(Effective from June 1, 2014)
|I. GENERAL PROVISIONS||1-5|
|Scope of Application of Rules||2-3|
|Notices and Periods of Time||4|
|Documents Required to be Submitted to the Center||5|
|II. COMMENCEMENT OF THE ARBITRATION||6-13|
|Request for Arbitration||6-10|
|Answer to the Request and Statement of Defense||11-12|
|III. COMPOSITION AND ESTABLISHMENT OF THE TRIBUNAL||14-30|
|Number and Appointment of Arbitrators||14|
|Nationality of Arbitrator||15|
|Communication Between Parties and Candidates for Appointment as Arbitrator||16|
|Impartiality and Independence||17|
|Availability, Acceptance and Notification||18|
|Challenge of Arbitrator||19-24|
|Release from Appointment||25-27|
|Replacement of Arbitrator||28-29|
|Pleas as to the Jurisdiction of the Tribunal||30|
|IV. CONDUCT OF THE ARBITRATION||31-54|
|General Powers of the Tribunal||31|
|Place of Arbitration||32|
|Language of Arbitration||33|
|Statement of Claim||35|
|Statement of Defense||36|
|Further Written Statements||37|
|Amendments to Claims or Defense||38|
|Communication Between Parties and Tribunal||39|
|Interim Measures of Protection and Security for Claims and Costs||42|
|Emergency Relief Proceedings||43|
|Agreed Primers and Models||47|
|Disclosure of Trade Secrets and Other Confidential Information||48|
|Experts Appointed by the Tribunal||51|
|Closure of Proceedings||53|
|V. AWARDS AND OTHER DECISIONS||55-61|
|Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement||55|
|Currency and Interest||56|
|Form and Notification of Awards||57|
|Time Period for Delivery of the Final Award||58|
|Effect of Award||59|
|Settlement or Other Grounds for Termination||60|
|Correction of the Award and Additional Award||61|
|VI. FEES AND COSTS||62-67|
|Fees of the Center||62-63|
|Fees of the Arbitrator||64|
|Award of Costs of Arbitration||66|
|Award of Costs Incurred by a Party||67|
|Confidentiality of the Existence of the Arbitration||68|
|Confidentiality of Disclosures Made During the Arbitration||69|
|Confidentiality of the Award||70|
|Maintenance of Confidentiality by the Center and Arbitrator||71|
|Exclusion of Liability||72|
|Waiver of Defamation||73|
In these Rules:
"Arbitration Agreement" means an agreement by the parties to submit to arbitration all or certain disputes that have arisen or that may arise between them; an Arbitration Agreement may be in the form of an arbitration clause in a contract or in the form of a separate contract;
"Claimant" means the party initiating an arbitration;
"Respondent" means the party against which the arbitration is initiated, as named in the Request for Arbitration;
"Tribunal" means the sole arbitrator;
"WIPO" means the World Intellectual Property Organization;
"Center" means the WIPO Arbitration and Mediation Center.
Words used in the singular include the plural and vice versa, as the context may require.
Scope of Application of Rules
Where an Arbitration Agreement provides for arbitration under the WIPO Expedited Arbitration Rules, these Rules shall be deemed to form part of that Arbitration Agreement and the dispute shall be settled in accordance with these Rules, as in effect on the date of the commencement of the arbitration, unless the parties have agreed otherwise.
(a) These Rules shall govern the arbitration, except that, where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
(b) The law applicable to the arbitration shall be determined in accordance with Article 55(b).
Notices and Periods of Time
(a) Any notice or other communication that may or is required to be given under these Rules shall be in writing and shall be delivered by expedited postal or courier service, e-mail or other means of communication that provide a record thereof.
(b) A party's last known residence or place of business shall be a valid address for the purpose of any notice or other communication in the absence of any notification of a change by that party. Communications may in any event be addressed to a party in the manner stipulated or, failing such a stipulation, according to the practice followed in the course of the dealings between the parties.
(c) For the purpose of determining the date of commencement of a time limit, a notice or other communication shall be deemed to have been received on the day it is delivered in accordance with paragraphs (a) and (b) of this Article.
(d) For the purpose of determining compliance with a time limit, a notice or other communication shall be deemed to have been sent, made or transmitted if it is dispatched, in accordance with paragraphs (a) and (b) of this Article, prior to or on the day of the expiration of the time limit.
(e) For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice or other communication is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day that follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.
(f) The parties may agree to reduce or extend the periods of time referred to in Articles 11, 14(b)(iii), 37(a), 49(b) and 51(a).
(g) The Center may, at the request of a party or on its own motion, extend the periods of time referred to in Articles 11, 14(b)(iii), 37(a), 49(b), 51(a), 62(d), 63(e) and 65(e).
(h) The Center may, in consultation with the parties, reduce the period of time referred to in Article 11.
Documents Required to be Submitted to the Center
(a) Until the notification by the Center of the establishment of the Tribunal, any written statement, notice or other communication required or allowed under these Rules shall be submitted by a party to the Center and a copy thereof shall at the same time be transmitted by that party to the other party.
