CDRL’s Commercial Arbitration Service has been approved and carefully selected by the Government to be an Approved Arbitration Body under the Commercial Rents (Coronavirus) Act 2022.
Landlords and tenants should always try to reach an agreement themselves first, and should follow the government’s Code of Practice for commercial property relationships following the COVID-19 pandemic
On 25 March, the moratorium on evicting commercial tenants ended, and the Commercial Rent (Coronavirus) Act came into effect, sending Covid rent arrears disputes between commercial landlords and tenants to binding arbitration.
Disputes about rent arrears arising as a result of the pandemic may now be determined by arbitration. The Commercial Rents (Coronavirus) Act 2022 sets out a binding arbitration procedure for the resolution of rental disputes where landlords and tenants of commercial properties have been unable to resolve the matter themselves.
CDRL has developed a tailored Covid Rent Arrears Arbitration service. Our scheme is designed to ensure our arbitrators could deal with all aspect of the property dispute, including accounting records, property management, structural matters etc. All of which are issues that is at the heart of the new legislation. CDRL arbitrators are equipped to decide the questions of business viability and rent affordability, as required by the new law.
Our arbitrators are expert in assessing the viability and profitability of tenant businesses for the purpose of determining their rents. This skill, and the ability to deal with accounting records as evidence, lie at the heart of the new legislation, and ideally equip CDRL arbitrators to decide the twin questions of business viability and rent affordability prescribed by the new law.
NOTE: This legislation applies only to England and Wales. It came into effect on the 25 March 2022; the service will be available from this date. Please use our online portal, email firstname.lastname@example.org or call 0203 540 8063 to apply.
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Frequently Asked Question (FAQ’s)
Alternative Dispute Resolution (ADR) offers a way for commercial disputes to be resolved without the need for costly litigation. A common type of ADR is arbitration.
How does arbitration work?
Arbitration is a more formal type of ADR which involves a tribunal process and an independent arbitrator who hears both sides of a dispute before coming to a legally binding decision on both parties.
What is the procedure?
The Arbitration Act 1996 and amendment Act 2015 regulates arbitration proceedings in England, Wales and Northern Ireland. The arbitration process is run as a tribunal, with either a single arbitrator or a panel of three arbitrators.
The arbitrators decide on the procedural and evidential matters. Often disclosure of documents will be required and there can be cross examination of witnesses, but proceedings will normally be shorter and less formal than litigation. The arbitrator makes a firm decision on a case, based on the evidence presented by the parties.
Arbitration is voluntary, so both sides must agree to go to arbitration; they should also agree in advance that they will abide by the arbitrator’s decision.
What is the role of the arbitrator?
An arbitrator is a nominated independent third party who should be experienced in handling the arbitration process. Their role is similar to that of a judge, in that they will listen to both sides and come to a decision. However, they will also encourage collaborative communication, as opposed to an adversarial approach. Although no specific qualifications are necessary to act as an arbitrator, some legal experience is useful, as is industry knowledge if the dispute involves technical matters.
Is a decision legally enforceable?
Any decision made by an arbitrator in the course of arbitration proceedings is legally binding in the same way as a judgment would be. Furthermore, under international conventions any arbitration awards or judgments in foreign countries are enforceable in the UK and vice-versa. This applies to any country who has signed the international convention. UK law also allows for the enforcement of both arbitration judgments in the UK and foreign ones too.
What is the difference between mediation, arbitration and conciliation?
Arbitration is a more formal type of ADR, with a tribunal process and a decision being made by the arbitrator. Mediation and conciliation are less formal procedures and focus on the facilitation of communication with a view to resolving a dispute. Conciliation involves evaluative methods and recommendations whereas mediators tend not to make any proposals for settlement.
What are arbitration clauses/agreements in commercial contracts?
Some commercial contracts contain an arbitration clause, which requires arbitration to be used in the case of a dispute arising. Although such clauses are not compulsory, they can avoid unnecessary litigation and are particularly recommended in the case of cross-border contracts (i.e. between businesses in different legal jurisdictions).
If statutory rights or obligations are involved, an arbitration clause will be overruled by the relevant regulations. For example, employees cannot contract out of their statutory employment law rights to give precedence to an arbitration clause in an employment contract.
When is arbitration most appropriate?
The arbitration process can be particularly useful in disputes which require an understanding of technical knowledge and where privacy is important (e.g. to avoid disclosure of commercially sensitive information) or if there is an international element (i.e. to avoid dealing with multiple legal jurisdictions).
Quick Guide to the Code of Practice
The new Code of Practice, published on 7 April 2022, replaces the Code issued on 19 June 2020, updated on 6 April 2021, and subsequently revised on 9 November 2021.
It sets out that tenants who can pay their rent debt in full should do so, and that in the first instance, tenants unable to pay in full should negotiate with their landlord in the expectation that the landlord shares the burden where they are able to do so, and only as far as necessary, by waiving some or all rent arrears or giving time to pay.
This Code is comprised of three sections:
- Part One of this Code applies to all business tenancies and sets out the behaviours expected of landlords and tenants including when they are in negotiation. It is therefore designed for use by landlords and tenants within England, Wales, Scotland, and Northern Ireland.
- Part Two of this Code provides guidance on the Commercial Rent (Coronavirus) Act 2022 (“the Act”) including any applicable legal obligations. This section is therefore designed for use by Landlords and Tenants in England and Wales (where the Act applies) only.
- Part Three of this Code provides information on remedies and measures and is generally applicable to England and Wales only, with the exception of paragraph 119 which applies only to Scotland and 120 which applies only to Northern Ireland.
