9/6/2021 1

“The courts of this country should not be the

places where resolution of disputes begins.They
should be the places where the disputes end
after alternative methods of resolving disputes
have been considered and tried.”

—Sandra Day O’Connor (an American retired Attorney and

Politician who served as the first female associate justice of the
Supreme Court of the United States from 1981 to 2006.

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 Dispute is part of any Project Life and
caused by an escalated conflict and
competing interests of parties

v Complexity of the Projects

v Nature of relationship of Key players
(Construction industry- No barrier of entry,
any One can participate )
v Unmanaged expectations of key players
i. Employer/ Clients - Expect - TIME,
COST, QUALITY:
ii. Supplier/Contractor/ subcontractor
iii. Users, beneficiaries, Third parties,
decision makers
v Bad procurement routes (unfair allocation
of risks;
v Poorly drafted Contracts.
v Financing issues
v Unresolved or escalated conflict
v Poor communication, Co-ordination,culture, 3
variations etc.
q Dispute”: HAS No fixed or definite meaning, Used interchangeably or in pair
with the term “conflict”.
1. Fastrack Contractors Ltd v Morrison Construction Ltd & Imreglio UK
Ltd[2000] 1 BLR 168,]:
“A dispute can only arise once the subject-matter of the claim, issue or other
matter has been brought to the attention of the opposing party and that party
has had an opportunity of considering and admitting, modifying or rejecting the
claim or assertion”.- His Honour Judge Anthony Christopher Lawrence Thornton
QC at¶ 27.
2. In Edmund Nuttall Ltd v R.G. Carter Ltd[Edmund Nuttall Ltd v R.G.
Carter Ltd[2002] EWHC 400 (TCC).].
“ While a "dispute" can be about a "claim", there is rather more to a "dispute"
than simply a "claim" which has not been accepted....

- His Honour Judge Seymour QC

3. AMEC Civil Engineering Ltd v The Secretary of State for Transport [2005]
1 WLR 2339.]. Word ʺdisputeʺ should be given its normal meaning. It does not have
some special or unusual meaning conferred upon it by lawyers.... A dispute does not arise
unless and until it emerges that the claim is not admitted” -The UK Court of Appeal: 4
q Wasted resources and poor quality of work
q May cause project deterioration of the quality of product to be
delivered;
q Loss of productivity due to untimely utilization of labour,
Effects
equipment of Disputes
and other in ANY PROJECT
resources at site;
q Reduction in investment profits and loss of trust among parties to
the dispute.
q They can not ruin the project
q Cause poor relationship between responsible key stakeholders.
q Cause delays to the Project or project overruns or litigation.
q Undermine team spirit.
q Increase project costs.
q Cause Socio-economic and Political concerns if the project is
public funded

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Dispute resolution involves bringing two or
more discordant parties to clear understanding
wherein their differences are ironed out.

It points to every technique applied for settling

dispute between entities.

“Any method of resolving disputesother than

by litigation.”
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oFast to get the dispute resolved;
oNeed to preserve commercial relationships;
oCost effectiveness (fee for tribunal/lawyers etc ) ;
oQuality of decision in terms of reaching the
expected results;
oRecoverability of expenses incurred;
oPrivacy of the procedure;
oCreative solution to suit all parties; and
oFinality of decision (without further possible
challenges or appeals).
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 DRAFTING OF ADR CLAUSES
q Plan ahead of dispute i.e from the day the contract for the project is drafted: (How
may Tiers should be? and who should be involved, why and when and at whose
cost?. Which issues should be subjected to ADR- ( for ).
q TIERS: Some ADR forms may go together (Multi-Tierred Dispute Resolution
Clause). - WHICH step to start with, is it Mandatory?. (“ ,“ ”, “ ”,
or “ ”).
q PROCEDURE: Drafter of Dispute Settlement Clause must envisage occurance of
dispute at any time during or after the project completion. You may creat
“BESPOKE ADR” provisions or adopt from relevant Insititutions (NCC, FIDC etc).
q clear and unambigous langauge to define procedure for so as to
avoid a protracted conflict unecessarily eg if the ADR Clause files to state clearly
on WHAT matters should go to ADR, HOW shall be referred and by WHOM and
WHO shall sit to mediate, adjudicate, negotiate of arbitrate. State claerly WHEN
reference shall be made etc.
q AVOID blanket statement in an Agreement (eg. failure to name the Adjudicator,
Arbitaror, failure to presrcibe the Instution for Adjudcation or Arbitrator, failure to
provide mdalities for cost payable ).
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 CASES WHICH CAN BE SETTLED BY ADR

