ENGLAND ARBITRATION ACT
England
Arbitration Act 1996
1996 CHAPTER 23 [17th June
1996]
PART I - ARBITRATION
PURSUANT TO AN ARBITRATION AGREEMENT
Introductory
1. - General principles.
2. - Scope of application of provisions.
3. - The seat of the arbitration.
4. - Mandatory and non - mandatory provisions.
5. - Agreements to be in writing.
Definition of arbitration
agreement.
6. - The arbitration agreement
7. - Separability of arbitration agreement.
8. - Whether agreement discharged by death of a party.
Stay of legal proceedings.
9. - Stay of legal proceedings
10. - Reference of interpleader issue to arbitration.
11. - Retention of security where Admiralty proceedings
stayed.
Commencement of arbitral
proceedings
12. - Power of court to
extend time for beginning arbitral proceedings, &c.
13. - Application of Limitation Acts.
14. - Commencement of arbitral proceedings.
The arbitral tribunal
15. - The arbitral tribunal.
16. - Procedure for appointment of arbitrators.
17. - Power in case of default to appoint sole arbitrator.
18. - Failure of appointment procedure.
19. - Court to have regard to agreed qualifications.
20. - Chairman.
21. - Umpire.
22. - Decision - making where no chairman or umpire.
23. - Revocation of arbitrator's authority.
24. - Power of court to remove arbitrator.
25. - Resignation of arbitrator.
26. - Death of arbitrator or person appointing him.
27. - Filling of vacancy, &c.
28. - Joint and several liability of parties to arbitrators
for fees and expenses.
29. - Immunity of arbitrator.
Jurisdiction of the arbitral
tribunal
30. - Competence of tribunal
to rule on its own jurisdiction.
31. - Objection to substantive jurisdiction of tribunal.
32. - Determination of preliminary point of jurisdiction.
The arbitral proceedings
33. - General duty of the
tribunal.
34. - Procedural and evidential matters.
35. - Consolidation of proceedings and concurrent hearings.
36. - Legal or other representation.
37. - Power to appoint experts, legal advisers or assessors.
38. - General powers exercisable by the tribunal.
39. - Power to make provisional awards.
40. - General duty of parties.
41. - Powers of tribunal in case of party's default.
Powers of court in relation
to arbitral proceedings
42. - Enforcement of peremptory
orders of tribunal.
43. - Securing the attendance of witnesses.
44. - Court powers exercisable in support of arbitral
proceedings.
45. - Determination of preliminary point of law.
The award
46. - Rules applicable
to substance of dispute.
47. - Awards on different issues, &c.
48. - Remedies.
49. - Interest.
50. - Extension of time for making award.
51. - Settlement.
52. - Form of award.
53. - Place where award treated as made.
54. - Date of award.
55. - Notification of award.
56. - Power to withhold award in case of non - payment.
57. - Correction of award or additional award.
58. - Effect of award.
Costs of the arbitration
59. - Costs of the arbitration.
60. - Agreement to pay costs in any event.
61. - Award of costs.
62. - Effect of agreement or award about costs.
63. - The recoverable costs of the arbitration.
64. - Recoverable fees and expenses of arbitrators.
65. - Power to limit recoverable costs.
66. - Enforcement of the award.
67. - Challenging the award: substantive jurisdiction.
68. - Challenging the award: serious irregularity.
69. - Appeal on point of law.
70. - Challenge or appeal: supplementary provisions.
71. - Challenge or appeal: effect of order of court.
Miscellaneous
72. - Saving for rights
of person who takes no part in proceedings.
73. - Loss of right to object.
74. - Immunity of arbitral institutions, &c.
75. - Charge to secure payment of solicitors' costs.
Supplementary
76. - Service of notices,
&c.
77. - Powers of court in relation to service of documents.
78. - Reckoning periods of time.
79. - Power of court to extend time limits relating
to arbitral proceedings.
80. - Notice and other requirements in connection with
legal proceedings.
81. - Saving for certain matters governed by common
law.
82. - Minor definitions.
83. - Index of defined expressions: Part I.
84. - Transitional provisions.
PART II - OTHER PROVISIONS
RELATING TO ARBITRATION
Domestic arbitration agreements
85. - Modification of Part
I in relation to domestic arbitration agreement.