For those tenancies that fall within scope of the Act and have failed to reach agreement, either party can apply for arbitration unilaterally, as a backstop after negotiations have failed. Parties are free to continue to negotiate outside of the legal arbitration process. The Code signposts tenants and landlords to the approved bodies, CDRL being one of those.
The window to apply for arbitration is six months from the date the legislation cames into force. Arbitrators may award a reduction of protected rent debt and/or time to pay, with a maximum period to repay of 24 months.
Before a reference can be made to arbitration, the Act requires the parties to carry out the pre-arbitration steps:
- The party intending to make a reference (the Applicant) must notify the other party (the Respondent) of its intention to make a reference;
- The Respondent does not have to respond to the Applicant’s notification. If the Respondent does choose to respond, the response must be submitted within 14 days.
- If the Respondent submits a response, the Applicant can make a reference 14 days after the response was received.
- If the Respondent has not submitted a response, the Applicant can make a reference 28 days after the initial notification.
The business tenancy to which this dispute relates must be a business to which Part 2 of the Landlord and Tenant Act 1954 applies:
- The dispute must relate to protected rent debt.
- Rent is defined as an amount payable to the landlord for possession and use of the premises comprised in the tenancy, an amount payable under the tenancy as a service charge, and any interest on either of those amounts. Further details are in Section 2 of the Act.
- For rent debt to be protected, two criteria must be met:
- The business or premises in question was subject to a closure requirement between 2pm, 21 March 2020 and 11:55pm, 18 July 2021 (for English business tenancies) or 6am, 7 August 2021 (for Welsh business tenancies); and
- The rent is attributable to a period of time occupation by the tenant for, or for a period within, the protected period applying to the tenancy.
- The tenant must not be subject to a company voluntary arrangement, individual voluntary arrangement, or other compromise or arrangement that relates to the protected rent debt. Further details are in Section 10, Part 1 of the Act.
- The tenant and the landlord must be in dispute and must not have reached agreement on the matter of relief from payment of the protected rent debt.
- Relief from payment can be one or more of: writing off the debt (in whole or in part); giving the tenant time to pay the debt (in whole or in part), including by way of instalments; and reducing or writing off any interest payable by the tenant under the terms of the tenancy in relation to all or part of the debt;
- A formal proposal for resolving the matter of relief must be included in this arbitration referral form.
The following are definitions, as stated in the Act, which may be of benefit in determining your eligibility. :
Closure requirement: a requirement imposed by coronavirus regulations which is expressed as an obligation to close businesses, or parts of businesses, of a specified description, to close premises, or parts of premises, of a specified description.
Coronavirus regulations: regulations made under section 45C of the Public Health (Control of Disease) Act 1984 (whether or not also made under any other power) and expressed to be made in response to the threat to public health posed by the incidence or spread of coronavirus.
Protected period: the period beginning on 21 March 2020 and ending with the last day on which all or part of the tenant’s business carried on at or from the premises, or the premises itself (or part of the premises), was subject either to a ‘closure requirement’ (see above) or to a ‘specific coronavirus restriction’ (see below). For premises in England, the last day of the protected period cannot be later than 18 July 2021. For premises in Wales, the last day of the protected period cannot be later than 7 August 2021.
Specific coronavirus restriction: a restriction or requirement, other than a closure requirement (see above) which (a) was imposed by coronavirus regulations (see above); and (b) regulated the way in which a business of a specified description (or part of it) was to operate, or the way in which premises of a specified description (or part of them) were to be used.
Company voluntary arrangement: a company voluntary arrangement approved under section 4 of the Insolvency Act 1986.
Individual voluntary arrangement: an individual voluntary arrangement approved under section 258 of the Insolvency Act 1986.
Compromise or arrangement: a compromise or arrangement sanctioned under section 899 or 901F of the Companies Act 2006.
Terms of Reference for Arbitration under The Commercial Rent (Coronavirus) Act 2022 (“the Act”).
- Application – either party can apply for Arbitration under the Act by completing an application form. Please note that you must first have served notice of your intention to make a reference to arbitration to the other party under section 10 of the Act and otherwise ensure you have complied with the obligations set out in that section. A reference to arbitration must also comply with the requirements of sections 11 (formal proposals) and 12 (written statements) of the Act.
- Triage – the Commercial Arbitration Service will conduct an initial eligibility review and conflict of interest check to determine an appropriate arbitrator. The parties will receive confirmation of the Appointment of an Arbitrator or notification that the referral is immediately deemed ineligible, within seven (7) days.
- Fee schedule – the fee schedule is available comprising an initial fee per party on a sliding scale, however there may be an uplift also on a sliding scale depending upon the level of complexity and time allocation. All fees must be paid in advance by both parties, or by the referring party covering the initial costs, but all fee arrangements and agreements will be confirmed prior to any appointment.
- Acceptance of Arbitrator – if neither party objects to the proposed appointment of an Arbitrator by the scheme, an Agreement will be sent to both parties for signature and return. The Appointment will take effect upon receipt of the Arbitrator’s fee from the parties and the receipt of signed agreements, counter-signed by the arbitrator, from both parties.
- Acceptance of Arbitrator by Appointment of the Parties – should the parties wish to elect an Arbitrator rather than the scheme appointing one for them, then the parties will be provided with choice of three (3) Arbitrators from the panel within seven (7) days of agreeing to the scheme, upon which they are to agree the appointment off an Arbitrator within a further seven (7) days and confirm with the scheme. The Appointment will take effect upon receipt of the Arbitrator’s fee from the parties and the receipt of signed agreements, counter-signed by the arbitrator, from both parties.