(b) Any written statement, notice or other communication so sent to the Center shall be sent in a number of copies equal to the number required to provide one copy for the Tribunal and one for the Center.
(c) After the notification by the Center of the establishment of the Tribunal, any written statements, notices or other communications shall be submitted by a party directly to the Tribunal and a copy thereof shall at the same time be supplied by that party to the other party.
(d) The Tribunal shall send to the Center a copy of each order or other decision that it makes.
Request for Arbitration
The Claimant shall transmit the Request for Arbitration to the Center and to the Respondent.
The date of commencement of the arbitration shall be the date on which the Request for Arbitration, together with the Statement of Claim as required by Article 10, is received by the Center.
The Center shall inform the Claimant and the Respondent of the receipt by it of the Request for Arbitration and Statement of Claim and of the date of the commencement of the arbitration.
The Request for Arbitration shall contain:
(i) a demand that the dispute be referred to arbitration under the WIPO Expedited Arbitration Rules;
(ii) the names, addresses and telephone, e-mail or other communication references of the parties and of the representative of the Claimant;
(iii) a copy of the Arbitration Agreement and, if applicable, any separate choice-of-law clause; and
(iv) any observations that the Claimant considers useful in connection with Articles 14 and 15.
The Request for Arbitration shall be accompanied by the Statement of Claim in conformity with Article 35(a) and (b).
Answer to the Request and Statement of Defense
Within 20 days from the date on which the Respondent receives the Request for Arbitration and Statement of Claim from the Claimant, the Respondent shall address to the Center and to the Claimant an Answer to the Request which shall contain comments on any of the items in the Request for Arbitration.
The Answer to the Request shall be accompanied by the Statement of Defense in conformity with Article 36(a) and (b).
(a) The parties may be represented by persons of their choice, irrespective of, in particular, nationality or professional qualification. The names, addresses and telephone, e-mail or other communication references of representatives shall be communicated to the Center, the other party and, after its establishment, the Tribunal.
(b) Each party shall ensure that its representatives have sufficient time available to enable the arbitration to proceed expeditiously.
(c) The parties may also be assisted by persons of their choice.
Number and Appointment of Arbitrators
(a) The Tribunal shall consist of a sole arbitrator who shall be nominated by the parties, subject to confirmation of the appointment by the Center in accordance with Articles 17 and 18. The appointment shall be effective upon the Center’s notification to the parties.
(b) If the nomination of the arbitrator is not made within 15 days after the commencement of the arbitration, the appointment shall take place in accordance with the following procedure:
(i) The Center shall send to each party an identical list of candidates. The list shall normally comprise the names of at least three candidates in alphabetical order. The list shall include or be accompanied by a statement of each candidate's qualifications. If the parties have agreed on any particular qualifications, the list shall contain the names of candidates that satisfy those qualifications.
(ii) Each party shall have the right to delete the name of any candidate or candidates to whose appointment it objects and shall number any remaining candidates in order of preference.
(iii) Each party shall return the marked list to the Center within seven days after the date on which the list is received by it. Any party failing to return a marked list within that period of time shall be deemed to have assented to all candidates appearing on the list.
(iv) As soon as possible after receipt by it of the lists from the parties, or failing this, after the expiration of the period of time specified in the previous subparagraph, the Center shall, taking into account the preferences and objections expressed by the parties, appoint a person from the list as arbitrator.
(v) If the lists which have been returned do not show a person who is acceptable as arbitrator to both parties, the Center shall be authorized to appoint the arbitrator. The Center shall similarly be authorized to do so if a person is not able or does not wish to accept the Center's invitation to be the arbitrator, or if there appear to be other reasons precluding that person from being the arbitrator, and there does not remain on the lists a person who is acceptable as arbitrator to both parties.
(c) Notwithstanding the procedure provided in paragraph (b), the Center shall be authorized to appoint the arbitrator otherwise if it determines in its discretion that the procedure described in that paragraph is not appropriate for the case.
Nationality of Arbitrator
(a) An agreement of the parties concerning the nationality of the arbitrator shall be respected.
(b) If the parties have not agreed on the nationality of the arbitrator, the arbitrator shall, in the absence of special circumstances, such as the need to appoint a person having particular qualifications, be a national of a country other than the countries of the parties.
Communication Between Parties and Candidates for Appointment as Arbitrator
No party or anyone acting on its behalf shall have any ex parte communication with any candidate for appointment as arbitrator except to discuss the candidate's qualifications, availability or independence in relation to the parties.
Impartiality and Independence
(a) The arbitrator shall be impartial and independent.
(b) The prospective arbitrator shall, before accepting appointment, disclose to the parties and the Center any circumstances that might give rise to justifiable doubt as to the arbitrator's impartiality or independence, or confirm in writing that no such circumstances exist.
(c) If, at any stage during the arbitration, new circumstances arise that might give rise to justifiable doubt as to the arbitrator's impartiality or independence, the arbitrator shall promptly disclose such circumstances to the parties and the Center.
