PREAMBLE

Where the parties have agreed in whatsoever manner for arbitration under the
Arbitration Foundation of Southern Africa (“AFSA”) Rules, or for arbitration
administered by AFSA, they shall be taken to have agreed that any arbitration
between them shall be conducted in accordance with the AFSA International
Arbitration Rules in effect on the date upon which the arbitration commences
(the “Commencement Date”), unless the parties have specifically chosen the
AFSA Commercial Rules or AFSA determines that the dispute is a domestic
one. These AFSA International Arbitration Rules comprise this Preamble, the
Articles, together with the Annexes to the AFSA International Arbitration Rules
and the Schedule of Costs (collectively, the “Rules”).

The present Rules shall come into force on 1 June 2021 (the “Effective Date”).
Article 1: AFSA
AFSA is the body responsible for the administration of disputes in accordance
with the Rules, and other procedures or rules agreed upon by the parties. AFSA
is composed of an AFSA International Board (the “Board”), an AFSA
International Court (the “Court’’) and an AFSA International Secretariat (the
“Secretariat”) led by its Secretary-General (the “Secretary-General”). Detailed
provisions regarding the Board, Court and Secretariat are set out in Annex 1.
Article 2: The Court
1. The Court does not itself decide the merits of disputes submitted to AFSA
under the Rules. It supervises the administration of the resolution of disputes by
arbitral tribunals and performs its functions in accordance with the Rules.

2. The functions of the Court under the Rules shall be performed in its name by
either (i) the President of the Court; or (ii) any of its Vice-Presidents; or (iii) by
a division of three or more members of the Court appointed by its President.

3. The Court is assisted in its work by the Secretariat. All communications in the
arbitration to the Court shall be addressed to the Secretary-General.

4. The decisions of the Court are confidential and need not contain any reasons.

5. The decisions of the Court shall be final and binding, unless otherwise
directed by the Court. To the extent permitted by any applicable law, the parties
shall be taken to have waived any right of appeal or review in respect of any
decision of the Court to any state court or other legal authority. If such appeal or
review takes place due to mandatory provisions of any applicable law or
otherwise, the Court may determine whether or not the arbitration should
continue, notwithstanding such appeal or review.
Article 3: Request for Arbitration
1. Any party wishing to commence an arbitration under the Rules (the
“Claimant”) shall deliver to the Secretariat a written request for arbitration (the
“Request”), containing or accompanied by:

(a) the full name, description and contact details (including postal address,
email address, and telephone number) of the Claimant for the purpose of
receiving delivery of all documentation in the arbitration; and the same
particulars of the Claimant’s authorised representatives (if any) and of all other
parties to the arbitration (to the extent possible);
(b) a copy of the arbitration agreement(s) invoked by the Claimant to support its
claim, together with a copy of any documentation in which those terms are
contained and to which the Claimant’s claim relates;
(c) a statement summarising the nature and circumstances of the dispute giving
rise to the arbitration, its estimated monetary value, the transaction(s) at issue
and the reliefs sought by the Claimant against any other party to the arbitration
(each such other party being here separately described as a “Respondent”);
(d) a statement of any procedural matters for the arbitration (such as the seat of
arbitration, the language(s) of the arbitration, the number of arbitrators, their
qualifications and identities) upon which the parties have already agreed in
writing or in respect of which the Claimant makes any proposal under the
arbitration agreement;
(e) the full name, postal address, email address, and telephone number of the
arbitrator nominated by the Claimant (if applicable); and
(f) confirmation that the registration fee prescribed in the Schedule of Costs has
been or is being paid to AFSA.

2. The Request (including all accompanying documents) may be submitted to

the Secretariat in electronic form.

3. The date of receipt by the Secretariat of the Request shall be treated as the
Commencement Date for all purposes, subject to AFSA’s actual receipt of the
registration fee. Without actual receipt of such payment, the Request shall be
treated by the Secretariat as not having been delivered and the arbitration as not
having been commenced.
4. The Claimant shall, at the same time as it delivers the Request to the
Secretariat, deliver a copy of the Request to the other parties to the arbitration,
and shall notify the Secretariat that it has been or is being delivered to the other
parties to the arbitration by one or more means justified specifically in such
notification, to be supported then or as soon as possible thereafter by
documentary proof satisfactory to the Secretariat of actual delivery or, if actual
delivery is demonstrated to be impossible to the Secretariat’s satisfaction,
sufficient information as to any other effective form of service.
Article 4: Answer to the Request and Any Counterclaim
1. Within 30 days from the receipt of the Request, the Respondent shall deliver
to the Secretariat a written answer to the Request (the “Answer”), containing or
accompanied by:

(a) the Respondent’s full name and all contact details (including postal address,
email address, and telephone number) for the purpose of receiving delivery of
all documentation in the arbitration and the same particulars of its authorised
representatives (if any);
(b) confirmation or denial of all or part of the claim advanced by the Claimant
in the Request, including any jurisdiction objections;
(c) insofar as not already covered in the Request, a statement summarising the
nature and circumstances of the dispute, its estimated monetary amount or
value, the transaction(s) at issue and the defence advanced by the Respondent;
(d) a statement summarising the nature and circumstances of any counterclaim
against any Claimant or any cross-claim against any other Respondent (both
referred to as “Counterclaim”), specifying the relief sought and, where possible,
an initial quantification of the amount of the Counterclaim;
(e) a response to any procedural matters contained in the Request under Article
3(1)(d), including the Respondent’s own statement relating to the seat of
arbitration, the language(s) of the arbitration, the number of arbitrators, their
qualifications and identities and any other procedural matter upon which the
parties have already agreed in writing or in respect of which the Respondent
makes any proposal under the arbitration agreement; and
(f) the full name, postal address, email address, and telephone number of the
arbitrator nominated by the Respondent (if applicable).

2. The Respondent shall, at the same time as it delivers the Answer to the
Secretariat, send a copy of the Answer to the other parties to the arbitration, and
shall notify the Secretariat that it has done so, specifying the mode of service
employed and the date of service.

3. The Answer (including all accompanying documents) may be submitted to

the Secretariat in electronic form.

4. The Claimant shall submit an answer to any Counterclaim within 30 days

from the date of receipt of the Counterclaim. The provisions of this Article
apply by analogy to the answer to the Counterclaim.
Article 5: Written Communications and Calculation of Time Limits
1. Any written communication by the Court, the Secretariat or any party may be
delivered by any appropriate means that provides a record of its delivery or
transmission, including by hand or by registered postal or courier service, or by
facsimile, email, or in any other manner ordered by the arbitral tribunal (the
“Arbitral Tribunal”). Electronic means of delivery or transmission are preferred.

2. After the constitution of the Arbitral Tribunal, all communications shall take
place directly between the Arbitral Tribunal and the parties, with the Secretariat
copied on all such communications.

3. Unless otherwise ordered by the Arbitral Tribunal, any written

communication pursuant to the Rules shall be deemed to be received if:

(a) communicated to the address, facsimile number and/or email address

communicated by the addressee or its representative in the arbitration; or
(b) in the absence of (a), communicated to the address, facsimile number and/or
email address specified in any applicable agreement between the parties or
regularly used in the parties’ previous dealings; or
(c) in the absence of (a) and (b), communicated to any address, facsimile
number and/or email address which the addressee holds out to the public at the
time of such communication; or
(d) in the absence of (a)–(c), communicated to any last known address,
facsimile number and/or email address of the addressee.

4. A written communication shall be deemed received on the earliest day it is

delivered in accordance with Article 5(1). Such time shall be determined with
reference to the recipient’s time zone.

5. Where a written communication is being communicated to more than one

party, or more than one arbitrator, such written communication shall be deemed
received when it is communicated pursuant to Article 5(1) to the last intended
recipient.
6. Unless otherwise ordered by the Arbitral Tribunal, for the purpose of
calculating a period of time, such period shall begin to run on the day following
the day when a written communication is received. If this day is an official
holiday or a non-business day at the place of the party against whom the
calculation of time applies, the period of time shall commence on the first
following business day. If the last day of such period is an official holiday or a
non-business day at the place of receipt, the period shall be extended until the
first business day which follows. Official holidays or non-business days
occurring during the running of the period of time shall be included in
calculating that time period.

7. Except as provided in the Rules, the Secretariat may amend the period of time
provided for in the Rules, as well as any time limits it has set, irrespective of
whether any such time limits have expired or not.

8. Prior to the constitution of the Arbitral Tribunal, unless the parties agree
otherwise, no party or its representative shall deliberately initiate or attempt to
initiate any unilateral contact relating to the arbitration with any arbitrator or
candidate to be designated as arbitrator by a party, except to advise the
candidate of the general nature of the dispute or to obtain information about the
candidate’s qualifications, availability, impartiality or independence.

9. After the constitution of the Arbitral Tribunal, no party or its representative

shall deliberately initiate or attempt to initiate any unilateral contact relating to
the arbitration or the parties’ dispute with any member of the Arbitral Tribunal.
Article 6: Nomination, Confirmation and Appointment of Arbitrators
1. A sole arbitrator shall be appointed under the Rules unless the parties have
otherwise agreed in writing or it appears to the Court that the dispute is such as
to warrant the appointment of more than one arbitrator.