- Unable to Agree on the Appointment of an Arbitrator – the parties acknowledge that should no agreement be made within seven (7) days of receipt of the submitted Arbitrators form the panel, then the scheme will appoint an Arbitrator for them, this may not always be an Arbitrator from the selection provided. Upon selection, Appointment will take effect upon receipt of the Arbitrator’s fee from the parties and the receipt of signed agreements, counter-signed by the arbitrator, from both parties.
- Preliminary Review – the Arbitrator will conduct a review, dealing with any preliminary legal points arising out of the Final Proposals submitted by both parties.
- Hearing – if either or both parties request a hearing, this will be scheduled within 14 days of receipt of the request. The requesting party must pay the fee in advance (or otherwise will be jointly and severally liable to pay this if both parties request a hearing).
- Issue of Award – the award will be issued as soon as reasonably practicable from the date upon which the latest final proposal is received, or otherwise the last day upon which a party may submit a revised proposal, or within 14 days from the conclusion of an oral hearing.
- Legal Costs – except as set out in the Act, both parties must meet their own legal or other associated costs.
Awards and Remedies:
- Awards – these will be made in accordance with sections 13 and 14 of the Act which will include reimbursement of arbitration fees in accordance with sections 19(5) and 20 (6).
- Publication of Award – the award will be published on CDRL’s website, under the Commercial Arbitration Service Scheme page.
Complaints or Disagreement with the Arbitrators Decision:
- Challenges to Awards – parties may be able to challenge awards under sections 67-69 of the Arbitration Act, this may be subject to further costs that the challenging party is expected to cover
- The fees for any challenge must be paid in advance of the challenge being considered by the challenging party.
- If your issues do not relate to the outcome of the Arbitrators decision but of the service you have received by the scheme, please raise your concerns to The Head of the Commercial Arbitration Service, stating your CASE ID Number and email it to email@example.com by post to 12-14 Walker Avenue, Stratford Office Village, Wolverton Mill, Milton Keynes, MK12 5TW
- The Removal of an Arbitrator – following acceptance of the initial appointment, any grounds for removal should be communicated to The Head of the Commercial Arbitration Service, stating your CASE ID Number and email it to firstname.lastname@example.org by post to 12-14 Walker Avenue, Stratford Office Village, Wolverton Mill, Milton Keynes, MK12 5TW, explaining the reasons for which removal is sought. In the event that a replacement is agreed and required, the fees will be adjusted accordingly and, depending upon the reasons for the Arbitrator stepping down, an administration charge may be applied. This charge will be payable by the requesting party unless agreed by both parties that the fee is split.
Rule 1. Scope of Rules
(a) The CDRL Commercial Arbitration Service Rules and Procedures (“Rules”) govern binding Arbitrations of disputes or claims that are administered by CDRL and in which the Parties agree to use these Rules, or, in the absence of such agreement, no disputed claim or counterclaim exceeds £1Billion not including interest or legal fees, unless other Rules are prescribed.
(b) The Parties shall be deemed to have made these Rules a part of their Arbitration agreement (“Agreement”) whenever they have provided for Arbitration by CDRL under its Rules or for Arbitration by CDRL without specifying any particular CDRL Rules and the disputes or claims meet the criteria of the first paragraph of this Rule.
(c) The authority and duties of CDRL as prescribed in the Agreement of the Parties and in these Rules shall be carried out by the CDRL Arbitration Committee (“AC”) or the office of the General Counsel or their designees.
(d) CDRL may, in its discretion, assign the administration of an Arbitration to any of its Resolution Centres.
(e) The term “Party” as used in these Rules includes Parties to the Arbitration and their counsel or representatives.
(f) “Electronic filing” (e-file) means the electronic transmission of documents to and from CDRL and other Parties for the purpose of filing via the Internet. “Electronic service” (e-service) means the electronic transmission of documents via CDRL’s online Portal to a Party, attorney or representative under these Rules.
Rule 2. Party Self Determination
(a) The Parties may agree on any procedures not specified herein or in lieu of these Rules that are consistent with the applicable law and CDRL policies (including, without limitation, Rules 12(j), 25 and 26). The Parties shall promptly notify CDRL of any such Party-agreed procedures and shall confirm such procedures in writing. The Party-agreed procedures shall be enforceable as if contained in these Rules.
(b) When an Arbitration Agreement provides that the arbitration will be non-administered or administered by an entity other than CDRL and/or conducted in accordance with rules other than CDRL rules, the Parties may subsequently agree to modify that agreement to provide that the arbitration will be administered by CDRL and/or conducted in accordance with CDRL rules.
Rule 3. Amendment of Rules
CDRL may amend these Rules without notice. The Rules in effect on the date of the commencement of an Arbitration (as defined in Rule 5) shall apply to that Arbitration, unless the Parties have agreed upon another version of the Rules.
Rule 4. Conflict with Law
If any of these Rules, or modification of these Rules agreed to by the Parties, is determined to be in conflict with a provision of applicable law, the provision of law will govern over the Rule in conflict, and no other Rule will be affected.
Rule 5. Commencing an Arbitration and Service
(a) The Arbitration is deemed commenced when CDRL issues a Commencement Letter based upon the existence of one of the following:
(i) A post-dispute Arbitration Agreement fully executed by all Parties specifying CDRL administration or use of any CDRL Rules; or
(ii) A pre-dispute written contractual provision requiring the Parties to arbitrate the dispute or claim specifying CDRL administration or use of any CDRL Rules or that the Parties agree shall be administered by CDRL; or
(iii) A written confirmation of an oral agreement of all Parties to participate in an Arbitration administered by CDRL or conducted pursuant to any CDRL Rules, confirmed in writing by the Parties; or
(iv) The Respondent’s failure to timely object to CDRL administration; or
(v) A copy of a court order compelling Arbitration at CDRL.
