Appendix
M Dispute Resolution
Appendix
M - 1 Collaborative Negotiations
Appendix
M - 2
Mediation
Appendix
M - 3
Technical Advisory Panel
Appendix
M - 4
Neutral Evaluation
Appendix
M - 5
Elders Advisory Council
Appendix
M - 6
Arbitration
Appendix
M - 1 Collaborative Negotiations
DEFINITIONS
-
In this Appendix:
-
"Chapter" means the Dispute Resolution
Chapter;
-
"party" means a participating Party
to collaborative negotiations under this Appendix; and
-
"section" means a section in this Appendix.
GENERAL
-
Collaborative negotiations commence:
-
on the date of delivery of a written notice
requiring the commencement of collaborative negotiations; or
-
in the case of negotiations in the circumstances
described in subparagraph 7(c) of the Chapter, on the date of the first
negotiation meeting.
NOTICE
-
A notice under paragraph 15 of the Chapter
requiring the commencement of collaborative negotiations will include the
following:
-
the names of the parties directly engaged
in the disagreement;
-
a brief summary of the particulars of the
disagreement;
-
a description of the efforts made to date
to resolve the disagreement;
-
the names of the individuals involved in those
efforts; and
-
any other information that will help the parties.
REPRESENTATION
-
A party may attend collaborative negotiations
with or without legal counsel.
-
At the commencement of the first negotiation
meeting, each party will advise the other parties of any limitations on
the authority of its representatives.
NEGOTIATION PROCESS
-
The parties will convene their first negotiation
meeting in collaborative negotiations, other than those described in subparagraph
7(c) of the Chapter, within 21 days after the commencement of the collaborative
negotiations.
-
Before the first scheduled negotiation meeting,
the parties will discuss and attempt to reach agreement on any procedural
issues that will facilitate the collaborative negotiations, including the
requirements of paragraph 26 of the Chapter.
-
For purposes of subparagraph 26(a) of the
Chapter, "timely disclosure" means disclosure made within 15 days after
a request for disclosure by a party.
-
The parties will make a serious attempt to
resolve the disagreement by
-
identifying underlying interests;
-
isolating points of agreement and disagreement;
-
exploring alternative solutions;
-
considering compromises or accommodations;
and
-
taking any other measures that will assist
in resolution of the disagreement.
-
No transcript or recording will be kept of
collaborative negotiations, but this does not prevent a person from keeping
notes of the negotiations.
CONFIDENTIALITY
-
In order to assist in the resolution of a
disagreement, collaborative negotiations will not be open to the public.
-
The parties, and all persons, will keep confidential:
-
all oral and written information disclosed
in the collaborative negotiations; and
-
the fact that this information has been disclosed.
-
The parties will not rely on or introduce
as evidence in any proceeding, whether or not that proceeding relates to
the subject matter of the collaborative negotiations, any oral or written
information disclosed in or arising from the collaborative negotiations,
including:
-
any documents of other parties produced in
the course of the collaborative negotiations that are not otherwise produced
or producible in that proceeding;
-
any views expressed, or suggestions made,
by any party in respect of a possible settlement of the disagreement;
-
any admissions made by any party in the course
of the collaborative negotiations, unless otherwise stipulated by the admitting
party; and
-
the fact that any party has indicated a willingness
to make or accept a proposal for settlement.
-
Sections 12 and 13 do not apply:
-
in any proceeding for the enforcement or setting
aside of an agreement resolving the disagreement that was the subject of
the collaborative negotiation;
-
if the adjudicator in any proceeding determines
that the interests of the public or the administration of justice outweigh
the need for confidentiality; or
-
if the oral or written information referred
to in these sections is in the public forum.
RIGHT TO WITHDRAW
-
A party may withdraw from collaborative negotiations
at any time.
TERMINATION OF COLLABORATIVE NEGOTIATIONS
-
Collaborative negotiations are terminated
when any of the following occurs:
-
the expiration of:
-
30 days, or
-
in the case of collaborative negotiations
in the circumstances described in subparagraph 7(c) of the Chapter, 120
days after the first scheduled negotiation meeting, or any longer period
agreed to by the parties in writing;
-
a party directly engaged in the disagreement
withdraws from the collaborative negotiations under section 15;
-
the parties agree in writing to terminate
the collaborative negotiations; or
-
the parties directly engaged in the disagreement
sign a written agreement resolving the disagreement.
Appendix
M - 2 Mediation
DEFINITIONS
-
In this Appendix:
-
"Chapter" means the Dispute Resolution
Chapter of the Agreement;
-
"party" means a participating Party
to a mediation under this Appendix; and
-
"section" means a section in this Appendix.
GENERAL
-
A mediation commences on the date the Parties
directly engaged in the disagreement have agreed in writing to use mediation,
or are deemed to have agreed to use mediation, under paragraph 24 of the
Chapter.
APPOINTMENT OF MEDIATOR
-
A mediation will be conducted by one mediator
jointly appointed by the parties.
-
A mediator will be:
-
an experienced and skilled mediator, preferably
with unique qualities or specialized knowledge that would be of assistance
in the circumstances of the disagreement; and
-
independent and impartial.
-
If the parties fail to agree on a mediator
within 15 days after commencement of a mediation, the appointment will
be made by the neutral appointing authority on the written request of a
party that is copied to the other parties.
-
Subject to any limitations agreed to by the
parties, a mediator may employ reasonable and necessary administrative
or other support services.
REQUIREMENT TO WITHDRAW
-
At any time a party may give the mediator
and the other parties a written notice, with or without reasons, requiring
the mediator to withdraw from the mediation on the grounds that the party
has justifiable doubts as to the mediator's independence or impartiality.
-
On receipt of a written notice under section
7, the mediator must immediately withdraw from the mediation.
-
A person who is a Nisga'a citizen,
or related to a Nisga'a citizen, must not be required to withdraw
under section 7 solely on the grounds of that citizenship or relationship.
END OF APPOINTMENT
-
A mediator's appointment terminates if:
-
the mediator is required to withdraw under
section 8;
-
the mediator withdraws from office for any
reason; or
-
the parties agree to the termination.
-
If a mediator's appointment terminates, a
replacement mediator will be appointed using the procedure in sections
3 to 5 and the required time period commences from the date of termination
of the appointment.
REPRESENTATION
-
A party may attend a mediation with or without
legal counsel.
-
If a mediator is a lawyer, the mediator must
not act as legal counsel for any party.
-
At the commencement of the first meeting of
a mediation, each party will advise the mediator and the other parties
of any limitations on the authority of its representatives.
CONDUCT OF MEDIATION
-
The parties will:
-
make a serious attempt to resolve the disagreement
by:
-
identifying underlying interests,
-
isolating points of agreement and disagreement,
-
exploring alternative solutions, and
-
considering compromises or accommodations;
and
-
cooperate fully with the mediator and give
prompt attention to, and respond to, all communications from the mediator.
-
A mediator may conduct a mediation in any
manner the mediator considers necessary and appropriate to assist the parties
to resolve the disagreement in a fair, efficient, and cost-effective manner.
-
Within seven days of appointment of a mediator,
each party will deliver a brief written summary to the mediator of the
relevant facts, the issues in the disagreement, and its viewpoint in respect
of them and the mediator will deliver copies of the summaries to each party
at the end of the seven day period.
-
A mediator may conduct a mediation in
joint meetings or private caucus convened at locations the mediator designates
after consulting the parties.
-
Disclosures made by any party to a mediator
in private caucus must not be disclosed by the mediator to any other party
without the consent of the disclosing party.
-
No transcript or recording will be kept of
a mediation meeting but this does not prevent a person from keeping notes
of the negotiations.
CONFIDENTIALITY
-
In order to assist in the resolution of a
disagreement, a mediation will not be open to the public.
-
The parties, and all persons, will keep confidential:
-
all oral and written information disclosed
in the mediation; and
-
the fact that this information has been disclosed.