2. In all cases, the arbitrators nominated by the parties, or by any third person
including by the arbitrators already appointed, shall be subject to confirmation
by the Secretary-General.

3. Arbitrators shall be and remain impartial and independent of the parties

during the arbitration.
4. Before confirmation, each arbitrator shall provide to the Secretariat a signed
statement of acceptance, availability, impartiality and independence. The
arbitrator shall disclose in writing to the Secretariat any circumstances likely to
give rise in the mind of any party to justifiable doubts as to the arbitrator’s
impartiality or independence. The Secretariat will share any such disclosure
with the parties and any other members of the Arbitral Tribunal.

5. After confirmation, an arbitrator shall immediately disclose in writing to the

Secretariat, the parties and any other members of the Arbitral Tribunal any
circumstances likely to give rise in the mind of any party to any justifiable
doubts as to the arbitrator’s impartiality or independence that may arise or come
to his or her notice during the arbitration.

6. The Arbitral Tribunal shall be constituted as soon as practicable after the

Commencement Date.

7. The Secretary-General in confirming, or the Court in appointing, arbitrators

shall take into account any agreement of the parties regarding the constitution of
the Arbitral Tribunal. They may also take into account the nature and
circumstances of the dispute, the applicable law, the seat and language of the
arbitration and any other relevant circumstances.

8. Where the parties are of different nationalities, a sole arbitrator or the

presiding arbitrator shall not have the same nationality as any party unless the
parties agree otherwise.

9. Members of the Court are not eligible to be appointed by the Court as

arbitrators, although they may be nominated as arbitrators by the parties, or
selected as president of the Arbitral Tribunal by the parties or other two
arbitrators.
Article 7: Appointment of Sole Arbitrator
Where the dispute shall be resolved by a sole arbitrator, the parties may, by
agreement, nominate a sole arbitrator for confirmation pursuant to Article 6(2).
If the parties fail to nominate a sole arbitrator within 30 days from
Commencement Date, or any other time limit agreed by the parties or fixed by
the Secretariat, the sole arbitrator shall be appointed by the Court.
Article 8: Appointment of Three Arbitrators
1. Where the dispute shall be resolved by three arbitrators, each party shall
nominate in the Request and the Answer, respectively, one arbitrator for
confirmation pursuant to Article 6(2). If a party fails to nominate an arbitrator,
the appointment shall be made by the Court.

2. The third arbitrator, who will act as president of the Arbitral Tribunal, shall be
appointed by the Court, unless the parties have agreed upon another procedure
for such appointment, in which case the nomination will be subject to
confirmation pursuant to Article 6(2). Should such procedure not result in a
nomination within 30 days from the nomination or appointment of the
co-arbitrators or any other time limit agreed by the parties or fixed by the
Secretariat, the third arbitrator shall be appointed by the Court.
Article 9: Arbitrator Appointments in Cases Involving Three or More Parties
1. Where each party may nominate an arbitrator and there are multiple
Claimants or multiple Respondents, the Claimants, jointly, and the Respondents,
jointly, shall nominate an arbitrator for confirmation by the Secretary-General.

2. In the absence of such a joint nomination, the Court may appoint each
member of the Arbitral Tribunal and designate one of them to act as presiding
arbitrator.
Article 10: Expedited Procedure
(1) Prior to the constitution of the Arbitral Tribunal, a party may apply to the
Secretariat for the arbitral proceedings to be conducted in accordance with this
Article, where:

(a) the amount in dispute representing the aggregate of any claim, Counterclaim
(or set-off defence) does not exceed the equivalent amount of 500.000 USD; or
(b) the parties so agree.

2. The party applying for the arbitral proceedings to be conducted in accordance

with the Expedited Procedure under this Article shall, at the same time as it files
an application for the arbitral proceedings to be conducted in accordance with
the Expedited Procedure with the Secretariat, send a copy of the application to
the other party and shall notify the Secretariat that it has done so, specifying the
mode of service employed and the date of service.

3. Where a party has filed an application with the Secretariat under this Article,
and where the Court, after considering the views of the parties, grants the
application, the arbitral proceeding shall be conducted in accordance with the
Expedited Procedure as follows:

(a) the Secretariat may abbreviate any time limits under the Rules;
(b) the Court may, notwithstanding any contrary provision of the arbitration
agreement, appoint a sole arbitrator;
(c) the Arbitral Tribunal shall decide on the basis of documentary evidence only,
unless it decides that it is appropriate to hold one or more hearings;
(d) the final award shall be communicated within six months from the date
when the Secretariat transmitted the case file to the Arbitral Tribunal, unless in
exceptional circumstances, the Secretariat extends the time for making such
award;
(e) the Arbitral Tribunal may state the reasons upon which the award is based in
summary form, unless the parties have agreed that no reasons are to be given.

4. By agreeing to arbitration under the Rules, the parties agree that this Article
10 shall take precedence over any contrary terms of the arbitration agreement.

5. Upon application by a party, and after giving the parties the opportunity to be
heard, the Arbitral Tribunal may, having regard to any further information as
may subsequently become available, and in consultation with the Secretariat,
order that the arbitral proceedings shall no longer be conducted in accordance
with the Expedited Procedure. Where the Arbitral Tribunal decides to grant an
application under this Article, the arbitration shall continue to be conducted by
the Arbitral Tribunal.
Article 11: Emergency Arbitrator
1. A party that needs urgent interim or conservatory measures that cannot await
the constitution of an Arbitral Tribunal (“Emergency Measures”) may make an
application for such measures before, concurrent with, or following the filing of
a Request, but prior to the constitution of the Arbitral Tribunal, to the Secretariat
for the appointment of an arbitrator to conduct emergency proceedings pending
the constitution or expedited constitution of the Arbitral Tribunal (the
“Emergency Arbitrator”).

2. The provisions of the Rules applicable to members of the Arbitral Tribunals

shall apply mutatis mutandis to Emergency Arbitrators, unless provided
otherwise.

3. The application for an Emergency Arbitrator under Article 11(1) shall be

made to the Secretariat in writing, communicated to all other parties to the
arbitration in accordance with any of the means specified in Article 5(1) of the
Rules. The application shall set out:

(a) the names and (in so far as known) the addresses and email addresses of the
parties and of their representatives;
(b) the specific grounds for requiring the appointment of an Emergency
Arbitrator;
(c) the specific claim, with reasons, for Emergency Measures;
(d) any relevant agreement and the arbitration agreement upon which the
application is made; and
(e) confirmation that copies of the application and any supporting materials
included with it have been or are being communicated simultaneously to all
other parties to the arbitration and the means of doing so.

4. The application under Article 11(1) shall be accompanied by payment of the

non-refundable administration fees and the requisite deposits under the Rules
towards the Emergency Arbitrator’s fees and expenses for proceedings pursuant
to the Schedule of Costs. After the appointment of the Emergency Arbitrator, the
Secretariat may increase in exceptional circumstances the amount of deposits
requested from the party making the application. If the additional deposits are
not paid within the time limit set by the Secretariat, the application shall be
considered withdrawn.

5. If the parties have agreed on a seat of arbitration, such seat shall be the seat of
the emergency proceedings. Failing such an agreement, the seat of the
emergency proceedings before the Emergency Arbitrator shall be Johannesburg
(South Africa), without prejudice to the Arbitral Tribunal’s determination of the
seat of the arbitration under Article 18.

6. If the parties have agreed on the language of the arbitration, such language
shall be the language of the emergency proceedings before the Emergency
Arbitrator. Failing such an agreement, the language of the emergency
proceedings before the Emergency Arbitrator shall be English, without
prejudice to the Arbitral Tribunal’s determination of the language of the
arbitration under Article 20.

7. If the Secretary General accepts the application under Article 11(1), the
Court shall seek to appoint an Emergency Arbitrator within 48 hours of receipt
by the Secretariat of such Application and payment of the administration fee and
deposits. Article 7 shall apply to such appointment. For the avoidance of doubt,
the Emergency Arbitrator shall comply with the requirements under Articles 6,
6(3) and (4).

8. An Emergency Arbitrator may not act as an arbitrator in any future arbitration

relating to the dispute, unless otherwise agreed by the parties.

9. The Emergency Arbitrator may conduct the emergency proceedings in any

manner determined by the Emergency Arbitrator to be appropriate.

10. The Emergency Arbitrator shall establish a procedural timetable for the
emergency proceedings within two days from the transmission of the file to the
Emergency Arbitrator.

11. The Emergency Arbitrator shall decide the claim for Emergency Measures
as soon as possible, but no later than 14 days following the Emergency
Arbitrator’s appointment. This deadline may only be extended by the Court in
exceptional circumstances or by the written agreement of all parties to the
emergency proceedings.

12. The Emergency Arbitrator may make any decision or order (the “Emergency
Decision”) which the Arbitral Tribunal could make under the arbitration
agreement. The Emergency Decision shall be made in writing with reasons in
summary form.

