By Dov Silberman
This document is for general and community discussion purposes only. It does not purport to be an accurate reflection of halacha or state law to be used for any actual arbitration without specific legal or rabbinic instructions. It is not meant as legal advice or to be used for any particular purpose. Your circumstances may very well require different provisions.
Draft Rules for an integrated Jewish and State commercial arbitration in Victoria, Australia
Version 1 as at 24 July 2013
Adobe Acrobat (.pdf) format for download
3. Paramount obligations and duties of the participants
6. Representation and assistance
7. Non- Compliance with these Rules
Chapter 2 – Choosing The Arbitrator
8. Choosing an arbitrator and religious advocates
9. Accepting and challenging the arbitrator
10. Challenge procedure to the arbitrator
11. Appointment of substitute arbitrator
Chapter 3 – Pre – Hearing procedure
12. Entering into the Arbitration Agreement
13. Minimum contents of the Arbitration Agreement
Chapter 4 – Interim measures and orders
16. Conditions for granting interim measures
CHAPTER 5- CONDUCT OF ARBITRAL PROCEEDINGS
18. General conduct and procedural rules
19. Amendments of the claim and defence and remedies sought
20. Equal discovery of documents, evidence, expert reports etc
23. Power to act as mediator, conciliator or non‑arbitral intermediary
26. Rules and law applicable to the substance of the dispute
27. Determination of Victorian law or halacha
28. Psak made by the arbitrator
31. Settlement prior to the award
32. Form and contents of the award and psak
33. Termination of proceedings
34. Correction of the psak or award
35. Interpretation of the psak or award
37. Costs of terminated arbitration
41. Hierarchy of laws as to procedure
42. Reading down and severance
Draft Rules for an integrated Jewish
and State commercial arbitration in Victoria, Australia
Version 1 as at 24 July 2013
1. The purposes of these Rules are-
1.1. to provide for a voluntary regime by which Jewish persons or companies with Jewish directors and/or shareholders may resolve their commercial disputes between themselves and with others using an arbitration procedure which takes into account their cultural and religious beliefs and values, as well as reflecting the general community ethos of the Australian way of life. Insofar as the award determining the final resolution of the dispute is compatible with the public policy and the laws of Victoria, it should be legally enforceable;
1.2. to ensure there is transparency and public confidence within the Jewish and the general public regarding this form of arbitration procedure and the fairness and finality of any arbitration award; and
1.3. to require that the costs and time spent on resolving the dispute be minimised as much as possible by:-
1.3.1. facilitating the parties to limit by themselves the issues in dispute,
1.3.2. making the process as informal and quick as possible,
1.3.3. minimising any delay and censuring any unnecessary and/or deliberate delay, and
1.3.4. enabling the arbitrator to make piskei din, orders and awards
(including those of a punitive nature) to enable a fair and cost effective final resolution of the dispute, taking into account the complexity of the matter and the quantum in dispute.
the Act means the Commercial Arbitration Act (Victoria) 2011.
arbitral tribunal means the arbitrator
arbitration means a domestic commercial arbitration as defined in section 1 of the Act.
arbitration agreement means the agreement entered into between the arbitrator, the religious advocates and the parties setting out the terms and conditions under which the arbitration process and hearing is to be conducted, and any orders and awards made.
arbitrator means the arbitrator appointed by the arbitration agreement.
award means as the context so requires, an interim award or a final award made by the arbitrator.
confidential information has the same definition as given in section 2 of the Act, namely it “means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following:
(a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party;
(b) any information supplied by a party to another party in compliance with a direction of the arbitral tribunal;
(c) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal;
(d) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal;
(e) any transcript of oral evidence or submissions given before the arbitral tribunal;
(f) any rulings of arbitral tribunal;
(g) any award of the arbitral tribunal “.
Court means the Supreme Court of Victoria, unless the parties agree that it should refer to either the Magistrates Court of Victoria or the County Court of Victoria.
dayan means a person who possesses the qualification of Yadin Yadin.
din means judgement or law.
final award means an award by which the dispute is finally settled.
function includes a power, authority or duty.
halacha means Jewish religious and civil law, and includes Jewish legal literature.
halachic is the adjectival form of halacha.
hearing means the hearing to hear the substantive issues of the dispute, but can include a hearing to hear interlocutory matters.
heter iska means a halachic contract permitting one Jew to claim or receive interest from another Jew.
interim award means any award made by the arbitrator prior to making the award finally settling the dispute.