-
The parties will not rely on or introduce
as evidence in any proceeding, whether or not that proceeding relates to
the subject matter of the mediation, any oral or written information disclosed
in or arising from the mediation, including:
-
any documents of other parties produced in
the course of the mediation that are not otherwise produced or producible
in that proceeding;
-
any views expressed, or suggestions, or proposals
made in respect of a possible settlement of the disagreement;
-
any admissions made by any party in the course
of the mediation, unless otherwise stipulated by the admitting party;
-
any recommendations for settlement made by
the mediator; and
-
the fact that any party has indicated a willingness
to make or accept a proposal or recommendation for settlement.
-
Sections 22 and 23 do not apply:
-
in any proceeding for the enforcement
or setting aside of an agreement resolving the disagreement that was the
subject of a mediation;
-
if the adjudicator in any proceeding determines
that the interests of public or the administration of justice outweigh
the need for confidentiality; or
-
if the oral or written information referred
to in those sections is in the public forum.
-
A mediator, or anyone retained or employed
by the mediator, is not compellable in any proceeding to give evidence
about any oral and written information acquired or opinion formed by that
person as a result of the mediation, and all parties will oppose any effort
to have that person or that information subpoenaed.
-
A mediator, or anyone retained or employed
by the mediator, is disqualified as a consultant or expert in any proceeding
relating to the disagreement, including any proceeding that involves persons
not a party to the mediation.
REFERRAL OF ISSUES TO OTHER PROCESSES
-
During a mediation the parties may agree to
refer particular issues in the disagreement to independent fact-finders,
expert panels or other processes for opinions or findings that may assist
them in the resolution of the disagreement, and in that event, the parties
must specify:
-
the terms of reference for the process;
-
the time within which the process must be
concluded; and
-
how the costs of the process are to be allocated
to the parties.
-
The time specified for concluding a mediation
will be extended for 15 days following receipt of the findings or opinions
rendered in a process described under section 27.
RIGHT TO WITHDRAW
-
A party may withdraw from a mediation at any
time by giving written notice of its intent to the mediator.
-
Before a withdrawal is effective, the withdrawing
party will:
-
speak with the mediator;
-
disclose its reasons for withdrawing; and
-
give the mediator the opportunity to discuss
the consequences of withdrawal.
TERMINATION OF MEDIATION
-
A mediation is terminated when any of the
following occurs:
-
subject to section 28, the expiration of 30
days after the appointment of the mediator, or any longer period agreed
by the parties in writing;
-
the parties have agreed in writing to terminate
the mediation or not to appoint a replacement mediator under section 11;
-
a party directly engaged in the disagreement
withdraws from the mediation under section 29; or
-
the parties directly engaged in the disagreement
sign a written agreement resolving the disagreement.
MEDIATOR RECOMMENDATION
-
If a mediation is terminated without the parties
reaching agreement, the parties may agree to request the mediator to give
a written non-binding recommendation for settlement, but the mediator may
decline the request without reasons.
-
Within 15 days after delivery of a mediator's
recommendation under section 32, the parties will meet with the mediator
to attempt to resolve the disagreement.
COSTS
-
A party withdrawing from a mediation under
section 29 is not responsible for any costs of the mediation that are incurred
after the date that party's withdrawal takes effect.
Appendix
M - 3
Technical Advisory Panel
DEFINITIONS
-
In this Appendix:
-
"Chapter" means the Dispute Resolution
Chapter;
-
"member" means a member of the panel;
-
"panel" means a technical advisory
panel appointed under this Appendix;
-
"party" means a participating Party
to a reference under this Appendix;
-
"reference" means a reference of a
disagreement to the panel; and
-
"section" means a section in this Appendix.
GENERAL
-
A question of law may not be referred to a
panel.
-
A reference commences on the date the Parties
directly engaged in the disagreement have agreed in writing to use a technical
advisory panel under paragraph 24 of the Chapter.
APPOINTMENT OF PANEL MEMBERS
-
A panel will have three members unless the
parties agree on a panel of five members.
-
A member will be skilled and knowledgeable
in the technical or scientific subject matter or issues of the disagreement.
-
If there are two parties and the panel will
have:
-
three members, each party will appoint one
member and the two appointed members will jointly appoint the third member;
or
-
five members, each party will appoint two
members and the four appointed members will jointly appoint the fifth member.
-
If there are three parties and the panel
will have:
-
three members, each party will appoint one
member; or
-
five members, each party will appoint one
member and the three appointed members will jointly appoint the fourth
and fifth members.
-
In the appointment procedures under sections
6 and 7, if:
-
a party fails to appoint the required number
of members within 30 days after commencement of the reference; or
-
the appointing members fail to appoint the
required number of additional members within 15 days after the last appointing
member was appointed
the required appointments will be made by
the neutral appointing authority on the written request of a party that
is copied to the other parties.
END OF APPOINTMENT
-
The appointment of a member who is jointly
appointed by the parties, by the appointing members, or by the neutral
appointing authority, terminates if:
-
the member withdraws from office for any reason;
or
-
the parties agree to the termination.
-
The appointment of a member appointed by one
party, or by the neutral appointing authority in place of the party, terminates
if:
-
the member withdraws from office for any reason;
or
-
the appointing party terminates the appointment.
-
If the appointment of a member jointly appointed
by the parties, by the appointing members, or by the neutral appointing
authority in place of the parties or members, terminates, a replacement
member will be appointed under section 6 or 7, as applicable, within the
required time commencing from the termination of the former member's appointment.
-
Subject to section 13, if the appointment
of a member appointed by one party or by the neutral appointing authority
in place of the party terminates, a replacement member will be appointed
under section 6 or 7, as applicable, within the required time commencing
from the termination of the former member's appointment.
-
A party may elect not to replace a member
it had appointed but the party may not withdraw from the reference except
as permitted under sections 31 to 35.
TERMS OF REFERENCE
-
Not more than 15 days after the appointment
of the last member of a panel, the parties must provide the panel with
written terms of reference that set out at least the following:
-
the parties to the disagreement;
-
the subject matter or issues of the disagreement;
-
the kind of assistance that the parties request
from the panel, including giving advice, making determinations, finding
facts, conducting, evaluating and reporting on studies and making recommendations;
-
the time period within which the parties request
the assistance to be provided;
-
the time periods or stages of the reference
at the conclusion of which the panel must provide the parties with written
interim reports on the panel's progress on the referral and on expenditures
under the budget described in section 16 as they relate to that progress;
-
the time within which the panel must provide
the parties with the budget described in section 16; and
-
any limitations on the application of sections
36 to 42 to the reference.
-
The parties may discuss the proposed terms
of reference with the panel before they are finally settled.
-
Within the time referred to in section 14(f),
the panel will provide the parties with a budget for the costs of conducting
the reference, including:
-
fees to be paid to the members who have been
jointly appointed by the parties, or by appointing members;
-
costs of required travel, food and accommodation
of members who have been jointly appointed by the parties, or by appointing
members;
-
costs of any required administrative assistance;
and
-
costs of any studies.
-
The parties will consider the budget submitted
by the panel and approve that budget with any amendments agreed by the
parties before the panel undertakes any activities under the reference.
-
The parties are not responsible for any costs
incurred by the panel that are in excess of those approved under section
17, and the panel is not authorized to incur any costs beyond that amount
without obtaining prior written approval from all the parties.
-
The parties may amend the written terms of
reference or the budget from time to time as they consider necessary, or
on recommendation of the panel.
CONDUCT OF REFERENCE TO PANEL
-
The parties will:
-
cooperate fully with the panel;
-
comply with any requests made by the panel
as permitted or required under this Appendix; and
-
give prompt attention to and respond to all
communications from the panel.
-
Subject to any limitations or requirements
in the terms of reference given and the limits of the budget approved under
sections 17 to 19, the panel may conduct its reference using any procedure
it considers necessary or appropriate, including holding a hearing.
-
If a hearing is held, the hearing must be
conducted as efficiently as possible and in the manner the panel specifies,
after consultation with the parties.
-
If a hearing is held, the panel must give
the parties reasonable written notice of the hearing date, which notice
must, in any event, be not less than seven days.
-
No transcript or recording will be kept of
a hearing, but this does not prevent a person attending the hearing from
keeping notes of the hearing.