(b) The issuance of the Commencement Letter confirms that the requirements for commencement have been met, that CDRL has received all payments required under the applicable fee schedule and that the Claimant has provided CDRL with contact information for all Parties along with evidence that the Demand for Arbitration has been served on all Parties.
(c) If a Party that is obligated to arbitrate in accordance with subparagraph (a) of this Rule fails to agree to participate in the Arbitration process, CDRL shall confirm in writing that Party’s failure to respond or participate, and, pursuant to Rule 14, the Arbitrator shall schedule, and provide appropriate notice of, a Case or other opportunity for the Party demanding the Arbitration to demonstrate its entitlement to relief.
(d) The date of commencement of the Arbitration is the date of the Commencement Letter but is not intended to be applicable to any legal requirements such as the statute of limitations any contractual limitations period or claims notice requirements. The term “commencement,” as used in this Rule, is intended only to pertain to the operation of this and other Rules (such as Rule 3, 10(a) and 26(a)).
(e) Service by a Party under these Rules is affected by providing one signed copy of the document to each Party and two copies to CDRL. Service may be made by hand-delivery, overnight delivery service or U.S. mail. Service by any of these means is considered effective upon the date of deposit of the document. In computing any period of time prescribed or allowed by these Rules for a Party to do some act within a prescribed period after the service of a notice or other paper on the Party and the notice or paper is served on the Party only by U.S. mail, three (3) calendar days shall be added to the prescribed period.
(f) Electronic Filing. The Arbitrator may at any time require electronic filing and service of documents in an Arbitration. If an Arbitrator requires electronic filing, the Parties shall maintain and regularly monitor a valid, usable and live email address for the receipt of all documents filed through CDRL Portal. Any document filed electronically shall be considered as filed with CDRL when the transmission to CDRL Portal is complete. Any document e-filed by 11:59 p.m. (of the sender’s time zone) shall be deemed filed on that date. Upon completion of filing, CDRL Portal shall issue a confirmation receipt that includes the date and time of receipt. The confirmation receipt shall serve as proof of filing.
Every document electronically filed or served shall be deemed to have been signed by the Arbitrator, Case Manager, attorney or declarant who submits the document to CDRL Portal, and shall bear the typed name, address and telephone number of a signing attorney. Typographical signatures shall be treated as personal signatures for all purposes under these Rules. Documents containing signatures of third parties (i.e., unopposed motions, affidavits, stipulations, etc.) may also be filed electronically by indicating that the original signatures are maintained by the filing Party in paper format.
Delivery of e-service documents through CDRL Portal to other registered users shall be considered as valid and effective service and shall have the same legal effect as an original paper document. Recipients of e-service documents shall access their documents through CDRL Portal. E-service shall be deemed complete when the Party initiating e-service completes the transmission of the electronic document(s) to CDRL Portal for e-filing and/or e-service. Upon actual or constructive receipt of the electronic document(s) by the Party to be served, a Certificate of Electronic Service shall be issued by CDRL Portal to the Party initiating e-service, and that Certificate shall serve as proof of service. Any Party who ignores or attempts to refuse e-service shall be deemed to have received the electronic document(s) 72 hours following the transmission of the electronic document(s) to CDRL Portal.
If an electronic filing or service does not occur because of (1) an error in the transmission of the document to CDRL Portal or served Party that was unknown to the sending Party; (2) a failure to process the electronic document when received by CDRL Portal; (3) the Party was erroneously excluded from the service list; or (4) other technical problems experienced by the filer, the Arbitrator or CDRL may, for good cause shown, permit the document to be filed nunc pro tunc to the date it was first attempted to be sent electronically. Or, in the case of service, the Party shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or the period within which any right, duty or other act must be performed.
Rule 6. Preliminary and Administrative Matters
(a) CDRL may convene, or the Parties may request, administrative conferences to discuss any procedural matter relating to the administration of the Arbitration.
(b) If no Arbitrator has yet been appointed, at the request of a Party and in the absence of Party agreement, CDRL may determine the location of the Case, subject to Arbitrator review. In determining the location of the Case, such factors as the subject matter of the dispute, the convenience of the Parties and witnesses, and the relative resources of the Parties shall be considered.
(c) If, at any time, any Party has failed to pay fees or expenses in full, CDRL may order the suspension or termination of the proceedings. CDRL may so inform the Parties in order that one of them may advance the required payment. If one Party advances the payment owed by a non-paying Party, the Arbitration shall proceed, and the Arbitrator may allocate the non-paying Party’s share of such costs, in accordance with Rules 19(e) and 26(c). An administrative suspension shall toll any other time limits contained in these Rules or the Parties’ Agreement.
(d) CDRL does not maintain an official record of documents filed in the Arbitration. If the Parties wish to have any documents returned to them, they must advise CDRL in writing within thirty (30) calendar days of the conclusion of the Arbitration. If special arrangements are required regarding file maintenance or document retention, they must be agreed to in writing, and CDRL reserves the right to impose an additional fee for such special arrangements. Documents that are submitted for e-filing are retained for thirty (30) calendar days following the conclusion of the Arbitration.
(e) Unless the Parties’ Agreement or applicable law provides otherwise, CDRL may consolidate Arbitrations in the following instances:
(i) If a Party files more than one Arbitration with CDRL, CDRL may consolidate the Arbitrations into a single Arbitration.
(ii) Where a Demand or Demands for Arbitration is or are submitted naming Parties already involved in another Arbitration or Arbitrations pending under these Rules, CDRL may decide that the new case or cases shall be consolidated into one or more of the pending proceedings and referred to one of the Arbitrators already appointed.
(iii) Where a Demand or Demands for Arbitration is or are submitted naming parties that are not identical to the Parties in the existing Arbitration or Arbitrations, CDRL may decide that the new case or cases shall be consolidated into one or more of the pending proceedings and referred to one of the Arbitrators already appointed.