Availability, Acceptance and Notification
(a) The arbitrator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the arbitration to be conducted and completed expeditiously.
(b) The prospective arbitrator shall accept appointment in writing and shall communicate such acceptance to the Center.
(c) The Center shall notify the parties of the establishment of the Tribunal.
Challenge of Arbitrator
(a) The arbitrator may be challenged by a party if circumstances exist that give rise to justifiable doubt as to the arbitrator's impartiality or independence.
(b) A party may challenge an arbitrator in whose nomination it concurred, only for reasons of which it becomes aware after the nomination has been made.
A party challenging the arbitrator shall send notice to the Center, the Tribunal and the other party, stating the reasons for the challenge, within seven days after being notified of the arbitrator's appointment pursuant to Article 18(c) or after becoming aware of the circumstances that it considers give rise to justifiable doubt as to the arbitrator's impartiality or independence.
When the arbitrator has been challenged by a party, the other party shall have the right to respond to the challenge and shall, if it exercises this right, send, within seven days after receipt of the notice referred to in Article 20, a copy of its response to the Center, the party making the challenge and the arbitrator.
The Tribunal may, in its discretion, suspend or continue the arbitral proceedings during the pendency of the challenge.
The other party may agree to the challenge or the arbitrator may voluntarily withdraw. In either case, the arbitrator shall be replaced without any implication that the grounds for the challenge are valid.
If the other party does not agree to the challenge and the arbitrator does not withdraw, the decision on the challenge shall be made by the Center in accordance with its internal procedures. Such a decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.
Release from Appointment
At the arbitrator's own request, the arbitrator may be released from appointment as arbitrator either with the consent of the parties or by the Center.
Irrespective of any request by the arbitrator, the parties may jointly release the arbitrator from appointment as arbitrator. The parties shall promptly notify the Center of such release.
At the request of a party or on its own motion, the Center may release the arbitrator from appointment as arbitrator if the arbitrator has become de jure or de facto unable to fulfill, or fails to fulfill, the duties of an arbitrator. In such a case, the parties shall be offered the opportunity to express their views thereon and the provisions of Articles 21 to 24 shall apply mutatis mutandis.
Replacement of Arbitrator
(a) Whenever necessary, a substitute arbitrator shall be appointed pursuant to the procedure provided for in Article 14 that was applicable to the appointment of the arbitrator being replaced.
(b) Pending the replacement, the arbitral proceedings shall be suspended, unless otherwise agreed by the parties.
Whenever a substitute arbitrator is appointed, the Tribunal shall, having regard to any observations of the parties, determine in its sole discretion whether all or part of any prior hearings are to be repeated.
Pleas as to the Jurisdiction of the Tribunal
(a) The Tribunal shall have the power to hear and determine objections to its own jurisdiction, including any objections with respect to form, existence, validity or scope of the Arbitration Agreement examined pursuant to Article 55(c).
(b) The Tribunal shall have the power to determine the existence or validity of any contract of which the Arbitration Agreement forms part or to which it relates.
(c) A plea that the Tribunal does not have jurisdiction shall be raised not later than in the Statement of Defense or, with respect to a counter-claim or a set-off, the Statement of Defense thereto, failing which any such plea shall be barred in the subsequent arbitral proceedings or before any court. A plea that the Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The Tribunal may, in either case, admit a later plea if it considers the delay justified.
(d) The Tribunal may rule on a plea referred to in paragraph (c) as a preliminary question or, in its sole discretion, decide on such a plea in the final award.
(e) A plea that the Tribunal lacks jurisdiction shall not preclude the Center from administering the arbitration.
General Powers of the Tribunal
(a) Subject to Article 3, the Tribunal may conduct the arbitration in such manner as it considers appropriate.
(b) In all cases, the Tribunal shall ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case.
(c) The Tribunal shall ensure that the arbitral procedure takes place with due expedition. It may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by these Rules, by itself or agreed to by the parties.
Place of Arbitration
(a) Unless otherwise agreed by the parties, the place of arbitration shall be decided by the Center, taking into consideration any observations of the parties and the circumstances of the arbitration.
(b) The Tribunal may, after consultation with the parties, conduct hearings at any place that it considers appropriate. It may deliberate wherever it deems appropriate.
(c) The award shall be deemed to have been made at the place of arbitration.
Language of Arbitration
(a) Unless otherwise agreed by the parties, the language of the arbitration shall be the language of the Arbitration Agreement, subject to the power of the Tribunal to determine otherwise, having regard to any observations of the parties and the circumstances of the arbitration.
(b) The Tribunal may order that any documents submitted in languages other than the language of arbitration be accompanied by a translation in whole or in part into the language of arbitration.
The Tribunal shall, in general within 15 days after its establishment, conduct a preparatory conference with the parties in any suitable format for the purpose of organizing and scheduling the subsequent proceedings in a time and cost efficient manner.
Statement of Claim
(a) The Statement of Claim shall contain a comprehensive statement of the facts and legal arguments supporting the claim, including a statement of the relief sought.
