How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?
International Arbitration (4th edition)
Regarding international commercial arbitration, Art. 67 of the LICA establishes that arbitral proceedings commence on the date on which a request for arbitration is received by the respondent.
With respect to domestic arbitration, the NCCC does not provide how arbitral proceedings commence. Therefore, this issue will be defined by the arbitration rules of the institution selected by the parties for the administration of the proceedings or, in case of an ad hoc arbitration, by the rules agreed by the parties.
The main regulation of limitation periods is established in the NCCC and, thus, rules regarding limitation periods are considered substantive law.
The general limitation period under the NCCC is five years, which applies to any action for which there is no other limitation period established by law.
The request for arbitration must be in writing and must contain a reference to the relevant arbitration agreement and further sufficiently indicate the claims raised. In ad-hoc arbitrations, the proceeding is commenced once the respondent receives the request for arbitration. The applicable statutory period of limitation is thereby interrupted. In arbitrations under the Vienna Rules, proceedings are commenced upon receipt of the request for arbitration by the Secretariat.
The arbitral proceedings shall commence on the day on which the respondent receives a request for referral of the dispute to arbitration, unless the parties have agreed otherwise. There are no specific laws or regulations which provide procedural limitation periods for the commencement of arbitrations in Bulgaria. However, the general principles of the Bulgarian Private Law apply, and thus the commencement of arbitration proceedings is subject to a prescription period, which is considered as a substantive law issue. The typical length of the prescription period is five years, but there are exceptions, prescribed explicitly by statutes, which require shorter periods.
If the arbitration is to take place in Canada, then absent an agreement between the parties, the applicable domestic or international act will determine how proceedings are commenced. If the parties have agreed to the procedural rules then those rules will apply, subject to any mandatory procedural laws at the place of arbitration. The powers of the arbitral tribunal can only be exercised once each member has accepted the appointment of the arbitrator and the panel is complete, as provided in the domestic acts.
Under most domestic acts, the acts generally require a party to serve notice to the opposing party to appoint an arbitrator pursuant to their agreement. Parties in Canada generally follow the New York Convention when it comes to the form of notice. Service can be by any means prescribed in the arbitration agreement, or if that is not agreed to, the rules of the place of the arbitration. In Canada, the rules for service under the domestic acts are similar to that of the rules governing civil procedure in each province. In Quebec, arbitration proceedings commence on the date the notice is sent from one party to another. In British Columbia, the domestic act prescribes the rules of the British Columbia International Arbitration Centre as the default rules for arbitrations unless the parties have agreed otherwise. These rules contain provisions relating to commencing arbitration.
In Canada, limitation periods are considered substantive law. For international arbitrations, arbitrators would need to interpret limitations issues according to the laws governing the contract. In domestic arbitrations, the provincial laws on limitations generally apply to arbitrations as if they were court proceedings. There is no such provision in the international acts. There may also be limitation periods within the arbitration agreements themselves which must also be abided by.
The FAA does not speak to the commencement of arbitral proceedings, and proceedings are generally commenced pursuant to the agreed upon rules of arbitration. See Emp’rs Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937, 942 (7th Cir. 1999). If the parties fail to agree upon a set of rules, then the procedural law of the forum in which the parties agreed to conduct the arbitration would likely apply. See, e.g., N.Y. C.P.L.R. § 7503 (2012).
The FAA does not contain any statutes of limitations. However, there may be limitations periods specified in the agreed rules, in the state arbitral provisions, or under the law governing the substance of a claim that would serve as a time bar to bring that claim.
(a)According to Cap. 4 arbitration proceedings commence when one of the parties to the arbitration agreement serves notice to the other party(ies) which calls for them to appoint an arbitrator or when the arbitration agreement acknowledges that the referral will be made to a person who is named or referred to in the arbitration agreement and calls him or them to report the dispute to that person.
(b) there are no special time bars or limitation periods. However the doctrine of “laches” would probably apply. The parties should be aware that once the notice -under (a) above- is given, the appointment of an arbitrator must take place within seven working days from the day that the notice was served, otherwise the Court may appoint an arbitrator following request by the party who had given notice which has powers to take part in the referral and give a decision as if it was appointed with the consent of all the parties.
How an arbitration is commenced is subject to the rules of the relevant arbitral institution which is to govern the arbitration process or those rules and procedures that an ad hoc tribunal may choose to adopt.
