Civil Engineering Reference
In-Depth Information
representations about the materials or questions to be put to the expert in obtaining
hisopinion.hatmightbeagoodpracticeifitcanbedonewithout'unnecessarydelay
or expense'.
It is perhaps worth noting that there is no restriction on the nature of the expert
opinion which could be sought. here is no consent of the parties required. However,
the arbitrator will still be obliged to avoid unnecessary delay and expense (Rule 24).
Rule 37: Failure to submit claim or defence timeously: DEFAULT
Claim
.Where:
(a) a party unnecessarily delays in submitting or in otherwise pursuing a claim;
(b) the tribunal considers that there is no good reason for the delay;
(c) delaygivesrisetoasubstantialriskthatthetribunalwillnotbeabletoresolve
the issues fairly or has caused or is likely to cause, serious prejudice to the other
party the tribunal
must
end the arbitration insofar as it relates to the subject
matter of the claim.
This power is regulated by the wording of the rule but certain interesting questions
arise. If a claim is raised within the prescriptive period, would it nonetheless be appro-
priate to end the arbitration in certain circumstances? What precisely is meant by
'serious prejudice'?
Defence
: Where a party delays in submitting a defence and the tribunal considers that
there is no good reason for the delay the tribunal may proceed with the arbitration.
Delay is not, in itself, to be treated as an admission of anything.
Rule 38: Failure to attend hearing or provide evidence: DEFAULT
Where:
(a) a party fails to attend a hearing upon reasonable notice or to produce a docu-
ment; and
(b) the tribunal considers there is no good reason for the failure,
thetribunalmayproceedwiththearbitrationandmakeitsawardonthebasisofthe
evidence (if any) before it.
At first blush this might be considered a strange provision because the words 'if any'
indicate that the arbitrator may make an award where there is no evidence of any kind
before him. he context does not appear to suggest a legal debate where it is assumed
that the facts can be established. Accordingly, despite the apparent width of the power
given, it is submitted that arbitrators may be slow to make an award without at least
some evidence being advanced which would support it.
