This fourth post of the Arbitration Proceedings in Yemen will be discussing issues related to the arbitrator’s duties, obligations and fees according to Yemen Arbitration Law No (22) of 1992, as amended (the “Arbitration Law”) and Yemeni Centre for Conciliation and Arbitration Rules (“YCCA Rules”).
1. What independent and impartial disclosure obligations does the law impose on arbitrators?
Article (23) of the Arbitration Law imposes obligations on the arbitrator(s) to disclose any information, which may raise doubts about his/their impartiality and independence.
2. What do the applicable laws and regulations provide regarding the duties of an arbitrator?
The main duties of the tribunal as stipulated in the Arbitration Law are listed as follows:
- Examine and adjudicate the dispute according to the Arbitration Law or the provisions of the arbitration agreement (Article (27) of the Arbitration Law).
- Respond to a challenge to the jurisdiction of the tribunal. In the case of rejecting such challenge, such decision may be appealed before the Court of Appeal within the week following notification of the appellant (Article (28) of the Arbitration Law).
- Adhere to the arbitration agreement and refrain from ruling on matters not contained therein or not requested by the parties (Article (29) of the Arbitration Law)
- Order any security which it deems fit as temporary or precautionary measures as may be requested by a party. If denied, it may order the other party to submit such security at the expense of the refusing party (Article (30) of the Arbitration Law).
- Request the parties to submit security for the arbitration proceedings and enforcement of its award (Article (31) of the Arbitration Law).
- Treat parties fairly, equally and give each party the full opportunity to present and defend its case (Article 33 of the Arbitration Law).
3. Have any arbitration institutions published a Code of Ethics for Arbitrators? If not, do they otherwise exercise any control over the ethical conduct of arbitrators?
Apart from the general requirements that the arbitral tribunal be independent, impartial and act fairly, there are no express ethical codes or other professional standards with which arbitrators must comply under Yemeni law. However, arbitrators must abide by the procedural rules agreed on by the parties, including the arbitration rules under which the arbitral tribunal must conduct the case. The arbitral tribunal remains obliged to treat the parties equally and give each party the full opportunity to present and defend its case.
4. How are arbitrator’s fees charged? Where there is more than one arbitrator, will they each charge the same amount?
Generally speaking, arbitrators fees are a percentage applied to the various categories of the amounts comprising the claim, ranging between a maximum of 6% - 0.2% depending on the value of the claim. Cost of conciliation and arbitration (including arbitrators fees) is regulated under Appendix (1) of Article (4) of the YCCA Bylaws. Such fees shall be equally distributed between the arbitrators.
The relevant laws and regulations do not address ad hoc arbitrators’ fees. Hence, it should be mutually agreed by the parties.
5. Does a Tribunal normally call for deposits to be made by the parties as security for their fees? If so, who holds those deposits?
Yes. Article (9) of the YCCA Bylaws provides that the arbitration matter may not be handed over to the tribunal unless full payment of the administrative charges is made as well as 50% of the tribunal’s fees. The above amounts would be paid to the YCCA.
6. Do the local courts have the possibility to interfere in the assessment of the arbitrator’s fees or discount them after a final award has been issued? Can the courts interfere with the allocation of costs and/or fees, if any, among the parties?
In the case of institutional arbitration, the court should not interfere in the assessment of the arbitrators’ fees, as the fees would have been pre-determined by the YCCA, whose regulations are issued by a binding resolution of the Minister of Justice No (9) of 1998. In the case of ad hoc arbitration, the court may interfere pursuant to Article (14) of the Arbitration Law.