Jewish holydays means the first, second, seventh and eighth days of Passover, Pentecost, Rosh Hashanah. Yom Kippur, the first, second and eighth days of Tabernacles and the Rejoicing of the Law.
lefnei meshuras hadin (lit. going beyond the letter of the law) is a Jewish moral imperative which should be considered by G-d fearing persons, but usually cannot be imposed by one person on another.
lawyer means an Australian legal practitioner within the meaning of the Legal Profession Act (Vic) 2004.
order means any order made by the arbitrator prior to making the award finally settling the dispute.
paramount obligations means those obligations set out in Rule 3.1.
peshara means compromise, and has a halachic significance
peshara korev ledin (lit. a compromise close to what a strict interpretation of halacha is) is a rule in halacha.
piskei din is the plural of psak.
pleadings include any statement of claim, defence, reply or counterclaim.
psak means an halachic judgement requiring a person to do something, or not to do something. It includes mutatis mutandis an order, an interim measure and an award if it is necessary for halachic purposes.
religious advocate means a person who will represent and present a party’s interest and halachic position to the arbitrator. The religious advocate need not be a dayan or hold any other rabbinic qualification.
Rules mean these Rules.
Yadin Yadin means a qualification obtained by someone from an orthodox rabbi demonstrating that that person has expertise in the knowledge of Jewish commercial halacha.
3. Paramount obligations and duties of the participants
3.1. To further the purposes of the Rules, the parties, their religious advocates, their lawyers and other representatives and any expert witness, have a paramount obligation and duty to the arbitrator similar to the overarching obligations set out in sections 17- 26 of the Civil Procedure Act (Victoria) 2010 and the general duties set out in section 24B of the Act. For the purposes of the Rules, the paramount obligations and duties are to:-
3.1.1. act honestly,
3.1.2. have a justifiable basis for any claim or response,
3.1.3. take steps to facilitate the resolution or determination of the
dispute,
3.1.4. co-operate with the arbitrator and the other parties,
3.1.5. not engage in misleading or deceptive conduct, or likely to mislead or deceive,
3.1.6. use their reasonable endeavours to resolve the dispute,
3.1.7. narrow the issues in dispute,
3.1.8. ensure costs are reasonable and proportionate,
3.1.9. minimise delay,
3.1.10. disclose the existence of all documents that are relevant to the dispute,
3.1.11. do all things necessary for the proper and expeditious conduct of the arbitration,
3.1.12. comply without undue delay any order or psak of the arbitrator, and
3.1.13. not wilfully do or cause to be done any act to delay or prevent an award being made.
3.2. In making any psak, order or award, whether or not it involves a financial or other sanction, the arbitrator may take into account matters, several of which are those which the Court takes into account pursuant to section 9(2) of the Civil Procedure Act 2010. The matters for this sub-rule include, but are not limited to:-
(a) the extent to which the parties have complied with the arbitration agreement and any psak, order or award ;
(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e) the degree to which each person to whom the paramount obligations apply has complied with , or contravened, any or all of these paramount obligations;
(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the arbitrator;
(g) the extent to which the parties have had the benefit of legal and halachic advice and representation; or
(h) any other matter that the arbitrator deems appropriate.
4.1. Regarding verbal communications with the arbitrator:-
4.1.1. After the arbitration agreement has been entered into, any verbal communication by any party, their religious advocate or lawyers or other representative to the arbitrator must be made in the presence of the other parties, their religious advocates or lawyers or other representatives, as the case may be.
4.1.2. If this is not possible, then the substance of that communication must be brought by that party, their religious advocate or lawyers or other representative to the notice of the other parties, their religious advocates or lawyers or other representatives, as the case may be.
4.2. Regarding written communications with the arbitrator:-
4.2.1. A copy of any written communication by any party, their religious advocate or lawyers or other representative to the arbitrator must be delivered as soon as possible to the other parties, their religious advocates or lawyers or other representatives, as the case may be.
4.3. Any correspondence or document to be delivered or served on a party:-
4.3.1. must be clearly indicated who prepared it, who is delivering or serving, and if necessary, signed;
4.3.2. may be served personally;
4.3.3. may be delivered to the address for service as given in the arbitration agreement, or as advised from time to time, and left with an adult apparently residing or employed there and apparently over the age of 16 years;
4.3.4. may be posted by prepaid ordinary mail to the address for service. Delivery and service will be deemed to be effected in the ordinary course of post;
4.3.5. may be sent by facsimile transmission if the person has advised that facsimile transmission facilities are available for service. Delivery and service will be deemed to have occurred when the transmission report records a satisfactory transmission; and
4.3.6. may be sent by email if the person has advised an email address for service. Delivery and service will be deemed to have occurred if the senders internet service provider has not advised of a failure to deliver.
5.1. If anything has to be done within a fixed number of days, as opposed to a specific date:-
5.1.1. then time begins on the day after the commencement of the calculation;and
5.1.2. all days, including the Sabbath and Jewish holydays, are to be included in the calculation.
5.2. The time for performing any action, in the absence of anything to the contrary, concludes at 5.00 pm of the final day.
5.3. Anything done after 5.00 pm is taken to be done at 9.00 am on the following business day. The Sabbath and Jewish holydays are not considered business days for this purpose.
5.4. If the final day for doing anything is not a business day or is a Sabbath or Jewish holiday, it may be done on the next business day.
6. Representation and assistance
6.1. Halacha prefers that each party runs and presents their own case, during the preliminary and interlocutory stages, the hearing, during the judgement and afterwards.