(b) The Statement of Claim shall, to as large an extent as possible, be accompanied by the evidence upon which the Claimant relies, together with a schedule of such evidence. Where the evidence is especially voluminous, the Claimant may add a reference to further evidence it is prepared to submit.
Statement of Defense
(a) The Statement of Defense shall reply to the particulars of the Statement of Claim required pursuant to Article 35(a). The Statement of Defense shall be accompanied by the evidence upon which the Respondent relies, in the manner described in Article 35(b).
(b) Any counter-claim or set-off by the Respondent shall be made or asserted in the Statement of Defense or, in exceptional circumstances, at a later stage in the arbitral proceedings if so determined by the Tribunal. Any such counter-claim or set-off shall contain the same particulars as those specified in Article 35(a) and (b).
Further Written Statements
(a) In the event that a counter-claim or set-off has been made or asserted, the Claimant shall reply to the particulars thereof within 20 days from the date on which the Claimant receives such counter-claim or set-off. Article 36(a) shall apply mutatis mutandis to such reply.
(b) The Tribunal may, in its discretion, allow or require further written statements.
Amendments to Claims or Defense
Subject to any contrary agreement by the parties, a party may amend or supplement its claim, counter-claim, defense or set-off during the course of the arbitral proceedings, unless the Tribunal considers it inappropriate to allow such amendment having regard to its nature or the delay in making it and to the provisions of Article 31(b) and (c).
Communication Between Parties and Tribunal
Except as otherwise provided in these Rules or permitted by the Tribunal, no party or anyone acting on its behalf may have any ex parte communication with the Tribunal with respect to any matter of substance relating to the arbitration, it being understood that nothing in this paragraph shall prohibit ex parte communications that concern matters of a purely organizational nature, such as the physical facilities, place, date or time of the hearings.
At the request of a party, the Tribunal may order the joinder of an additional party to the arbitration provided all parties, including the additional party, agree. Any such order shall take account of all relevant circumstances, including the stage reached in the arbitration. The request shall be addressed together with the Request for Arbitration or the Answer to the Request, as the case may be, or, if a party becomes aware at a later stage of circumstances that it considers relevant for a joinder, within 15 days after acquiring that knowledge.
Where an arbitration is commenced that concerns a subject matter substantially related to that in dispute in other arbitral proceedings pending under these Rules or involving the same parties, the Center may order, after consulting with all concerned parties and any Tribunal appointed in the pending proceedings, to consolidate the new arbitration with the pending proceedings, provided all parties and any appointed Tribunal agree. Such consolidation shall take into account all relevant circumstances, including the stage reached in the pending proceedings.
Interim Measures of Protection and Security for Claims and Costs
(a) At the request of a party, the Tribunal may issue any provisional orders or take other interim measures it deems necessary, including injunctions and measures for the conservation of goods which form part of the subject matter in dispute, such as an order for their deposit with a third person or for the sale of perishable goods. The Tribunal may make the granting of such measures subject to appropriate security being furnished by the requesting party.
(b) At the request of a party, the Tribunal may order the other party to provide security, in a form to be determined by the Tribunal, for the claim or counter-claim, as well as for costs referred to in Article 67.
(c) Measures and orders contemplated under this Article may take the form of an interim award.
(d) A request addressed by a party to a judicial authority for interim measures or for security for the claim or counter-claim, or for the implementation of any such measures or orders granted by the Tribunal, shall not be deemed incompatible with the Arbitration Agreement, or deemed to be a waiver of that Agreement.
Emergency Relief Proceedings
(a) Unless otherwise agreed by the parties, the provisions of this Article shall apply to arbitrations conducted under Arbitration Agreements entered on or after June 1, 2014.
(b) A party seeking urgent interim relief prior to the establishment of the Tribunal may submit a request for such emergency relief to the Center. The request for emergency relief shall include the particulars set out in Article 9(ii) to (iv), as well as a statement of the interim measures sought and the reasons why such relief is needed on an emergency basis. The Center shall inform the other party of the receipt of the request for emergency relief.
(c) The date of commencement of the emergency relief proceedings shall be the date on which the request referred to in paragraph (b) is received by the Center.
(d) The request for emergency relief shall be subject to proof of payment of the administration fee and of the initial deposit of the emergency arbitrator’s fees in accordance with the Schedule of Fees applicable on the date of commencement of the emergency relief proceedings.
(e) Upon receipt of the request for emergency relief, the Center shall promptly, normally within two days, appoint a sole emergency arbitrator. Articles 17 to 24 shall apply mutatis mutandis whereby the periods of time referred to in Articles 20 and 21 shall be three days.
(f) The emergency arbitrator shall have the powers vested in the Tribunal under Article 30(a) and (b), including the authority to determine its own jurisdiction. Article 30(e) shall apply mutatis mutandis.
(g) The emergency arbitrator may conduct the proceedings in such manner as it considers appropriate, taking due account of the urgency of the request. The emergency arbitrator shall ensure that each party is given a fair opportunity to present its case. The emergency arbitrator may provide for proceedings by telephone conference or on written submissions as alternatives to a hearing.