Alcons Infrastructure Ltd. v. Cherian Varkey Construction

Co. (P) Ltd., (2010) 8 SCC 24
Indian Supreme Court

• All cases relating to Business, trade, commerce and contracts,

• All cases arising from soured relationships( marriages, maintenance,
custody of children, partition of property among the family, disputes
among partners relating to partnership.
• ases where there is a need for a resolution without altering the previous
relation.
• All disputes relating to tort and its liability, including (Claims for accidents
or negligence and All offences which are referred to as compoundable as
per the Code of Criminal Procedure.
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 CASES NOT FOR ADR

Alcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.,

(2010) 8 SCC 24

§ Suits mentioned under Order I, Rule 8 CPC which involve interest of public or
interest of several persons who are not parties before the court;
§ Election disputes as to public offices.
§ Cases which are related to serious and specific allegations of fraud,
fabrication of documents, forgery, impersonation, coercion under the Indian
Penal Code.
§ Special cases which involve protection of courts, for instance, claims against
minors, deities and mentally challenged and suits for declaration of title
against government
§ Proceedings which involve prosecution for criminal offences.

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 METHODS OF FORM OF ADR
Non - Binding forms of ADR
1. Negotiation/Consultation: Negotiation involves two or more parties
with competing or conflicting interests or needs. Negotiation is usually
carried out without legal representatives, but each party can take their own
legal representation to assist.
Elements of Negotiations inclued:
v Interests: What do the parties want?
v Options: What are likely areas of
agreement?
v Alternatives: What if we don’t agree?
v Legitimacy: How persuasive is each
party?
v Communication: Are both parties willing
to discuss and listen?
v Relationship: Are both parties ready to
establish operational relationship?
v Commitment: What’s the structure of
commitment from both parties.
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2. Reconciliation: Parties look for a resolution of their dispute on a voluntary
basis, assisted by a reconciler.
3. Mini- trial: Each party make a brief presentation of the case before a neutral
advisor who have authority to settle the dispute through his non- binding
opinion regarding the merits. It is if at a trial.
4. Neutral Third Party Evaluation or Opinion: Parties or their counsel present
their cases to a neutral third party (usually an experienced and respected lawyer
with expertise in the substantive area of the dispute) who renders a non-binding
reasoned evaluation on the merit of the case.
5. Conciliation: Is a compulsory process before an individual wishes to bring a
claim to the Tribunal. The conciliator will discuss the issues and try to help the
parties to reach an agreement). it is commonly used for employment situations
rather than commercial disputes.
Dispute Resolution Board (DRB): The Board of expert is appointed before
any disputes arise – usually at the time of the contrac and DRB works while the
project project is in execution stage.

