This fifth post of the Arbitration Proceedings in Yemen will be discussing issues related to general arbitration proceedings such as commencement of the proceedings, representation and funding, and other substantial procedural issues. References in this post will be given to Yemen Arbitration Law No (22) of 1992, as amended (the “Arbitration Law”) and Yemeni Centre for Conciliation and Arbitration Rules (“YCCA Rules”).
1. When and how is an arbitration proceeding formally commenced?
According to Article (34) of the Arbitration Law, the arbitration proceeding is formally commenced once one party receives the request for arbitration from the other party.
2. Is it common for the arbitrator to order an advance on costs?
Yes, it is common for the arbitrator to order an advance on costs. It is expressly stated under Article (54) of the YCCA Rules that the total fee of the centre is to be paid in advance as well as 50% of the assessed fees of the arbitrators. It is believed that the same would apply to ad hoc arbitration conducted in Yemen.
3. Who can represent a party during arbitral proceedings? Are representatives required to produce a Power of Attorney and if so, at what stage of the proceedings?
According to Articles (9) and (37) of the YCCA Rules, the parties may represent themselves or be represented by an attorney or counsel, who should have a power of attorney ready for presentation at the first hearing.
4. Must a party’s counsel be a licensed practicing attorney?
Article (9) of the YCCA Rules provides that either party may be represented by a counsel or an attorney. This Article seems to draw a distinction between the two professions. A counsel may not necessarily be a licensed practicing attorney or even an individual with a legal background. However, in practice, a licensed attorney is required.
5. Are terms of reference required under the laws or regulations or the rules of the local arbitration centre?
No. The parties may (i) adhere to the provisions of the arbitration agreement between them; (ii) apply the YCCA Rules (in the case of institutional arbitration); (iii) apply the provisions of the Arbitration Law; and/or (iv) any rules chosen by the tribunal and agreed by the parties.
6. How will the language and seat of the arbitration be decided if the parties have not agreed on them beforehand?
Article (34) of YCCA Rules provides that the default language of the arbitration shall be Arabic unless otherwise decided by the tribunal, taking into consideration the language of the agreement and the arbitrating parties.
According to Article (31.2) of the YCCA Rules, the tribunal shall record at the first hearing all crucial information including determining the seat of arbitration if not previously agreed by the parties.
7. Is the arbitrator free to hold preliminary meetings and eventually the hearing in a venue that is not the seat?
The arbitrator is free to hold preliminary meetings outside the seat provided that the Secretary General of the centre is duly notified. However, the final arbitral award must be issued at the agreed seat (Article (5) of YCCA Rules).
8. To what extent are arbitral proceedings confidential? If proceedings go to court, to what extent do they remain confidential?
Article (32) of the YCCA Rules imposes strict confidentiality obligations on all parties involved in the proceedings in respect of any and whatsoever information that may become known or disclosed during arbitration. Such obligation shall remain imposed during and after arbitration.
Further, Article (38) of the Arbitration Law provides that only the parties involved shall attend the arbitral proceedings and access will not be granted to any unrelated individuals.
However, it is unlikely that information will remain confidential if the matter is referred to court.
9. Are there any procedural rules applicable to court proceedings that must also be followed and applied by arbitrators such as those concerning oaths, the disclosure of evidence, or the structure hearings?
No. According to Articles (32) to (44) of the Arbitration Law, the parties may agree on certain procedural rules to be followed and applied by the tribunal. Otherwise, the tribunal may set procedural rules that it deems fit provided they are not contrary to the Arbitration Law or Advocacy Law. Giving oath is not required of arbitrators.
10. Can the arbitrator solely extend the agreed arbitration time frame or does he/she need the parties’ consent? Is extension limited in number?
According to Article (44) of the YCCA Rules, the arbitral tribunal should issue the final award within three months from the date of the first hearing. The centre’s Chairman may extend the period for an additional six months based on adequate justifications from the arbitral tribunal. The parties consent for such extension is not required.
11. How and when can the jurisdiction of the tribunal be challenged?
According to Article (6) of YCCA Rules and Articles (30) and (37) of the Arbitration Law, a request for challenging the jurisdiction of the tribunal shall be examined by the tribunal itself. If the tribunal rejects such request, it can be challenged by referring the matter to the Court of Appeal within one week from notification of the challenging party.
12. In what circumstances will the arbitrator be obliged to stop the proceedings?
Article (41) of the YCCA Rules sets out various circumstances that would oblige/permit an arbitrator to stop proceedings. They include:
- The arbitrator’s inability to attend, death, resignation or dismissal;
- Death of an arbitrating party or loss of capacity;
- Non-payment of arbitration costs and fees;
- Upon the request for dismissing an arbitrator until the matter is resolved by the competent court; or
- In the case of a plea regarding forgery of any document, until the matter is resolved.
13. How do the local courts deal with a court action commenced by one party against the other when arbitration is the agreed forum? Will the court respect the agreement to arbitrate?
If the parties continued their proceedings before the court, the agreement to arbitrate shall become void. A party must submit a defence in respect of the existence of an arbitration agreement in the first hearing. Failing that, such party would be deemed to have waived the arbitration agreement and the court would assume jurisdiction over the matter pursuant to Article (19) of the Arbitration Law.
The court may also assume jurisdiction if it finds that the agreement to arbitrate is null or void or does not contain the mandatory requirements of an arbitration agreement (such as be in writing).
14. How are factual witnesses and experts normally dealt with (e.g. statements exchanged, cross-examined by opposing lawyers and by the Tribunal)?
Written statements, verbal statements and cross examination of witnesses are admissible (without oath). Statements and responses must be distributed to all arbitrating parties pursuant to Article (42) of the Arbitration Law.
15. Can expert witnesses or fact witnesses be examined over an audio or video call?
There is nothing in the applicable laws/regulations that prevents the use of audio and video calls as means for delivering expert and fact witnesses. In fact, the YCCA Rules permit the use of all available media, including modern means of communication, provided these are available for future access.
16. What, if any, interim protective measures can tribunals order and on what terms? Which are the most commonly-made orders?
According to Article (30) of the Arbitration Law, the tribunal may order interim measures that may be requested by one of the parties. This may include submission of any security, guarantee or any temporary/precautionary procedures. Revocation or extension of bank guarantees is quite common.
17. How can the tribunal’s interim orders be enforced if they are not obeyed? Do they have to be part of an award?
In case of non-adherence to the tribunal’s interim orders, the tribunal or any of the parties may seek enforcement from the competent court.