13. The Emergency Arbitrator shall communicate the Emergency Decision to

the parties in writing with copy to the Secretariat.

14. The costs associated with any Application pursuant to this Article may be
initially apportioned by the Emergency Arbitrator, subject to the power of the
Arbitral Tribunal to determine finally the apportionment of such costs.

15. Any Emergency Decision may be confirmed, varied, discharged or revoked,

in whole or in part, by order or award made by the Arbitral Tribunal, once
constituted, upon application by any party or upon its own initiative.

16. This Article shall not prejudice any party’s right to apply for any interim or
conservatory measures from a competent authority at any time.

17. The emergency proceedings before the Emergency Arbitrator shall be

terminated if a Request has not been submitted to the Secretariat before or
within seven days of the Secretariat’s receipt of the Application, unless the
Emergency Arbitrator extends this time limit.

18. This Article shall not apply if either (i) the parties have concluded their
arbitration agreement before the Effective Date and the parties have not agreed
in writing to “opt in” to this Article; or (ii) the parties have agreed in writing at
any time to ‘“opt out”‘ of this Article.
Article 12: Early Dismissal
1. A party may apply to the Arbitral Tribunal for the early dismissal of a claim
or defence on the basis that:

(a) a claim or defence is manifestly without legal merit; or

(b) a claim or defence is manifestly outside the jurisdiction of the Arbitral
Tribunal.

2. An application for the early dismissal of a claim or defence under Article

12(1) shall be made within 30 days of the constitution of the Arbitral Tribunal.
Such application shall state in detail the facts and legal basis supporting the
application.

3. The Arbitral Tribunal has discretion to decide whether to allow the

application for the early dismissal of a claim or defence under Article 12(1) to
proceed. If the application is allowed to proceed, the Tribunal shall, after giving
the parties the opportunity to be heard, decide whether to grant, in whole or in
part, the application for early dismissal under Article 12(1).

4. If the application is granted under Article 12(1), the Arbitral Tribunal shall
make an order or award on the application, stating reasons, which may be in
summary form. The order or award shall be made in an efficient and expeditious
manner having regard of the circumstances of the case.
Article 13: Challenge or Removal of Arbitrators
1. Any arbitrator may be challenged within 15 days from the date a party
becomes aware of circumstances giving rise to justifiable doubts as to the
arbitrator’s impartiality or independence, or if the arbitrator does not possess
qualifications expressly agreed by the parties. A party may challenge the
arbitrator nominated by it or in whose appointment it has participated only for
reasons of which it becomes aware after the confirmation or appointment has
been made.

2. A party that intends to challenge an arbitrator shall deliver a written statement

of the reasons for its challenge to the Secretariat, the arbitrator being
challenged, the other members of the Arbitral Tribunal and the other parties.

3. Unless the arbitrator being challenged withdraws from office or the other
party agrees to the challenge within 15 days from receiving the written
statement, the Court shall decide on the challenge. The Secretariat may request
comments on the challenge from the parties, the arbitrator being challenged and
the other members of the Arbitral Tribunal (or if the Arbitral Tribunal has not
yet been constituted, any appointed arbitrator), and set a schedule for such
comments to be made.

4. While such a challenge is pending, the Arbitral Tribunal, including the

challenged arbitrator, may continue the arbitral proceedings.

5. If an arbitrator withdraws from office or a party agrees to the challenge under

Article 13(1), no acceptance of the validity of any ground referred to in Article
13(1) shall be implied.

6. If the challenge is upheld, the Court shall remove the arbitrator by revoking
his or her appointment.

7. The Court may, at its own initiative and in its discretion, remove an arbitrator
who refuses or fails to act or to perform his or her functions in accordance with
the Rules or if the arbitrator becomes de jure or de facto unable to perform his
or her functions or for other reasons fails to act without undue delay. The Court
shall consult the parties and the members of the Arbitral Tribunal, including the
arbitrator to be removed prior to the removal of an arbitrator under this Article.

8. The Court shall determine the amount of fees and expenses (if any) to be paid
for the former arbitrator’s services, as it may consider appropriate in the
circumstances.
Article 14: Replacement of an Arbitrator
1. In the event of the death, resignation, withdrawal or removal of an arbitrator
during the course of the arbitration, a replacement arbitrator shall be appointed
pursuant to the provisions of the Rules that were applicable to the appointment
of the arbitrator being replaced.
2. If an arbitrator is replaced, the arbitration shall resume at the stage where the
replaced arbitrator ceased to perform his or her functions, unless the Arbitral
Tribunal decides otherwise.

3. Instead of replacing an arbitrator pursuant to Article 14(1), the Court may

decide, in exceptional circumstances, when it considers it appropriate, that the
remaining arbitrators shall continue the arbitration.
Article 15: Arbitral Tribunal’s Powers and Conduct of the Arbitral Proceedings
1. The Arbitral Tribunal may conduct the arbitral proceedings in such manner as
it considers appropriate.

2. It shall at all times during the arbitration be under a general duty to:

(a) act fairly and impartially as between all parties, giving each a reasonable
opportunity of putting its case and dealing with that of its opponent(s); and
(b) adopt procedures suitable for the conduct the arbitration in an expeditious
and cost-effective manner, having regard to the complexity of the issues and the
amount in dispute.

3. As soon as practicable after the file has been transmitted to the Arbitral
Tribunal, the parties and the Arbitral Tribunal shall hold a case management
conference to establish any additional procedural rules and a procedural
timetable.

4. Unless otherwise agreed by the parties, the presiding arbitrator may make
procedural rulings alone.

5. The Arbitral Tribunal’s powers shall include, among other things, upon the
application of any party or upon its own initiative, but in either case only after
giving the parties a reasonable opportunity to state their views:

(a) to allow a party to supplement, modify or amend any claim, defence,

Counterclaim, defence to Counterclaim and reply, including a Request, Answer
and any other written statement, submitted by such party;
(b) to abridge or extend (even where the period of time has expired) any period
of time prescribed by the Rules, any agreement of the parties or any order made
by the Arbitral Tribunal;
(c) to conduct such enquiries as may appear to the Arbitral Tribunal to be
necessary or expedient, including whether and to what extent the Arbitral
Tribunal should itself take the initiative in identifying relevant issues and
ascertaining relevant facts and the law(s) or rules of law applicable to the
arbitration agreement, the arbitration and the merits of the parties’ dispute;
(d) to order any party to make any documents, goods, samples, property, site or
thing under its control available for inspection examination or analysis by the
Arbitral Tribunal, any other party, any expert to such party and any expert to the
Arbitral Tribunal;
(e) to order any party to produce to the Arbitral Tribunal and to other parties
documents or copies of documents in their possession, custody or power which
the Arbitral Tribunal decides to be relevant;
(f) to decide as to the admissibility, relevance or weight of any material tendered
by a party on any issue of fact or expert opinion; and to decide the time, manner
and form in which such material should be exchanged between the parties and
presented to the Arbitral Tribunal;
(g) to order compliance with any legal obligation, payment of compensation for
breach of any legal obligation and specific performance of any agreement
(including any arbitration agreement or any contract relating to land); and
(h) to order the discontinuance of the arbitration if it appears to the Arbitral
Tribunal that the arbitration has been abandoned by the parties or all claims and
any Counterclaim withdrawn by the parties. The Arbitral Tribunal shall fix a
reasonable notice period for the discontinuance during which the parties may
agree or object to the discontinuance.
Article 16: Administrative Secretary
1. The Arbitral Tribunal may, after consulting with the parties and at any time
during an arbitration, appoint an administrative secretary (the “Administrative
Secretary”).

2. The Administrative Secretary shall act only upon the Arbitral Tribunal’s
instructions and under its strict and continuous supervision. The Arbitral
Tribunal shall, at all times, be responsible for the Administrative Secretary’s
conduct during the arbitration. The tasks entrusted to an Administrative
Secretary shall in no circumstances release the Arbitral Tribunal from its duties,
and the delegation of the Arbitral Tribunal’s decision-making functions is
prohibited.

3. The Administrative Secretary may perform organisational and administrative

tasks including:
(a) transmitting documents and communications on behalf of the Arbitral
Tribunal;
(b) organising and maintaining the Arbitral Tribunal’s file and locating
documents;
(c) organising hearings and meetings and liaising with the parties in that respect;
(d) drafting correspondence to the parties and sending it on behalf of the
Arbitral Tribunal;
(e) preparing for the Arbitral Tribunal’s review drafts of procedural orders as
well as factual portions of an award, such as the summary of the proceedings,
the chronology of facts, and the summary of the parties’ positions;
(f) attending hearings, meetings and deliberations; taking notes or minutes or
keeping time;
(g) conducting legal or similar research; and
(h) proof-reading and checking citations, dates and cross-references in
procedural orders or awards.