(Dispute Review Boards, Dispute Adjudication Boards, or Dispute Boards). 13

 is one of the formal way of resolving dispute normally in construction
disputes. Parties agree to submit their differences to a third party (Adjudicator)
who will review the case put by either side and make an enforceable decision.
q Adjudicators tend to be persons with direct experience in the matter involved
(Quantity surveyors, Architects or lawyers with specific construction knowledge and
experience).
q The use of adjudication in construction disputes started in England in 1998 with the
Housing Grants, Construction and Regeneration Act (HGCR) in 1996.
q Now may coutries passed legislation supporting the use of adjudication eg. Malysia
have,the Construction Industry Payment and Adjudication Act (CIPAA) 2012.
q The FIDIC standard contract adopts the Dispute Adjudication Board (DAB) in its
multi-tiered dispute resolution mechanism.
q In Tanzania Adjudication is part of PPRA standard form Contract and NCC
Adjudication Rules 2017. BINDING BUT NOT ENFORCEABLE
(i) Claimant provides Notice of Adjudication (ii) Response to the
Notice (iii):Adjudicator Selection (iv)Adjudication Process (hearing);(v)
Negotiation of Adjudication Fee (vi) Parties Submission of Documents
(vii) Adjudicator’s investigation may include site visit (viii) Determinati (ix)
Issuance of decision normally within 30days
• Adjudication form part of main contract for Public Procurement Regulatory
Authority (PPRA) standard form contracts.
• Adjudication normally is embodied in the General Conditions of Contract
(“GCC’) and Special Conditions of Contract (SCC) as initial step to resolve
dispute through appointed Adjudicator by the parties or contract. Eg. the
Clause may read:
• (1)if, within thirty days the parties have failed to resolve their dispute or
differences by such mutual consultation , then either the Procuring Entity or
Supplier may give notice of Adjudication:”
• (2) If Contractor is aggrived by decision of the Project Manager, he may
within 14 days of such decision, refer the matter to the Adjudicator whose
decision shall be final.
• (3) if either party believes that a decision taken by the other was wrongly
taken, the decision shall be referred to the Adjudicator within 14 days of the
notification of the decision.”
• Further Reference:
• (1) The adjudicator may give his decision within 30 days and any aggrived
party may give a notice to refer the decision to arbitrator 15
 HANDLING ADJUDICATION
• The key to winning an adjudication in a dispute is good preparation.
• Whether you are the Referring or Responding party, it is essential that
your submission is prepared correctly and concisely.
• Read your supporting evidence, cross - check with facts from site etc.
DO NOT RUSH..
• Establish at the outset whether adjudication is the right course of action
– other dispute processes such as negotiation or mediation may be
more appropriate.
• Prepare your necessary documents,consult with experts and if it
involves witnesses, prepare them well,prepare their witness statement .
•

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• Have legalized Reconciliation, Negotiation and Mediation and Arbitration. It provides for
the accredition of the said professionals (See. Reg. 5)
• Reg. 2: Defines “ ” as settlement of a legal dispute through interactive
participation of a mediator. Medaition also Court Next in the CPC.
• Mediation is a less formal and non-binding process of resolving disputes.
• Is a voluntary process and relies on the mutual cooperation of both parties to appoint an
independent third party who can act impartially to facilitate and resolve the dispute.
is defined to mean a person who assists parties in a dispute to find points of
agreement in a conflict and agree on a fair result in the manner provided under the
Arbitration Act.
is defined to mean the dialogue between two or more parties which is
facilitated by a negotiator.
means the process of resolving a dispute through a reconciliator and
means a person who handles reconciliation matters in the manner provide
under the provision of the Arbitration Act.

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 is formal Mechanism for Settlment of Dispute like Adjudication. Is
less formal than litigation and the rules of evidence are usually relaxed.
o In Tanzania now, arbitration are regulated under the provisions of Arbitration Act
Cap. 15 R.E 2020 and SECOND SCHEDULE of Civil Procedure Act, G.N. No.
381 of 2019 published on the 10th May, 2019 as The Civil Procedure Code
(Amendments of the First Schedule) Rules, 2019).The Amendment had
introduced Negotiation Conciliation and Arbitration, and goes a step further to
provide for rules governing the same.
o The Arbitration Act 2020, provides for conduct relating to domestic arbitration,
international arbitration and enforcement of foreign arbitral awards, it repeals
the Arbitration Act Cap. 15 R. E 2002 and provide for matters relating to or
incidental thereto.
o Arbitration can be “binding” or “non-binding.” Binding arbitration means the
parties have waived their right to a trial, agree to accept the arbitrator’s decision
as final and, usually, there is no right of appeal of the decision. Non-binding
arbitration means the parties can request a trial if they don’t accept the
arbitrator’s decision.

