GUIDE to TOMAC ARBITRATION


DEFENCE SUBMITTED BY THE RESPONDENT


In both Ordinary Arbitration and Simplified Arbitration, when the application has been accepted, TOMAC (practically speaking the TOMAC Secretariat) serves one set of duplicates of the arbitration application and documentation on the Respondent (generally by certified mail) and requests that the Respondent submit a reply within the period set by the TOMAC Rules (counting from the day after the duplicates have been mailed to the Respondent: Ordinary Arbitration 21 days, Simplified Arbitration 15 days).

1. Defence in Ordinary Arbitration

DEFENCE (Sample)

Original *1

Claimant Kofuku Transport Co., Ltd.
Respondent Ocean Products Co., Ltd.

ARBITRATION ARISING OUT OF THE DISPUTE RELATING TO
THE TIME CHARTER FOR THE S.S. HEISEI MARU

DEFENCE TO THE SUMMARY OF CLAIMS *2

We hereby respectfully pray for an arbitration award that:
1. Dismisses the Claimant's demands; and
2. holds that the costs of this arbitration be borne by the Claimant.

DEFENCE TO THE CAUSES OF ACTION *3

  1. With regard to cause of action number 1, we admit in accordance with Claimant's assertions to having formed a time charter for the S.S. Heisei Maru (referred to hereinafter as the vessel). (Respondent exhibit No. 1.)
  2. - - - - - - -

METHOD OF PROOF

Respondent's Exhibit No. 1: Time charter for the S.S. Heisei Maru dated 20 October, 1990
Power of Attorney 1 copy

Addressed to: TOMAC

17 May, 1994

Representative for the Respondent: Attorney-at-law Morio Yamakawa (Signature)

 
Explanation of the Defence
  1. (Note 1.) One original and one duplicate (each with original stamp or signature), four copies, the above being labeled, respectively, as "original," "duplicate," and "copy."
  2. (Note 2.) Clearly state whether or not you admit the Claimant's allegations.
  3. (Note 3.) With respect to the causes of action in the arbitration application, state with particularity which allegations you admit and which you dispute. If you have documentation to support your assertions, refer to it using appropriate exhibit numbers. And when employing issue rulings and certifications, make thorough use of them in your argument.
If the Respondent has a counterclaim against the Claimant, the Respondent may take the role of the Claimant for the purposes of filing the counterclaim and file an independent arbitration application. In such a case, in order to avoid double proceedings, and to save on arbitration fees, the arbitrators will generally in their judgment consolidate the two proceedings into one.

2. Defence in Simplified Arbitration

DEFENCE IN SIMPLIFIED ARBITRATION (Sample)

With regard to the arbitration application by (company name) _____________________________________________ dated (Date/Month/Year) over the dispute relating to ______________________________________________________, based on the TOMAC Rules, we defend as follows:

Attached Documents
1. Documentary Evidence (Respondent's Exhibit No.1, etc.)

Addressed to TOMAC
Day/Month/Year
Respondent Address
Company Name
Representative Name (Signature)

Response to the Claimant's summary of claims

Response to the Claimant's causes of action

 
Explanation of Defence in Simplified Arbitration
When the Respondent is served with a duplicate of the Simplified Arbitration Application, they should give careful consideration whether to go ahead with Ordinary Arbitration or Simplified Arbitration.

If Simplified Arbitration is satisfactory, the Respondent should make out and submit the "Simplified Arbitration Defence." This will set off the Simplified Arbitration proceedings.

If the Respondent submits the "Ordinary Arbitration Defence" then Ordinary Arbitration proceedings will proceed.

Submit the same number of copies (6-sets) as described in Note 1 of the explanation of Defence in Ordinary Arbitration.

 

3. Application of Counter-Claim

When the Respondent in addition to submitting their defence has a counter-claim as well, they may bring separate arbitration proceedings for their counter-claim. Although called a counter-claim arbitration proceeding, it is nonetheless an arbitration application. As such, the forms used are the same as for Ordinary Arbitration Application or Simplified Arbitration Application. However, in order to keep the identities of the parties clear, it is recommended that this arbitration application is clearly identified as "Counter-claim Arbitration Application," that the Claimant is referred to as the "Counter-claim Claimant" and that the Respondent is referred to as the "Counter-claim Respondent."

Where the two proceedings are consolidated into one by the arbitrators, after the consolidation, the Counter-claim Claimant is referred to as the Respondent and the Counter-claim Respondent is referred to as the Claimant.

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