4. The Administrative Secretary shall remain at all times impartial and

independent of the parties and shall disclose any circumstances likely to give
rise to justifiable doubts as to his or her impartiality or independence prior to his
or her appointment. The Administrative Secretary, once appointed and
throughout the arbitration, shall disclose without delay any such circumstances
which subsequently arise, or of which it subsequently becomes aware, to the
parties.

5. The Arbitral Tribunal may seek reimbursement from the parties of the
Administrative Secretary’s justified reasonable personal disbursements for
hearings and meetings. The Administrative Secretary shall not charge any
additional fees.
Article 17: Written Statements
1. Unless the Arbitral Tribunal determines otherwise, the written submissions of
the arbitration and its procedural timetable shall be as set out in this Article.

2. Within a time limit to be determined by the Arbitral Tribunal, the Claimant

shall deliver to the Arbitral Tribunal and all other parties its written Statement of
Case setting out in sufficient detail the relevant facts and legal submissions on
which it relies, together with the relief claimed against all other parties, and all
supporting documents on which it relies.

3. Within a time limit to be determined by the Arbitral Tribunal, the Respondent

shall deliver to the Tribunal and all other its written Statement of Defence and
(if applicable) Statement of Counterclaim setting out in sufficient detail the
relevant facts and legal submissions on which it relies, together with the relief
claimed against all other parties, and all supporting documents on which it
relies.

4. Where there is any Counterclaim made, within a time limit to be determined

by the Arbitral Tribunal, the Claimant or the Respondent against which the
Counterclaim is made shall deliver to the Arbitral Tribunal and all other parties
a written Statement of Defence to Counterclaim in the same manner required for
a Statement of Defence, and all supporting documents on which it relies.

5. The Arbitral Tribunal shall decide which further written submissions shall be
required from the parties or may be presented by them. The Arbitral Tribunal
shall fix the periods of time for communicating such written submissions.

6. The Arbitral Tribunal may provide any additional directions it considers

appropriate regarding the parties’ written submissions or the parties’ submission
of their evidence (including witness statements and expert reports).

7. If the Respondent fails to submit a Statement of Defence or the Claimant a

Statement of Defence to Counterclaim, or if at any time any party fails to avail
itself of the opportunity to present its written case in the manner required under
this Article or otherwise by order of the Arbitral Tribunal, the Arbitral Tribunal
may nevertheless proceed with the arbitration and make one or more awards.

8. If the Claimant fails within the time specified to submit its Statement of Case,
the Arbitral Tribunal may issue an order for the termination of the arbitral
proceedings or give such other directions as may be appropriate.
Article 18: Seat of Arbitration
1. The parties may agree in writing the seat of their arbitration.

2. In default of any such agreement, the seat of the arbitration shall be

determined by the Court, having regard to all the circumstances of the case.

3. After consultation with the parties, the Arbitral Tribunal may hold any
hearing at any convenient geographical place and hold its deliberations at any
geographical place of its own choice; and if such place(s) should be elsewhere
than the seat of the arbitration, the arbitration shall nonetheless be treated for all
purposes as an arbitration conducted at the arbitral seat and any order or award
as having been made at that seat.
Article 19: Applicable Law
1. The parties shall be free to agree upon the rules of law to be applied by the
Arbitral Tribunal to the merits of the dispute. In the absence of any such
agreement, the Arbitral Tribunal shall apply the rules of law which it determines
to be appropriate. The Arbitral Tribunal shall decide as amiable compositeur or
ex aequo et bono only if the parties have authorised it to do so in writing.

2. The Arbitral Tribunal shall decide in accordance with the terms of the
contract, if any, and may take into account relevant trade usages.
Article 20: Language of Arbitration
Unless the parties agree otherwise, English shall be the language of the
arbitration.
Article 21: Hearings
1. The Arbitral Tribunal shall proceed within as short a time as possible to
establish the facts of the case by all appropriate means.

2. After studying the written submissions of the parties and all documents relied
upon, the Arbitral Tribunal shall hold a hearing, if any of them so requests or,
failing such a request, it may of its own motion decide to schedule a hearing.

3. The Arbitral Tribunal shall organise the conduct of any hearing in advance, in
consultation with the parties, as it sees fit. The Arbitral Tribunal shall have the
fullest authority under the arbitration agreement to establish the conduct of a
hearing, including its date, form, content, procedure, time-limits and
geographical place.

4. The Arbitral Tribunal shall give to the parties reasonable notice in writing of
any hearing, including the relevant date, time and place.

5. At any time during the proceedings, the Arbitral Tribunal may summon any
party to provide additional evidence.

6. The hearing may take place in person or by any other means that the Arbitral
Tribunal considers appropriate considering all relevant circumstances, including
by video or telephone conference, or a combination thereof. The Arbitral
Tribunal may make directions for the interpretation of oral statements made at a
hearing and for a record of the hearing if it deems that either is necessary in the
circumstances of the case.

7. To the extent permitted by any applicable law, all hearings shall be held in
private, unless the parties agree otherwise in writing.
Article 22: Fact and Expert Witnesses
1. Unless decided otherwise by the Arbitral Tribunal, a party may present
evidence by fact and/or expert witnesses.

2. Before any hearing, the Arbitral Tribunal may order any party to give written
notice of the identity of each witness that party wishes to call, as well as the
subject-matter of that witness’s testimony, its content and its relevance to the
issues in the arbitration.

3. Subject to any order otherwise by the Arbitral Tribunal, the testimony of a

witness may be presented by a party in written form as a signed statement (for
fact witnesses) or signed report (for expert witnesses).

4. The Arbitral Tribunal may decide the time, manner and form in which these
written materials shall be exchanged between the parties and presented to the
Arbitral Tribunal; and it may allow, refuse or limit the written and oral
testimony of witnesses.

5. The Arbitral Tribunal and any party may request that a witness, on whose
written testimony another party relies, should attend for oral questioning at a
hearing before the Arbitral Tribunal. If the Arbitral Tribunal orders a party to
secure the attendance of that witness and the witness refuses or fails to attend
the hearing without good cause, the Arbitral Tribunal may place such weight on
the written testimony or exclude all or any part thereof altogether as it considers
appropriate in the circumstances.

6. Any witness who gives oral testimony at a hearing before the Arbitral
Tribunal may be questioned by each of the parties under the control of the
Arbitral Tribunal. The Arbitral Tribunal may put questions at any stage of such
testimony.
Article 23: Tribunal Experts
1. Notwithstanding the provision on expert witnesses in Article 22, the Arbitral
Tribunal, after consultation with the parties, may appoint one or more experts to
report to it in writing on specific issues in the arbitration, as identified by the
Arbitral Tribunal and communicated to the parties.

2. Any such expert shall submit a copy of his or her qualifications to the Arbitral
Tribunal, shall be and remain impartial and independent of the parties, and shall
sign a declaration to that effect, deliver it to the Arbitral Tribunal and copy all
parties.

3. The Arbitral Tribunal may order any party at any time to give to such expert
any relevant information or to provide access to any relevant documents, goods,
samples, property, site or thing for inspection under that party’s control on such
terms as the Arbitral Tribunal thinks appropriate in the circumstances.

4. If any party so requests or the Arbitral Tribunal considers it necessary, the

Arbitral Tribunal may order the expert, after delivery of the expert’s written
report, to participate in a hearing at which the parties shall have a reasonable
opportunity to question the expert on the report and to present witnesses to
testify on relevant issues arising from the report.

5. The fees and expenses of any expert appointed by the Arbitral Tribunal under
this Article shall be borne by the parties, subject to the final allocation by the
Arbitral Tribunal.
Article 24: Interim Measures
1. Unless otherwise agreed by the parties and to the extent permitted by any
applicable law, the Arbitral Tribunal may, at the request of any party, order
interim measures.

2. An interim measure is any temporary measure by which, at any time prior to

the issuance of the award by which the dispute is finally decided, the Arbitral
Tribunal orders a party, for example and without limitation, to:

(a) maintain or restore the status quo pending determination of the dispute;
(b) take action that would prevent, or refrain from taking action that is likely to
cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;
(c) provide a means of preserving assets out of which a subsequent award may
be satisfied; or
(d) preserve evidence that may be relevant and material to the resolution of the
dispute.

3. The Arbitral Tribunal may order such measures in the form of an interim
order or award.

4. The Arbitral Tribunal may require the party requesting an interim measure to
provide appropriate security in connection with the measure.

5. The Arbitral Tribunal may require any party to promptly disclose any material
change in the circumstances on the basis of which the interim measure was
requested or granted.

6. 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.

7. The party requesting an interim measure may be liable for any costs and
damages caused by the measure to any party if the Arbitral Tribunal later
determines that, in the circumstances then prevailing, the measure should not
have been granted. The Arbitral Tribunal may award such costs and damages at
any point during the proceedings.

8. The Arbitral Tribunal may in its discretion order costs associated with the
application for interim or conservatory measures in any interim order or award,
or in the final award.

9. The power of the Arbitral Tribunal under Article 24(1) shall not prejudice any
party’s right to apply to any competent judicial authority for interim or
conservatory measures prior to the constitution of the Arbitral Tribunal, and in
appropriate circumstances, after the constitution of the Arbitral Tribunal.