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 CATEGORIES OF ARBITRATION

Under Section 3 and 3A, The Arbitration Act Cap. 15 R. E 2020

(a) For individuals dispute: The parties are nationals of
Tanzania or are resident in Tanzania. (b) For bodies corporate: The parties are
incorporated in Tanzania or their central management and control are exercised
in Tanzania. (c) In an individual and a body corporate: (i) the party who is an
individual is a national of Tanzania or is resident in Tanzania; or (ii) the party
that is a body corporate is incorporated in Tanzania or its central management
and control is exercised in Tanzania; or the place where a substantial part of the
obligations of the commercial relationship is to be performed, or the place in
which the subject matter of the dispute is Tanzania.

2. At least one of the parties is (a) an individual who is

a national of, or habitually resident in, any country other than the United
Republic;(b) a body corporate which is incorporated in any country other than
the United Republic; (c) an association or a body of individuals whose central
management and control is exercised in any country other than the United
Republic and (d) the Government of a foreign country.
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 ARBITRATION PRINCIPLES

o Sect. 3, of Cap. 15. R. E 2020 defines “ ” as a process by

which parties submit a dispute to the decision of a neutral person or
persons appointed by mutual consent or in accordance with the
provisions of the Act.
o Sect. 4 of the Act provides for the principles of Arbitration as follows:-
i. To obtain the fair resolution of disputes by an impartial arbitral
tribunal without undue delay or incurring of unreasonable
expense;
ii. To promote consistency between domestic and international
arbitration;
iii. The parties shall be free to agree how their disputes are resolved,
subject only to such safeguards as are necessary in the public
interest; and
iv. No intervention of the court except as provided by the Act.

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 STARTING AN ARBITRATION
The right to go to the arbitration is by its nature more restricted. There are 3
prerequisite conditions to be met before an arbitration proceeding can be
commenced:
(i) There must be a genuine dispute or difference between the parties capable
of being arbitrated and determined through an award by the arbitrator which
can be enforced as a judgment of the court. If there is no dispute, then an
appointed arbitrator would have no jurisdiction

(ii) There must be a binding contractual agreement to arbitrate which allows

submission of dispute to arbitration. The agreement to arbitrate can be made
when the dispute has already arisen or can be provided from the outset in the
contract document;
(iii) There must be a submission or reference of a specific dispute to the
arbitrator or tribunal in accordance with the procedures set out in the
arbitration agreement. The procedure mainly includes a “notice to or “Request”
to refer the dispute to arbitration”
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 ARBITRATION AGREEMENT

. In Azov Shipping Co. v Baltic Shipping Co, 2 Lloyd’s Rep.

