IN THE MATTER OF AN ARBITRATION
BETWEEN: [PARTY A] [details of nature of Party A and its address]
AND: [PARTY B] [details of nature of Party B and its address]
AND: Martin Dillon (“the Arbitrator”)
AGREEMENT AS TO TERMS AND CONDITIONS OF THE SOLE ARBITRATOR
1. APPOINTMENT OF ARBITRATOR
1.1. On [date] the Arbitrator accepted appointment [on the joint nomination of the parties / other].
1.2. The Arbitrator accepts the appointment on the terms and conditions set out in this agreement and confirms:
1.2.1. that he is able to devote sufficient time and resources to this arbitration so as to ensure that it is conducted fairly, efficiently and expeditiously; and
1.2.2. that he knows of no circumstance which is likely to give rise to doubts about his independence or impartiality [other than those already disclosed to the parties].
1.3. The parties confirm that as at the time of signing this agreement they knew of no reason or basis to challenge the Arbitrator and had no reservations or objections to express with regard to the appointment of the Arbitrator.
2. ARBITRATOR’S FEES AND EXPENSES
2.1. The Arbitrator shall be paid:
2.1.1. [USD $2,500] for every day or part day in any hearing. If the Arbitrator is required to sit beyond 7 hours a day the hourly rate at paragraph 2.1.2. shall be applied;
2.1.2. [USD $500] per hour for time occupied in preparation, correspondence, conferences, interlocutory applications, travel days and other days spent away from the Arbitrator’s principal place of business such as weekends during the course of a hearing and other matters relating to the arbitration and the preparation of the award; and
2.1.3. the cost of all other reasonable expenses (such as travelling expenses, accommodation and subsistence expenses, and secretarial and administrative expenses) properly incurred by the Arbitrator in relation to the arbitration.
2.2. The parties shall be jointly and severally liable for the Arbitrator’s fees and expenses.
2.3. The Arbitrator will render accounts for all work prior to the hearing on a monthly basis. The parties shall pay the accounts for the Arbitrator’s fees and expenses in equal shares within 30 days of receipt. If an account is not paid in full within 30 days of receipt, the Arbitrator shall so inform the parties in order that one or other of them may make the required payment. If one party pays any part of the other party’s equal share of any account for the Arbitrator’s fees and expenses, then that payment shall become immediately recoverable by the paying party from the other party as a debt and by way of an award in the arbitral proceedings.
2.4. The Arbitrator may withhold any award or decision until all outstanding Arbitrator fees and expenses are paid, or alternatively order the suspension of the arbitral proceedings or, if he so elects, withdraw from office without thereby incurring any liability whatsoever to the parties.
3. CANCELLATION FEES
3.1. Where any hearing has been reserved, whether procedural, jurisdictional or substantive, and that hearing is cancelled or postponed, or there is a settlement, the Arbitrator shall be paid a cancellation fee calculated as follows:
3.1.1. Cancellation or postponement more than 90 days before the hearing: no cancellation fee;
3.1.2. Cancellation or postponement between 60 and 90 days before the hearing: a cancellation fee of 25% of the Arbitrator’s agreed daily hearing rate multiplied by the number of days reserved for the hearing;
3.1.3. Cancellation or postponement between 30 and 59 days before the hearing: a cancellation fee of 50% of the Arbitrator’s agreed daily hearing rate multiplied by the number of days reserved for the hearing;
3.1.4. Cancellation or postponement less than 30 days before the hearing: a cancellation fee of 75% of the Arbitrator’s agreed daily hearing rate multiplied by the number of days reserved for the hearing;
3.1.5. Cancellation or postponement during the hearing: a cancellation fee of 100% of the Arbitrator’s agreed daily hearing rate multiplied by the remainder of the number of days reserved for the hearing.
3.2. Such cancellation fees are payable in addition to any fees payable pursuant to paragraphs 2.1.1. and 2.1.2. above.
4. DEPOSITS
4.1. The Arbitrator may request each party to deposit an equal amount as an advance for the Arbitrator’s fees and expenses as set out at part 2 above (titled “2. Arbitrator’s Fees and Expenses”).
4.2. During the course of the arbitral proceedings, the Arbitrator may request supplementary deposits from the parties.
4.3. If any deposit requested pursuant to paragraphs 4.1. or 4.2. is not provided, the Arbitrator may withhold any award or decision until the deposit is received, or alternatively order the suspension of the arbitral proceedings or, if he so elects, withdraw from office without thereby incurring any liability whatsoever to the parties.
4.4. Any deposit or supplementary deposit requested pursuant to paragraphs 4.1. or 4.2. shall be paid into a designated bank account administered by [the Arbitrator / designated stakeholder].
4.5. After the award has been made, the Arbitrator shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
4.6. Any sum taken as a deposit is not intended to be an estimate of the Arbitrator’s fees and expenses or an estimate of the overall costs of the arbitral proceedings.
5. IMMUNITY AND INDEMNITY
5.1. The parties fully release the Arbitrator from all claims and causes of action whatsoever relating to or arising from the arbitration. If the Arbitrator is involved as a party in any court proceedings related to the arbitration, then the Arbitrator shall be indemnified by the parties, jointly and severally, for all liability and costs incurred, and for any sums otherwise payable by the Arbitrator in respect of those court proceedings.
5.2. The parties agree that they will not call upon the Arbitrator to give evidence in any court proceedings relating to the arbitration or relating to any decision or award rendered by the Arbitrator. If the Arbitrator is called upon to give evidence in any court proceedings the Arbitrator shall be paid by the parties for his time and expenses on the same basis as set out in this agreement.
6. CONFIDENTIALITY, PRIVACY AND SECURITY
6. The parties [, through their counsel,] shall advise the Arbitrator of all measures necessary to comply with applicable legal requirements relating to privacy and confidentiality, as well as any security measures proposed by the parties, or either of them, relating to the security of information in the arbitration.
7. DOCUMENT RETENTION
7. The Arbitrator may dispose of all documents relating to the arbitration after 60 days following delivery of a final Award or other termination of the arbitration. This period shall be extended at the request of any party, provided the party making the request provides a deposit and reimburses the Arbitrator for the cost of storage of the documents for the period of the time requested beyond 60 days. If a party initiates any court proceedings with respect to the arbitration, that party shall notify the Arbitrator of having done so and shall provide a deposit and reimburse the Arbitrator for the costs of storing any documents relating to the arbitration pending completion of such proceedings.
8. ENTIRE AGREEMENT
8. This agreement supersedes any previous agreements between the parties and the Arbitrator in respect of the arbitration.
9. REPRESENTATION BY COUNSEL
9. By signing this agreement:
9.1. [counsel for PARTY A] warrant that they are authorized by [PARTY A] to represent [PARTY A] in the arbitration and to sign this agreement on [PARTY A]’s behalf.
9.2. [counsel for PARTY B] warrant that they are authorized by [PARTY B] to represent [PARTY B] in the arbitration and to sign this agreement on [PARTY B]’s behalf.
SIGNED this [date]
[Name](for and on behalf of [PARTY A])
[Name](for and on behalf of [PARTY B])
Martin Dillon, Arbitrator
Martin Dillon | Technology Arbitrator 