UAE – Federal
Where there is no specific time limit in an arbitration agreement or method for determining such a time limit, Article 42 of the UAE Arbitration Law provides for a 6-month period to issue the final award.
This 6-month period starts from the date of the ‘first hearing’.
This period may be expended by ‘no more than six (6) additional months’ unless the parties have agreed otherwise.
Should the Arbitral Tribunal not issue a final award, within the time permitted, the Arbitral Tribunal or a party may request the court to terminate the arbitration or determine the additional period of time required for rendering the Final Award.
The decision of the Court is final and binding, unless agreed otherwise by the parties.
Pursuant to the DIAC Rules (Article 36), an Arbitral Tribunal has 6 months from the date the sole arbitrator or chairman (where three arbitrators are appointed) received the file, to issue the final award.
The above period may be extended by a further 6 months, at the Arbitral Tribunal’s discretion. The Executive Committee of the DIAC may further extend this period, pursuant to a reasoned request from the Arbitral Tribunal or on the Executive Committee’s own initiative, should it ‘decide that it is necessary to do so’.
The closure of proceedings should not be considered as the end of the arbitration process. The Arbitral Tribunal may independently decide to re-open proceeding for the purpose of obtaining additional evidence or appointing a further expert to assist the Arbitral Tribunal with their deliberations. The Arbitral Tribunal is empowered to do so, pursuant to article 34.2 of the DIAC Rules.
The ADCCAC Regulations (Article 27) also provide for an initial period of 6 months from the date the file is received, for an arbitrator or panel of arbitrators to issue the final award.
The Arbitral Tribunal may, on its own initiative or at the request of one of the parties, extend the time to issue the final award by up to 3 months.
The Committee (the body in charge of administrating commercial arbitration cases) may grant a further extension of time to issue the final award, upon the reasonable application of either the Arbitral Tribunal or one of the parties.
UAE - Common Law Jurisdictions
Neither the DIFC-LCIA Arbitration Rules (for a DIFC seated arbitration), the DIFC Arbitration Law, nor the ADGM Regulations provide for a time limit for the issue of the final arbitral award.
The 1996 Act requires service of written notice in accordance with s.14. Further, it states that the Limitation Acts 1980 and the Foreign Limitation Periods Act 1984 apply to arbitral proceedings as they apply to legal proceedings (s.13(1)). For contractual and tortious claims, the relevant period will be six years from accrual of the cause of action.
Art. 21 of the UNCITRAL Model Law provides that, ‘[u]nless 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’.
Pursuant to s 8A of the IAA, ‘the Limitation Act (Cap. 163) and the Foreign Limitation Periods Act 2012 shall apply to arbitral proceedings as they apply to proceedings before any court and any reference in both Acts to the commencement of proceedings shall be construed as a reference to the commencement of arbitral proceedings’.
Arbitral proceedings are deemed to have commenced on the date the respondent receives a request for arbitration, which should state the parties, the subject matter of the dispute, and details of the arbitration agreement (Article 22 of the Arbitration Act).
Arbitral proceedings administered under the KCAB International Arbitration Rules (the “Rules”) are deemed to have commenced on the date the Secretariat receives a request for arbitration (Article 8(2) of the Rules). A request for arbitration submitted under the Rules must contain, inter alia, (i) the name, address, and description of all parties and respective representative; (ii) a statement describing the nature and circumstances of the dispute; (iii) a statement of the relief being sought; (iv) a statement regarding the place and language of the arbitration and applicable laws; (v) (where applicable) name and address of the party-nominated arbitrator; and (vi) the arbitration agreement (Article 8(3) of the Rules).
There is no provision in the Act or the Rules relating to limitation periods or time bars for commencing an arbitration. For claims subject to Korean law, the applicable limitations, prescription and tolling periods are found in various statutes including, for example: Articles 162 through 165 of the Civil Code for breaches of various contractual obligations; Article 766 of the Civil Code for “unlawful acts”; and Article 64 of the Commercial Code for “commercial activities” as defined under Korean law.
Unless otherwise agreed by the parties to the dispute, the arbitration proceedings regarding a certain dispute shall commence on the date on which respondent has received the petition to bring the matter before an arbitral tribunal. The petition must designate the parties as well as the subject matter of the litigation, and it must indicate that an arbitration agreement was concluded, section 1044 ZPO.