When rendering its decision, CDRL will take into account all circumstances, including the links between the cases and the progress already made in the existing Arbitrations.
Unless applicable law provides otherwise, where CDRL decides to consolidate a proceeding into a pending Arbitration, the Parties to the consolidated case or cases will be deemed to have waived their right to designate an Arbitrator as well as any contractual provision with respect to the site of the Arbitration.
(f) Where a third party seeks to participate in an Arbitration already pending under these Rules or where a Party to an Arbitration under these Rules seeks to compel a third party to participate in a pending Arbitration, the Arbitrator shall determine such request, taking into account all circumstances he or she deems relevant and applicable.
Rule 7. Notice of Claims
(a) Each Party shall afford all other Parties reasonable and timely notice of its claims, affirmative defenses or counterclaims. Any such notice shall include a short statement of its factual basis. No claim, remedy, counterclaim, or affirmative defense will be considered by the Arbitrator in the absence of such prior notice to the other Parties, unless the Arbitrator determines that no Party has been unfairly prejudiced by such lack of formal notice or all Parties agree that such consideration is appropriate notwithstanding the lack of prior notice.
(b) Claimant’s notice of claims is the Demand for Arbitration referenced in Rule 5. It shall include a statement of the remedies sought. The Demand for Arbitration may attach and incorporate a copy of a Complaint previously filed with a court. In the latter case, Claimant may accompany the Complaint with a copy of any Answer to that Complaint filed by any Respondent.
(c) Within seven (7) calendar days of service of the notice of claim, a Respondent may submit to CDRL and serve on other Parties a response and a statement of any affirmative defenses, including jurisdictional challenges, or counterclaims it may have.
(d) Within seven (7) calendar days of service of a counterclaim, a Claimant may submit to CDRL and serve on other Parties a response to such counterclaim and any affirmative defenses, including jurisdictional challenges, it may have.
(e) Any claim or counterclaim to which no response has been served will be deemed denied.
(f) Jurisdictional challenges under Rule 8 shall be deemed waived, unless asserted in a response to a Demand or counterclaim or promptly thereafter, when circumstances first suggest an issue of arbitrability.
Rule 8. Interpretation of Rules and Jurisdiction Challenges
(a) Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and conduct of the Arbitration Case. The resolution of the issue by the Arbitrator shall be final.
(b) Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
(c) Disputes concerning the appointment of the Arbitrator shall be resolved by CDRL.
(d) The Arbitrator may, upon a showing of good cause or sua sponte, when necessary to facilitate the Arbitration, extend any deadlines established in these Rules, provided that the time for rendering the Award may only be altered in accordance with Rule 19.
Rule 9. Representation
(a) The Parties, whether natural persons or legal entities such as corporations, LLCs or partnerships, may be represented by counsel or any other person of the Party’s choice. Each Party shall give prompt written notice to CDRL and the other Parties of the name, address, telephone and fax numbers and email address of its representative. The representative of a Party may act on the Party’s behalf in complying with these Rules.
(b) Changes in Representation. A Party shall give prompt written notice to the Case Manager and the other Parties of any change in its representation, including the name, address, telephone and fax numbers and email address of the new representative. Such notice shall state that the written consent of the former representative, if any, and of the new representative, has been obtained and shall state the effective date of the new representation.
Rule 10. Withdrawal from Arbitration
(a) No Party may terminate or withdraw from an Arbitration after the issuance of the Commencement Letter (see Rule 5), except by written agreement of all Parties to the Arbitration.
(b) A Party that asserts a claim or counterclaim may unilaterally withdraw that claim or counterclaim without prejudice by serving written notice on the other Parties and the Arbitrator. However, the opposing Parties may, within seven (7) calendar days of service of such notice, request that the Arbitrator condition the withdrawal upon such terms as he or she may direct.
Rule 11. Ex Parte Communications
No Party will have any ex parte communication with the Arbitrator regarding any issue related to the Arbitration. The Arbitrator may authorize any Party to communicate directly with the Arbitrator by email or other written means as long as copies are simultaneously forwarded to the CDRL Case Manager and the other Parties.
Rule 12. Arbitrator Selection, Disclosures and Replacement
(a) CDRL Arbitrations will be conducted by one neutral Arbitrator.
(b) Unless the Arbitrator has been previously selected by agreement of the Parties, the Case Manager at CDRL shall designate the Arbitrator.
(c) If, for any reason, the Arbitrator who is selected is unable to fulfill the Arbitrator’s duties, a successor Arbitrator shall be chosen in accordance with this Rule. CDRL will make the final determination as to whether an Arbitrator is unable to fulfill his or her duties, and that decision shall be final.
(d) Any disclosures regarding the selected Arbitrator shall be made as required by law or within ten (10) calendar days from the date of appointment. Such disclosures may be provided in electronic format, provided that CDRL will produce a hard copy to any Party that requests it. The Parties and their representatives shall disclose to CDRL any circumstances likely to give rise to justifiable doubt as to the Arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the Arbitration or any past or present relationship with the Parties or their representatives. The obligation of the Arbitrator, the Parties and their representatives to make all required disclosures continues throughout the Arbitration process.
(e) At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties, who may respond within seven (7) days of service of the challenge. CDRL shall make the final determination as to such challenge. Such determination shall take into account the materiality of the facts and any prejudice to the Parties. That decision will be final.