10. A request for interim measures addressed by any party to a judicial authority
shall not be deemed incompatible with the agreement to arbitrate, or as a waiver
of that agreement.
Article 25: Security for Costs
1. The Arbitral Tribunal may order security for costs by way of deposit or bank
guarantee or in any other manner and upon such terms as the Arbitral Tribunal
considers appropriate in the circumstances.
2. In determining whether to order security for costs, the Arbitral Tribunal may
have regard to:

(a) the prospects of success of the claims, Counterclaims and defences;

(b) the ability of the Claimant or of the party bringing the Counterclaim to
comply with an adverse costs award and the availability of assets for
enforcement of an adverse costs award;
(c) whether it is appropriate in all the circumstances of the case to order one
party to provide security; and
(d) any other relevant circumstances.

3. If a party fails to comply with an order to provide security, the Arbitral

Tribunal may stay or dismiss the party’s claims in whole or in part.

4. Any decision to stay or to dismiss a party’s claims shall take the form of an
order or an award.
Article 26: Party Representatives
1. Any party may be represented in the arbitration by one or more authorised
representatives appearing by name before the Arbitral Tribunal (the “Party
Representatives”).

2. Prior to the constitution of the Arbitral Tribunal, the Secretariat may request
from any party:

(a) written proof of the authority granted by that party to any Party
Representatives designated in its Request or Answer; and
(b) written confirmation of the names and addresses of all such Party
Representatives.

3. After the constitution of the Arbitral Tribunal, at any time, the Arbitral
Tribunal may order any party to provide proof similar to the one under Article
26(2)(b) or confirmation in any form it considers appropriate. Any intended
change or addition by a party to its Party Representatives shall be notified
promptly in writing to all other parties, the Arbitral Tribunal and the Secretariat.

4. Each party shall ensure that all its Party Representatives have agreed to
comply with the general guidelines contained in Annex 2 to the Rules (the
“General Guidelines”), as a condition of such representation. In permitting any
Party Representative so to appear, a party shall thereby represent that the Party
Representatives have agreed to such compliance.

5. In the event of a complaint by one party against another’s Party

Representative or upon the Arbitral Tribunal’s own initiative, the Arbitral
Tribunal may decide, after consulting the parties and granting that Party
Representative a reasonable opportunity to answer the complaint, whether or
not the Party Representative has violated the General Guidelines. If such
violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any
measure it deems necessary.
Article 27: Third-Party Funding
1. For the purposes of this Article

(a) “Third-Party Funder“ refers to any natural or legal person who is not a party
to the arbitration and is not a Party Representative, but who enters into an
agreement either with a party, an affiliate of that party, or a Party Representative
in order to provide material or financial support for all or part of the cost of the
arbitration, where such support is provided through a donation, or grant, or in
exchange for remuneration or reimbursement wholly or partially dependent on
the outcome of the arbitration.
(b) “Third-Party Funding Agreement” means an agreement by a party or
potential party to the arbitration with a Third-Party Funder for the funding of the
arbitration.
(c) “Funded Party“ refers to a party to the arbitration who enters into a
Third-Party Funding Agreement;

2. If a Third-Party Funding Agreement is entered into, the Funded Party shall

notify all other parties, the Arbitral Tribunal, and the Secretariat of:

(a) the existence of a Third-Party Funding Agreement; and

(b) the identity of the Third-Party Funder.

3. Notification of a Third-Party Funding Agreement must be made on or before

the Commencement Date or, in respect of a Third-Party Funding Agreement
made after the Commencement Date, the notification must be communicated as
soon as practicable after the Third-Party Funding Agreement has been entered
into.” Any Funded Party shall promptly disclose any changes to the information
referred to above that occur after the initial disclosure.
Article 28: Multiple Contracts
1. Where there are disputes arising out of or in connection with more than one
contract, the Claimant may:

(a) file a Request in respect of each arbitration agreement invoked and

concurrently submit an application to consolidate the arbitrations pursuant to
Article 30(1); or
(b) file a single Request in respect of all the arbitration agreements invoked
which shall include a statement identifying each Article and arbitration
agreement invoked and a description of how the applicable criteria under Article
30(1) are satisfied, and such Request shall be deemed to be an application to
consolidate all such arbitrations pursuant to Article 30(1).

2. Where the Claimant has filed two or more Requests pursuant to Article 28(1)
(a), the Secretariat shall accept payment of a single filing fee under the Rules
for all the arbitrations sought to be consolidated. Where the Court rejects the
application for consolidation, in whole or in part, the Claimant shall be required
to make payment of the requisite filing fee under the Rules in respect of each
arbitration that has not been consolidated.

3. Where the Claimant has filed a single Request pursuant to Article 28(1)(b)
and the Court rejects the application for consolidation, in whole or in part, the
Claimant shall file a Request in respect of each arbitration that has not been
consolidated, although each such arbitration shall be deemed to have been
commenced at the time the Claimant filed a single Request pursuant to Article
28(1)(b). The Claimant shall be required to make payment of the requisite filing
fee under the Rules in respect of each arbitration that has not been consolidated.
Article 29: Joinder and Intervention
1. Prior to the constitution of the Arbitral Tribunal, a party or non-party to the
arbitration may file an application with the Secretariat for one or more
additional parties to be joined in an arbitration pending under the Rules as a
Claimant or a Respondent, provided that any of the following criteria is
satisfied:

(a) all parties, including the additional party to be joined, have consented to the
joinder of the additional party; or
(b) the additional party to be joined is prima facie bound by the arbitration
agreement upon which the pending arbitration is made.

2. An application under Article 29(1) shall include:

(a) the case reference number of the pending arbitration;
(b) the names, addresses, telephone numbers and email addresses, if known, of
all parties, including the additional party to be joined, and their representatives,
if any, and any arbitrators who have been nominated or appointed in the pending
arbitration;
(c) whether the additional party is to be joined as a Claimant or a Respondent;
(d) if the application is being made under Article 29(1)(b), a copy of the
arbitration agreement(s) invoked by the Claimant to support its claim, together
with a copy of any documentation in which those terms are contained and to
which the Claimant’s claim relates;
(e) if the application is being made under Article 29(1)(a), identification of the
relevant agreement and, where possible, a copy of such agreement; and
(f) a brief statement of the facts and legal basis supporting the application.

3. The application for joinder is deemed to be complete when all the

requirements of Article 29(2) are fulfilled or when the Secretariat determines
that there has been substantial compliance with such requirements. The
Secretariat shall notify all parties, including the additional party to be joined,
when the application for joinder is complete.

4. The party or non-party applying for joinder under Article 29(1) shall, at the
same time as it files an application for joinder with the Secretariat, send a copy
of the application to all parties, including the additional party to be joined, and
shall notify the Secretariat that it has done so, specifying the mode of service
employed and the date of service.

5. The Court shall, after giving all parties, including the additional party to be
joined, the opportunity to be heard, and having regard to the circumstances of
the case, decide whether to grant, in whole or in part, any application for joinder
under Article 29(1). The Court’s decision to grant an application for joinder
under this Article is without prejudice to the Arbitral Tribunal’s power to
subsequently decide any question as to its jurisdiction arising from such
decision.

6. Where an application for joinder is granted under Article 29(5), the date of
receipt of the complete application for joinder shall be deemed to be the
Commencement Date of the arbitration in respect of the additional party.

7. Where an application for joinder is granted under Article 29(5), the Court
may revoke the confirmation or appointment of any arbitrators confirmed or
appointed prior to the decision on joinder. Unless otherwise agreed by all
parties, including the additional party joined, Article 6 to Article 9 shall apply as
appropriate, and the respective timelines thereunder shall run from the date of
receipt of the Court’s decision under Article 29(5).

8. After the constitution of the Arbitral Tribunal, a party or non-party to the

arbitration may apply to the Arbitral Tribunal for one or more additional parties
to be joined in an arbitration pending under the Rules as a Claimant or a
Respondent, provided all parties, including the additional party to be joined,
have consented to the joinder of the additional party.

9. An application under Article 29(8) shall include:

(a) the case reference number of the pending arbitration;

(b) the names, addresses, telephone numbers and email addresses, if known, of
all parties, including the additional party to be joined, and their representatives,
if any, and any arbitrators who have been nominated or appointed in the pending
arbitration;
(c) whether the additional party is to be joined as a Claimant or a Respondent;
(d) identification of the relevant agreement and, where possible, a copy of such
agreement.

10. The Arbitral Tribunal shall, after giving all parties, including the additional
party to be joined, the opportunity to be heard, and having regard to the
circumstances of the case, decide whether to grant, in whole or in part, any
application for joinder under Article 29(8). The Arbitral Tribunal’s decision to
grant an application for joinder under this Article 29(10) is without prejudice to
its power to subsequently decide any question as to its jurisdiction arising from
such decision.

11. Where an application for joinder is granted under Article 29(10), the date of
receipt by the Arbitral Tribunal of the complete application for joinder shall be
deemed to be the Commencement Date of the arbitration in respect of the
additional party.