6.2. Notwithstanding subrule 6.1, each party has the right to be represented and assisted by persons of their choice, at any stage of the arbitration.
6.3. Consequently, a party may be self represented or not, have lawyers or not, have a religious advocate or not, have other assistance or representation or not at any time during the proceeding. For the purposes of procedure and enforcement, no party at any time during or after the arbitration can make a claim of inequality on the grounds that that party does or did not have any or all of the types of representation and assistance another party has or had at any stage of the arbitration.
7. Non- Compliance with these Rules
7.1. A failure to comply with any of the Rules is an irregularity and does not render any step taken, or any psak, order or award a nullity.
7.2. The arbitrator shall have a free and unfettered discretion to dispense with compliance with any rule by the arbitrator, the parties, the religious advocates, the lawyers or other representatives, the expert witnesses, either before or after any failure. The arbitrator may make a psak, order or award for this purpose.
Chapter 2 – Choosing The Arbitrator
8. Choosing an arbitrator and religious advocates
8.1. The parties will choose an arbitrator by consent.
8.2. The arbitrator must be Jewish. The arbitrator must agree and make the parties aware that it is a fundamental prerequisite that the arbitrator is able to:-
8.2.1. arbitrate the dispute
8.2.2. conduct the arbitration proceedings pursuant to the Rules specifically taking into account halachic considerations if he is aware, or made aware, of them,
8.2.3. deliver a psak, and
8.2.4. deliver an arbitration award.
8.3. If the arbitrator is not a rabbi or dayan, the arbitrator should have the seven fundamental attributes of a religious advocate, being wisdom, humility, fear of G-d, disdain of money, love of truth, love of people, and a good reputation.
8.4. The lack of being a rabbi or dayan, or an absence of any or all of these attributes in the above subrule shall not disqualify the arbitrator from being the arbitrator.
9. Accepting and challenging the arbitrator
9.1. Any person minded to accept being chosen as an arbitrator must immediately write to both parties any circumstances likely to give rise to reasonable or justifiable doubts as to the person’s impartiality or independence, including prior knowledge about or relationship with any party. This is a continuing obligation on the arbitrator up until the issuing of the award, when the arbitrator would be functus officio. If pursuant to the arbitration agreement, the Rules or by law, the arbitrator is not then functus officio, then this is a continuing obligation upon the arbitrator until the arbitrator does become functus officio.
9.2. Because the Jewish community is relatively small, it is anticipated that there is a likelihood that there will be some prior knowledge or relationship. It is also anticipated that there may be a perception of bias sufficient to cast some doubts as to the arbitrator’s impartiality and independence, whether or not that would constitute bias for the purpose of disqualifying an arbitrator under Victorian law.
9.3. The parties acknowledge and agree that:-
9.3.1. by appointing the arbitrator with the knowledge of any information supplied prior to signing the arbitration agreement, they explicitly waive any such rights to challenge on that information, and
9.3.2. they do not consider that the information provided is sufficient to give rise to any doubts as to the arbitrator’s impartiality and independence to make any order or award.
9.4. For the avoidance of doubt, it is explicitly a rule that a party cannot challenge the arbitrator on:-
9.4.1. any fact disclosed prior to the arbitration agreement being entered into, or
9.4.2. any fact that the party or their lawyers or religious advocate were aware of prior to the arbitration agreement being entered into, even if that fact was not disclosed to that party by the arbitrator.
9.5. Consequently, an arbitrator may be challenged only if new facts are disclosed or discovered, or circumstances arise later, that give rise to reasonable and justifiable doubts as to the arbitrator’s impartiality or independence.
9.6. “Reasonable and justifiable doubts as to the impartiality or independence” means that there is a real danger of further bias not present at the time the parties entered into the arbitration agreement so as to materially affect the impartiality or independence of the arbitrator.
10. Challenge procedure to the arbitrator
10.1. A challenge to an arbitrator must be made in writing to the arbitrator and the other party within 15 days of a party being made aware of new facts or circumstances disclosed or discovered.
10.2. If either the arbitrator or the other party agrees that the arbitrator should resign, the arbitrator must resign. The resignation in no way is to be taken as an implied acceptance of the validity of the challenge. Otherwise, the arbitrator must advise in writing within 14 days of receiving the challenge why he will not resign.
10.3. The arbitrator must simultaneously adjourn (with any order as to costs reserved) the hearing for 30 days to allow the challenging party to appeal to the Court to decide on the challenge. The challenging party may within this time, advise that it is not going to so appeal, and the hearing can thereafter continue.
11. Appointment of substitute arbitrator
11.1. If the arbitrator resigns or for whatever reason the arbitrator’s mandate is terminated, the parties shall appoint another arbitrator on the same basis as the previous arbitrator was appointed, and who will agree to be bound by the Rules.
11.2. Once reconstituted, and after having invited the parties to comment, the substitute arbitrator shall determine whether and how much and at what and at which party’s cost (if any), any of the prior proceedings shall be repeated.