Rule 13. Exchange of Information
(a) The Parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and information (including electronically stored information (“ESI”)) relevant to the dispute or claim, including copies of all documents in their possession or control on which they rely in support of their positions or that they intend to introduce as exhibits at the Arbitration Case, the names of all individuals with knowledge about the dispute or claim and the names of all experts who may be called upon to testify or whose reports may be introduced at the Arbitration Case. The Parties and the Arbitrator will make every effort to conclude the document and information exchange process within fourteen (14) calendar days after all pleadings or notices of claims have been received. The necessity of additional information exchange shall be determined by the Arbitrator based upon the reasonable need for the requested information, the availability of other discovery options and the burdensomeness of the request on the opposing Parties and the witness.
(b) As they become aware of new documents or information, including experts who may be called upon to testify, all Parties continue to be obligated to provide relevant, non-privileged documents, to supplement their identification of witnesses and experts and to honor any informal agreements or understandings between the Parties regarding documents or information to be exchanged. Documents that were not previously exchanged, or witnesses and experts that were not previously identified, may not be considered by the Arbitrator at the Case, unless agreed by the Parties or upon a showing of good cause.
(c) The Parties shall promptly notify CDRL when a dispute exists regarding discovery issues. A conference shall be arranged with the Arbitrator, either by telephone or in person, and the Arbitrator shall decide the dispute.
Rule 14. Pre-Arbitration Submissions
(a) Except as set forth in any scheduling order that may be adopted, at least seven (7) calendar days before the Arbitration, the Parties shall file with CDRL and serve and exchange (1) a list of the witnesses they intend to call, including any experts; (2) a short description of the anticipated testimony of each such witness and an estimate of the length of the witness’ direct testimony; and (3) a list of all exhibits intended to be used during their submission. The Parties should exchange with each other copies of any such exhibits to the extent that they have not been previously exchanged. The Parties should pre-mark exhibits and shall attempt to resolve any disputes regarding the admissibility of exhibits prior to the Arbitration
(b) The Arbitrator may require that each Party submit a concise written statement of position, including summaries of the facts and evidence a Party intends to present, discussion of the applicable law and the basis for the requested Award or denial of relief sought. The statements, which may be in the form of a letter, shall be filed with CDRL and served upon the other Parties at least seven (7) calendar days before the Arbitration due date. Rebuttal statements or other pre-Arbitration written submissions may be permitted or required at the discretion of the Arbitrator.
Rule 15. The Arbitration
(a) The Arbitrator will ordinarily conduct the Arbitration in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined to be reasonable and appropriate to do so.
(b) The Arbitrator shall determine the order of proof, which will generally be similar to that of an Adjudication.
(c) The Arbitrator may require witnesses to testify under oath if requested at the discretion of the Arbitrator.
(d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. The Arbitrator shall consider evidence that he or she finds relevant and material to the dispute, giving the evidence such weight as is appropriate. The Arbitrator may be guided in that determination by principles contained in the Rules of Evidence or any other applicable rules of evidence. The Arbitrator may limit testimony to exclude evidence that would be immaterial or unduly repetitive, provided that all Parties are afforded the opportunity to present material and relevant evidence.
(e) The Arbitrator shall receive and consider relevant deposition testimony recorded by transcript or videotape, provided that the other Parties have had the opportunity to cross-examine the evidence and be afforded opportunity to comment. The Arbitrator may in his or her discretion consider witness affidavits or other recorded testimony even if the other Parties have not had the opportunity to cross-examine, but will give that evidence only such weight as he or she deems appropriate.
(f) The Parties will not offer as evidence, and the Arbitrator shall neither admit into the record nor consider, prior settlement offers by the Parties or statements or recommendations made by a mediator or other person in connection with efforts to resolve the dispute being arbitrated, except to the extent that applicable law permits the admission of such evidence.
(g) The Case, or any portion thereof, may be conducted telephonically or video graphically with the agreement of the Parties or at the discretion of the Arbitrator.
(h) When the Arbitrator determines that all relevant and material evidence and arguments have been presented, and any interim or partial Awards have been issued, the Arbitrator shall declare the case closed. The Arbitrator may defer the closing of the case until a date determined by the Arbitrator, to permit the Parties to submit post-case briefs, which may be in the form of a letter. If post-case briefs are to be submitted, the case shall be deemed closed upon receipt by the Arbitrator of such briefs.
(i) At any time before the Award is rendered, the Arbitrator may, sua sponte or upon the application of a Party for good cause shown, reopen the case If the case is reopened, the time to render the Award shall be calculated from the date the reopened Case is declared closed by the Arbitrator.
(j) The Arbitrator may proceed with the Case in the absence of a Party that, after receiving notice of the Case pursuant to Rule 14, fails to provide its submission or defence. The Arbitrator may render an Award solely on the basis of the default or absence of the Party, but shall require any Party seeking relief to submit such evidence as the Arbitrator may require for the rendering of an Award. If the Arbitrator reasonably believes that a Party will not provide their submission, the Arbitrator may schedule the Case as a telephonic Case and may receive the evidence necessary to render an Award by affidavit. The notice of a Case shall specify if it will be in person or telephonic if required but will usually be completed in writing.
(k)The Parties agree to submit the dispute to the Arbitrator for an Award based on written submissions and other evidence as the Parties may agree but the Arbitrator reserves the right as he or she sees fit to assess the case orally in matters by way of oral hearing, telephone, skype or other methods deemed appropriate by the Arbitrator which will be at his or her discretion, however Parties should they need a reasonable adjustment are required to make such request at the beginning of the process when submitting their evidence or logging their case onto the Portal.
Rule 16. Awards
(a) The Arbitrator shall render a Final Award or Partial Final Award within thirty (30) calendar days after the date of the close of the Case as defined in Rule 15 (j) or (k), or, if a Case has been waived, within thirty (30) calendar days after the receipt by the Arbitrator of all materials specified by the Parties, except (1) by the agreement of the Parties; (2) upon good cause for an extension of time to render the Award; or (3) as provided in Rule 15. The Arbitrator shall provide the Final Award or Partial Final Award to CDRL for issuance in accordance with this Rule.
