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  • 7.9.6-ARBITRATION-APPEALS

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  • Appeals

     
     

    Notice and appointment of board of appeal. Either party may appeal against the award by giving written notice to the other party and to the BCA, to be received by each within 30 days of the date of publication of the award. The BCA notice must include copies of the award, the contract, the notice of appeal sent to the other party and the usual deposit towards fees, costs and expenses.

    The BCA Arbitration and Contracts Committee then appoints the board of appeal, three members for quality disputes and five members for all other disputes. The board decides by majority vote, with the chairperson having a casting vote in the event of any equality of votes. The board may require the appellant to deposit such security as it deems fit; failure to make the deposit within the laid-down time limit will render the original award final and binding. Objections to a member or members of a board of appeal may be lodged, in writing, not later than 14 days before the commencement of the hearing.

    Submission of written statements. An appeal constitutes a new hearing, and fresh evidence (if any) will be admitted. The board may confirm, vary, amend or set aside the original award as it thinks fit. A statement giving the appellant's case must be sent, together with supporting evidence and in eight copies, to the BCA secretary not later than 21 days after giving notice of appeal. Failure to do so will render the original award final and binding. The BCA will copy the statement and supporting evidence to the defendant who must, not later than 14 days from receipt, submit a statement of their defence together with any other supporting evidence, again in eight copies. The appellant then, again, has the final word of reply within 14 days of receipt. All these limits may be extended if the board so permits.

    Hearing and award. The board of appeal shall have the power to conduct the arbitration in such a manner in all respects as it considers necessary while giving each party a reasonable opportunity of putting their case and dealing with that of their opponent. The board may adopt procedures suitable for the particular case and for avoiding unnecessary delay and expense. It may also make such interim orders as the members may think fit for the interim protection, warehousing, sale or disposal of the subject matter of the arbitration. The board may employ legal advisers, assessors or other experts to advise it and such persons may attend the hearing. But the parties to the dispute may appear or be represented at the hearing by legal counsel only if they so requested in their statements of claim or defence, and then only with the prior approval of the board of appeal.

    This it may grant or withhold at its discretion. In any case the original arbitrators or umpire may not represent any of the parties.

    Within a reasonable time from the date of the hearing, the board of appeal shall make in writing and shall sign a reasoned award which, subject to any valid appeal to the High Court (if available under the BCA rules), shall be final and binding. Such an appeal may only be made on a point of law, not just because one disagrees with the award. Should the court agree that grounds do exist on a point of law then the most likely outcome is that the award is remitted back to the board of appeal with directions to reconsider a specific aspect. The award also states the costs and expenses of the appeal, the fees payable, and which of the parties is responsible for paying them, and the board may direct that any amounts awarded shall carry interest, simple or compound, at a rate set in the award.

    The arbitration fees shall be set at the discretion of the board of appeal. If the award is not taken up within 30 days the BCA can direct one of the parties to take up the award and pay the fees, costs and expenses. If not then taken up within 10 days the BCA may by action recover all outstanding amounts from any or all of the parties, or deduct these from any monies that may have been deposited in advance.