Chapter 3 – Pre-Hearing procedure
12. Entering into the Arbitration Agreement
12.1. Upon the agreement that the arbitrator will act as arbitrator, the parties, their religious advocates, their lawyers and other representatives, will meet with the arbitrator to:-
12.1.1. sign a binding arbitration agreement, and
12.1.2. have, or adjourn to a fixed date, a Directions Hearing for matters to be agreed on prior to the hearing of the substantive issues.
13. Minimum contents of the Arbitration Agreement
13.1. The arbitration agreement will cover at least the following minimum items:-
13.1.1. the names and addresses, of the arbitrator, the parties, the religious advocates, the lawyers, and any other representatives;
13.1.2. the address for service of the parties, and any facilities for facsimile transmission and email;
13.1.3. that the Rules (as amended by the arbitration agreement) form part of the arbitration agreement, that the parties and their advisors have had the opportunity to read the Rules, and that they understand them;
13.1.4. that pursuant to the Rules, the Commercial Arbitration Act (Victoria) 2011 applies to the arbitration and enforcement of any order or award;
13.1.5. that the parties understand and agree to the paramount obligations and duties as set out in the Rules;
13.1.6. that the parties accept the arbitrator as the arbitrator even if he does not possess any or all of the attributes required of a dayan;
13.1.7. that the parties have received any information from the arbitrator which may give rise to any reasonable or justifiable doubts as to the person’s impartiality or independence, including prior knowledge about or relationship with any party, and they will not make any complaint based on that information;
13.1.8. a brief description of the dispute and remedies sought, and any counterclaim;
13.1.9. that the arbitrator will issue a psak and award relating to these issues and remedies sought;
13.1.10. discovery of documents;
13.1.11. any expert witnesses required for Victorian law or halacha, and payment of their fees and expenses if required by the arbitrator or all parties;
13.1.12. any particular procedure that the parties agree upon. Otherwise, the arbitrator has an unfettered discretion to conduct the arbitration in any way;
13.1.13. the recording of the hearing of the substantive issues;
13.1.14. any disclosure of confidential information, including the psak or award;
13.1.15. any particular procedure that the parties agree upon. Otherwise, the arbitrator will be entitled to conduct the arbitration in any way feels appropriate;
13.1.16. any applicable law for the consideration of the substantive parts of the dispute and any conflict of law rules;
13.1.17. whether the arbitrator will act :-
13.1.17.1. as amiable compositeur or ex aequo et bono or in any different manner,
13.1.17.2. according to peshara,
13.1.17.3. according to peshara korev ledin,
13.1.17.4. according to din,
13.1.17.5. in advising the parties as to lefnei meshuras hadin, and
13.1.17.6. in accordance with any other specific directions or considerations;
13.1.18. the anticipated length of the arbitration, the fees and expenses of the arbitrator, and how they are to be paid. What happens if any fee amount agreed to now is insufficient. What happens if any money is not paid, including for the delivery of any psak or award;
13.1.19. if the parties later on agree to vary the procedure, the arbitrator will be entitled to charge any reasonable extra fees:
13.1.20. whether reasons for any psak or award are to be given;
13.1.21. which Court for which functions and assistance is to be turned to if necessary;
13.1.22. whether costs can be recovered from any party, and in what circumstances;
13.1.23. whether interest on all or part of the claim or award can be awarded, and any heter iska agreement;
13.1.24. immunity of the arbitrator;
13.1.25. the halachic requirements to ensure that the agreement is a valid agreement in halacha; and
13.1.26. the halachic requirements that any piskei din, orders and awards (mutatis mutandis), peshara, peshara korev ledin, din and settlement will be valid in halacha
14.1. The Directions Hearing will include attention to be given at least to the items hereunder. The arbitrator, having heard from any or all of signatories to the arbitration agreement, if necessary, will make a psak and orders regarding:-
14.1.1. the provision of a statement of claim consisting of a statement of facts supporting the claim, points of issue, relief or remedy sought;
14.1.2. a defence setting out a statement of facts supporting such defence;
14.1.3. the provision of any counterclaim, to be in the same form as the statement of claim;
14.1.4. the provision of any reply to the defence and any defence to the counterclaim;
14.1.5. whether there should be any discovery of documents prior to the hearing, inspection and copying;
14.1.6. whether, and on what terms and costs, there should be any expert witness to advise the arbitrator in any matter of Victorian law, and how and when that evidence should be given;
14.1.7. whether, and on what terms and costs, there should be any independent expert witness to advise the arbitrator in any matter of halacha and how and when that evidence should be given;
14.1.8. what type of evidence will need to be adduced at the hearing, and how;
14.1.9. what witnesses will be called, and whether notice should be given;
14.1.10. a further hearing to determine if the issues in dispute can be narrowed;
14.1.11. a provisional date for a hearing on the substantive issues of the dispute; and
14.1.12. liberty to apply upon notice.
14.2. The parties may exhibit with their pleadings all documents they consider to be relevant or may add a reference to the documents or other evidence that they will submit later.
