of the arbitral proceedings together with all decisions, orders and awards made or issued by the tribunal shall be treated as effectively served if served on that lawyer or agent.
28. Three months after the publication of a final award the tribunal may notify the parties of its intention to dispose of the documents and to close the file, and it will act accordingly unless otherwise requested within 21 days of such notice being given.
29. In relation to any matters not expressly provided for herein the tribunal shall act in accordance with the tenor of these Terms.