-
The legal rules of evidence do not apply to
a hearing before the panel.
-
The panel will give the parties the interim
and final written reports specified in its terms of reference within the
required times.
-
A report of the panel is not binding on the
parties.
PANEL BUSINESS
-
A panel will appoint one of its members to
act as chair of the panel.
-
The chair of a panel is responsible for all
communications between the panel, the parties and any other person to whom
the panel wishes to communicate, but this does not preclude a member from
communicating informally with a party.
-
A panel will make every reasonable effort
to conduct its business, and fulfill its obligations under its terms of
reference, by consensus, but:
-
if consensus is not possible, by actions approved
by a majority of its members; or
-
if a majority is not possible, by actions
approved by the chair of the panel.
RIGHT TO WITHDRAW
-
If one of two parties to a reference, or two
of three parties to a reference, are not satisfied with the progress of
the reference:
-
after receipt of an interim report; or
-
as a result of the panel's failure to submit
an interim report within the required time
the dissatisfied party or parties, as the
case may be, may give written notice to the panel and the other party that
the party or parties are withdrawing from the reference and that the reference
is terminated.
-
If one of three parties to a reference is
not satisfied with the progress of the reference:
-
after receipt of an interim report; or
-
as a result of the panel's failure to submit
an interim report within the required time
the dissatisfied party may give
written notice to the panel and the other parties that it is withdrawing
from the reference.
-
Two parties who receive a notice under section
32 will advise the panel in writing that they have agreed:
-
to terminate the reference; or
-
to continue the reference.
-
If no party gives a notice under sections
31 or 32 within 10 days after:
-
receipt of an interim report; or
-
the time required to submit an interim report
all parties will be deemed to
be satisfied with the progress of the reference until submission of the
next required interim report.
-
No party may withdraw from a reference except
as permitted under sections 31 to 34.
CONFIDENTIALITY
-
The parties may, by agreement recorded in
the terms of reference of the panel in section 14, limit the application
of all or any part of sections 37 to 42 in a reference.
-
In order to assist in the resolution of the
disagreement, a reference will not be open to the public.
-
The parties, and all persons, will keep confidential:
-
all oral and written information disclosed
in the reference; and
-
the fact that this information has been disclosed.
-
The parties will not rely on or introduce
as evidence in any proceeding, whether or not that proceeding relates to
the subject matter of the reference, any oral or written information disclosed
in or arising from the reference, including:
-
any documents of other parties produced in
the course of the reference that are not otherwise produced or producible
in that proceeding;
-
any views expressed, or suggestions made,
in respect of a possible settlement of the disagreement;
-
any admissions made by any party in the course
of the reference, unless otherwise stipulated by the admitting party;
-
the fact that any party has indicated a willingness
to make or accept a proposal or recommendation for settlement; and
-
any reports of the panel.
-
Sections 38 and 39 do not apply:
-
in any proceeding for the enforcement or setting
aside of an agreement resolving the disagreement that was the subject of
the reference;
-
if the adjudicator in any proceeding determines
that the interests of the public or the administration of justice outweigh
the need for confidentiality; or
-
if the oral or written information referred
to in those sections is in the public forum.
-
A member, or anyone retained or employed by
the member, is not compellable in any proceeding to give evidence about
any oral or written information acquired or opinion formed by that person
as a result of the reference, and all parties will oppose any effort to
have that person or that information subpoenaed.
-
A member, or anyone retained or employed by
the member, is disqualified as a consultant or expert in any proceeding
relating to the disagreement, including any proceeding that involves persons
not a party to the reference.
ATTEMPT TO RESOLVE AFTER REPORT
-
Within 21 days after receipt of the final
written report of a panel, the parties will meet and make an effort to
resolve the disagreement taking into account the report of the panel or
any other considerations.
-
If the parties and the panel agree, the members
of a panel may attend the meeting under section 43, and provide any necessary
assistance to the parties.
TERMINATION OF REFERENCE TO PANEL
-
A reference is terminated when any of the
following occurs:
-
the reference has been terminated as permitted
under section 31 or 33;
-
the expiration of 30 days after receipt of
the final report of the panel, or any longer period agreed by the parties
in writing; or
-
the parties directly engaged in the disagreement
sign a written agreement resolving the disagreement.
COSTS
-
A party is not responsible for sharing any
costs of the reference that were incurred after the date that party notified
the other parties, under section 32, of its withdrawal from the reference.
Appendix
M - 4
Neutral Evaluation
DEFINITION
-
In this Appendix:
-
"Chapter" means the Dispute Resolution
Chapter;
-
"party" means a participating Party
to a neutral evaluation under this Appendix; and
-
"section" means a section in this Appendix.
GENERAL
-
A neutral evaluation commences on the date
that the Parties directly engaged in the disagreement have agreed in writing
to use neutral evaluation under paragraph 24 of the Chapter.
APPOINTMENT OF NEUTRAL EVALUATOR
-
A neutral evaluation will be conducted by
one person jointly appointed by the parties.
-
A neutral evaluator will be:
-
experienced or skilled in the subject matter
or issues of the disagreement; and
-
independent and impartial.
-
If the parties fail to agree on a neutral
evaluator within 21 days after commencement of a neutral evaluation, the
appointment will be made by the neutral appointing authority on the written
request of a party that is copied to the other parties.
-
Subject to any limitations agreed to by the
parties, a neutral evaluator may employ reasonable and necessary administrative
or other support services.
REQUIREMENT TO WITHDRAW
-
At any time a party may give a neutral evaluator
and the other parties a written notice, with or without reasons, requiring
the neutral evaluator to withdraw from the neutral evaluation on the grounds
that the party has justifiable doubts as to the neutral evaluator's independence
or impartiality.
-
On receipt of a written notice under section
7, the neutral evaluator must immediately withdraw from the neutral evaluation.
-
A person who is a Nisga'a citizen,
or related to a Nisga'a citizen, must not be required to withdraw
under section 7 solely on the grounds of that citizenship or relationship.
END OF APPOINTMENT
-
A neutral evaluator's appointment terminates
if:
-
the neutral evaluator is required to withdraw
under section 8;
-
the neutral evaluator withdraws from office
for any reason; or
-
the parties agree to the termination.
-
Unless the parties agree otherwise, if a neutral
evaluator's appointment terminates, a replacement will be appointed under
section 5 within the required time commencing from the date of the termination
of the appointment.
COMMUNICATIONS
-
Except with respect to administrative details
or a meeting under section 31, the parties will not communicate with the
neutral evaluator:
-
orally except in the presence of all parties;
or
-
in writing without immediately sending a copy
of that communication to all parties.
-
Section 12 also applies to any communication
by a neutral evaluator to the parties.
CONDUCT OF NEUTRAL EVALUATION
-
The parties will:
-
cooperate fully with the neutral evaluator;
-
comply with any requests made by the neutral
evaluator as permitted or required under this Appendix; and
-
give prompt attention to and respond to all
communications from the neutral evaluator.
-
A neutral evaluation will be conducted only
on the basis of documents submitted by the parties under section 20 unless
the parties agree to, or the neutral evaluator requires, additional submissions
or other forms of evidence.
-
If a hearing is held, the hearing must be
conducted as efficiently as possible and in the manner the neutral evaluator
specifies, after consultation with the parties.
-
If a hearing is held, the panel must give
the parties reasonable written notice of the hearing date, which notice
must, in any event, be not less than seven days.
-
No transcript or recording will be kept of
a hearing, but this does not prevent a person attending the hearing from
keeping notes of the hearing.
-
The legal rules of evidence do not apply to
a neutral evaluation.
-
Within 15 days after the appointment of a
neutral evaluator, each party must deliver to the other parties and to
the neutral evaluator a written submission respecting the disagreement,
including facts upon which the parties agree or disagree, and copies of
any documents, affidavits and exhibits on which the party relies.
-
Within 21 days after the appointment of a
neutral evaluator, a party may submit a reply to the submission of any
other party and, in that event, will provide copies of the reply to the
party and the neutral evaluator.
CONFIDENTIALITY
-
In order to assist in the resolution of the
disagreement, a neutral evaluation will not be open to the public.