(1999), the court set aside an award on the ground that the plaintiff never
agreed to be bound by the underlying contract or the arbitration agreement
contained in it.
• Sect. 8 of the Cap. 15 R. E 2020, requires the arbitration agreement to be in
writing or evidenced in writting.
• An arbitration agreement is considered as a separate and independent from
the main contract. If a part of an agreement is illegal and incapable of
enforcement the other part that is valid and legal can still be enforced and a
party can relised his right on part of valid agreeemt even if the other party is
void (see, RS Jiwani v Ircon International Ltd, 2010(1) ALL MR 605 (F.B.).
• An arbitration agreement is not void, voidable or otherwise unenforceable only
because the agreement of which it forms part is void, voidable or otherwise
unenforceable (Sect. 10).
• An arbitration agreement is not discharged by the death and can proceed with
a legal representative (Sect. 11)
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q Commencement of any Arbitration must be by Notice or Request.
q It is important to note that Reference step is very crucial, as it is an
essential formal step without which no dispute may be held to have
occurred.
q Sect.14 of Arbitration Cap. 15 R. E 2020 provides that the arbitral
proceedings in respect of a particular dispute shall commence on the
date on which the request for the dispute to be referred to arbitration is
received by the other party.
q Request may be filed to an arbitrator either named in the arbitration
agreement or selected/appointed thereafter by the nomination or
appointment body.
q Arbitration proceedings must be filed within time agreed upon in the
Agreement.
q Under Sect. 15 of Arbitration Act Cap. 15 R. E 2020 it is stated that the
Law of Limitation Act shall apply to arbitral proceedings as it applies to
other legal proceedings.
q Under Sect. 16, a party may seek for extension of time in the manner
prescribed under the Law of Limitation Act.
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 REQUEST OR NOTICE OF ARBITRATION
• The Arbitration (Rules of Procedures ) Regulations, 2021, GN No. 146 of
2021 provides for procedures to commence the proceedings and other
related matters domestically.
• There are institutional Rules such as National Construction Council
Arbitration Rules 2001 Edition and Tanzania Institute of Arbitrators Rules
2018 Edition which govern arbitrations under NCC and Tanzania Insitute
of Arbitrators
• Reg. 5 of GN No. 146 of 2021 provides for procedures on how to submit
a request for arbitration and such request must be in writing Form No.3
prescribed in the Fourth Schedule to the Regulations governs the
contains of Request.
• Narrate clearly your case in the Request or Notice of Arbitration.
• Once received by an arbitration Instution, the Request normally are
registered (Reg. 6 of GN No. 146 of 2021) and the other party is given
time Respond to the Request.
• Reg.7(1) states that the respondent or responding party shall, within
thirty days of receipt of the request, submit to the Centre a reply to the
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request in Form No.4.
o The parties may agree on the number of arbitrators to form the arbitral tribunal and
whether there is to be a chairman or umpire. Where there is no agreement as to the
number of arbitrators, the arbitral tribunal shall consist of a sole arbitrator.(Sect. 17(1) and
(3))
o According to Section 18, the parties may also agree on the procedure for appointing the
arbitrator or arbitrators, including the procedure for appointing any chairman or umpire
and in the event the agreement does not exist,
(i) If the arbitral tribunal is to consist of a sole arbitrator, the parties shall jointly appoint
the arbitrator not later than 28 days after service of a written request;
(ii) If the Tribunal is to consist of two arbitrators, each party shall appoint one arbitrator
not later than 14 days after service of a written request by either party;
(iii) If the arbitral tribunal is to consist of three arbitrators each party shall appoint one
arbitrator not later than fourteen days after service of Request and the two arbitrators
appointed by the parties shall forthwith appoint a third arbitrator who shall be the
chairman of the arbitral tribunal.
 If a party delays to appoint his arbitrator as a sole arbitrator, the other party is allowed to
appoint his arbitaror whose award shall be binding on both parties as if he had been
appointed by the two parties (sect. 19)

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 JURISDICTION OF ARBITRAL TRIBUNAL

• Jurisdiction in Arbitration is very imporatant to make the award valid and

enforceable.
• In Mvita Construction Company v. Tanzania Harbours Authority, [2006]TLR ,
the Tanzania High Court held that, under Tanzanian law, an arbitrator’s authority,
power and jurisdiction are founded on the agreement of the parties to a contract
to submit present or future differences to arbitration. T

• Under Sect 32 of Cap. 15 R. E 2020, jurisdiction of Arbitator relates to power and

include powers of the arbitrators to determine some procedural issues such as
his own jurisdiction; procedural and evidential matters; power to make various
orders, awards and declarations.

• The arbitrators are expected to organize and control the arbitration process
efficiently, minimize costs, accord fair and equal treatment to the parties, and to
ultimately resolve the issues in dispute by making an effective and binding award.
Jusdiction may be challenged in the Court of law (Sect.34).
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 START OF PROCEEDINGS
1. Preliminary Meeting - Agreement between the parties and arbitrator on
Timetable or Procedural Orders, Representaion, Forms of pleadings, case
presentation, nature of Award, cost issues and other matters governing the
proceedings.
2. Submission of Pleadings: Statement of Claim, Statement of Defence &
Counter- Claim, Reply/ Rejoinder/Response to Statement of Defence
3. Discoveries or Documents Production (if any).In international arbitration,
The IBA Rules on the Taking of Evidence in International Arbitration as
published in 1999 and revised in 2010 are normally used.
4. Exchange of Witness Statement:
5. Site Visits (if any)
4. Pre-Hearing Meeting: To agree on finalization of pleadings, witness
statements, documents production and the modalities for handling the
proceedings during hearing.

