Is it mandatory to go to arbitration when the parties agreed on an arbitration clause in the contract?
Yes. The Panamanian arbitration legislation provides that the effects of agreeing on an arbitration clause (art. 17 of Law 131 of 2013) obligate the parties to abide with the agreed arbitration and the waiver to any other jurisdiction. In case that the parties initiate a proceedings before a state judge, the law provides that he will refrain from hearing the cause, rejecting the lawsuit in full, and immediately sending the parties to arbitration.
If no arbitration was agreed in the contract, what alternative do the contracting parties have to solve an existing controversy through arbitration?
Even without agreeing on arbitration, one of the parties may file the arbitration lawsuit before CeCAP and the latter, once the claimant is informed of the conditions in which the lawsuit is received, will proceed with serving notice of the lawsuit to the other party. With the answer to the lawsuit by the other party or parties without the existence of an agreement being denied by the other, it is understood that the parties have subscribed an arbitration agreement. (Art.16 of Law 131 of 2013).
Can national and international arbitrations be conducted at CeCAP?
CeCAP’s arbitration regulation contemplates the possibility of conducting both national and international arbitrations, in accordance to the provisions in the law (Law 131 of 2013) and its regulation in force.
What happens if the other party does not want to go to arbitration?
If the required party does not accept going to arbitration, existing an arbitration agreement invoked by the claimant, CeCAP will analyze as a prior matter the arbitration agreement and documentation submitted by the claimant. In case CeCAP’s competence is established to manage the proceedings, the proceedings will continue with the following processes (Art. Art 17 of Law 131 of 2013 and Art. 10 of the Arbitration Regulation in force).
What happens with an arbitration proceedings if one of the parties files a competence exception of the arbitral tribunal before the ordinary state jurisdiction?
The law provides that if any claim has been filed before a judicial court regarding a matter object of arbitration, arbitral proceedings may be initiated and continued and enter an award while the matter is pending before the judicial court, notwithstanding the competence of the arbitral tribunal to judge regarding its own competence in the manner provided in this law and the actions against the award therein provided.
How long does an arbitral proceedings lasts?
Our Arbitration Agreement provides that the arbitral tribunal has a term of 2 months to enter the award, from the filing of the arguments. However, the arbitral tribunal may, upon reasoned request of one of the Arbitrators or any of the parties, given the circumstances and complexity of the cause to be resolved, extend such term for up to (1) month, prior approval from the Arbitration General Secretariat of CeCAP. (art. 38 of the Arbitration Regulation)
¿What are the rules that govern the arbitration proceedings of CeCAP?
The arbitration proceedings of CeCAP is governed by the rules established in the Arbitration Regulation in force since August 1st, 2015 and Law 131 of December 31, 2013, as well as the principles of confidentiality, celerity, contradiction, good faith and loyalty for the parties.
How are notifications or communications done in the arbitration proceedings of CeCAP?
CeCAP’s Arbitration Regulation provides that all notifications and communications to the Arbitration Secretary General of CeCAP or the Arbitral Tribunal or its Secretariat, will be made to the last address of the party or his representative, as it has been provided by such party or in absence thereof by any of the parties.
These notifications or communications can be made by means of delivery of certified mail, messenger service, or also, by means of electronic mail or by any other means of telecommunications that allow a registry of forwarding and receipt. (Art. 8 of Law 131 of 2013 and art. 2 of the Arbitration Regulation).
How are the terms fixed in the arbitration proceedings?
A/. The Arbitration Regulation provides that the calculation of the terms established in this Regulation or established by the Arbitration Secretary General of CeCAP or the arbitral tribunal during the proceedings, will be always computed as working days, notwithstanding the agreements of the parties, according to the principle of autonomy of the will. (art. 2 of the Arbitration Regulation of CeCAP).
Is there a possibility to have interim measures before or during the arbitration proceedings?
There is the possibility. Before the constitution of the arbitral tribunal, a party may go to a judicial court to request an interim measure to guarantee the objective of the proceedings; however, the arbitration lawsuit in 10 work working days following and if they don’t the judicial court will leave the granted measure without effect. The competent judge once the measure is granted, will grant the parties the term of 6 days to formalize the arbitration request.
During the course of the proceedings, the parties may request the arbitral tribunal for the interim measures deemed convenient to guarantee the objective of the proceedings. (art. 24 of D.L. 5/99)
How are the expenses of the arbitration proceedings paid?
The arbitration regulation of CeCAP provides that the expenses of the proceedings are paid in equal parts.
With the presentation of the arbitration lawsuit and initial answer of the arbitration, the parties shall consign the sum of 300.00 Balboas.
Once the members of the arbitral tribunal are ratified by the Arbitration General Secretariat, it will draw the parties the total sum of the expenses of the arbitration, which shall be consigned in a term of five (5) working days, from the notification. (art. 24 of the Arbitration Regulation del CeCAP).
What happens if one of the parties does not consign its corresponding part of the expenses of the arbitration?
If one of the parties does not consign the corresponding part of the expenses of the arbitration, the Arbitration General Secretariat will request the other party to consign for the other, in its own name (art. 24 of the Arbitration Regulation of CeCAP).
The sums contributed by the parties will be taken into account by the arbitral tribunal, at the time of entering the award for purposes of the costs. (arts. 39 and 40 of the Arbitration Regulation of CeCAP).
Is the award mandatory?
Yes, the award is mandatory for the parties and it has the effect of res judicata (art. 5 numeral 1, of Law 131 of 2013. Generally, the arbitral tribunal establishes within the award a term for its enforcement. In case of breach, the winning party may enforce it before a state Circuit Judge.
What actions may be filed against the award?
Before an award only an action for annulment may be filed, for any of the causes established in article 67 of Law 131 of 2013, which refer to the validity of the arbitration agreement; that one of the parties has not been duly notified of the appointment of an arbitration or the arbitral proceedings or has not been able, for any reason, to present his case; or that the award refers to a controversy not included in the arbitration agreement or exceeds the terms of the arbitration agreement, the appointment of the arbitral tribunal or the arbitral proceedings has not been in accordance to the agreement of the parties; that the arbitrators have decided matters not susceptible of arbitration or that the international award is against the international public policy.