-
The parties, and all persons, will keep confidential:
-
all oral and written information disclosed
in the neutral evaluation; and
-
the fact that this information has been disclosed.
-
The parties will not rely on or introduce
as evidence in any proceeding, whether or not that proceeding relates to
the subject matter of the neutral evaluation, any oral or written information
disclosed in or arising from the neutral evaluation, including:
-
any documents of other parties produced in
the course of the neutral evaluation which are not otherwise produced or
producible in that proceeding;
-
any views expressed, or suggestions made,
in respect of a possible settlement of the disagreement;
-
any admissions made by any party in the course
of the neutral evaluation, unless otherwise stipulated by the admitting
party;
-
the fact that any party has indicated a willingness
to make or accept a proposal for settlement; and
-
subject to section 28, the opinion of the
neutral evaluator.
-
Sections 23 and 24 do not apply:
-
in any proceedings for the enforcement or
setting aside of an agreement resolving the disagreement that was the subject
of a neutral evaluation;
-
if the adjudicator in any proceeding determines
that the interests of the public or the administration of justice outweigh
the need for confidentiality; or
-
if the oral or written information is in the
public forum.
-
A neutral evaluator, or anyone retained or
employed by the neutral evaluator, is not compellable in any proceedings
to give evidence about any oral and written information acquired or opinion
formed by that person as a result of a neutral evaluation under this Appendix,
and all parties will oppose any effort to have that person or that information
subpoenaed.
-
A neutral evaluator and anyone retained or
employed by the neutral evaluator is disqualified as a consultant or expert
in any proceeding relating to the disagreement, including any proceeding
that involves persons not a party to the neutral evaluation.
-
Despite sections 23 to 26, after an arbitral
tribunal has delivered its final arbitral award, or a court has referred
its decision, in respect of a disagreement, a party, for the purpose only
of making a submission on the allocation of costs of that arbitral or judicial
proceeding, may give to the arbitral tribunal or the court a copy of:
-
the neutral evaluator's opinion respecting
that agreement; or
-
the neutral evaluator's notice of termination
under section 7.
NON-BINDING OPINION
-
Within 21 days after the later of:
-
delivery of the last submission required or
permitted in a neutral evaluation under this Appendix; or
-
completion of a hearing,
the neutral evaluator will deliver to the
parties a written opinion with reasons in respect of the probable disposition
of the disagreement should it be submitted to arbitral or judicial proceedings,
as the case may be, under the Chapter.
-
An opinion under section 29 is not binding
on the parties.
ATTEMPT TO RESOLVE AFTER OPINION
-
Within 21 days after delivery of an opinion
under section 29, the parties will meet and make an effort to resolve the
disagreement, taking into account the opinion of the neutral evaluator
or any other considerations.
-
If the parties and the neutral evaluator agree,
the neutral evaluator may attend a meeting under section 31, and provide
any necessary assistance to the parties.
FAILURE TO COMPLY
-
If a party fails to participate in the neutral
evaluation as contemplated in sections 14 to 21, the neutral evaluator
may:
-
provide an opinion based solely upon the information
and submissions they have obtained; or
-
give a written notice of termination of the
neutral evaluation
and, in either event, the neutral
evaluator must record that party's failure.
TERMINATION OF NEUTRAL EVALUATION
-
A neutral evaluation is terminated when any
of the following occurs:
-
the neutral evaluator gives a notice of termination
under section 33(b);
-
the expiration of 30 days after receipt of
an opinion under section 29 or 33, as the case may be, or any longer period
agreed by the parties;
-
all the parties directly engaged in the disagreement
agree in writing to terminate evaluation; or
-
all the parties directly engaged in the disagreement
sign a written agreement resolving the disagreement.
COSTS
-
A party that has failed to participate in
a neutral evaluation as contemplated in sections 14 to 21 is responsible
for its share of the costs of the neutral evaluation, despite its failure
to participate.
Appendix
M - 5
Elders Advisory Council
DEFINITION
-
In this Appendix:
-
"Chapter" means the Dispute Resolution
Chapter;
-
"council" means the elders advisory
council appointed under this Appendix;
-
"elder" means a member of a council;
-
"party" means a participating Party
to the reference under this Appendix;
-
"reference" means a reference of a
disagreement to the council; and
-
"section" means a section in this Appendix.
GENERAL
-
A reference commences on the date the Parties
directly engaged in the disagreement have agreed in writing to use an elders
advisory council under paragraph 24 of the Chapter.
APPOINTMENT OF ELDERS
-
Within 30 days after a reference has commenced,
each party will appoint at least one, but not more than three, elders to
the council.
-
Preferably, the elders will be individuals
who:
-
are recognized in their respective communities
as wise, tolerant, personable and articulate, and who:
-
are often sought out for counsel or advice,
or
-
have a record of distinguished public service;
and
-
are available to devote the time and energy
as required to provide the assistance described in this Appendix.
END OF APPOINTMENT
-
Unless an elder:
-
has requested to be relieved of their appointment
due to a conflict of interest or otherwise; or
-
is not able to fulfill their duties, due to
incapacity or otherwise
the elder's appointment to the
council may not be terminated until termination of the reference in which
the elder is involved.
-
If an elder's appointment is terminated in
the circumstances described in section 5(a) or (b) and that elder was the
only elder of the council appointed by a party to the reference, that party
must replace the elder within seven days.
-
If an elder's appointment is terminated in
the circumstances described in section 5(a) or (b) and that elder was not
the only elder of the council appointed by a party to the reference, that
party may replace the elder but the replacement must be made within seven
days.
CONDUCT OF REFERENCE
-
In a reference, the parties will cooperate
fully with the council, and give prompt attention to, and respond, to all
communications from the council.
-
Notwithstanding section 8, a party is not
required to disclose to the council or provide it with any information
that the party would not be required to disclose in any arbitral or judicial
proceedings in respect of the disagreement.
-
The council is expected to conduct itself
informally in order that the parties may take full advantage of the council's
good offices to resolve the disagreement.
-
The council may establish its own process
to suit the particular circumstances of a reference including meeting with
the parties together or separately, conducting informal interviews or inquiries
and facilitating settlement negotiations.
-
The council will give the parties its final
advice or recommendations on a disagreement referred to it within 120 days
after the commencement of the reference.
-
The council may, at its option, provide its
advice to the parties:
-
orally on the same occasion; or
-
in writing.
-
The council may, by unanimous decision, extend
the time for giving advice or recommendations under section 12, on one
occasion only, to a maximum of 60 additional days.
-
The advice or recommendations of the council
are not binding on the parties.
-
Subject to any limitations agreed to by the
parties, the council may employ reasonable and necessary administrative
or other support services.
RIGHT TO WITHDRAW
-
A party may not withdraw from a reference
until its conclusion unless all the parties agree in writing.
CONFIDENTIALITY
-
In order to assist in the resolution of the
disagreement, a reference will not be open to the public.
-
The parties, and all persons, will keep confidential:
-
all oral and written information disclosed
in the reference; and
-
the fact that this information has been disclosed.
-
The parties will not rely on or introduce
as evidence in any proceeding, whether or not that proceeding relates to
the subject matter of the reference, any oral or written information disclosed
in or arising from the reference, including:
-
any documents of other parties produced in
the course of the reference that are not otherwise produced or producible
in that proceeding;
-
any views expressed, or suggestions made,
in respect of a possible settlement of the disagreement;
-
any admissions made by any party in the course
of the reference, unless otherwise stipulated by the admitting party;
-
any advice or recommendations made by an elder
or the council; and
-
the fact that any party has indicated a willingness
to make or accept any advice or recommendation for settlement.
-
Sections 19 and 20 do not apply:
-
in any proceedings for the enforcement or
setting aside of an agreement resolving the disagreement that was the subject
of the reference;
-
if the adjudicator in any proceeding determines
that the interests of the public or the administration of justice outweigh
the need for confidentiality; or
-
if the oral or written information referred
to in those sections is in the public forum.