The commencement of the arbitral proceedings effects the suspension of the limitation period according to German substantive law. Apart from this, the parties should pay attention to the time limits determined by the parties themselves or the arbitral tribunal during the arbitration proceedings (section 1046 (1) ZPO).
Section 1048 ZPO complements this rule by defining the consequences of the default of a party. Accordingly, the arbitral tribunal is entitled to terminate the proceedings if claimant fails to submit its statement of claim in accordance with the applicable time limits (section 1048 (1) ZPO). Likewise, if respondent fails to submit its statement according to the applicable time limitation, the arbitral tribunal shall continue the proceedings and render an award, section 1048 (2) ZPO. Such an award is enforceable under German law if the respondent was given sufficient opportunity to present his counter arguments.
In India, arbitration is commenced by serving a notice of dispute to the opposite party inter alia invoking arbitration. For commencement of any arbitration, there has to be existence of dispute between the parties, which can be determined through arbitration. However, for the institutional arbitrations, the party need to follow the process as per the particular Rules of such institution. Commencement of arbitral proceedings is discussed under section 21 of the act as “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.”
Section 43 of the Arbitration and Conciliation Act, 1996 mandates that limitation act shall apply to the arbitration similarly as it apply to proceedings in courts. For the purpose of limitation arbitration proceedings are deemed to have on the date on which a request for the dispute to be referred to arbitration is received by the respondent. The Limitation Act provides that the party invoking the arbitration has three years from the date of commencement of arbitration proceedings to seek appointment of the arbitral tribunal.
Under the Arbitration Law, when a dispute arises, the claimant is required to notify the respondent in writing (by registered letter, telegram, telex, faximile or email) to commence the arbitration under the agreed terms of the arbitration agreement. The notification must include, among other things, information on the counterparty, the arbitration agreement (including the reference to the provision relating to the arbitrators), the claim and the amount claimed, and the proposed number of arbitrators, if that has not already been agreed by the parties in the arbitration agreement.
The Indonesian civil code’s statute of limitation, which is set at 30 years, is also applicable to disputes.
Neither the commencement/initiation nor the pendency of arbitral proceedings are regulated by the Liechtenstein law on arbitration. In the absence of an agreement between the parties, the arbitral proceedings are usually commenced/initiated by a notice of arbitration, while the pendency of the arbitral proceedings requires that a full statement of claim (indicating the subject matter of the proceedings) is served on the respondent.
Pursuant to Article 4.1 of the Liechtenstein Rules, arbitral proceedings shall be deemed to commence on the day on which the statement of claim is received by the respondent.
Based on Section 23 of the Arbitration Act, unless otherwise agreed by parties, arbitral proceedings are deemed to be commenced on the date a request in writing for a dispute to be referred to arbitration is received by the respondent.
Nevertheless, Section 30(1) of the Limitation Act 1953 (Limitation Act) provides that the Limitation Act and any other written law relating to limitation of actions shall apply to arbitrations.
In this respect, Section 30(3) of the Limitation Act provides that an arbitration shall be deemed to commence when one party to the arbitration serves on the other party a notice requiring the other party to appoint an arbitrator or agree to the appointment of an arbitrator, or where the submission provides that the reference to arbitration shall be to a person named or designated in the submission, requiring the other party to submit the dispute to the person named or designated.
French law does not impose specific procedural steps. Parties can follow the proceedings chosen in their arbitration agreement. Usually, the proceedings commence by an unequivocal service of a notice of arbitration on the other party.
The parties may agree upon contractual limitation periods or time bar applicable to arbitral proceedings. Absent any such agreement, limitation periods are governed by the law governing the merits of the dispute (Civil Code Article 2221). According to this provision, a general limitation period of 5 years applies to contractual and tortious matters from the date that the parties become aware (or should have been aware) of the event giving rise to the dispute. The submission of the dispute through the arbitration agreement interrupts the limitation period (Civil Code Article 2241; Court of Cassation, First Civil Chamber, 11 December 1985, No. 84- 14.209).
Unless otherwise agreed by the parties, the EAL provides that arbitral proceedings commence on the day the respondent receives the notice of arbitration. (article 27) There are no mandatory procedural time limits enshrined in the arbitration law and relating to the commencement of arbitral proceedings, and the parties may agree on a different date to mark the commencement of the proceedings.