(b) In determining the merits of the dispute, the Arbitrator shall be guided by the rules of law agreed upon by the Parties. In the absence of such agreement, the Arbitrator will be guided by the law or the rules of law that he or she deems to be most appropriate. The Arbitrator may grant any remedy or relief that is just and equitable and within the scope of the Parties’ agreement, including, but not limited to, specific performance of a contract or any other equitable or legal remedy.
(c) In addition to a Final Award or Partial Final Award, the Arbitrator may make other decisions, including interim or partial rulings, orders and Awards.
(d) Interim Measures. The Arbitrator may grant whatever interim measures are deemed necessary, including injunctive relief and measures for the protection or conservation of property and disposition of disposable goods. Such interim measures may take the form of an interim or Partial Final Award, and the Arbitrator may require security for the costs of such measures. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
(e) The Award of the Arbitrator may allocate Arbitration fees and Arbitrator compensation and expenses, unless such an allocation is expressly prohibited by the Parties’ Agreement. (Such a prohibition may not limit the power of the Arbitrator to allocate Arbitration fees and Arbitrator compensation and expenses pursuant to these Rules
(f) The Award of the Arbitrator may allocate attorneys’ fees and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties’ Agreement or allowed by applicable law. When the Arbitrator is authorized to award attorneys’ fees and must determine the reasonable amount of such fees, he or she may consider whether the failure of a Party to cooperate reasonably in the discovery process and/or comply with the Arbitrator’s discovery orders caused delay to the proceeding or additional costs to the other Parties.
(g) The Award shall consist of a written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim. Unless all Parties agree otherwise, the Award shall also contain a concise written statement of the reasons for the Award.
(h) After the Award has been rendered, and provided the Parties have complied with these Rules the Award shall be issued by serving copies on the Parties. Service may be made by Royal mail or electronically by way of notification via the Portal. It need not be sent certified or registered.
(i) Within seven (7) calendar days after service of a Partial Final Award or Final Award by CDRL, any Party may serve upon the other Parties and on CDRL a request that the Arbitrator correct any computational, typographical or other similar error in an Award (including the reallocation of fees pursuant to these Rules or on account of the effect of an offer to allow judgment), or the Arbitrator may sua sponte propose to correct such errors in an Award. A Party opposing such correction shall have seven (7) calendar days thereafter in which to file any objection. The Arbitrator may make any necessary and appropriate corrections to the Award within fourteen (14) calendar days of receiving a request or seven (7) calendar days after his or her proposal to do so. The Arbitrator may extend the time within which to make corrections upon good cause. The corrected Award shall be served upon the Parties in the same manner as the Award.
(j) The Award is considered final, for purposes of judicial proceeding to enforce, modify or vacate the Award pursuant to Rule 20, fourteen (14) calendar days after service is deemed effective if no request for a correction is made, or as of the effective date of service of a corrected Award.
Rule 17. Enforcement of the Award
Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Arbitration Act, or applicable state law. The Parties to an Arbitration under these Rules shall be deemed to have consented that judgment upon the Award may be entered in any court having jurisdiction thereof.
Rule 18. Confidentiality and Privacy
(a) CDRL and the Arbitrator shall maintain the confidential nature of the Arbitration proceeding and the Award, including the Case, except as necessary in connection with a judicial challenge to or enforcement of an Award, or unless otherwise required by law or judicial decision.
(b) The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets or other sensitive information.
(c) Subject to the discretion of the Arbitrator or agreement of the Parties, any person having a direct interest in the Arbitration may attend the Arbitration Case. The Arbitrator may exclude any non-Party from any part of a Case.
Rule 19. Waiver
(a) If a Party becomes aware of a violation of or failure to comply with these Rules and fails promptly to object in writing, the objection will be deemed waived, unless the Arbitrator determines that waiver will cause substantial injustice or hardship.
(b) If any Party becomes aware of information that could be the basis of a challenge for cause to the continued service of the Arbitrator, such challenge must be made promptly, in writing, to the Arbitrator or CDRL. Failure to do so shall constitute a waiver of any objection to continued service by the Arbitrator.
Rule 20. Settlement and Consent Award
(a) The Parties may agree, at any stage of the Arbitration process, to submit the case to CDRL for mediation. The CDRL mediator assigned to the case may not be the Arbitrator, unless the Parties so agree, pursuant to these Rules
(b) The Parties may agree to seek the assistance of the Arbitrator in reaching settlement. By their written agreement to submit the matter to the Arbitrator for settlement assistance, the Parties will be deemed to have agreed that the assistance of the Arbitrator in such settlement efforts will not disqualify the Arbitrator from continuing to serve as Arbitrator if settlement is not reached; nor shall such assistance be argued to a reviewing court as the basis for vacating or modifying an Award.
(c) If, at any stage of the Arbitration process, all Parties agree upon a settlement of the issues in dispute and request the Arbitrator to embody the agreement in a Consent Award, the Arbitrator shall comply with such request, unless the Arbitrator believes the terms of the agreement are illegal or undermine the integrity of the Arbitration process. If the Arbitrator is concerned about the possible consequences of the proposed Consent Award, he or she shall inform the Parties of that concern and may request additional specific information from the Parties regarding the proposed Consent Award. The Arbitrator may refuse to enter the proposed Consent Award and may withdraw from the case.