-
An elder, or anyone retained or employed by
the council, is not compellable in any proceeding to give evidence about
any oral and written information acquired or opinion formed by that person
as a result of the reference and all parties will oppose any effort to
have that person or that information subpoenaed.
-
An elder, or anyone retained or employed by
the council, is disqualified as a consultant or expert in any proceeding
relating to the disagreement, including any proceeding that involves persons
not a party to the reference.
DECISION-MAKING
-
The council must make its best efforts to
reach consensus among the elders before taking any action or giving any
advice under the reference.
-
The council may not take any action under
section 12 unless at least one elder appointed by each party expressly
agrees with the action taken.
TERMINATION OF REFERENCE
-
A reference is terminated when any of the
following occurs:
-
the council gives the parties its advice under
section 12;
-
the expiration of the applicable time period
in section 12 or 14; or
-
the parties directly engaged in the disagreement
sign a written agreement resolving the disagreement.
Appendix
M - 6
Arbitration
DEFINITIONS
-
In this Appendix:
-
"applicant" means:
-
in an arbitration commenced under paragraph
28 of the Chapter, the party that delivered the notice of arbitration,
and
-
in an arbitration commenced under paragraph
29 of the Chapter, the party that the parties have agreed will be the applicant
in the agreement to arbitrate;
-
"arbitral award" means any decision
of the arbitral tribunal on the substance of the disagreement submitted
to it, and includes:
-
an interim arbitral award, including an interim
award made for the preservation of property, and
-
an award of interest or costs;
-
"arbitral tribunal" means a single
arbitrator or a panel of arbitrators appointed under this Appendix;
-
"arbitration agreement" includes
-
the requirement to refer to arbitration disagreements
described in paragraph 28 of the Chapter; and
-
an agreement to arbitrate a disagreement as
described in paragraph 29 of the Chapter;
-
"Chapter" means the Dispute Resolution
Chapter of the Agreement;
-
"party" means a participating Party
to arbitration under this Appendix;
-
"respondent" means a party other than
the applicant;
-
"section" means a section of this Appendix;
-
"Supreme Court" means the Supreme Court
of British Columbia.
-
A reference in this Appendix, other than in
section 87 or 116(a), to a claim, applies to a counterclaim, and a reference
in this Appendix to a defence, applies to a defence to a counterclaim.
-
Despite paragraph 4 of the Chapter, the parties
may not vary section 53 or 97.
COMMUNICATIONS
-
Except in respect of administrative details,
the parties will not communicate with the arbitral tribunal:
-
orally, except in the presence of all other
parties; or
-
in writing, without immediately sending a
copy of that communication to all other parties.
-
Section 4 also applies to any communication
by the arbitral tribunal to the parties.
WAIVER OF RIGHT TO OBJECT
-
A party that knows that:
-
any provision of this Appendix; or
-
any requirement under the Agreement or arbitration
agreement
has not been complied with, and
yet proceeds with the arbitration without stating its objection to noncompliance
without undue delay or, if a time limit is provided for stating that objection,
within that period of time, will be deemed to have waived its right to
object.
-
In section 6(a) "any provision of this Appendix"
means any provision of this Appendix in respect of which the parties may
otherwise agree.
EXTENT OF JUDICIAL INTERVENTION
-
In matters governed by this Appendix:
-
no court shall intervene except as provided
in this Appendix; and
-
no arbitral proceedings of an arbitral tribunal,
or an order, ruling or arbitral award made by an arbitral tribunal shall
be questioned, reviewed or restrained by a proceeding under any legislation
or other law that permits judicial review except to the extent provided
in this Appendix.
CONSTRUCTION OF APPENDIX
-
In construing a provision of this Appendix,
a court or arbitral tribunal may refer to the documents of the United Nations
Commission on International Trade Law and its working group respecting
the preparation of the UNCITRAL Model Arbitration Law and must give those
documents the weight that is appropriate in the circumstances.
STAY OF LEGAL PROCEEDINGS
-
If a Party commences legal proceedings in
a court against another Party in respect of a matter required or agreed
to be submitted to arbitration, a Party to the legal proceedings may, before
or after entering an appearance, and before delivery of any pleadings or
taking any other step in the proceedings, apply to that court to stay the
proceedings.
-
In an application under section 10, the court
must make an order staying the legal proceedings unless it determines that:
-
the arbitration agreement is null and void,
inoperative or incapable of being performed; or
-
the legal proceedings are permitted under
the Chapter.
-
An arbitration may be commenced or continued,
and an arbitral award made, even if an application has been brought under
section 10, and the issue is pending before the court.
INTERIM MEASURES BY COURT
-
It is not incompatible with an arbitration
agreement for a Party to request from a court, before or during arbitral
proceedings, an interim measure of protection as provided in paragraph
14 of the Chapter, and for a court to grant that measure.
COMMENCEMENT OF ARBITRAL PROCEEDINGS
-
The arbitral proceedings in respect of a disagreement:
-
required to be arbitrated as set out in paragraph
28 of the Chapter, commences on delivery of the notice of arbitration to
the Parties; or
-
agreed to be arbitrated as set out in paragraph
29 of the Chapter, commences on the date of the arbitration agreement.
NOTICE OF ARBITRATION
-
A notice of arbitration under paragraph 28
of the Chapter must be in writing and contain the following information:
-
a statement of the subject matter or issues
of the disagreement;
-
a requirement that the disagreement be referred
to arbitration;
-
the remedy sought;
-
the suggested number of arbitrators; and
-
any preferred qualifications of the arbitrators.
-
A notice of arbitration under section 15 may
contain the names of any proposed arbitrators, including the information
specified in section 17.
ARBITRATORS
-
In an arbitration:
-
required to be arbitrated as set out in paragraph
28 of the Chapter, there will be three arbitrators; and
-
agreed to be arbitrated as set out in paragraph
29 of the Chapter, there will be one arbitrator.
-
A person eligible for appointment as:
-
a single arbitrator or as chair of an arbitral
tribunal will be an experienced arbitrator or arbitration counsel or have
had training in arbitral procedure; and
-
as a single arbitrator or member of an arbitral
panel:
-
will be independent and impartial, and
-
preferably, will have knowledge of, or experience
in, the subject matter or issues of the disagreement.
APPOINTMENT OF ARBITRATORS
-
A party proposing the name of an arbitrator
to another party under section 20 will also submit a copy of that person's
resume and the statement that person is required to make under section
26.
-
In an arbitration with a single arbitrator,
if the parties fail to agree on the arbitrator within 30 days after the
commencement of the arbitration, the appointment will be made by the neutral
appointing authority, on the written request of a party that is copied
to the other parties.
-
In an arbitration with three arbitrators and
two parties, each party will appoint one arbitrator, and the two appointed
arbitrators will appoint the third arbitrator.
-
In the appointment procedure under section
21, if:
-
a party fails to appoint an arbitrator within
30 days after receipt of a request to do so from the other party; or
-
the two appointed arbitrators fail to agree
on the third arbitrator within 30 days after the last of them was appointed
the appointment will be made by
the neutral appointing authority, on the written request of a party that
is copied to the other parties.
-
In an arbitration with three arbitrators and
three parties, the three parties will jointly appoint the three arbitrators.
-
In the arbitration procedure under section
23, if the three parties fail to agree on the three arbitrators within
60 days after the commencement of the arbitration, the appointments will
be made by the neutral appointing authority, on the written request of
a party copied to the other parties.
-
The neutral appointing authority, in appointing
an arbitrator, must have due regard to:
-
any qualifications required of the arbitrator
as set out in section 18 or as otherwise agreed in writing by the parties;
and
-
other considerations as are likely to secure
the appointment of an independent and impartial arbitrator.
GROUNDS FOR CHALLENGE
-
When a person is approached in connection
with possible appointment as an arbitrator, that person must provide a
written statement:
-
disclosing any circumstances likely to give
rise to justifiable doubts as to their independence or impartiality; or
-
advising that the person is not aware of any
circumstances of that nature and committing to disclose them if they arise
or become known at a later date.
-
An arbitrator, from the time of appointment
and throughout the arbitral proceedings, must, without delay, disclose
to the parties any circumstances referred to in section 26 unless the parties
have already been informed of them.