Proceedings are commenced following the rules of institutional arbitrations, by filing a request for arbitration and the appointment of an arbitral tribunal or in some specific cases with the appointment of a sole arbitrator.
According to article 1047 of the Commerce Code, the ordinary prescription period is of 10 years to bring up an arbitration claim, nevertheless, shorter periods exist for specific claims.
The procedure for the commencement of arbitral proceedings is set out in Article 3 of the Rules. To commence arbitration, the claimant must serve a notice of arbitration on the respondent. The arbitral proceedings are deemed to commence on the date on which the notice of arbitration was received by the respondent, unless otherwise agreed by the parties. Arbitrations are to commence within six (6) years of the accrual of the cause of action just like the commencement of actions concerning contracts.
The limitation period within which to bring an application to enforce an arbitral award is six (6) years. This six-year rule, however, applies to an award pursuant to an arbitration agreement which is not under seal or where the arbitration is pursuant to any statute other than the ACA. An application to enforce an arbitral award in the categories referred to above must be brought within six (6) years. This provision has been interpreted to mean that the six-year limitation period starts to count from the day of the accrual of the cause of action resulting in the arbitral award and not from the day the arbitral award was delivered. See Murmansk Steamship Line v Kano Oil Millers (1974) 12 SC 1; City Engineering Nigeria Limited v. Federal Housing Authority (1997) 9 NWLR (Pt. 520) 224. This implies that the accrual of the cause action, the arbitration proceedings, the award and application for enforcement of the award must all occur within six years.
In a bid to ameliorate the hardship that may arise from the decision in Murmansk Steamship Line and City Engineering Nigeria Limited (supra), the Lagos Law provides that in computation of the time for the commencement of proceedings seeking to enforce an arbitral awards, the period between the commencement of the arbitration and the date of delivery of the award shall not be reckoned with. See section 35(5) of the Lagos Law.
This depends on the arbitration agreement. If the agreement does not govern the initiation of proceedings, the arbitration is considered commenced when the defendant is notified that the dispute will be tried by arbitration. Under the OCC rules, however, be aware of article 5: not paying the registration fee within the time limit has the effect that the proceedings will not be deemed to have been initiated until the date the payment was actually made.
Arbitral proceedings must be carried out as set out in the arbitration agreement and in accordance with the Arbitration Act. However, the act contains few specific procedural rules. Within the boundaries of the act and the arbitration agreement, the proceedings will be carried out as the tribunal deems appropriate. Arbitration in Norway tends to rely on the Dispute Act 2005, which governs civil procedure in Norway.
There are no key provisions in the Arbitration Act relating to limitation periods or time barring.
Arbitral proceedings are commenced through a demand for arbitration, or request for a dispute to be referred to arbitration. (Art. 4.21 and 5.20, IRR).
If the parties to the arbitration have not agreed otherwise (for example, to apply ICC rules), the procedures prescribed by the Arbitration Law are as follows.
The arbitration proceeding begins on the date on which a party to the arbitration receives the arbitration request from the claimant, unless both parties to the arbitration agree otherwise. On the date agreed by both parties to the arbitration, or the date assigned by the arbitration tribunal, the claimant sends the respondent and all arbitrators a written statement of his claim, including his name and address, the name and address of the respondent, an explanation of the facts of the claim, demands, evidences and every other matter that the agreement between the two parties requires be mentioned in this statement. The respondent shall then send to the claimant and every arbitrator a written response of his defense, within the time frame agreed by the two parties or specified by the arbitration tribunal. Replies and sur-replies are then submitted as directed by the arbitration tribunal. There are also procedures for the appointment of experts, either by the parties or by the tribunal, as deemed necessary by the tribunal and as agreed by the parties.
Generally speaking, there are no applicable statutes of limitations. However, an action for nullification of the arbitration award shall be filed within sixty days following the date of notification of the award. Moreover, either party may, within 30 days following the date of receipt of the arbitration award, petition the arbitral tribunal to interpret any ambiguity in the text of the award.
According to Art. 10 of the LAM, the arbitration begins with the presentation of the statement of claim before the arbitration center.