(h) If the parties have agreed upon the place of arbitration, that place shall be the place of the emergency relief proceedings. In the absence of such agreement, the place of the emergency relief proceedings shall be decided by the Center, taking into consideration any observations made by the parties and the circumstances of the emergency relief proceedings.
(i) The emergency arbitrator may order any interim measure it deems necessary. The emergency arbitrator may make the granting of such orders subject to appropriate security being furnished by the requesting party. Article 42(c) and (d) shall apply mutatis mutandis. Upon request, the emergency arbitrator may modify or terminate the order.
(j) The emergency arbitrator shall terminate emergency relief proceedings if arbitration is not commenced within 30 days from the date of commencement of the emergency relief proceedings.
(k) The costs of the emergency relief proceedings shall be initially fixed and apportioned by the emergency arbitrator in consultation with the Center, in accordance with the Schedule of Fees applicable on the date of commencement of the emergency relief proceedings, subject to the Tribunal’s power to make a final determination of the apportionment of such costs under Article 66(c).
(l) Unless otherwise agreed by the parties, the emergency arbitrator may not act as an arbitrator in any arbitration relating to the dispute.
(m) The emergency arbitrator shall have no further powers to act once the Tribunal is established. Upon request by a party, the Tribunal may modify or terminate any measure ordered by the emergency arbitrator.
(a) The Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.
(b) At any time during the arbitration, the Tribunal may, at the request of a party or on its own motion, order a party to produce such documents or other evidence as it considers necessary or appropriate and may order a party to make available to the Tribunal or to an expert appointed by it or to the other party any property in its possession or control for inspection or testing.
(a) A party may give notice to the Tribunal and to the other party at any reasonable time before a hearing that specified experiments have been conducted on which it intends to rely. The notice shall specify the purpose of the experiment, a summary of the experiment, the method employed, the results and the conclusion. The other party may by notice to the Tribunal request that any or all such experiments be repeated in its presence. If the Tribunal considers such request justified, it shall determine the timetable for the repetition of the experiments.
(b) For the purposes of this Article, "experiments" shall include tests or other processes of verification.
The Tribunal may, at the request of a party or on its own motion, inspect or require the inspection of any site, property, machinery, facility, production line, model, film, material, product or process as it deems appropriate. A party may request such an inspection at any reasonable time prior to any hearing, and the Tribunal, if it grants such a request, shall determine the timing and arrangements for the inspection.
Agreed Primers and Models
The Tribunal may, where the parties so agree, determine that they shall jointly provide:
(i) a technical primer setting out the background of the scientific, technical or other specialized information necessary to understand fully the matters in issue; and
(ii) models, drawings or other materials that the Tribunal or the parties require for reference purposes at any hearing.
Disclosure of Trade Secrets and Other Confidential Information
(a) For the purposes of this Article, confidential information shall mean any information, regardless of the medium in which it is expressed, which is:
(i) in the possession of a party;
(ii) not accessible to the public;
(iii) of commercial, financial or industrial significance; and
(iv) treated as confidential by the party possessing it.
(b) A party invoking the confidentiality of any information it wishes or is required to submit in the arbitration, including to an expert appointed by the Tribunal, shall make an application to have the information classified as confidential by notice to the Tribunal, with a copy to the other party. Without disclosing the substance of the information, the party shall give in the notice the reasons for which it considers the information confidential.
(c) The Tribunal shall determine whether the information is to be classified as confidential and of such a nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality. If the Tribunal so determines, it shall decide under which conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking.
(d) In exceptional circumstances, in lieu of itself determining whether the information is to be classified as confidential and of such nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality, the Tribunal may, at the request of a party or on its own motion and after consultation with the parties, designate a confidentiality advisor who will determine whether the information is to be so classified, and, if so, decide under which conditions and to whom it may in part or in whole be disclosed. Any such confidentiality advisor shall be required to sign an appropriate confidentiality undertaking.
(e) The Tribunal may also, at the request of a party or on its own motion, appoint the confidentiality advisor as an expert in accordance with Article 51 in order to report to it, on the basis of the confidential information, on specific issues designated by the Tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the Tribunal.
(a) If either party so requests, the Tribunal shall hold a hearing for the presentation of evidence by witnesses, including expert witnesses, or for oral argument or for both. In the absence of a request, the Tribunal shall decide whether to hold such a hearing or hearings. If no hearings are held, the proceedings shall be conducted on the basis of documents and other materials alone.
(b) If a hearing is held, it shall be convened within 30 days after the receipt by the Claimant of the Answer to the Request and the Statement of Defense. The Tribunal shall give the parties adequate advance notice of the date, time and place of the hearing. Except in exceptional circumstances, hearings may not exceed three days. Each party shall be expected to bring to the hearing such persons as necessary to adequately inform the Tribunal of the dispute.
(c) Unless the parties agree otherwise, all hearings shall be in private.
(d) The Tribunal shall determine whether and, if so, in what form a record shall be made of any hearing.
