Conducting small maritime arbitrations

1
Conducting small maritime arbitrations

• Dr Sarah C Derrington
• Marine Shipping Law Unit
• T C Beirne School of Law
• University of Queensland

2
LMAA (2006) Small Claims Procedure

• When does it apply?
• When the parties agree
• Generally when neither the claim nor any
  counterclaim exceeds US50 000 excluding interest
  and costs
• Where the issues involved are not particularly
  complex

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• The reference is to a sole arbitrator
• If the parties cannot agree, application is made
  to the President of the LMAA for the appointment
  of a suitably qualified arbitrator
• The names of all arbitrators proposed by either
  party are to be disclosed so that no one is
  appointed who has been proposed by one of the
  parties

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• Timetable for Arbitration
• 14 days after arbitrator agrees to act
• Letter of claim all relevant documents
  including experts reports to respondent
  Arbitrator ( fee)
• 28 days after receipt of letter of claim or
  appointment of arbitrator
• Letter of defence and details of any counterclaim
  plus all relevant documents experts reports
• 21 days later
• Letter of reply and defence to counterclaim
• The arbitrator can refuse to admit additional
  evidence at this stage if it should have been
  delivered with the claim
• 14 days later
• letter of reply to the defence to the
  counterclaim if necessary

5

• Any non-compliance with time limits can lead to
  the award being proceeded with in the absence of
  further documents. The arbitrator can extend time
  period for a maximum of 14 days
• Pleadings submitted subsequent to the expiry of a
  time limit set by an arbitrator's notice
  inadmissible
• No further pleadings shall be considered by the
  arbitrator once the arbitrator has declared
  pleadings to be closed
• No hearing unless, in exceptional circumstances,
  the arbitrator requires it
• If an oral hearing is required time is limited to
  one working day
• All communications can be done by letter, telex,
  fax or email
• Legal representation is NOT excluded

6

• Disclosure of Documents
• No disclosure arbitrator may order production
  of a document if in the opinion of the arbitrator
  a party has failed to produce a relevant document
• Failing such production, the arbitrator can
  assume the document does not favour the partys
  case
• relevant document includes all documents
  relevant to the dispute except those which are
  not legally disclosable

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• General principles relating to the conduct of
  proceedings
• Principles of natural justice
• Adequate notice
• Both parties must be heard and be entitled to
  answer any allegation or question put
• Must be heard impartially and without bias
• Courts supervisory role FCA s.53AB
• Compulsion of witnesses application to the
  court
• Can require evidence to be on oath, orally or on
  affidavit
• Arbitrator may inform himself as he sees fit and
  may use own expert knowledge

8

• Rules of evidence
• generally dont apply strictly unless parties
  agree otherwise but consider
• Remoteness or insufficiency of evidence
• Side issues or multiplicity of issues being
  raised to cloud main issue
• Danger of manufactured evidence
• Whether prejudicial effect might outweigh
  probative value
• Whether probative value is outweighed by undue
  delay, waste of time, needless presentation
• Whether evidence has been improperly obtained

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• The Award
• To be published within one month of the date on
  which all relevant documents were received or of
  the close of any oral hearing
• Only brief reasons will be given
• No appeal (except in relation to a ruling by an
  arbitrator as to his own jurisdiction)

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• Fees and costs
• 100 for appointment of arbitrator by LMAA
• Payment of arbitrator's fee is a precondition to
  the commencement of the arbitration
• 1500 plus 750 for any additional counterclaim
• 2000 cap on recoverable legal costs (no
  discretion in the arbitrator to vary this amount
  unless both parties agree)
• Challenges to jurisdiction should be paid for on
  a quantum meruit basis and be paid by the
  claimant in the first instance

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• Discretion
• Arbitrator may vary or depart from the procedure
  as appropriate
• If the Procedure is deemed inappropriate it shall
  cease to apply in its entirety

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• International Arbitration Act 1974
• Gives effect to the
• UNCITRAL Model law on International Commercial
  Arbitration
• Convention on the Recognition and Enforcement of
  Foreign Arbitral Awards (New York Convention)