-
An arbitrator may be challenged only if:
-
circumstances exist that give rise to justifiable
doubts as to the arbitrator's independence or impartiality; or
-
the arbitrator does not possess the qualifications
set out in this Appendix or as otherwise agreed in writing by the parties.
-
A party may only challenge an arbitrator appointed
by that party, or in whose appointment that party has participated, for
reasons of which that party becomes aware after the appointment has been
made.
-
A person who is a Nisga'a citizen, or related
to a Nisga'a citizen, may not be challenged under section 28 solely on
the grounds of that citizenship or relationship.
CHALLENGE PROCEDURE
-
A party who intends to challenge an arbitrator
will send to the arbitral tribunal a written statement of the reasons for
the challenge within 15 days after becoming aware of the constitution of
the arbitral tribunal, or after becoming aware of any circumstances referred
to in section 28.
-
Unless the arbitrator challenged under section
31 withdraws from office, or the other parties agree to the challenge,
the arbitral tribunal must decide on the challenge.
-
If a challenge under any procedure agreed
upon by the parties or under the procedure under section 31 is not successful,
the challenging party, within 30 days after having received notice of the
decision rejecting the challenge, may request the neutral appointing authority
to decide on the challenge.
-
The decision of the neutral appointing authority
under section 33 is final and is not subject to appeal.
-
While a request under section 33 is pending,
the arbitral tribunal, including the challenged arbitrator, may continue
the arbitral proceedings and make an arbitral award unless:
-
the costs occasioned by proceeding before
the decision of the neutral appointing authority is made would unduly prejudice
the parties; or
-
the parties agree otherwise.
FAILURE OR IMPOSSIBILITY TO ACT
-
The mandate of an arbitrator terminates if
the arbitrator becomes unable at law, or as a practical matter, to perform
the arbitrator's functions, or for other reasons fails to act without undue
delay.
-
If a controversy remains concerning any of
the grounds referred to in section 36, a party may request the neutral
appointing authority to decide on the termination of the mandate.
TERMINATION OF MANDATE AND SUBSTITUTION
OF ARBITRATOR
-
In addition to the circumstances referred
to under sections 31 to 33, and 36, the mandate of an arbitrator terminates:
-
if the arbitrator withdraws from office for
any reason; or
-
by, or pursuant to, agreement of the parties.
-
If the mandate of an arbitrator terminates,
a replacement arbitrator must be appointed under sections 19 to 25, as
applicable.
-
If a single or chairing arbitrator is replaced,
any hearings previously held must be repeated.
-
If an arbitrator other than a single or chairing
arbitrator is replaced, any hearings previously held may be repeated at
the discretion of the arbitral tribunal.
-
An order or ruling of the arbitral tribunal
made before the replacement of an arbitrator under section 39 is not invalid
solely because there has been a change in the composition of the tribunal.
COMPETENCE OF ARBITRAL TRIBUNAL TO RULE
ON ITS JURISDICTION
-
An arbitral tribunal may rule on its own jurisdiction.
-
A plea that an arbitral tribunal does not
have jurisdiction must be raised not later than the submission of the statement
of defence; but a party is not precluded from raising that plea by the
fact that the party has appointed, or participated in the appointment of,
an arbitrator.
-
A plea that an arbitral tribunal is exceeding
the scope of its authority must be made as soon as the matter alleged to
be beyond the scope of its authority is raised during the arbitral proceedings.
-
An arbitral tribunal may, in either of the
cases referred to in section 44 or 45, admit a later plea if it considers
the delay justified.
-
An arbitral tribunal may rule on a plea referred
to in section 44 or 45 either as a preliminary question or in the arbitral
award.
-
If an arbitral tribunal rules as a preliminary
question that it has jurisdiction, any party, within 15 days after having
received notice of that ruling, may request the Supreme Court to decide
the matter.
-
A decision of the Supreme Court under section
48 is final and is not subject to appeal.
-
While a request under section 48 is pending,
an arbitral tribunal may continue the arbitral proceedings and make an
arbitral award unless:
-
the costs occasioned by proceeding before
the decision of the Supreme Court is made would unduly prejudice the parties;
or
-
the parties agree otherwise.
INTERIM MEASURES ORDERED BY ARBITRAL
TRIBUNAL
-
Unless otherwise agreed by the parties, the
arbitral tribunal may, at the request of a party, order a party to take
any interim measure of protection as the arbitral tribunal may consider
necessary in respect of the subject matter of the disagreement.
-
The arbitral tribunal may require a party
to provide appropriate security in connection with a measure ordered under
section 51.
EQUAL TREATMENT OF PARTIES
-
The parties must be treated with equality
and each party must be given a full opportunity to present its case.
DETERMINATION OF RULES OF PROCEDURE
-
Subject to this Appendix, the parties may
agree on the procedure to be followed by the arbitral tribunal in conducting
the proceedings.
-
Failing any agreement under section 54, the
arbitral tribunal, subject to this Appendix, may conduct the arbitration
in the manner it considers appropriate.
-
The arbitral tribunal is not required to apply
the legal rules of evidence, and may determine the admissibility, relevance,
materiality and weight of any evidence.
-
The arbitral tribunal must make all reasonable
efforts to conduct the arbitral proceedings in the most efficient, expeditious
and cost effective manner as is appropriate in all the circumstances of
the case.
-
The arbitral tribunal may extend or abridge
a period of time:
-
set in this Appendix, except the period specified
in section 106; or
-
established by the tribunal.
PRE-HEARING MEETING
-
Within 10 days after the arbitral tribunal
is constituted, the tribunal must convene a pre-hearing meeting of the
parties to reach agreement and to make any necessary orders on:
-
any procedural issues arising under this Appendix;
-
the procedure to be followed in the arbitration;
-
the time periods for taking steps in the arbitration;
-
the scheduling of hearings or meetings, if
any;
-
any preliminary applications or objections;
and
-
any other matter which will assist the arbitration
to proceed in an efficient and expeditious manner.
-
The arbitral tribunal must prepare and distribute
promptly to the parties a written record of all the business transacted,
and decisions and orders made, at the pre-hearing meeting.
-
The pre-hearing meeting may be conducted by
conference call.
PLACE OF ARBITRATION
-
The arbitration will take place in the Province
of British Columbia.
-
Despite section 62, an arbitral tribunal may
meet at any place it considers appropriate for consultation among its members,
for hearing witnesses, experts or the parties, or for inspection of documents,
goods or other personal property, or for viewing physical locations.
LANGUAGE
-
If the arbitral tribunal determines that it
was necessary or reasonable for a party to incur the costs of translation
of documents and oral presentations in the circumstances of a particular
disagreement, the arbitral tribunal, on application of a party, may order
that any of the costs of that translation be deemed to be costs of the
arbitration under paragraph 44 of the Chapter.
STATEMENTS OF CLAIM AND DEFENCE
-
Within 21 days after the arbitral tribunal
is constituted, the applicant will deliver a written statement to all the
Parties stating the facts supporting its claim or position, the points
at issue and the relief or remedy sought.
-
Within 15 days after receipt of the applicant's
statement, each respondent will deliver a written statement to all the
Parties stating its defence or position in respect of those particulars.
-
Each party must attach to its statement a
list of documents:
-
upon which the party intends to rely; and
-
which describes each document by kind, date,
author, addressee and subject matter.
-
The parties may amend or supplement their
statements, including the list of documents, and deliver counter-claims
and defences to counter-claims during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow the amendment,
supplement or additional pleadings having regard to:
-
the delay in making it; and
-
any prejudice suffered by the other parties.
-
The parties will deliver copies of all amended,
supplemented or new documents delivered under section 68 to all the Parties.
DISCLOSURE
-
The arbitral tribunal may order a party to
produce, within a specified time, any documents that:
-
have not been listed under section 67;
-
the party has in its care, custody or control;
and
-
the arbitral tribunal considers to be relevant.
-
Each party will allow the other party the
necessary access at reasonable times to inspect and take copies of all
documents that the former party has listed under section 67, or that the
arbitral tribunal has ordered to be produced under section 70.
