The Gist with DRC
By Agatha Omokhuwa Edelegba
Article 41 of the DRC ACCI Rules 2017, generally defines the term Cost:
Article 41 (1) states that:
The Arbitral Tribunal shall fix the costs of Arbitration in the Final Award and, if it deems appropriate, in another decision.
Article 41 (2) further explains the term “Costs” to include:
a. The fees of the Arbitral Tribunal to be stated separately as to each Arbitrator and to be fixed by the Tribunal itself in accordance with Article 41;
B. The reasonable travel and other expenses incurred by the Arbitrators;
C. The reasonable costs of expert advice and of other assistance required by the Arbitral Tribunal;
D. The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the Arbitral Tribunal;
E. The legal and other costs incurred by the parties in relation to the Arbitration to the extent that the Arbitral Tribunal determines that the amount of such costs is reasonable;
F. Any Fees and Expenses of the Centre.
Furthermore, Article 41 (3) stated that in relation to interpretation, correction or completion of any Award under Articles 37 to 39 of the ACCI DRC Rules respectively, the Arbitral Tribunal May charge the costs referred to in paragraph 2(b) to (f) above but no Additional Fees.
In Article 42 of the same Rules, it provides that upon filing the request of Arbitration, the claimant shall pay a registration fee to be determined by the Centre, same amount shall be paid by the Respondent upon filing a counter claim.
Similarly, the administrative expenses of the Centre shall be determined based on the sum in dispute; and the sum in dispute shall be the aggregate of all claims, counter claims and set-offs as provided in Article 43 of the Rules.
For the Arbitrators, their fees and expenses shall be reasonable taking into account the amount in dispute, the complexity of the subject matter, the time spent by the Arbitrators and any other relevant circumstances of the case as contained on Article 44 (1) of the same Rules.
Article 45 generally deals with cost allocation. It provides that; the costs of the Arbitration shall in principle be borne by the unsuccessful party or parties.
However, the Arbitral Tribunal May apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.
Article 45 further provides that the Arbitration Tribunal shall in the Final Award or, if it deems appropriate, in any other award, determine any amount that a party may have to pay to another party as a result of the decision on allocation of costs.
Deposit of Costs:
Article 46 generally provides that the Arbitral Tribunal, on its establishment, may request the parties to deposit an equal amount as an advance for the costs referred to in Article 41 Paragraph 2(a) to (c).
Further, during the course of the Arbitral proceedings, the Arbitral Tribunal May request supplementary deposits from the parties.
The Arbitral Tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the Centre, which may make any comments to the Arbitral Tribunal as it deems appropriate concerning the amount of such deposits and supplementary deposits.
If the required deposit are not paid in full within 15days after the receipt of the request, the Arbitral Tribunal shall so inform the parties in order that one or more of them may make the required payment, if such payment is not made, the Arbitral Tribunal May order the suspension or termination of the Arbitral proceedings.
However, after a termination order or Final Award has been made, the Arbitral Tribunal shall render an account to the parties of the deposits received and return any unexpected balance to the parties.
•ACCI DRC RULES, 2017.
Agatha Omokhuwa Edelegba
Dispute Resolution Centre of Abuja Chamber of Commerce and Industry.