THE L.M.A.A. TERMS (2002) - LMAA | London Maritime Arbitrators ...

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5. For the purpose of Paragraph (4):(A) “appropriate substitution” means appointment of a substitute able to matchthe hearing date established in accordance with sub-paragraph (A);(B) “start date” means the first date reserved for the hearing;(C) An umpire or third arbitrator will retain power to make any necessarysubstitution under sub-paragraph (B)(i) notwithstanding that he may himselfhave given notice of retirement under sub-paragraph (A) and an originalarbitrator will retain the like power under sub-paragraph (B)(ii).6. An arbitrator or umpire who retires as mentioned above shall:(i) be entitled to immediate payment of his fees and expenses incurred up to thedate of his retirement; and(ii) incur no liability to any party by reason thereof.18
THE L.M.A.A. TERMS (2002)COMMENTARYThe LMAA Terms were last amended in parallel with, and came into effect at the sametime as, the 1996 Act. The new revision (the LMAA Terms (2002)), which applies to allreferences commenced on or after 1st January, 2002, is designed to meet needs whichhave become apparent since 1997.* * *The most important changes are to be found in the Second Schedule. That reflects,with a number of alterations, what were previously the Procedural Guidelines. However,it is important to note that the provisions of this Schedule are not merely indicative. Asparagraph 12(c) of the Terms says: “ ... the normal procedure to be adopted is as set outin the Second Schedule.” Henceforth, therefore, in the absence of some agreement ofthe parties or particular direction by the tribunal to the contrary, the Second Scheduleprocedure is to apply to all LMAA arbitrations under the 2002 Terms.It provides, in the usual case, for submissions (not formal pleadings) accompanied bydocuments, and it contains a timetable for the exchange of such submissions.Provision is also made for other interlocutory matters. A detailed survey is notappropriate here: the Schedule will repay a careful study by arbitrators andpractitioners alike. However, it may be appropriate to highlight just a few matters.Paragraph 7 deals with security for costs (not normally to be ordered until after serviceof defence submissions) and paragraph 8 requires the parties to complete aquestionnaire in all cases to enable proper procedure to be laid down or agreed, unlessthe case is ready for an award on the exclusive basis of the written submissions thathave already been served. Of frequent practical importance will be paragraph 13,which requires a party making an application to seek the other party’s agreement, andwhich should reduce the amount of interlocutory correspondence by making itunnecessary in most cases for tribunals to seek comments on such applications.Paragraph 17 makes it clear that special orders may be made when costs are wasted.The new Second Schedule has meant that substantial passages from paragraphs 12,13 and 14 of the 1997 Terms have been omitted.* * *Where once London arbitrators generally experienced only insignificant problems inrecovering fees and expenses, the situation has changed considerably in recent years.Accordingly it has been felt necessary to alter the First Schedule substantially so as (a)to give arbitrators the right to seek interim payments of their fees and expenses (notmore often than once every three months), (b) to give them the right (though not theobligation) to resign if such payments are not made and (c) to give tribunals the right torequire security for their costs before embarking on a hearing or on the work requiredto prepare an award in a documents-only case.Apart from offering necessary protection to arbitrators, these provisions are thoughtlikely to be welcomed by users who will be kept better informed about the actual andlikely future costs of their cases.The opportunity has also been taken to clarify matters such as the right to booking feesand the right to cancel a hearing where they are not paid (paragraph (D)(1)(a); theentitlement of third arbitrators and umpires to booking fees ((D)(1)(c)), and the positionconcerning booking fees in the event of various matters leading to an adjournment orvacation of dates ((D)(1)(d) and (e)).* * *19
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