Chapter 4 – Interim measures and orders
15.1. Without limitation to the following, the arbitrator may issue piskei din, orders, awards for interim measures, prior to the final award so as to:-
15.1.1. maintain or restore the status quo (including the proceedings itself) pending determination of the dispute;
15.1.2. preserve any assets which either may impact on the subject matter of the proceedings; or
15.1.3. preserve evidence that may be relevant and material.
16. Conditions for granting interim measures
16.1.1. The arbitrator may for whatever reason it deems appropriate without seeking the consent of any party, issue an psak, order or award for an interim measure.
16.1.2. To issue such a psak, order or award without consent, the arbitrator is not limited to consider or being satisfied by any or all those matters required to be considered or being satisfied when considering a request for an interim measure by any party.
16.2. Any party requesting an order for an interim measure shall satisfy the arbitrator that:-
16.2.1. if the order is not made, then irreparable harm would likely to occur to the requesting party for which damages will not be an adequate remedy, or
16.2.2. even if that harm could be rectified by damages, there is a reasonable and justifiable question and doubt as to whether any order for damages could or would be met by the other party; and
16.2.3. the balance of convenience favours the requesting party so that if the order is not made, the likely harm to the requesting party substantially outweighs the other party’s likely harm; and
16.2.4. there is a reasonable possibility that the requesting party will succeed on the merits of the claim.
17.1. Without limitation to the following matters, piskei din, orders, or awards may be issued by the arbitrator prior to the final award, on its own accord, or on the application of any party, to any of the parties:-
17.1.1. to do any thing for the proper and expeditious conduct of the arbitration;
17.1.2. to make further payments for the fees and expenses of the arbitrator;
17.1.3. to provide security for such further payments for the fees and expenses of the arbitrator;
17.1.4. to provide security for costs;
17.1.5. to provide specific evidence to the arbitrator;
17.1.6. how any evidence may be provided and inspected; or
17.1.7. how long parties shall have to present evidence and make submissions.
CHAPTER 5 – CODUCT OF ARBITRAL PROCEEDINGS
18. General conduct and procedural rules
18.1. The arbitrator must treat both parties equally, and give each party a reasonable time to present their case and make their submissions.
18.2. For the purposes of this rule, “treated equally” does not mean giving each party the same amount of time for any part of the proceedings, but means that there should be no discrimination of, and there should be procedural fairness accorded to, each party.
18.3. For the purposes of this rule, the test for “a reasonable time” is an objective test, to be determined by the arbitrator.
18.4. Subject to anything explicit in the arbitration agreement, the arbitrator has an unfettered discretion as to the conduct of the arbitration.
18.5. After the signing of the arbitration agreement, if the parties by mutual consent at any time wish to change the procedural rules governing the arbitration, the arbitrator shall do so upon payment of reasonable extra fees and expenses to cover this change.
19. Amendments of the claim and defence and remedies sought
19.1. The arbitrator may at any time amend or supplement a party’s claim, defence or remedies requested by a party provided such amendment or supplement falls within the ambit of the arbitration agreement.
19.2. A proposed amendment or supplement may be refused if the arbitrator considers it to be inappropriate due to the delay in making it or gross prejudice to the other side.
19.3. Not withstanding such delay or prejudice, the arbitrator may allow such amendment or supplement on such terms and costs as the arbitrator deems appropriate.
20. Equal discovery of documents, evidence, expert reports etc
20.1. All statements, expert witness reports, documents or other information supplied to the arbitrator by one party must be simultaneously supplied to the other party, unless that other party agrees that it already has a copy of it.
20.2. Any expert report or evidentiary document sourced by the arbitrator upon which the arbitrator can or may rely upon must be shown to the parties, and an appropriate time be given for them to make any submissions in response prior to an award being made.
21.1. The parties can themselves agree to cure any default by one party. The following subrules apply when there is no such agreement.
21.2. The arbitrator may consider and deem how appropriate any reason a party gives to excuse a default when determining any further action to be taken.
21.3. If any statement of claim is not provided within the required time, the arbitrator shall issue and serve an order requiring the provision of the statement of claim within seven (7) days or such other time as the arbitrator deems appropriate. If the statement of claim is still not produced, the arbitrator may make any further order, including terminating the arbitration on terms and costs.
21.4. If a defence, reply or counterclaim is not provided within the required time, the arbitrator shall issue and serve an order requiring the provision of the relevant document within seven (7) days or such other time as the arbitrator deems appropriate. If the relevant document is still not produced, the arbitrator may make any further order, including continuing the proceedings without these documents, but without drawing any inference that failure to deliver a document in response to allegations is in itself an admission of these allegations.
