New Claims - Article 27 - Chamber of Arbitration of Milan Rules: A Commentary

Author(s):

Claudio Consolo

Page Count:

30 pages

Media Description:

PDF from "Chamber of Arbitration of Milan Rules: A Commentary"

Published:

April, 2012

Jurisdictions:

Italy,

International

Practice Areas:

Authority of the Arbitral Tribunal,

Rights Pertaining to the Conduct of Proceedings,

Arbitrators and Arbitral Tribunals,

CAM,

Statement of Claim and Defense/ Counterclaims/ Set-Offs

Author Detail:

CLAUDIO CONSOLO is Professor of Civil Procedural Law. He lectured at Trento (1986-1991), Catholic University of Milan (1992-1996), Verona (1997-1998), Padova (since 1998), Innsbruck (1998-2003), Bocconi University (2005-2008). He is author of several books and essays and a member of the scientific committee of numerous law reviews. He is editor of the Commentary on the Code of Civil Procedure (4th ed., Ipsoa, 2010) and co-editor of the Commentary on national and international Arbitration Law (Cedam, 2010). He has been a member of the Arbitral Council of Milan. He practices as a lawyer, with offices in Milan and Verona.

ALBERT HENKE is Aggregate Professor of International Investment Law and Dispute Settlement at Università degli Studi in Milan and Research Fellow and Lecturer in Civil Procedure at the same University. He is coordinator for the relations with International Organizations and member of the committee for the internationalization of the legal education. He is Senior Associate with Clifford Chance Law Firm (Milan office), where his main areas of practice are domestic and international dispute resolution (litigation and arbitration). He has acted both as counsel and administrative secretary in arbitration proceedings. He has been Associate Legal Expert at the United Nations Commission for International Trade Law in Vienna (2005 - 2006). He is the coordinator of the Arbitration Program of the Summer School on International Arbitration and Mediation organized by Università degli Studi (Milan). He is also a member of the editorial staff of the Rivista di Diritto Processuale and of ArbAut and ASA below 40. Since 2008 he has been the coach of the team of University of Milan which takes part to the Vis Moot Competition in Vienna.

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Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 27 - NEW CLAIMS

The Arbitral Tribunal, after consulting the parties, shall decide on the admissibility of new claims, taking into account all circumstances, including the stage of the proceedings.

1. Summary of Contents

Art. 27 of the Rules deals with the issue of admissibility of ‘new’ claims in the course of an arbitration procedure. In light of this provision, in order to assess whether a claim is ‘new’ and to decide whether or not to admit it, an Arbitral Tribunal has to verify, first, whether it substantially differs from a claim (or more claims) already filed in the proceedings with previous submissions (in primis, the Request for Arbitration and the Answer to the Request) and, secondly, whether the relevant time – limit, if any, has already elapsed.

2. Definition of ‘new’ claims In order to conclude that a claim is 'new' in respect of previous claims already submitted in the proceedings, that claim has to be properly identified. The identification and qualification of a claim are governed by the applicable procedural law, which varies depending on which the seat of arbitration is.1 The Milan Rules do not give any indication of when a claim is to be considered ‘new’ and this commentary is not the right place to address this complex issue in detail. However, few basic notions are worth underlying.

Most jurisdictions (especially those of the tradition of civil law) identify a claim on the basis of three elements, personae, causa petendi and petitum, e.g. the parties, the cause of action2 and the good/right in respect of which a certain relief is sought.3 When two claims have just one or two of these elements in common, but not all, they shall be deemed to be two different claims, even though they might be related (or connected) to a more or less intense degree.4 In order to properly identify a claim, the adjudicatory body (judge or arbitrator) is in principle entitled to avail of all possible means, including the interpretation of the wording contained in all the introductory acts of the proceedings,5 the clarifications submitted by the parties during the proceedings,6 the evidence produced,7 the parties’ conduct throughout the proceedings8 and so on.

Table of Contents:

1. Summary of Contents
2. Definition of ‘new’ claims
3. The rules governing arbitration procedure and claims’ submissions: the relevance of time-limits
4. The discretionary power of the Arbitral Tribunal
5. The need to respect the due process (and, in particular, the adversarial principle)
6. The solutions adopted by other arbitration rules and laws: a brief comparative overview.