12. Where an application for joinder is granted under Article 29(5) or Article
29(10), any party who has not nominated an arbitrator or otherwise participated
in the constitution of the Arbitral Tribunal shall be deemed to have waived its
right to nominate an arbitrator or otherwise participate in the constitution of the
Arbitral Tribunal, without prejudice to the right of such party to challenge an
arbitrator pursuant to Article 13.

13. Where an application for joinder is granted under Article 29(5) or Article
29(10), the requisite filing fee under the Rules shall be payable for any
additional claims or Counterclaims.
Article 30: Consolidation
1. Prior to the constitution of any Arbitral Tribunal in the arbitrations sought to
be consolidated, a party may file an application with the Secretariat to
consolidate two or more arbitrations pending under the Rules into a single
arbitration, provided that any of the following criteria is satisfied in respect of
the arbitrations to be consolidated:

(a) all parties have agreed to the consolidation; or

(b) all the claims in the arbitrations are made under the same arbitration
agreement.

2. An application for consolidation under Article 30(1) shall include:

(a) the case reference numbers of the arbitrations sought to be consolidated;
(b) the names, addresses, telephone numbers, facsimile numbers and electronic
mail addresses, if known, of all parties and their representatives, if any, and any
arbitrators who have been nominated or appointed in the arbitrations sought to
be consolidated;
(c) a reference to the arbitration agreement(s) invoked and a copy of the
arbitration agreement(s);
(d) a reference to the contract or other instrument out of or in relation to which
the dispute arises, and where possible, a copy of the contract or other
instrument;
(e) if the application is being made under Article 30(1)(a), identification of the
relevant agreement and, where possible, a copy of such agreement; and
(f) a brief statement of the facts and legal basis supporting the application.

3. The party applying for consolidation under Article 30(1) shall, at the same
time as it files an application for consolidation with the Secretariat, send a copy
of the application to all parties and shall notify the Secretariat that it has done
so, specifying the mode of service employed and the date of service. The Court
shall, after considering the views of all parties, and having regard to the
circumstances of the case, decide whether to grant, in whole or in part, any
application for consolidation under Article 30(1). The Court’s decision to grant
an application for consolidation under this Article 30(3) is without prejudice to
the Tribunal’s power to subsequently decide any question as to its jurisdiction
arising from such decision. Any arbitrations that are not consolidated shall
continue as separate arbitrations under the Rules and may nonetheless be run
concurrently where procedural efficiency requires it.

4. Where the Court decides to consolidate two or more arbitrations under Article
30(3), the arbitrations shall be consolidated into the arbitration that is deemed to
have commenced first, unless otherwise agreed by all parties or the Court
decides otherwise having regard to the circumstances of the case.

5. Where an application for consolidation is granted under Article 30(3), the

Court may revoke the confirmation or appointment of any arbitrators confirmed
or appointed prior to the decision on consolidation. Unless otherwise agreed by
all parties, Article 6 to Article 9 shall apply as appropriate, and the respective
timelines thereunder shall run from the date of receipt of the Court’s decision
under Article 30.4.

6. After the constitution of any Arbitral Tribunal in the arbitrations sought to be

consolidated, a party may apply to the Arbitral Tribunal to consolidate two or
more arbitrations pending under the Rules into a single arbitration, provided that
any of the following criteria is satisfied in respect of the arbitrations to be
consolidated:

(a) all parties have agreed to the consolidation; or

(b) all the claims in the arbitrations are made under the same arbitration
agreement, and the same Arbitral Tribunal has been constituted in each of the
arbitrations or no Arbitral Tribunal has been constituted in the other
arbitration(s); or
(c) the arbitration agreements are compatible, the same Arbitral Tribunal has
been constituted in each of the arbitrations to be consolidated or no Arbitral
Tribunal has been constituted in the other arbitration(s), and: (i) the disputes
arise out of the same legal relationship(s); or (ii) the disputes arise out of
contracts consisting of a principal contract and its ancillary contract(s); or (iii)
the disputes arise out of the same transaction or series of transactions.

7. The Arbitral Tribunal shall, after giving all parties the opportunity to be
heard, and having regard to the circumstances of the case, decide whether to
grant, in whole or in part, any application for consolidation. The Arbitral
Tribunal’s decision to grant an application for consolidation under this Article is
without prejudice to its power to subsequently decide any question as to its
jurisdiction arising from such decision. Any arbitrations that are not
consolidated shall continue as separate arbitrations under the Rules.

8. Where an application for consolidation is granted under Article 30(7), any

party who has not nominated an arbitrator or otherwise participated in the
constitution of the Tribunal shall be deemed to have waived its right to
nominate an arbitrator or otherwise participate in the constitution of the
Tribunal, without prejudice to the right of such party to challenge an arbitrator
pursuant to Article 13.
Article 31: Jurisdiction and Authority
1. The Arbitral Tribunal shall have the power to rule upon its own jurisdiction
and authority, including any objection to the initial or continuing existence,
validity, effectiveness or scope of any arbitration agreement invoked by a party.

2. For that purpose, an arbitration agreement which forms or was intended to

form part of another agreement shall be treated as an arbitration agreement
independent of that other agreement. A decision by the Arbitral Tribunal that
such other agreement is non-existent, invalid or ineffective shall not entail (of
itself) the non-existence, invalidity or ineffectiveness of the arbitration
agreement.

3. An objection by a Respondent that the Arbitral Tribunal does not have

jurisdiction shall be raised as soon as possible but not later than the time for its
Statement of Defence; and a like objection by any party responding to a
Counterclaim shall be raised as soon as possible but not later than the time for
its Statement of Defence to Counterclaim. A party is not precluded from raising
such an objection by the fact that it has participated in the appointment of the
Arbitral Tribunal. An objection that the Arbitral Tribunal is exceeding the scope
of its authority shall be raised promptly after the Arbitral Tribunal has indicated
its intention to act upon the matter alleged to lie beyond its authority. The
Arbitral Tribunal may nevertheless admit an untimely objection as to its
jurisdiction or authority if it considers the delay justified in the circumstances.

4. The Arbitral Tribunal may decide the objection to its jurisdiction or authority
in an award as to jurisdiction or authority or later in an award on the merits, as it
considers appropriate in the circumstances.

5. To the extent permitted by any applicable law, the parties waive their right to
apply to any state court or other legal authority for any relief regarding the
Arbitral Tribunal’s jurisdiction or authority, until the Arbitral Tribunal has made
its decision on the objection to its jurisdiction or authority pursuant to Article
31(4).
Article 32: Deposits
1. The Secretariat may direct the parties, in such proportions and at such times
as it thinks appropriate (taking into account the scales set out in the Schedule of
Costs), to make one or more payments to AFSA on account of the Arbitration
Costs.

(a) Such payments deposited by the parties may be applied by the Secretariat to
pay any item of such Arbitration Costs (including AFSA’s own fees and
expenses) in accordance with the Rules.
(b) Unless otherwise decided by the Secretariat, where a Counterclaim is
submitted by the Respondent, the Secretariat may fix separate advances on costs
for the claim and the Counterclaim. When the Secretariat has fixed separate
advances on costs, each of the parties shall pay the advances on costs
corresponding to its claims.
(c) Where the amount of the claim or the Counterclaim is not quantifiable at the
time payment is due, a provisional estimate of the Arbitration Costs shall be
made by the Secretary-General. Such estimate may be based on the nature of the
controversy and the circumstances of the case. This estimate may be adjusted in
light of such information as may subsequently become available.
(d) The Secretariat may authorise, at the request of a party, that part of any
advances on costs may be provided in the form of a bank guarantee or other
form of security. Any costs arising from payment in the form of a bank
guarantee or other form of security shall be borne by the requesting party.

2. All payments made by parties on account of the Arbitration Costs shall be

held by AFSA for the parties, to be disbursed or otherwise applied by AFSA in
accordance with the Rules. In the event that payments exceed the total amount
of the Arbitration Costs at the conclusion of the arbitration, the excess amount
shall be returned by AFSA to the parties, in accordance with any agreement of
the parties or, in the absence of any such agreement, in proportions determined
by the Court in its discretion.

3. In the event that a party fails or refuses to make any payment on account of
the Arbitration Costs as directed by the Secretariat, the Secretariat may direct
the other party or parties to effect a substitute payment to allow the arbitration
to proceed (subject to any order or award on Arbitration Costs).

4. In such circumstances, the party effecting the substitute payment may request
the Arbitral Tribunal to make an order or award in order to recover that amount
as a debt immediately due and payable to that party by the defaulting party,
together with any interest.

5. If a claiming or counterclaiming party fails to make prompt and full payment

on account of the Arbitration Costs, the Secretariat may, after consultation with
the Arbitral Tribunal, direct the Arbitral Tribunal to suspend its work and set a
time limit on the expiry of which the relevant claim or Counterclaim shall be
considered as withdrawn. Such withdrawal would thereby remove the relevant
claim or Counterclaim (as the case may be) from the scope of the Arbitral
Tribunal’s jurisdiction under the arbitration agreement, subject to any terms
decided by the Arbitral Tribunal as to the reinstatement of the claim or
Counterclaim in the event of subsequent payment by the claiming or
counterclaiming party. Such a withdrawal shall not preclude the claiming or
counterclaiming party from defending as a respondent any claim or
Counterclaim made by another party.