(e) Within such short period of time after the hearing as is agreed by the parties or, in the absence of such agreement, determined by the Tribunal, each party may communicate to the Tribunal and to the other party a post-hearing brief.
(a) Before any hearing, the Tribunal may require either party to give notice of the identity of witnesses it wishes to call, whether witness of fact or expert witness, as well as of the subject matter of their testimony and its relevance to the issues.
(b) The Tribunal has discretion, on the grounds of redundance and irrelevance, to limit or refuse the appearance of any witness.
(c) Any witness who gives oral evidence may be questioned, under the control of the Tribunal, by each of the parties. The Tribunal may put questions at any stage of the examination of the witnesses.
(d) The testimony of witnesses may, either at the choice of a party or as directed by the Tribunal, be submitted in written form, whether by way of signed statements, sworn affidavits or otherwise, in which case the Tribunal may make the admissibility of the testimony conditional upon the witnesses being made available for oral testimony.
(e) A party shall be responsible for the practical arrangements, cost and availability of any witness it calls.
(f) The Tribunal shall determine whether any witness shall retire during any part of the proceedings, particularly during the testimony of other witnesses.
Experts Appointed by the Tribunal
(a) The Tribunal may, at the preparatory conference or at a later stage, and after consultation with the parties, appoint one or more independent experts to report to it on specific issues designated by the Tribunal. A copy of the expert's terms of reference, established by the Tribunal, having regard to any observations of the parties, shall be communicated to the parties. Any such expert shall be required to sign an appropriate confidentiality undertaking. The terms of reference shall include a requirement that the expert report to the Tribunal within 30 days of receipt of the terms of reference.
(b) Subject to Article 48, upon receipt of the expert's report, the Tribunal shall communicate a copy of the report to the parties, which shall be given the opportunity to express, in writing, their opinion on the report. A party may, subject to Article 48, examine any document on which the expert has relied in such a report.
(c) At the request of a party, the parties shall be given the opportunity to question the expert at a hearing. At this hearing, the parties may present expert witnesses to testify on the points at issue.
(d) The opinion of any expert on the issue or issues submitted to the expert shall be subject to the Tribunal's power of assessment of those issues in the context of all the circumstances of the case, unless the parties have agreed that the expert's determination shall be conclusive in respect of any specific issue.
(a) If the Claimant, without showing good cause, fails to submit its Statement of Claim in accordance with Articles 10 and 35, the Center shall not be required to take any action under Article 8.
(b) If the Respondent, without showing good cause, fails to submit its Statement of Defense in accordance with Articles 11, 12 and 36, the Tribunal may nevertheless proceed with the arbitration and make the award.
(c) The Tribunal may also proceed with the arbitration and make the award if a party, without showing good cause, fails to avail itself of the opportunity to present its case within the period of time determined by the Tribunal.
(d) If a party, without showing good cause, fails to comply with any provision of, or requirement under, these Rules or any direction given by the Tribunal, the Tribunal may draw the inferences therefrom that it considers appropriate.
Closure of Proceedings
(a) The Tribunal shall declare the proceedings closed when it is satisfied that the parties have had adequate opportunity to present submissions and evidence.
(b) The Tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to re-open the proceedings it declared to be closed at any time before the award is made.
A party which knows that any provision of these Rules, any requirement under the Arbitration Agreement or any direction given by the Tribunal, has not been complied with, and yet proceeds with the arbitration without promptly recording an objection to such non-compliance, shall be deemed to have waived its right to object.
Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement
(a) The Tribunal shall decide the substance of the dispute in accordance with the law or rules of law chosen by the parties. Any designation of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules. Failing a choice by the parties, the Tribunal shall apply the law or rules of law that it determines to be appropriate. In all cases, the Tribunal shall decide having due regard to the terms of any relevant contract and taking into account applicable trade usages. The Tribunal may decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized it to do so.
(b) The law applicable to the arbitration shall be the arbitration law of the place of arbitration, unless the parties have expressly agreed on the application of another arbitration law and such agreement is permitted by the law of the place of arbitration.
(c) An Arbitration Agreement shall be regarded as effective if it conforms to the requirements concerning form, existence, validity and scope of either the law or rules of law applicable in accordance with paragraph (a), or the law applicable in accordance with paragraph (b).
Currency and Interest
(a) Monetary amounts in the award may be expressed in any currency.
(b) The Tribunal may award simple or compound interest to be paid by a party on any sum awarded against that party. It shall be free to determine the interest at such rates as it considers to be appropriate, without being bound by legal rates of interest, and shall be free to determine the period for which the interest shall be paid.
Form and Notification of Awards
(a) The Tribunal may make separate awards on different issues at different times.
(b) The award shall be in writing and shall state the date on which it was made, as well as the place of arbitration in accordance with Article 32(a).
(c) The award shall state the reasons on which it is based, unless the parties have agreed that no reasons should be stated and the law applicable to the arbitration does not require the statement of such reasons.
(d) The award shall be signed by the arbitrator. Where the arbitrator fails to sign, the award shall state the reason for the absence of the signature.
