Arbitration is the most appropriate fastest process, as an adopted alternative dispute resolution (ADRs). The UNICITRAL arbitration model rules, are followed almost worldwide to lay down the foundation for such process if and as chosen by the concerned parties.
However, the parties shall be very careful and shall abide by the UNICITRAL arbitration rules very carefully. The procedures shall be followed, taking in consideration that procedural matters can destroy your case for good. As a fact, this is the rule in all legal proceedings, even in arbitration instances which take place away from judicial courts. In any arbitration dispute, there are normally two opposing parties. One claims a right and the other party objects and shall fully defend himself. As we say, the arbitration is the will or intention of the two conflicting parties wherein they opt for arbitration.
As per the arbitral proceedings in the UNICITRAL arbitration rules, the "Statement of claim” is provided for in Article 20 1. To begin with, the claimant shall communicate it’s "statement of claim” which shall be submitted in writing to the respondent and to each of the arbitrators. This shall take place within a period of time to be determined by the arbitral tribunal. The claimant may elect to treat its notice of arbitration referred to in article 3 as a "statement of claim”, provided that the notice of arbitration also complies with the requirements of paragraphs 2 to 4 of article. 2.
The "statement of claim” shall always include the following particulars, as the names and contact details of the parties, full statement of the facts supporting the claim, points at issue, the relief or remedy sought and the legal grounds or arguments supporting the claim. The statement of claim shall be very precise, but shall include all above ingredients.
Any fact(s) not mentioned could be taken as relinquishment of such fact or right. Moreover, a copy of any contract or other legal instrument in relation to which the dispute arises and of the arbitration agreement shall be annexed to the statement of claim. In other words, the statement of claim should be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them.
On the other hand, the "Statement of defence” shall be submitted by the respondent, who shall communicate its statement of defense in writing to the claimant and to each of the arbitrators within a period of time to be determined by the arbitral tribunal. The respondent may elect to treat its response to the notice of arbitration referred to as a statement of defense, provided that the response to the notice of arbitration also complies with the requirements as mentioned in the rules.
The statement of defense shall reply to the particulars mentioned in the statement of claim. Also, the statement of defense should as far as possible be accompanied by all docs and other evidence relied upon by the respondent or contain references to them. In its statement of defense, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim or rely on a claim for the purpose of a set-off provided that the arbitral tribunal has jurisdiction over it.
Amendments to the claim or defence, is possible according to the rules. During the course of the arbitral proceedings, a party may amend or supplement its claim or defense, including a counterclaim or a claim for the purpose of a set-off, unless the arbitral tribunal considers it inappropriate to allow such amendment or supplement having regard to the delay in making it or prejudice to other parties or any other circumstances.
However, a claim or defence, including a counterclaim or a claim for the purpose of a set-off, may not be amended or supplemented in such a manner that the amended or supplemented claim or defence falls outside the jurisdiction of the arbitral tribunal.
To conclude, both disputing parties shall understand that the statement of claim and the statement of defence, is the opportunity for each party to explain the claim and likewise to give the defence. Take the opportunity to your advantage, give clear complete claim in clear and precise wordings.
On the hand, in the defence side, you need to present your defence in clear acceptable way by pin-pointing your clear views against/versus the claimant. It is your opportunity to defend yourself and also to submit, if needed/acceptable, a counter-claim. Both parties are eligible to present what they have regarding the claims or defences. After doing this, justice will take its place through the arbitration final award and justice will prevail.
Dr AbdelGadir Warsama Ghalib is a legal counsel. Email: awarsama@warsamalc.com