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 STATEMENT OF CLAIM
The Statement of Claim shall include:
a.what cause of action are you relying on?
b.what are the elements of that cause of action?
c.what facts and circumstances in your case prove the elements of your
matter?.
d.what remedy are you seeking from the respondent/defendant?
NB: Less restriction, you may import both factual and Legal Exhibits with
your statement of claim.
A Claimant statement of claim will set out the duty alleged to be owed, the
allege breach of that duty, and the consequent damage.
The arbitral tribunal may require that the claimant files, either
simultaneously with the statement of case or shortly thereafter, the
documents relied upon by the claimant, the evidence of witnesses, and a
statement of the law relied upon.

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 STATEMENT OF DEFENCE
• The Respondent’s defence will admit or deny each matter set out in the
statement of case.
• If there is a denial, the respondent must state what the correct position is
alleged to be. The arbitrator may require the respondent’s evidence and
legal submissions to be set out in the same way as was required of the
claimant.
• The Statement of Defence shall include:
a. any objections concerning the existence, validity or applicability of the
arbitration agreement;
b. a statement whether, and to what extent, the Respondent admits or denies
the relief sought by the Claimant;
c. the material circumstances on which the Respondent relies;
d. any counterclaim or set-off and the grounds on which it is based; and
e. the documents on which the Respondent relies.
• At any time prior to the close of the proceedings, a party may be allowed to
amend or supplement its claim, counterclaim, defence or set-off provided.

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 WITNESSES
1. Factual Witness:
A fact witness is a person with knowledge about what happened in a
particular case, who testifies in the case about what happened or what
the facts are. Fact witness testimony consists of the recitation of facts
and/or events.
2. Expert Witness
Expert witness is a person who offers opinions to Tribunal as opposed
to fact witness. Expert witness may assist the tribunal in understanding
technical knowledge in order to support their ability to make a sound
ruling/award in arbitral proceeding.
Before cross –examination of expert witness the arbitrator are required
to have mastered the reports.
The parties are not forced to engage experts. If neither party wishes an
expert, the tribunal can appoint its own expert.

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 HEARING
• This is crucial part in arbitration. It may/may take place depending on
parties’ agreement. It may take many steps and may include oral
submissions on law and legal argument, testimony and questioning of
factual and expert witnesses, site visits, and closing arguments.
• If the parties have not agreed on the forms of arbitration then the arbitral
tribunal will decide what is most appropriate.
• Procedures for arbitration may vary depending on the nature of the
disputed matter and the parties’ agreement. The following are the
procedures which the parties to arbitration may undergo:
• Pre-hearing conference: Prehearing conference is the procedure usually
held prior to a formal hearing and it is held with the consent of the parties.
This may be held by telephone, television, or other electronic means
during which the tribunal in consultation with the parties’ counsels decides
on logistics for the hearing.
• The purpose of the pre-hearing conference is to avoid ambush and
ensure that the parties will be ready to proceed on the date chosen for
the main appointment. 31
 MATTERS IN PRE-HEARING CONFERENCE
At the initial pre-hearing conference, the Tribunal and the parties are prepared to
discuss the following matters:
• scheduling the case for an evidentiary hearing.
• dates and length of hearing.
• identification and refinement of the issues to be decided.
• Site visit necessary.
• date of exchange of witness statements and experts’ report.
• agreed common bundle of documents-this is normally produced by the claimant and usually
electronically along with all evidences and legal authorities.
• opening submission- oral or written? - This is skeleton submission to be exchanged by parties.
• manner and order of witnesses giving evidence and likely time for each. Use of IBA Rules on
evidence?
• time restrictions are to be placed on examinations, arguments.
• is transcript to be made? and by what means?.are any necessary interpreter be
engaged?form of the award
• closing statements orally or in post-hearing briefs?
• When and how the parties will address the tribunal regarding costs.
• any other matter likely to facilitate final disposition of the matter.
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 APPEARANCE
• At the hearing day, depending upon an agreement by the parties, parties
may start to address the tribunal with opening statement starting with the
Claimant.
• Then, the parties may lead their witnesess to provide their case.
• Parties may chose to Cross examine and re-examine witness where there
are witness statement
• The tribunal has to record the proceedings for an Award.
• An attorney should have knowledge of the facts, a mastery of the law and a
plan for each witness the attorney intends to question.
• A good cross-examination will be simple. Clear, short, and simple
questions will enable the attorney to exercise better control over the
witness.
• Effective cross-examination is not just asking the right questions in the right
way but also carefully listening to the witness’s answer and understanding
the meaning and significance of what the witness says.
• After cross-examination, counsel calling a witness may wish to re-examine
him, being limited to clearing up points left in doubt. 33
• The arbitrator may initiate the questioning of each witness.
 CLOSING SUBMISSIONS
• A closing argument is delivered by an attorney at the end of a hearing, after all of
the evidence has been presented, witnesses and experts have been questioned,
and the theory behind Claimant or a defense has been given.
• A closing submission is the last chance an attorney has to address the arbitrator.
• A closing submission will be based on the events of the trial. Attorneys usually do
not prepare them until both sides of the case have rested.Be sure that you have
notes about damaging testimony that you were presented with during the trial. This
will give you the opportunity to reference that evidence in your closing argument.
ü Use simple language while writing your closing.
ü Do Use a Chronology. Accordingly, attorneys should consider preparing a
chronology of events to use during closing argument.
ü Do Incorporate Charts, Graphs and Diagrams. Almost any demonstrative
evidence used during closing argument is better than none.
ü Do Argue With a Theme. Ideally, closing argument will expand on a case theme
introduced in opening statement.
ü Do Argue the Evidence/Cite Consequences for Failing to Act. Even though the
arbitrator has heard all the evidence, it is critical to synthesize the evidence in
closing submission.
ü Get the Tribunal to sympathize with your client . Don't Attack Opposing Counsel,34
this will not help your Client.
 CLOSING AND PUBLICATION OF AN AWARD