6. For the avoidance of any doubt, for the purpose of calculating of the deposits
under this Article, the Arbitral Tribunal shall have the power to decide whether a
Counterclaim designated by the party making it as a set-off defence should be
properly considered as a Counterclaim instead.
Article 33: Awards
1. Where the Arbitral Tribunal is composed of more than one arbitrator, an
award is made by majority decision. If there is no majority, an award shall be
made by the presiding arbitrator alone.

2. An award shall state the reasons upon which it is based, unless the parties
have agreed in writing that reasons shall not be given.

3. An award shall be dated and state the seat of the arbitration.

4. An award shall be signed by the Arbitral Tribunal. If there is more than one
arbitrator and any arbitrator does not sign an award, the award shall state the
reason the arbitrator did not sign it.

5. If the parties reach a settlement before the final award is made, the Arbitral
Tribunal shall either issue an order for the termination of the arbitral
proceedings or record the settlement in an award on agreed terms if requested
by the parties and not objected to by the Arbitral Tribunal. Such an award need
not be reasoned.

6. After the Arbitral Tribunal issues an order for the termination of the arbitral
proceedings or an award on terms agreed by the parties under Article 33(5), the
mandate of the Arbitral Tribunal terminates, subject to Article 34.

7. The Arbitral Tribunal shall deliver the award to the Secretariat, which shall
notify the award to the parties provided that all Arbitration Costs have been paid
in full to AFSA in accordance with Articles 32 and 34.

8. By virtue of the notification of the award made in accordance with Article

33(7), the parties waive any other form of notification or deposit on the part of
the Arbitral Tribunal.

9. Every award shall be final and binding on the parties. By submitting the
dispute to arbitration under the Rules, the parties undertake to carry out an
award without delay and shall be deemed to have waived their right to any form
of recourse insofar as such waiver can validly be made.
Article 34: Correction and Interpretation of Awards and Additional Awards
1. On its own initiative, the Arbitral Tribunal may correct a clerical,
computational or typographical error or any errors of a similar nature contained
in an award, provided such correction is delivered to the Secretariat within 30
days of the date of the notification of the award.

2. Within 30 days of the receipt of an award, a party may ask the Arbitral
Tribunal to correct any errors of the kind referred to in Article 34(1). If the
Arbitral Tribunal considers the request justified, after consulting the parties, it
shall make the correction within 30 days of receipt of the request.

3. Within 30 days of the receipt of an award, a party may ask the Arbitral
Tribunal to give an interpretation of an award. If the Tribunal considers the
request justified, after consulting the parties, it shall give the interpretation
within 30 days of receipt of the request.

4. Within 30 days of the receipt of an award, a party may ask the Arbitral
Tribunal to make an additional award as to claims presented in the arbitral
proceedings but not dealt with in the award. If the Arbitral Tribunal considers
the request justified, after consulting the parties, it shall make the additional
award within 60 days of receipt of the request.

5. Articles 33(1) to 33(4), as well as Articles 33(7) to 33(9), shall apply to any
corrections, interpretations or additional awards. Any correction or
interpretation shall form part of the award.
Article 35: Arbitration Costs and Legal Costs
1. The Arbitration Costs shall include the fees and expenses of the arbitrators,
any disbursements of the Administrative Secretary and AFSA’s administrative
expenses fixed in accordance with the Schedule of Costs, the fees and expenses
of any experts appointed by the Arbitral Tribunal, and the costs of any other
assistance reasonably required by the Arbitral Tribunal (the “Arbitration
Costs”).

2. The parties shall be jointly and severally liable to AFSA and the Arbitral
Tribunal for the Arbitration Costs.

3. The Arbitral Tribunal shall specify by an award the amount of the Arbitration
Costs determined by the Court. The Arbitral Tribunal shall decide the
proportions in which the parties shall bear such Arbitration Costs (unless the
parties have otherwise reached a final settlement regarding liability for such
costs). If the Arbitral Tribunal has decided that all or any part of the Arbitration
Costs shall be borne by a party other than a party which has already covered
such costs by way of a payment to AFSA under Article 32, the latter party shall
have the right to recover the appropriate amount of Arbitration Costs from the
former party.

4. The Arbitral Tribunal shall also have the power to decide by an award that all
or part of the legal or other expenses incurred by a party in relation to the
arbitration (the “Legal Costs”) be paid by another party. The Arbitral Tribunal
shall decide the amount of such Legal Costs on such reasonable basis as it
thinks appropriate. The Arbitral Tribunal shall not be required to apply the rates
or procedures for assessing such costs practised by any state court or other legal
authority.

5. The Arbitral Tribunal shall make its decisions on both Arbitration Costs and
Legal Costs on the general principle that costs should reflect the parties’ relative
success and failure in the award or arbitration or under different issues, except
where it appears to the Arbitral Tribunal that in the circumstances the
application of such a general principle would be inappropriate under the
arbitration agreement or otherwise. The Arbitral Tribunal may also take into
account the parties’ conduct in the arbitration, including any co-operation in
facilitating the proceedings as to time and cost and any non-co-operation
resulting in undue delay and unnecessary expense. Any decision on costs by the
Arbitral Tribunal shall be made with reasons in the award containing such
decision.
Article 36: Confidentiality and Publication of Award
1. To the extent permitted by any applicable law, the parties undertake as a
general principle to keep confidential all awards in the arbitration, together with
all materials in the arbitration created for the purpose of the arbitration and all
other documents produced by another party in the proceedings not otherwise in
the public domain, save and to the extent that:

(a) disclosure may be required of a party by legal duty;

(b) disclosure is required to protect or pursue a legal right; or
(c) disclosure is required to enforce or challenge an award in legal proceedings
before a state court or other legal authority.

2. The deliberations of the Arbitral Tribunal shall remain confidential to its

members, save as required by any applicable law and to the extent that
disclosure of an arbitrator’s refusal to participate in the arbitration is required of
the other members of the Arbitral Tribunal under Articles 13 and 14 of the
Rules.

3. As an exception to the general principle set out in Article 36(1) above, and
unless a party to the arbitration proceedings objects in writing to the publication
of the arbitral award within 30 days after notification of the award to the parties,
AFSA may in principle publish all arbitral awards in an anonymised or
pseudonymised form.
Article 37: Limitation of Liability
1. Save for intentional wrongdoing, the parties waive, to the fullest extent
permitted under the applicable law, any claim against the members of the
Arbitral Tribunal, its Administrative Secretary, AFSA (including the Board, the
Court, the Secretariat, the Secretary-General and any of AFSA’s officers and
employees) and any person appointed by the Arbitral Tribunal based on any act
or omission in connection with the arbitration.
2. The parties shall indemnify and hold AFSA (including the Board, the Court,
the Secretariat, the Secretary-General and any of AFSA’s officers and
employees) harmless from any and all claims, injuries, damages, losses or legal
proceedings including legal fees, arising out of or resulting from the acts, errors
or omissions in administrating an arbitration, except for injuries and damages
caused by the sole negligence of AFSA.
Article 38: General Provisions
1. Throughout the proceedings, the Court, the Secretariat, the Arbitral Tribunal
and the parties shall act in an efficient and expeditious manner.

2. A party who knows that any provision of the arbitration agreement has not
been complied with and yet proceeds with the arbitration without promptly
stating its objection as to such non-compliance to the Secretariat (prior to the
constitution of the Arbitral Tribunal) or the Arbitral Tribunal (after its
constitution), shall be treated as having irrevocably waived its right to object for
all purposes.

4. For all matters not expressly provided in the arbitration agreement, AFSA,
the Court, the Secretariat, the Arbitral Tribunal and each of the parties shall act
at all times in good faith, respecting the spirit of the arbitration agreement, and
shall make every reasonable effort to ensure that any award is legally
recognised and enforceable at the seat of arbitration.

5. If and to the extent that any part of the arbitration agreement is decided by the
Arbitral Tribunal, or any court or other legal authority of competent jurisdiction
to be invalid, ineffective or unenforceable, such decision shall not, of itself,
adversely affect any order or award by the Arbitral Tribunal or any other part of
the arbitration agreement which shall remain in full force and effect, unless
prohibited by any applicable law.
Annex 1: The Constitution of the AFSA International Court
PREAMBLE

1. This document represents the Constitution of the AFSA Court (hereinafter,

the Court) which shall function as the Court of the Arbitration Foundation of
Southern Africa NPC (hereinafter, AFSA) and shall have the powers and shall
perform the functions hereinafter provided for.
2. This Constitution shall come into force and the Court shall come into
existence on the date that this Constitution is adopted by the Board of Directors
of AFSA (hereinafter, the Board).
Article A: Composition
1. The AFSA Court shall, subject to Article A.5, at all times consist of no fewer
than six Members appointed by the Board on the recommendation of the Court.