There is no statute of limitations in the Ecuadorian legislation for commence an arbitration besides of the general statute of limitations provided in the Civil Code or in the law applicable to the merits of the dispute.
Arbitration proceedings commence upon the delivery of an action to the arbitrator.
No special limitation periods are stipulated for arbitration, so the limitation periods laid down in substantive Czech civil law apply, which is three years in most cases.
According to Article 21 of the ICA Act unless otherwise agreed by the parties, the arbitral proceedings commence on the date on which a request for the dispute to be referred to arbitration is received by the respondent. Regarding the conduction of the arbitral proceedings, the ICA Act states two basic principles: (i) the parties must be treated with equality and must be given a full opportunity to presenting her or his case (Article 18); and (ii) subject to the provisions of the ICA Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings (Article 19).
Failing agreement on the procedure, the arbitral tribunal may, subject to the provisions of the ICA Act, 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.
For domestic arbitration, according to Article 636 of the Civil Procedure Code, the arbitral tribunal is only bound by the procedural rules the parties agreed on –either directly or indirectly by choosing a given institutional set of rules of arbitration. The same provision goes on saying that, failing agreement, the arbitral tribunal will follow certain basic procedural rules referred to by that provision (Articles 637-643).
For the arbitration proceeding conducted under the CAM Santiago rules of arbitration, the proceedings start administratively by the submission of a request of arbitration (Article 2), to which the applicant shall include a copy of the contract, and the document containing the arbitration agreement in case it is a separate document. If the applicant is a legal entity, the request for arbitration shall also include the power of attorney of the representative who is signing the request. Finally, when filing the request applicants must also pay the CAM Santiago an advance on administrative costs.
Arbitration laws do not have any provision relating to limitation periods or time bars regarding the commencement of the proceedings. However, parties should be aware of the specific limitation period affecting their civil action according to the applicable substantive law.
In accordance with art. 181 PILA and art. 372 CPC arbitral proceedings are deemed commenced from the moment one of the parties seizes the arbitral tribunal designated in the arbitration agreement or, in the absence of such designation in the arbitration agreement, when one of the parties initiates the procedure for the constitution of the arbitral tribunal or requests to conduct conciliation proceedings agreed upon by the parties to precede the commencement of arbitral proceedings.
There are no procedural provisions relating to limitation periods under the Swiss arbitration laws. Swiss law does not qualify limitation periods as procedural but rather as a matter of substance and limitation periods are therefore subject to the lex causae. Hence, the law applicable to the substance of the contract in dispute determines the duration of a limitation period as well as the procedural actions that will toll limitation periods.
As regards domestic arbitration, the commencement of arbitral proceedings is not regulated in the GrCCP. The prevailing view is that commencement of arbitral proceedings may be perceived differently depending on the legal issue for which it becomes crucial. Hence, for the procedural and substantive legal consequences pegged to the filing of the Request, such as lis pendens and interruption of the statute of limitations, the arbitral proceedings are deemed commenced once the Request together with the appointment of claimant’s arbitrator is notified to the respondent. The same holds true as to the question of applicable law in case a change in legislation occurs. On the contrary, for the application of time limits imposed upon the arbitral tribunal as regards the issuance of its award, the first hearing before the tribunal is identified as commencement of arbitration proceedings. In international commercial arbitral proceedings having their seat in Greece, the issue is regulated by article 21 L. 2735/1999 which incorporates verbatim the respective rule of the Model Law: 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. The most notable exception to the above arrangements, both in domestic as well as international commercial arbitration, is when the parties have agreed to the application of institutional arbitration rules which provide otherwise, mainly that the arbitration commences once the Request is received by the Secretariat of the arbitral institution. There are no limitation periods or time bars as regards commencement of arbitration proceedings. Substantive law statutes of limitation obviously apply in any event.
Arbitral proceedings commence on the date on which a request for the appointment of arbitrators or a notification of selection on an arbitrator is made, unless otherwise agreed by the parties.
There are no limitation periods or time bars for commencing arbitration, but of course parties’ claims may be barred by substantive laws which govern the statute of limitations related for certain claims.
It should be noted that, if a party is obtained a preliminary injunction/attachment prior to the arbitration, the arbitration proceeding should be commenced within two weeks from the issuance of the injunction if the arbitration is subject to the CCP and within 30 days if the arbitration is subject to IAL.