21.5. If a party has not done any other thing it was supposed to do, then the arbitrator shall issue and serve an order requiring that party to do that thing within seven (7) days or such other time as the arbitrator deems appropriate. If the party will still not have done that thing, then the arbitrator may make any further order, or do any other action, including but not limited to:-
21.5.1. directing that the party in default not to be entitled to rely on any allegation or evidence to which the order related to;
21.5.2. drawing an adverse inference from the party’s failure to comply with the order;
21.5.3. make an award on the basis of other evidence etc properly provided to the arbitrator; or
21.5.4. make any order as to costs and fees incurred as a result of that party’s failure to comply with the order.
21.6. If any party fails to appear at a hearing or to produce any document, the arbitrator may continue the proceedings and make the award on the evidence presented.
22.1. The parties acknowledge the right of any party to seek leave of the Court pursuant to sections 27A and 27B of the Act to obtain subpoenas to testify and/or produce documents.
23. Power to act as mediator, conciliator or non‑arbitral intermediary
23.1. The parties acknowledge that pursuant to section 27D of the Act, and with the consent of all parties, the arbitrator can act as a mediator, conciliator or other non-arbitral intermediary.
24.1. The hearing of the substantive dispute will be recorded. The parties and the arbitrator will agree upon the method of recording, the provision (if any) and costs of a transcript to the arbitrator and the parties.
24.2. If part or all of a recording is to be provided to the arbitrator and the parties, then the arbitrator will in addition, at no cost to the arbitrator, be provided with a transcript of the relevant part or all of the recording.
25. Confidential information
25.1. The parties can themselves agree to determine what confidential information can be disclosed, to whom and when. The following subrules apply where a situation arises which has not been covered by a previous agreement, and no new agreement has been reached, or where there is no agreement.
25.2. For the avoidance of doubt, in this rule, “the parties” mean the parties, their religious advocates, their lawyers and other representatives and advisors.
25.3. The arbitrator and the parties must not disclose any confidential information except in the following circumstances in this rule.
25.4. The arbitrator and the parties may freely and without any notice disclose any confidential information to:-
25.4.1. their professional or other advisors,
25.4.2. their financial institutions,
25.4.3. to any person or potential witness in order to prepare for the arbitration hearing,
25.4.4. to any person if it is necessary to protect a participant’s legal rights, and
25.4.5. to any person in order to enforce any order or award,
provided that the person to whom it is disclosed is made aware that it is confidential information and agrees to treat it as such.
25.5. The arbitrator and any party may disclose any confidential information to any person, court, tribunal, regulatory body or corporation claiming to act pursuant to any law, but only after giving the arbitrator and the other party written notice as soon as they have received the relevant request or demand in order that the others have time to object in the appropriate fashion.
25.6. If the arbitrator or a party wishes to disclose any confidential information in any other circumstances, then written notice giving reasons for that (“the request’) shall be given to the arbitrator and the other party. The arbitrator must give the other party an opportunity to make any submissions about the request and thereafter may make an order concerning that either with a hearing or on written submissions.
25.7. If the award has already been given, then the arbitrator can be reconstituted for this purpose of the request.
25.8. If it is impossible or impractical for the arbitrator to adjudicate on the request, then the party wishing to disclose the confidential information may apply to the Court for a ruling.
26. Rules and law applicable to the substance of the dispute
26.1. The parties must decide by agreement, either in the arbitration agreement or prior to the commencement of the hearing, what is the applicable law to be considered by the arbitrator when considering the substantive parts of the dispute.
26.2. For the purposes of this rule, the “applicable law” means whether all or part of the substantive law (except for its conflict of laws rules) of Victoria on one hand or all or part of substantive halacha on the other hand.
26.3. The parties must decide by agreement, either in the arbitration agreement or prior to the commencement of the hearing, how the arbitrator will make a decision where there is a conflict of laws between the law of Victoria on one hand and halacha on the other.
26.4. With regard to a conflict of law rules:-
26.4.1. If there is no such agreement or the agreement is unclear or there is a gap in the applicable law or choice of conflict of law, then the arbitrator will decide the appropriateness in all the circumstances, the conflict of law rules.
26.4.2. The arbitrator is not bound to follow the basis of that decision in any further question, but retains the right to examine each question anew and to decide the appropriateness in all the circumstances, the conflict of law rules. even if it is different from the previous decision.
26.5. The parties must decide by agreement, either in the arbitration agreement or prior to the commencement of the hearing whether the arbitrator will make a psak or award:-
26.5.1. as amiable compositeur or ex aequo et bono or in any different manner,
26.5.2. according to peshara;
26.5.3. according to peshara korev ledin,
26.5.4. according to din,
26.5.5. advising the parties as to lefnei meshuras hadin, and
26.5.6. in accordance with any other specific directions or considerations agreed to by the parties.
26.6. If there is no such agreement or direction given by the parties, or the terms of the agreement is unclear, then the arbitrator will make a psak or order according to peshara korev ledin and as amiable compositeur or ex aequo et bono.
26.7. Having made a decision pursuant to the immediate above subrule, the arbitrator is not bound to follow the basis of that decision in any further question, but retains the right to examine each question anew and to decide the appropriateness in all the circumstances the conflict of law rules. Even if it is different from the previous decision make a further decision in any way that it deems appropriate in the circumstances, even if it is different from the previous decision.
