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GUIDE to TOMAC ARBITRATION

4. DEFENSE SUBMITTED BY THE RESPONDENT

Table of Contents

    When the application has been accepted, TOMAC Secretariat serves one set of originals 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.

Defense


DEFENSE (Sample)

Original *1

______________, 20____

To: Tokyo Maritime Arbitration Commission of The Japan Shipping Exchange, Inc.

Claimant: _________________
Respondent: _________________

ARBITRATION ARISING OUT OF THE DISPUTE
RELATING TO THE TIME CHARTER FOR THE S.S. HEISEI MARU
(CASE No. TOMAC-2014XXX)

DEFENSE TO THE 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.

DEFENSE TO THE CAUSES OF ACTION *3

  1. With regard to the ground for claim 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. B-1.)
  2. - - - - - - -

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

Annexed Documentation:

  1. Evidence (Claimant's Exhibits No.B-1 through B-6)
  2. Certificates of Qualifications for the Respondent
  3. Document to Empower an Attorney
Explanation of the Defense
  1. (Note 1.) The Secretariat is to instruct as to the number of copies to be submitted.
  2. (Note 2.) Clearly state whether or not you admit the Claimant's allegations.
  3. (Note 3.) With respect to the grounds for claim 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.

  

Application of Counter-Claim

    When the Respondent in addition to submitting their defense has a counterclaim as well, they may bring separate arbitration proceedings for their counterclaim. Although called a counterclaim arbitration proceeding, it is nonetheless an arbitration application. As such, the forms used are the same as for Ordinary Arbitration Application or Simplified (or SCAP) Arbitration Application. However, in order to keep the identities of the parties clear, it is recommended that this arbitration application is clearly identified as "Counterclaim Arbitration Application," that the Claimant is referred to as the "Counterclaim Claimant" and that the Respondent is referred to as the "Counterclaim Respondent."
    In such a case, in order to avoid double proceedings, and to save on arbitration fees, TOMAC will generally in their judgment consolidate the two proceedings into one.
    Where the two proceedings are consolidated into one by TOMAC, after the consolidation, the Counterclaim Claimant is referred to as the Respondent and the Counterclaim Respondent is referred to as the Claimant.
    Regarding consolidation of proceedings, the Ordinary Rules have another provision when multiple arbitral proceedings, arising from multiple contracts involving a same ship for example, are commenced. Please refer to Article 28 of the Ordinary Rules for more information.

 

3. DOCUMENTATION FOR APPLICATION 5. SUPPLEMENTARY STATEMENT

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