-
The parties will prepare and send to the arbitral
tribunal an agreed statement of facts within the time specified by the
arbitral tribunal.
-
Not later than 21 days before a hearing commences,
each party will give the other party:
-
the name and address of any witness and a
written summary of the witness's evidence; and
-
in the case of an expert witness, a written
statement or report prepared by the expert witness.
-
Not later than 15 days before a hearing commences,
each party will give to the other party and the arbitral tribunal an assembly
of all documents to be introduced at the hearing.
HEARINGS AND WRITTEN PROCEEDINGS
-
The arbitral tribunal must decide whether
to hold hearings for the presentation of evidence or for oral argument,
or whether the proceedings will be conducted on the basis of documents
and other materials.
-
Unless the parties have agreed that no hearings
will be held, the arbitral tribunal must hold hearings at an appropriate
stage of the proceedings, if so requested by a party.
-
The arbitral tribunal must give the parties
sufficient advance notice of any hearing and of any meeting of the arbitral
tribunal for the purpose of inspection of documents, goods or other property
or viewing any physical location.
-
All statements, documents or other information
supplied to, or applications made to, the arbitral tribunal by one party
will be communicated to the other party, and any expert report or evidentiary
document on which the arbitral tribunal may rely in making its decision
must be communicated to the parties.
-
Unless ordered by the arbitral tribunal, all
hearings and meetings in arbitral proceedings, other than meetings of the
arbitral tribunal, are open to the public.
-
The arbitral tribunal must schedule hearings
to be held on consecutive days until completion.
-
All oral evidence must be taken in the presence
of the arbitral tribunal and all the parties unless a party is absent by
default or has waived the right to be present.
-
The arbitral tribunal may order any individual
to be examined by the arbitral tribunal under oath or on affirmation in
relation to the disagreement and to produce before the arbitral tribunal
all relevant documents within the individual's care, custody or control.
-
The document assemblies delivered under section
74 will be deemed to have been entered into evidence at the hearing without
further proof and without being read out at the hearing, but a party may
challenge the admissibility of any document so introduced.
-
If the arbitral tribunal considers it just
and reasonable to do so, the arbitral tribunal may permit a document that
was not previously listed under section 67, or produced as required under
section 70 or 74, to be introduced at the hearing, but the arbitral tribunal
may take that failure into account when fixing the costs to be awarded
in the arbitration.
-
If the arbitral tribunal permits the evidence
of a witness to be presented as a written statement, the other party may
require that witness to be made available for cross examination at the
hearing.
-
The arbitral tribunal may order a witness
to appear and give evidence, and, in that event, the parties may cross
examine that witness and call evidence in rebuttal.
DEFAULT OF A PARTY
-
If, without showing sufficient cause, the
applicant fails to communicate its statement of claim in accordance with
section 65, the arbitral tribunal may terminate the proceedings.
-
If, without showing sufficient cause, a respondent
fails to communicate its statement of defence in accordance with section
66, the arbitral tribunal must continue the proceedings without treating
that failure in itself as an admission of the applicant's allegations.
-
If, without showing sufficient cause, a party
fails to appear at the hearing or to produce documentary evidence, the
arbitral tribunal may continue the proceedings and make the arbitral award
on the evidence before it.
-
Before terminating the proceedings under section
87, the arbitral tribunal must give all respondents written notice providing
an opportunity to file a statement of claim in respect of the disagreement
within a specified period of time.
EXPERT APPOINTED BY ARBITRAL TRIBUNAL
-
After consulting the parties, the arbitral
tribunal may:
-
appoint one or more experts to report to it
on specific issues to be determined by the arbitral tribunal; and
-
for that purpose, require a party to give
the expert any relevant information or to produce, or to provide access
to, any relevant documents, goods or other personal property or land for
inspection or viewing.
-
The arbitral tribunal must give a copy of
the expert's report to the parties who must have an opportunity to reply
to it.
-
If a party so requests, or if the arbitral
tribunal considers it necessary, the expert must, after delivery of a written
or oral report, participate in a hearing where the parties must have the
opportunity to cross examine the expert and to call any evidence in rebuttal.
-
The expert must, on the request of a party:
-
make available to that party for examination
all documents, goods or other property in the expert's possession, and
provided to the expert in order to prepare a report; and
-
provide that party with a list of all documents,
goods or other personal property or land not in the expert's possession
but which were provided to or given access to the expert, and a description
of the location of those documents, goods or other personal property or
lands.
LAW APPLICABLE TO SUBSTANCE OF DISPUTE
-
An arbitral tribunal must decide the disagreement
in accordance with the law.
-
If the parties have expressly authorized it
to do so, an arbitral tribunal may decide the disagreement based upon equitable
considerations.
-
In all cases, an arbitral tribunal must make
its decisions in accordance with the spirit and intent of the Agreement.
-
Before a final arbitral award is made, an
arbitral tribunal or a party, with the agreement of the other parties,
may refer a question of law to the Supreme Court for a ruling.
-
A party may appeal a decision in the Supreme
Court under section 98 to the British Columbia Court of Appeal with leave
of the British Columbia Court of Appeal. If the British Columbia Court
of Appeal:
-
refuses to grant leave to a party to appeal
a ruling of the Supreme Court under section 98; or
-
hears an appeal from a ruling of the Supreme
Court under section 98
the decision of the British Columbia
Court of Appeal may not be appealed to the Supreme Court of Canada.
-
While a request under section 98 is pending,
the arbitral tribunal may continue the arbitral proceedings and make an
arbitral award unless:
-
the costs occasioned by proceeding before
the ruling of the Supreme Court is made would unduly prejudice the parties;
or
-
the parties agree otherwise.
DECISION MAKING BY PANEL OF ARBITRATORS
-
In arbitral proceedings with more than one
arbitrator, any decision of the arbitral tribunal must be made by a majority
of all its members.
-
If there is no majority decision on a matter
to be decided, the decision of the chair of the tribunal is the decision
of the tribunal.
-
Notwithstanding section 101, if authorized
by the parties or all the members of the arbitral tribunal, questions of
procedure may be decided by the chair of the tribunal.
SETTLEMENT
-
If, during arbitral proceedings, the parties
settle the disagreement, the arbitral tribunal must terminate the proceedings
and, if requested by the parties, must record the settlement in the form
of an arbitral award on agreed terms.
-
An arbitral award on agreed terms:
-
must be made in accordance with sections 107
to 109;
-
must state that it is an arbitral award; and
-
has the same status and effect as any other
arbitral award on the substance of the disagreement.
FORM AND CONTENT OF ARBITRAL AWARD
-
An arbitral tribunal must make its final award
as soon as possible and, in any event, not later than 60 days after:
-
the hearings have been closed; or
-
the final submission has been made
whichever is the later date.
-
An arbitral award must be made in writing,
and be signed by the members of the arbitral tribunal.
-
An arbitral award must state the reasons upon
which it is based, unless:
-
the parties have agreed that no reasons are
to be given; or
-
the award is an arbitral award on agreed terms
under section 104 and 105.
-
A signed copy of an arbitral award must be
delivered to all the Parties by the arbitral tribunal.
-
At any time during the arbitral proceedings,
an arbitral tribunal may make an interim arbitral award on any matter with
respect to which it may make a final arbitral award.
-
An arbitral tribunal may award interest.
-
The costs of an arbitration are in the discretion
of the arbitral tribunal which, in making an order for costs, may:
-
include as costs:
-
the fees and expenses of the arbitrators and
expert witnesses,
-
legal fees and expenses of the parties,
-
any administration fees of a neutral appointing
authority, or
-
any other expenses incurred in connection
with the arbitral proceedings; and
-
specify:
-
the party entitled to costs,
-
the party who will pay the costs,
-
subject to section 113, the amount of costs
or method of determining that amount, and
-
the manner in which the costs will be paid.
-
For purposes of section 112, an arbitral tribunal
may award up to 50% of the reasonable and necessary legal fees and expenses
that were actually incurred by a party, and if the legal services were
provided by an employee or employees of that party, the arbitral tribunal
may fix an amount or determine an hourly rate to be used in the calculation
of the cost of those employee legal fees.