(e) The Tribunal may consult the Center with regard to matters of form, particularly to ensure the enforceability of the award.
(f) The award shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator and the Center. The Center shall formally communicate an original of the award to each party and the arbitrator.
(g) At the request of a party, the Center shall provide it, at cost, with a copy of the award certified by the Center. A copy so certified shall be deemed to comply with the requirements of Article IV(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958.
Time Period for Delivery of the Final Award
(a) The arbitration should, wherever reasonably possible, be heard and the proceedings declared closed within not more than three months after either the delivery of the Statement of Defense or the establishment of the Tribunal, whichever event occurs later. The final award should, wherever reasonably possible, be made within one month thereafter.
(b) If the proceedings are not declared closed within the period of time specified in paragraph (a), the Tribunal shall send the Center a status report on the arbitration, with a copy to each party. It shall send a further status report to the Center, and a copy to each party, at the end of each ensuing period of one month during which the proceedings have not been declared closed.
(c) If the final award is not made within one month after the closure of the proceedings, the Tribunal shall send the Center a written explanation for the delay, with a copy to each party. It shall send a further explanation, and a copy to each party, at the end of each ensuing period of one month until the final award is made.
Effect of Award
(a) By agreeing to arbitration under these Rules, the parties undertake to carry out the award without delay, and waive their right to any form of appeal or recourse to a court of law or other judicial authority, insofar as such waiver may validly be made under the applicable law.
(b) The award shall be effective and binding on the parties as from the date it is communicated by the Center pursuant to Article 57(f), second sentence.
Settlement or Other Grounds for Termination
(a) The Tribunal may suggest that the parties explore settlement at such times as the Tribunal may deem appropriate.
(b) If, before the award is made, the parties agree on a settlement of the dispute, the Tribunal shall terminate the arbitration and, if requested jointly by the parties, record the settlement in the form of a consent award. The Tribunal shall not be obliged to give reasons for such an award.
(c) If, before the award is made, the continuation of the arbitration becomes unnecessary or impossible for any reason not mentioned in paragraph (b), the Tribunal shall inform the parties of its intention to terminate the arbitration. The Tribunal shall have the power to issue such an order terminating the arbitration, unless a party raises justifiable grounds for objection within a period of time to be determined by the Tribunal.
(d) The consent award or the order for termination of the arbitration shall be signed by the arbitrator in accordance with Article 57(d) and shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator and the Center. The Center shall formally communicate an original of the consent award or the order for termination to each party and the arbitrator.
Correction of the Award and Additional Award
(a) Within 30 days after receipt of the award, a party may, by notice to the Tribunal, with a copy to the Center and the other party, request the Tribunal to correct in the award any clerical, typographical or computational errors. If the Tribunal considers the request to be justified, it shall make the correction within 30 days after receipt of the request. Any correction, which shall take the form of a separate memorandum, signed by the Tribunal in accordance with Article 57(d), shall become part of the award.
(b) The Tribunal may correct any error of the type referred to in paragraph (a) on its own initiative within 30 days after the date of the award.
(c) A party may, within 30 days after receipt of the award, by notice to the Tribunal, with a copy to the Center and the other party, request the Tribunal to make an additional award as to claims presented in the arbitral proceedings but not dealt with in the award. Before deciding on the request, the Tribunal shall give the parties an opportunity to be heard. If the Tribunal considers the request to be justified, it shall, wherever reasonably possible, make the additional award within 30 days of receipt of the request.
Fees of the Center
(a) The Request for Arbitration shall be subject to the payment to the Center of a non-refundable registration fee. The amount of the registration fee shall be fixed in the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.
(b) Any counter-claim by a Respondent shall be subject to the payment to the Center of a non-refundable registration fee. The amount of the registration fee shall be fixed in the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.
(c) No action shall be taken by the Center on a Request for Arbitration or counter-claim until the registration fee has been paid.
(d) If a Claimant or Respondent fails, within 15 days after a reminder in writing from the Center, to pay the registration fee, it shall be deemed to have withdrawn its Request for Arbitration or counter-claim, as the case may be.
(a) An administration fee shall be payable by the Claimant to the Center within 30 days after the Claimant has received notification from the Center of the amount to be paid.
(b) In the case of a counter-claim, an administration fee shall also be payable by the Respondent to the Center within 30 days after the date the Respondent has received notification from the Center of the amount to be paid.
(c) The amount of the administration fee shall be calculated in accordance with the Schedule of Fees applicable on the date of commencement of the arbitration.
(d) Where a claim or counter-claim is increased, the amount of the administration fee may be increased in accordance with the Schedule of Fees applicable under paragraph (c), and the increased amount shall be payable by the Claimant or the Respondent, as the case may be.
(e) If a party fails, within 15 days after a reminder in writing from the Center, to pay any administration fee due, it shall be deemed to have withdrawn its claim or counter-claim, or its increase in claim or counter-claim, as the case may be.
(f) The Tribunal shall, in a timely manner, inform the Center of the amount of the claim and any counter-claim, as well as any increase thereof.