26.8. Notwithstanding the above subrules, the arbitrator shall decide according to the terms of the contract and the common commercial practices of any trade, profession or community, whether mentioned explicitly or implicitly.
27. Determination of Victorian law or halacha
27.1. The arbitrator may, whether with the consent of the parties or not, or at the request of one party or otherwise, after hearing from the other parties, on whatever terms and costs, refer any question of Victorian law to an expert for an expert report or oral testimony alone, or to the Court.
27.2. The arbitrator may, whether with the consent of the parties or not, or at the request of one party or otherwise, after hearing from the other parties, on whatever terms and costs, may refer any question of halacha to an expert for an expert report or oral testimony alone.
28. Psak made by the arbitrator
28.1. For the purposes of halacha, the arbitrator has the authority to make a psak by himself.
28.2. For the purposes of the Act, the Rules, and the legal enforceability of any order or award pursuant to the Act and the Rules, the psak as such carries no legal weight in Victoria, but has a moral and halachic imperative for the parties in their relationship with each other and within the Jewish community.
29.1. The arbitrator may make an psak, order or award for specific performance of any contract or other matter which is part of the arbitration, provided the Court has a similar power to so order.
30.1. The arbitrator has an unfettered discretion as to ordering payment of costs and fees and expenses by whom, to whom and in what manner, at any time (with or without a hearing) during the arbitration.
30.2. At any time, for any discrete part of the arbitration, or as part of a final award, the arbitrator may fix by way of psak, order or award the cost, fees and expenses:-
30.2.1. as a fixed amount;
30.2.2. as an amount related to a specific invoice either in existence or to come into existence;
30.2.3. to come back to the arbitrator with such further information as the arbitrator requires to make the of psak, order or award; or
30.2.4. award all or part of costs to be taxed on a party – party or solicitor-client or indemnity basis, to be assessed as though it was an order of the Court.
31. Settlement prior to the award
31.1. If the parties settle the dispute prior to the giving of the award, then the parties shall decide if they want the settlement to be recorded as an agreement between themselves or as an award.
31.2. Upon the parties signing a settlement agreement (ie not being an award) the arbitrator must terminate the arbitration.
31.3. If the parties wish their settlement to be recorded as an award, then the arbitrator will make an award as would have been done otherwise, incorporating the terms of settlement. If there are any concerns as to the appropriateness or otherwise as to any term, the arbitrator is not obliged to include that term in the award. The arbitrator must advise the parties of that concern prior to making any award.
31.4. The parties can request the arbitrator to make an award for parts of the settlement terms that the arbitrator is comfortable with and to simultaneously terminate the agreement.
31.5. If the arbitrator makes any award pursuant to this rule, then:-
31.5.1. reasons do not have to be given, and
31.5.2. the award has the same effect as though an award was given on the merits of the arbitration.
32. Form and contents of the award and psak
32.1. The arbitrator can make an interim award finally disposing of any of the issues in dispute at the time of making the award.
32.2. The final award is to finally dispose of the arbitration.
32.3. Any award must at least :-
32.3.1. be in writing;
32.3.2. be dated;
32.3.3. have a place of arbitration noted;
32.3.4.be signed by the arbitrator;
32.3.5. include a statement of the reasons for making the award unless the parties have agreed that no reasons need be given or the award is made pursuant to a settlement;
32.4. A copy of any award made is to signed by the arbitrator and given to each party.
32.5. A psak may be in English and need not be in Hebrew.
32.6. Any psak must at least:-
32.6.1. be in writing, but need not be in Hebrew. It must be in English, but can be in English alone, in English with a Hebrew translation, or in Hebrew with an English translation;
32.6.2. be dated with the English and Hebrew dates;
32.6.3. have a place of arbitration noted;
32.6.4. include a statement of the reasons for making the psak unless the parties have agreed that no reasons need be given or the psak is made pursuant to a settlement;
32.6.5. note the names of the parties and the religious advocates;
32.6.6. note that the psak is given pursuant to the arbitration agreement; and
32.6.7. note the date(s) of the hearing, date and method of delivery of the psak and whether the religious advocates attended on these dates.
33. Termination of proceedings
33.1. The arbitral proceedings are terminated automatically by the arbitrator signing the final award or upon an order made by the arbitrator.
33.2. The mandate of the arbitrator terminates with the termination of the arbitral proceedings, save to determine costs if applicable, to correct and to interpret the psak or award, and to make any other psak or award if requested to by the parties.
34. Correction of the psak or award
34.1. If the psak or award makes no mention as to costs, then within 14 days of receipt of the award, all parties, or one party with notice to the other parties, may request the arbitrator to make a psak and award as to costs.
34.2. The arbitrator must give the other parties a reasonable opportunity to make any submissions about the request for costs. The arbitrator shall make an order on the request either with a hearing or on written submissions.