TERMINATION OF PROCEEDINGS
-
An arbitral tribunal must close any hearings
if:
-
the parties advise they have no further evidence
to give or submissions to make; or
-
the tribunal considers further hearings to
be unnecessary or inappropriate.
-
A final arbitral award, or an order of the
arbitral tribunal under section 116, terminates arbitral proceedings.
-
An arbitral tribunal must issue an order for
the termination of the arbitral proceedings if:
-
the applicant withdraws its claim, unless
the respondent objects to the order and the arbitral tribunal recognizes
a legitimate interest in obtaining a final settlement of the disagreement;
-
the parties agree on the termination of the
proceedings; or
-
the arbitral tribunal finds that the continuation
of the proceedings has for any other reason become unnecessary or impossible.
-
Subject to sections 118 to 123 and section
127, the mandate of an arbitral tribunal terminates with the termination
of the arbitral proceedings.
CORRECTION AND INTERPRETATION OF AWARD;
ADDITIONAL AWARD
-
Within 30 days after receipt of an arbitral
award:
-
a party may request the arbitral tribunal
to correct in the tribunal award any computation errors, any clerical or
typographical errors or any other errors of a similar nature; and
-
a party may, if agreed by all the parties,
request the arbitral tribunal to give an interpretation of a specific point
or part of the arbitral award.
-
If an arbitral tribunal considers a request
made under section 118 to be justified, it must make the correction or
give the interpretation within 30 days after receipt of the request and
the interpretation will form part of the arbitral award.
-
An arbitral tribunal, on its own initiative,
may correct any error of the type referred to in subsection 118(a) within
30 days after the date of the arbitral award.
-
A party may request, within 30 days after
receipt of an arbitral award, the arbitral tribunal to make an additional
arbitral award respecting claims presented in the arbitral proceedings
but omitted from the arbitral award.
-
If the arbitral tribunal considers a request
made under section 121 to be justified, it must make an additional arbitral
award within 60 days.
-
Sections 107 to 109, and sections 111 to 113
apply to a correction or interpretation of an arbitral award made under
section 119 or 120, or to an additional arbitral award made under section
122.
APPLICATION FOR SETTING ASIDE ARBITRAL
AWARD
-
Subject to sections 129 and 131, an arbitral
award may be set aside by the Supreme Court, and no other court, only if
a party making the application establishes that:
-
the party making the application:
-
was not given proper notice of the appointment
of an arbitrator or of the arbitral proceedings, or
-
was otherwise unable to present its case or
respond to the other party's case;
-
the arbitral award:
-
deals with a disagreement not contemplated
by or not falling within the terms of the submission to arbitration, or
-
contains decisions on matters beyond the scope
of the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted,
only that part of the arbitral award that contains decisions on matters
not submitted to arbitration may be set aside;
-
the composition of the arbitral tribunal or
the arbitral procedure was not in accordance with the agreement of the
parties, unless that agreement was in conflict with a provision of this
Appendix from which the parties cannot derogate, or, failing any agreement,
was not in accordance with this Appendix;
-
the arbitral tribunal or a member of it has
committed a corrupt or fraudulent act; or
-
the award was obtained by fraud.
-
An application for setting aside may not be
made more than three months:
-
after the date on which the party making that
application received the arbitral award; or
-
if a request had been made under section 118
or 121, after the date on which that request was disposed of by the arbitral
tribunal.
-
An application to set aside an award on the
ground that the arbitral tribunal or a member of it has committed a corrupt
or fraudulent act or that the award was obtained by fraud must be commenced:
-
within the period referred to in section 125;
or
-
within 30 days after the applicant discovers
or ought to have discovered the fraud or corrupt or fraudulent act
whichever is the longer period.
-
When asked to set aside an arbitral award,
the Supreme Court may, where it is appropriate and it is requested by a
party, adjourn the proceedings to set aside the arbitral award for a period
of time determined by it in order to give the arbitral tribunal an opportunity:
-
to resume the arbitral proceedings; or
-
to take any other action that, in the arbitral
tribunal's opinion, will eliminate the grounds for setting aside the arbitral
award.
-
A Party that was not a participating Party
in an arbitration must be given notice of an application under section
124, and is entitled to be a party to, and make representation on, the
application.
APPEAL ON QUESTION OF LAW
-
A party may appeal an arbitral award to the
Supreme Court, with leave, on a question of law, which the Supreme Court
must grant only if it is satisfied that:
-
the importance of the result of the arbitration
to the parties justifies the intervention of the court, and the determination
of the point of law may prevent a miscarriage of justice; or
-
the point of law is of general or public importance.
-
An application for leave may not be made more
than three months:
-
after the date on which the party making the
application received the arbitral award; or
-
if a request had been made under section 118
or 121, after the date on which that request was disposed of by the arbitral
tribunal.
-
The Supreme Court may confirm, vary or set
aside the arbitral award or may remit the award to the arbitral tribunal
with directions, including the court's opinion on the question of law.
-
When asked to set aside an arbitral award
the Supreme Court may, where it is appropriate and it is requested by a
party, adjourn the proceedings to set aside the arbitral award for a period
of time determined by it in order to give the arbitral tribunal an opportunity:
-
to resume the arbitral proceedings; or
-
to take any other action that, in the arbitral
tribunal's opinion, will eliminate the grounds for setting aside the arbitral
award.
-
A Party that was not a participating Party
in an arbitration must be given notice of an application under section
129 and is entitled to be a party to, and make representation on the application.
-
A party may appeal a decision of the Supreme
Court under section 131 to the British Columbia Court of Appeal with leave
of the British Columbia Court of Appeal.
-
If the British Columbia Court of Appeal:
-
refuses to grant leave to a party to appeal
a ruling of the Supreme Court under section 131; or
-
hears an appeal from a ruling of the Supreme
Court under section 131,
the decision of the British Columbia
Court of Appeal may not be appealed to the Supreme Court of Canada.
-
No application may be made under section 129
in respect of:
-
an arbitral award based upon equitable considerations
as permitted in section 96; or
-
an arbitral award made in an arbitration commenced
under paragraph 28 of the Chapter.
-
No application for leave may be brought under
section 129 in respect of a ruling made by the Supreme Court under section
98 if the time for appealing that ruling has already expired.
RECOGNITION AND ENFORCEMENT
-
An arbitral award must be recognized as binding
and, upon application to the Supreme Court, must be enforced subject to
paragraph 136 and 137 of the Nisga'a Government Chapter.
-
Unless the Supreme Court orders otherwise,
the party relying on an arbitral award or applying for its enforcement
must supply the duly authenticated original arbitral award or a duly certified
copy of it.
GROUNDS FOR REFUSING ENFORCEMENT
-
Subject to sections 128 and 133, a Party that
was not a participating Party in an arbitration must not bring an application
under section 124 or 129 to set the award aside but may resist enforcement
of the award against it by bringing an application under section 141.
-
On the application of a Party that was not
a participating Party in an arbitration, the Supreme Court may make an
order refusing to enforce against that Party an arbitral award made under
this Appendix if that Party establishes that:
-
it was not given copies of:
-
the notice of arbitration or agreement to
arbitrate, or
-
the pleadings or all amendments and supplements
to the pleadings;
-
the arbitral tribunal refused to add the Party
as a participating Party to the arbitration under paragraph 32 of the Chapter;
-
the arbitral award
-
deals with a disagreement not contemplated
by or not falling within the terms of the submission to arbitration, or
-
contains decisions on matters beyond the scope
of the submission to arbitration
provided that, if the decisions
on matters submitted to arbitration can be separated from those not so
submitted, that part of the arbitral award which contains decisions on
matters submitted to arbitration may be recognized and enforced;
-
the arbitral award has not yet become binding
on the parties or has been set aside or suspended by a court;
-
the arbitral tribunal or a member of it has
committed a corrupt or fraudulent act; or
-
the award was obtained by fraud.
CHAPTERS:
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
APPENDICES:
A B
C D
E F
G H
I J
K L
M
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