Fees of the Arbitrator
The amount and currency of the fees of the arbitrator and the modalities and timing of their payment shall be fixed by the Center after consultation with the arbitrator and the parties, in accordance with the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.
(a) Upon receipt of notification from the Center of the establishment of the Tribunal, the Claimant and the Respondent shall each deposit an equal amount as an advance for the costs of arbitration referred to in Article 66. The amount of the deposit shall be determined by the Center.
(b) In the course of the arbitration, the Center may require that the parties make supplementary deposits.
(c) If the required deposits are not paid in full within 20 days after receipt of the corresponding notification, the Center shall so inform the parties in order that one or other of them may make the required payment.
(d) Where the amount of the counter-claim greatly exceeds the amount of the claim or involves the examination of significantly different matters, or where it otherwise appears appropriate in the circumstances, the Center in its discretion may establish two separate deposits on account of claim and counter-claim. If separate deposits are established, the totality of the deposit on account of claim shall be paid by the Claimant and the totality of the deposit on account of counter-claim shall be paid by the Respondent.
(e) If a party fails, within 15 days after a reminder in writing from the Center, to pay the required deposit, it shall be deemed to have withdrawn the relevant claim or counter-claim.
(f) After the award has been made, the Center shall, in accordance with the award, render an accounting to the parties of the deposits received and return any unexpended balance to the parties or require the payment of any amount owing from the parties.
Award of Costs of Arbitration
(a) In its award, the Tribunal shall fix the costs of arbitration, which shall consist of:
(i) the arbitrator’s fees;
(ii) the properly incurred travel, communication and other expenses of the arbitrator;
(iii) the costs of expert advice and such other assistance required by the Tribunal pursuant to these Rules; and
(iv) such other expenses as are necessary for the conduct of the arbitration proceedings, such as the cost of meeting and hearing facilities.
(b) The aforementioned costs shall, as far as possible, be debited from the deposits required under Article 65.
(c) The Tribunal shall, subject to any agreement of the parties, apportion the costs of arbitration and the registration and administration fees of the Center between the parties in the light of all the circumstances and the outcome of the arbitration.
Award of Costs Incurred by a Party
In its award, the Tribunal may, subject to any contrary agreement by the parties and in the light of all the circumstances and the outcome of the arbitration, order a party to pay the whole or part of reasonable expenses incurred by the other party in presenting its case, including those incurred for legal representatives and witnesses.
Confidentiality of the Existence of the Arbitration
(a) Except to the extent necessary in connection with a court challenge to the arbitration or an action for enforcement of an award, no information concerning the existence of an arbitration may be unilaterally disclosed by a party to any third party unless it is required to do so by law or by a competent regulatory body, and then only:
(i) by disclosing no more than what is legally required; and
(ii) by furnishing to the Tribunal and to the other party, if the disclosure takes place during the arbitration, or to the other party alone, if the disclosure takes place after the termination of the arbitration, details of the disclosure and an explanation of the reason for it.
(b) Notwithstanding paragraph (a), a party may disclose to a third party the names of the parties to the arbitration and the relief requested for the purpose of satisfying any obligation of good faith or candor owed to that third party.
Confidentiality of Disclosures Made During the Arbitration
(a) In addition to any specific measures that may be available under Article 48, any documentary or other evidence given by a party or a witness in the arbitration shall be treated as confidential and, to the extent that such evidence describes information that is not in the public domain, shall not be used or disclosed to any third party by a party whose access to that information arises exclusively as a result of its participation in the arbitration for any purpose without the consent of the parties or order of a court having jurisdiction.
(b) For the purposes of this Article, a witness called by a party shall not be considered to be a third party. To the extent that a witness is given access to evidence or other information obtained in the arbitration in order to prepare the witness's testimony, the party calling such witness shall be responsible for the maintenance by the witness of the same degree of confidentiality as that required of the party.
Confidentiality of the Award
The award shall be treated as confidential by the parties and may only be disclosed to a third party if and to the extent that:
(i) the parties consent; or
(ii) it falls into the public domain as a result of an action before a national court or other competent authority; or
(iii) it must be disclosed in order to comply with a legal requirement imposed on a party or in order to establish or protect a party's legal rights against a third party.
Maintenance of Confidentiality by the Center and Arbitrator
(a) Unless the parties agree otherwise, the Center and the arbitrator shall maintain the confidentiality of the arbitration, the award and, to the extent that they describe information that is not in the public domain, any documentary or other evidence disclosed during the arbitration, except to the extent necessary in connection with a court action relating to the award, or as otherwise required by law.
(b) Notwithstanding paragraph (a), the Center may include information concerning the arbitration in any aggregate statistical data that it publishes concerning its activities, provided that such information does not enable the parties or the particular circumstances of the dispute to be identified.
Exclusion of Liability
Except in respect of deliberate wrongdoing, the arbitrator, WIPO and the Center shall not be liable to a party for any act or omission in connection with the arbitration.
Waiver of Defamation
The parties and, by accepting appointment, the arbitrator agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the arbitration shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded as a bar to any such action.