2. No more than two-thirds of the Members of the Court shall be of the same
nationality.

3. The Members of the Court shall serve for a three-year term. Save in
exceptional circumstances, they shall not be re-appointed for more than two
consecutive terms.

4. The Court shall make recommendations to the Board to fill appointments

arising from retirements or casual vacancies and on other matters relating to the
composition of the Court from time to time as appropriate.

5. Any Member of the Court appointed on the recommendation of any entity

other than the Court, entitled so to recommend by virtue of an agreement
between AFSA and that entity, may be appointed in addition to the number of
members prescribed by Article A.1.
Article B: Officers of the Court
1. The Officers of the Court shall consist of:

1.1. A President appointed by the Board on the recommendation of the Court, to

serve for a period of three years and to be eligible for re-appointment.
1.2. Up to four Vice Presidents appointed by the Court, to serve for a period of
three years, automatically extending their terms as Members of the Court for
such three-year period, unless their term as Member of the Court has previously
been extended in which case they will serve until the expiry of such extended
term.

2. At the request of the President or, if not available, of the Secretary-General,

any Vice President shall be entitled to exercise any of the functions and powers
of the President.
Article C: Secretary-General
1. There shall be a Secretary-General appointed by the Board.

2. The Secretary-General shall fulfil such roles pursuant to such rules and/or
procedures as the Court and the Board, or the Court and any branch, division or
subsidiary of AFSA, or the Court and any entity in joint venture with AFSA,
may publish from time to time.
Article D: Functions Of The Court
1. The Court shall have the powers to do anything which it may consider
appropriate for the proper performance of its functions, and in particular:

1.1. To act as arbitral appointing or confirming authority and to decide any

arbitral challenge under the AFSA International Rules for the Conduct of
Administered Arbitration, the AFSA International Rules for the Conduct of
Unadministered International and Construction Arbitration, any rules or
procedures published pursuant to Article C.2, the UNCITRAL Arbitration Rules
and in any other case where an agreement provides for arbitral or other
alternative dispute resolution appointment, confirmation or challenge decisions
by AFSA.

1.2. To perform or, where deemed appropriate, decline to perform any function
conferred upon it by this Constitution or any applicable rules of arbitration or
any other form of alternative dispute resolution whether they be AFSA Rules,
any rules or procedures published pursuant to Article C.2, the UNCITRAL
Arbitration Rules or any arbitration or other alternative dispute resolution rules.

1.3. To make recommendations to the Board as appropriate concerning the

introduction of new general or specialised rules.

1.4. To promote the objectives of AFSA in particular and of international

arbitration in general.

2. All appointments of arbitrators and similar officials in any other alternative

dispute resolution processes shall be made in the name of the Court by the
President or a Vice President.

3. All other functions of the Court under Articles D.1.1 and D.1.2 shall be
performed in the name of the Court;

3.1. by the President or a Vice President, or

3.3. by a three Member division of the Court appointed by the President or a
Vice President and chaired by the President or a Vice President, or
3.4. in the case of administrative functions, by the Secretary-General.

4. For the purpose of performing specific tasks in relation to the functions of the
Court under Articles D.1.1 to D.1.4, the President may set up ad hoc sub-
committees of the Court chaired by any member appointed by the President,
which shall report back to the Court.

5. In the performance of its functions under this Constitution, the Court, its
Officers, its Members and its Secretary-General shall at all times act
independently of the Board.

6. No Member or former Member of the Court who has a connection with an

arbitration or other alternative dispute resolution process in relation to which
AFSA exercises any function of any kind may participate in or influence any
decision of the Court relating to such arbitration or alternative dispute resolution
process.
Article E: Appointment Of Officers And Members As Arbitrators
1. All Officers and Members of the Court shall be eligible for appointment as
arbitrators or in similar offices in other alternative dispute resolution processes.

2. No Officer or Member of the Court so appointed shall take any part in the
appointment or confirmation of an Arbitral Tribunal or similar office in any
other alternative dispute resolution process to which they have been appointed,
or in any other function of the Court relating to such arbitration or other
alternative dispute resolution process.
Article F: Functions of Secretary-General
1. The Secretary-General;

1.1. shall carry out in the name of the Court such day-to-day operations of the
Court and administrative functions under any applicable arbitration rules or the
rules or procedures of any other alternative dispute resolution process as may be
authorised from time to time by the President or a Vice President,

1.2. shall serve the Court and any division or sub-committee of the Court, and
1.3. may be assisted by the AFSA Secretariat in performing administrative
functions of or for the Court or any Officer or Member of the Court.
Article G: Constitutional Amendments And Dissolution Of Court
The provisions of this Constitution may only be amended and the Court may
only be dissolved by mutual consent between the Court and the Board, decided
on a two-thirds majority.

Adopted by Resolution of the Board of Directors of the Arbitration Foundation

of Southern Africa NPC at Sandton, Republic of South Africa.
Annex 2: General Guidelines for Party Representatives
1. These general guidelines are intended to promote the good and equal conduct
of Party Representatives. Nothing in these guidelines is intended to derogate
from the arbitration agreement or to undermine any Party Representative’s
primary duty of loyalty to the party represented in the arbitration or the
obligation to present that party’s case effectively to the Arbitral Tribunal. Nor
shall these guidelines derogate from any mandatory provisions of any laws,
rules of law, professional rules or codes of conduct if and to the extent that any
are shown to apply to a Party Representative appearing in the arbitration.

2. A Party Representative should not engage in activities that are intended to, or
would reasonably be construed by a fair-minded observer to, obstruct unfairly
the arbitration or to jeopardise the finality of any award, including repeated
challenges to an arbitrator’s appointment or to the jurisdiction or authority of
the Arbitral Tribunal known to be unfounded by that Party Representative.

3. A Party Representative should not knowingly make any false statement to the
Arbitral Tribunal or the Court.

4. A Party Representative should not knowingly procure or assist in the

preparation of or rely upon any false evidence presented to the Arbitral Tribunal
or the Court.

5. A Party Representative should not knowingly conceal or assist in the

concealment of any document (or any part thereof) which is ordered to be
produced by the Arbitral Tribunal.

6. During the arbitration proceedings, a Party Representative should not

deliberately initiate or attempt to initiate with any member of the Arbitral
Tribunal or with any member of the Court making any determination or
decision in regard to the arbitration (but not including the Secretariat) any
unilateral contact relating to the arbitration or the parties’ dispute, which has not
been disclosed in writing prior to or shortly after the time of such contact to all
other parties, all members of the Arbitral Tribunal (if comprised of more than
one arbitrator) and the Secretariat.

7. In accordance with Article 26(5), the Arbitral Tribunal may decide whether a
Party Representative has violated these general guidelines and, if so, how to
exercise its discretion to impose any sanction pursuant to Article 26(5).
Annex 3: Schedule of Cost
Schedule of Fees
Fees are payable by way of:
 a registration fee;
 an administration fee;
 a fee for extra, reasonable or actual expenses incurred in administration;
and
 arbitrators’ fees.
Registration Fee
The registration fee of USD345 or ZAR5500 is payable by the Claimant
together with its request for arbitration. The registration fee is non-refundable.
Please contact the Secretariat of AFSA International for banking details.
The amount of Claim referred to in this Schedule shall be based on the sum of
money claimed by the Claimant. If the amount claimed is different from the
actual amount in dispute, or in the event of a reconventional claim, the actual
amount in dispute shall be the basis for calculation.

Where the amount of claim is not ascertained at the time when application for
arbitration is handed in, or there exists special circumstances, the amount of
administration fee deposit shall be determined by the Secretariat.

Apart from charging administration fee according to this Schedule, the

Secretariat may collect other extra, reasonable and actual expenses incurred in
the course of its administration.
Arbitrators’ fees are paid by AFSA International to the appointed arbitrators and
the parties are obliged in advance to cover AFSA for such expenses.
Administration Fees

Amount in Dispute (USD) Administration Fees (USD)

Up to 50,000 1,000

50,001 to 200,000 1,200 + 1,43% excess over 50,000

200,001 to 500,000 2,800 + 0,78% excess over 200,000

500,001 to 1,000,000 5,610 + 0,65% excess over 500,000

1,000,001 to 2,000,000 8,500 + 0,42% excess over 1,000,000

2,000,001 to 5,000,000 12,260 + 0.21% excess over 2,000,000

5,000,001 to 10,000,000 17,816 + 0.104% excess over 5,000,000

10,000,001 to 50,000,000 22,444 + 0,062% excess over 10,000,000

50,000,001 to 80,000,000 44,426 + 0.026% excess over 50,000,000

80,000,001 to 100,000,000 51,368 + 0.020% excess over 80,000,000

Above 100,000,000 54,950

Appointment Only (one arbitrator) 1,735

Two arbitrators 2,235

Three arbitrators 2,735

Emergency arbitrator applications 3,000

* Fees are subject to 15% VAT when applicable