Originally from:
Chamber of Arbitration of Milan Rules: A Commentary - Hardcover
Chamber of Arbitration of Milan Rules: A Commentary - PDF
ARTICLE 27 - NEW CLAIMS
The Arbitral Tribunal, after consulting the parties, shall
decide on the admissibility of new claims, taking into account
all circumstances, including the stage of the proceedings.
1. Summary of Contents
Art. 27 of the Rules deals with the issue of admissibility of ‘new’
claims in the course of an arbitration procedure. In light of this provision,
in order to assess whether a claim is ‘new’ and to decide whether or not
to admit it, an Arbitral Tribunal has to verify, first, whether it
substantially differs from a claim (or more claims) already filed in the
proceedings with previous submissions (in primis, the Request for
Arbitration and the Answer to the Request) and, secondly, whether the
relevant time – limit, if any, has already elapsed.
2. Definition of ‘new’ claims
In order to conclude that a claim is 'new' in respect of previous claims
already submitted in the proceedings, that claim has to be properly
identified. The identification and qualification of a claim are governed by
the applicable procedural law, which varies depending on which the seat
of arbitration is.1 The Milan Rules do not give any indication of when a
claim is to be considered ‘new’ and this commentary is not the right
place to address this complex issue in detail. However, few basic notions
are worth underlying.
Most jurisdictions (especially those of the tradition of civil law)
identify a claim on the basis of three elements, personae, causa petendi
and petitum, e.g. the parties, the cause of action2 and the good/right in
respect of which a certain relief is sought.3 When two claims have just
one or two of these elements in common, but not all, they shall be
deemed to be two different claims, even though they might be related (or
connected) to a more or less intense degree.4 In order to properly identify
a claim, the adjudicatory body (judge or arbitrator) is in principle entitled
to avail of all possible means, including the interpretation of the wording
contained in all the introductory acts of the proceedings,5 the clarifications
submitted by the parties during the proceedings,6 the evidence produced,7
the parties’ conduct throughout the proceedings8 and so on.
SUMMARY:
1. Summary of Contents
2. Definition of ‘new’ claims
3. The rules governing arbitration procedure and claims’ submissions:
the relevance of time-limits
4. The discretionary power of the Arbitral Tribunal
5. The need to respect the due process (and, in particular, the adversarial principle)
6. The solutions adopted by other arbitration rules and laws: a brief comparative overview.
CLAUDIO CONSOLO is Professor of Civil Procedural Law. He
lectured at Trento (1986-1991), Catholic University of Milan (1992-
1996), Verona (1997-1998), Padova (since 1998), Innsbruck (1998-2003),
Bocconi University (2005-2008). He is author of several books and
essays and a member of the scientific committee of numerous law
reviews. He is editor of the Commentary on the Code of Civil Procedure
(4th ed., Ipsoa, 2010) and co-editor of the Commentary on national and
international Arbitration Law (Cedam, 2010). He has been a member of
the Arbitral Council of Milan. He practices as a lawyer, with offices in
Milan and Verona.
ALBERT HENKE is Aggregate Professor of International Investment
Law and Dispute Settlement at Università degli Studi in Milan and
Research Fellow and Lecturer in Civil Procedure at the same University.
He is coordinator for the relations with International Organizations and
member of the committee for the internationalization of the legal
education. He is Senior Associate with Clifford Chance Law Firm (Milan
office), where his main areas of practice are domestic and international
dispute resolution (litigation and arbitration). He has acted both as
counsel and administrative secretary in arbitration proceedings. He has
been Associate Legal Expert at the United Nations Commission for
International Trade Law in Vienna (2005 - 2006). He is the coordinator
of the Arbitration Program of the Summer School on International
Arbitration and Mediation organized by Università degli Studi (Milan).
He is also a member of the editorial staff of the Rivista di Diritto
Processuale and of ArbAut and ASA below 40. Since 2008 he has been
the coach of the team of University of Milan which takes part to the Vis
Moot Competition in Vienna.