• Most arbitration rules require there be a formal closure of proceedings, usually at

the end of the hearing. This marks the end of the opportunity to call any further
evidence, a clear acceptance that each party has had an opportunity to present its
case and, if such a limit exists, the beginning of the time limit for rendering an
award.
• Arbitral award is a determination on the merits by an arbitration tribunal in
arbitration, and is analogous to a judgment in a court of law. It is the decision of
the tribunal on the issues submitted to the tribunal by the parties for resolution. It
is referred to as an 'award' even where the entire claimant's claims fail.
• The arbitral tribunal may, at any time during the arbitral proceedings, make an
interim arbitral award on any matter with respect to which it may make a final
arbitral award.
• A party may request, within prescribed time after receipt of the arbitral award, the
arbitral tribunal to make an additional arbitral award as to the claims presented in
the arbitral proceedings but omitted from the arbitral award. (See Sect. 64 of Cap.
15).
• An award made by the arbitral tribunal pursuant to an arbitration agreement shall,
be final and binding to both parties and to any person claiming through or under
them.(See Sect. 65 of Cap. 15). 35
 INTERNATIONAL VS DOMESTIC
• International Investment Treaty Arbitration (Investor-State Arbitration) is
based on bilateral investment treaties (BIT’s) & multilateral investment treaties
(MIT’s).
• International Commercial Arbitration arises from a dispute between parties to an
international commercial contracts/international investment arrangements.
• Inter-State Arbitration relates to disputes between states (or between one
state’s agency and another state or vice versa) over the violation of an
international law obligation.
• Internal Sports Arbitration arises from disputes concerning athletes, sports
federations/associations, clubs, agents, advertisers/investors.

1. International Chamber of Commerce (ICC)’s International Court of Arbitration

(ICA)
2. International Centre for Settlement of Investment Disputes (ICSID)
3. London Court of International Arbitration (LCIA)
4. Permanent Court of Arbitration (PCA)
5. International Court of Justice (ICJ) (Inter-State Arbitration!)
6. Chartered Institute of Arbitrators (CIArb.) 36
7. Court of Arbitration for Sport (CAS)
 ANY QUESTION?

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