Rule 21. Sanctions
The Arbitrator may order appropriate sanctions for failure of a Party to comply with its obligations under any of these Rules or with an order of the Arbitrator. These sanctions may include, but are not limited to, assessment of Arbitration fees and Arbitrator compensation and expenses; any other costs occasioned by the actionable conduct, including reasonable attorneys’ fees; exclusion of certain evidence; drawing adverse inferences; or, in extreme cases, determining an issue or issues submitted to Arbitration adversely to the Party that has failed to comply.
Rule 22. Disqualification of the Arbitrator as a Witness or Party and Exclusion of Liability
(a) The Parties may not call the Arbitrator, the Case Manager or any other CDRL employee or agent as a witness or as an expert in any pending or subsequent litigation or other proceeding involving the Parties and relating to the dispute that is the subject of the Arbitration. The Arbitrator, Case Manager and other CDRL employees and agents are also incompetent to testify as witnesses or experts in any such proceeding.
(b) The Parties shall defend and/or pay the cost (including any attorneys’ fees) of defending the Arbitrator, Case Manager and/or CDRL from any subpoenas from outside parties arising from the Arbitration.
(c) The Parties agree that neither the Arbitrator, nor the Case Manager, nor CDRL is a necessary Party in any litigation or other proceeding relating to the Arbitration or the subject matter of the Arbitration, and neither the Arbitrator, nor the Case Manager, nor CDRL, including its employees or agents, shall be liable to any Party for any act or omission in connection with any Arbitration conducted under these Rules, including, but not limited to, any disqualification of or recusal by the Arbitrator.
Rule 23. Fees
(a) Each Party shall pay its pro rata share of CDRL fees and expenses as set forth in the CDRL fee schedule in effect at the time of the commencement of the Arbitration, unless the Parties agree on a different allocation of fees and expenses. CDRL’ agreement to render services is jointly with the Party and the attorney or other representative of the Party in the Arbitration. The non-payment of fees may result in an administrative suspension of the case in accordance with Rule 6(c).
(b) CDRL requires that the Parties deposit the fees and expenses for the Arbitration from time to time during the course of the proceedings and prior to the Case. The Arbitrator may preclude a Party that has failed to deposit its pro rata or agreed-upon share of the fees and expenses from offering evidence of any affirmative claim at the Case.
(c) The Parties are jointly and severally liable for the payment of CDRL Arbitration fees and Arbitrator compensation and expenses. In the event that one Party has paid more than its share of such fees, compensation and expenses, the Arbitrator may Award against any Party any such fees, compensation and expenses that such Party owes with respect to the Arbitration.
(d) Entities whose interests are not adverse with respect to the issues in dispute shall be treated as a single Party for purposes of CDRL’ assessment of fees. CDRL shall determine whether the interests between entities are adverse for purpose of fees, considering such factors as whether the entities are represented by the same attorney and whether the entities are presenting joint or separate positions at the Arbitration.
Rule 24. Bracketed (or High-Low) Arbitration Option
(a) At any time before the issuance of the Arbitration Award, the Parties may agree, in writing, on minimum and maximum amounts of damages that may be awarded on each claim or on all claims in the aggregate. The Parties shall promptly notify CDRL and provide to CDRL a copy of their written agreement setting forth the agreed-upon minimum and maximum amounts.
(b) CDRL shall not inform the Arbitrator of the agreement to proceed with this option or of the agreed-upon minimum and maximum levels without the consent of the Parties.
(c) The Arbitrator shall render the Award in accordance with these Rule.
(d) In the event that the Award of the Arbitrator is between the agreed-upon minimum and maximum amounts, the Award shall become final as is. In the event that the Award is below the agreed-upon minimum amount, the final Award issued shall be corrected to reflect the agreed-upon minimum amount. In the event that the Award is above the agreed-upon maximum amount, the final Award issued shall be corrected to reflect the agreed-upon maximum amount.
Rule 25. Final Offer (or Baseball) Arbitration Option
(a) Upon agreement of the Parties to use the option set forth in this Rule, at least seven (7) calendar days before the Arbitration Case, the Parties shall exchange and provide to CDRL written proposals for the amount of money damages they would offer or demand, as applicable, and that they believe to be appropriate based on the standard set forth in these Rules. CDRL shall promptly provide copies of the Parties’ proposals to the Arbitrator, unless the Parties agree that they should not be provided to the Arbitrator. At any time prior to the close of the Arbitration Case, the Parties may exchange revised written proposals or demands, which shall supersede all prior proposals. The revised written proposals shall be provided to CDRL, which shall promptly provide them to the Arbitrator, unless the Parties agree otherwise.
(b) If the Arbitrator has been informed of the written proposals, in rendering the Award, the Arbitrator shall choose between the Parties’ last proposals, selecting the proposal that the Arbitrator finds most reasonable and appropriate in light of the standard set forth in these Rules. This provision modifies these Rules in that no written statement of reasons shall accompany the Award.
(c) If the Arbitrator has not been informed of the written proposals, the Arbitrator shall render the Award as if pursuant to These Rules, except that the Award shall thereafter be corrected to conform to the closest of the last proposals and the closest of the last proposals will become the Award.
(d) Other than as provided herein, the provisions of these Rules shall be applicable.
|Amount In Dispute||Fee per party|
|£150,001 – £300,000||£3,950|
|£300,001 – £499,999||£5,500|
|£750,001 – £1Mill||£8,500|
|SME Annual Turnover||Amount In Dispute||Fee per party|
|Upto £500,000||Upto £150,000||£250|
|£150,001 – £300,000||£600|
|£300,001 – £499,999||£900|
|£750,001 – £1Mill||£1,500|
|£500,001 +||Upto £150,000||£400|
|£150,001 – £300,000||£900|
|£300,001 – £499,999||£1,400|
|£750,001 – £1Mill||£2,500|
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