34.3. The arbitrator shall hold a hearing about, or consider the, request as soon as practical, and in any case, within 14 days of receiving the request or as soon as practical thereafter.
34.4. The arbitrator shall be entitled to determine that the request for costs is not warranted, and not make any order for costs. Otherwise, the arbitrator may amend the psak or award by adding an award as to costs.
34.5. Within 30 days of the date of the psak or award, the arbitrator may correct any clerical or computational mistake or error arising from any accidental slip or omission.
34.6. Within 30 days of receipt of the psak or award, a party, may with notice to the other parties, request the arbitrator to correct any clerical or computational mistake or error arising from any accidental slip or omission.
34.7. The arbitrator must give the other parties a reasonable opportunity to make any submissions about the request and thereafter may make a decision as soon as practical concerning the correction either with a hearing or on written submissions.
34.8. Any correction will be part of the psak or award.
35. Interpretation of the psak or award
35.1. Within 30 days of receipt of the psak or award, all parties, or one party with written notice to the other parties, may request the arbitrator give an interpretation of part or all of the psak or award, giving reasons why an interpretation is requested.
35.2. The arbitrator must give the other parties a reasonable opportunity to make any submissions about the request for interpretation. The arbitrator shall make a decision on the request either with a hearing or on written submissions.
35.3. The arbitrator shall hold a hearing about, or consider the, request within 30 days of receiving the request.
35.4. The arbitrator shall be entitled to determine that the request for interpretation is unjustified, and not give any interpretation. Otherwise, the arbitrator shall give the interpretation, with any order as to costs, within 30 days of receipt of the request, or as soon as practical thereafter.
35.5. Any interpretation will be part of the psak or award.
36.1. Within 30 days of receipt of the psak or award, all parties, or one party with notice to the other parties, may request the arbitrator to make an additional psak or award with regard to any claims presented in the arbitration but omitted from the psak or award.
36.2. The arbitrator must give the other parties a reasonable opportunity to make any submissions about the request for an additional psak or award. The arbitrator shall make a decision on the request either with a hearing or on written submissions.
36.3. The arbitrator shall hold a hearing about, or consider the, request as soon as practical, and in any case, within 60 days of receiving the request.
36.4. The arbitrator shall be entitled to determine that the request for an additional award is unjustified, and not make any award or psak. Otherwise, the arbitrator shall give the interpretation, with any order as to costs, within 60 days of receipt of the request, or as soon as practical thereafter.
37. Costs of terminated arbitration
37.1. If an arbitration is terminated for whatever reason without an award being made, then any costs or fee agreement or orders made at the termination of the arbitrator’s mandate or prior to that, shall remain.
37.2. A party may apply to the Court within two months of the termination of the arbitration for any costs not already made.
38. Interest
38.1. Interest, either interest as defined by Victorian law or by halacha, shall not be claimed nor awarded, unless a heter iska was entered into at the appropriate time for the claim or award. This rule deals where a heter iska is validly entered into to permit the claim or award.
38.2. Subject to this rule, the arbitrator may determine a reasonable rate from any date after the cause of action arose or from another date if interest was part of the subject matter of the claim, and award interest on the claim or part of the claim.
38.3. If interest is awarded, it shall form part of the psak or award.
39.1. Unless there is any law under which a right of action is extinguished by the death of a person, the death of a party shall of itself not bring the arbitration to a halt. The arbitration may be continued by or against the legal personal representative of the deceased.
40.1. An arbitrator is not liable for anything done or omitted to be done in their capacity of arbitrator unless the act or omission is fraudulent.
40.2. In this rule, a reference to an arbitrator includes an arbitrator acting as a mediator, conciliator or other non-arbitral intermediary under the Rules.
41. Hierarchy of laws as to procedure
41.1. Unless there is anything contrary to Victorian law or public policy, and where it is allowed that any Act of Parliament or law may be derogated from, where there is any inconsistency or gaps:-
41.1.1. clauses in the arbitration agreement prevail over the Rules, the Act, and any other Victorian law;
41.1.2. the Rules prevail over the Act and any other Victorian law; and
41.1.3. the Act applies for any gaps or silence in the arbitration agreement and Rules; .
42. Reading down and severance
42.1. If the arbitrator or Court determines that a word, phrase, sentence, rule or subrule in the arbitration agreement or the Rules is unenforceable, illegal or void, then it must be read down so as to give it as much effect as possible. If it is not so possible to give it any effect at all, then it alone must be severed and the other provisions of the arbitration agreement and the Rules shall remain operative.
42.2. If the arbitrator determines that a word, phrase, sentence, rule or subrule in the arbitration agreement or the Rules is according to halacha unenforceable, illegal or void, then it must be read down so as to give it as much effect as possible. If it is not so possible to give it any effect at all, then it alone must be severed and the other provisions of the arbitration agreement and the Rules shall remain operative.
Drafted by
DOV SILBERMAN BA, LLB
Lawyer and Nationally Accredited Mediator,
Associate ACICA (Australian Centre for
International Commercial Arbitration)