86. - Staying of legal proceedings.
87. - Effectiveness of agreement to exclude court's
jurisdiction.
88. - Power to repeal or amend sections 85 to 87.
89. - Application of unfair terms regulations to consumer
arbitration agreements.
90. - Regulations apply where consumer is a legal person.
91. - Arbitration agreement unfair where modest amount
sought.
Small claims arbitration
in the county court
92. - Exclusion of Part
I in relation to small claims arbitration in the county
court.
93. - Appointment of judges as arbitratorsAppointment
of judges as arbitrators.
Statutory arbitrations
94. - Application of Part
I to statutory arbitrations.
95. - General adaptation of provisions in relation to
statutory arbitrations.
96. - Specific adaptations of provisions in relation
to statutory arbitrations.
97. - Provisions excluded from applying to statutory
arbitrations.
98. - Power to make further provision by regulations.
PART III - RECOGNITION
AND ENFORCEMENT OF CERTAIN FOREIGN AWARDS
Enforcement of Geneva Convention
awards
99. - Continuation of Part
II of the Arbitration Act 1950.
Recognition and enforcement
of New York Convention awards
100. - New York Convention
awards.
101. - Recognition and enforcement of awards.
102. - Evidence to be produced by party seeking recognition
or enforcement.
103. - Refusal of recognition or enforcement.
104. - Saving for other bases of recognition or enforcement.
PART IV - GENERAL PROVISIONS
105. - Meaning of "the
court": jurisdiction of High Court and county court.
106. - Crown application.
107. - Consequential amendments and repeals.
108. - Extent.
109. - Commencement.
110. - Short title.
ARBITRATION ACT 1996
(OF ENGLAND)
1996 CHAPTER 23 [17TH JUNE
1996]
An Act to restate and improve
the law relating to arbitration pursuant to an arbitration
agreement; to make other provision relating to arbitration
and arbitration awards; and for connected purposes.
Be it enacted by the Queen's
most Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority
of the same, as follows: -
PART I - ARBITRATION
PURSUANT TO AN ARBITRATION AGREEMENT
Introductory
1. - General principles.
The provisions of this
Part are founded on the following principles, and shall
be construed accordingly -
(a) the object of arbitration
is to obtain the fair resolution of disputes by an impartial
tribunal without unnecessary delay or expense;
(b) the parties should
be free to agree how their disputes are resolved, subject
only to such safeguards as are necessary in the public
interest;
(c) in matters governed
by this Part the court should not intervene except as
provided by this Part.
2. - Scope of application
of provisions.
(1) The provisions of this
Part apply where the seat of the arbitration is in England
and Wales or Northern Ireland.
(2) The following sections
apply even if the seat of the arbitration is outside
England and Wales or Northern Ireland or no seat has
been designated or determined -
(a) sections 9 to 11 (stay
of legal proceedings, &c.), and
(b) section 66 (enforcement
of arbitral awards).
(3) The powers conferred
by the following sections apply even if the seat of
the arbitration is outside England and Wales or Northern
Ireland or no seat has been designated or determined
-
(a) section 43 (securing
the attendance of witnesses), and
(b) section 44 (court powers
exercisable in support of arbitral proceedings);
but the court may refuse
to exercise any such power if, in the opinion of the
court, the fact that the seat of the arbitration is
outside England and Wales or Northern Ireland, or that
when designated or determined the seat is likely to
be outside England and Wales or Northern Ireland, makes
it inappropriate to do so.
(4) The court may exercise
a power conferred by any provision of this Part not
mentioned in subsection (2) or (3) for the purpose of
supporting the arbitral process where -
(a) no seat of the arbitration
has been designated or determined, and
(b) by reason of a connection
with England and Wales or Northern Ireland the court
is satisfied that it is appropriate to do so.
(5) Section 7 (separability
of arbitration agreement) and section 8 (death of a
party) apply where the law applicable to the arbitration
agreement is the law of England and Wales or Northern
Ireland even if the seat of the arbitration is outside
England and Wales or Northern Ireland or has not been
designated or determined.
3. - The seat of the
arbitration.
In this Part"the seat
of the arbitration" means the juridical seat of
the arbitration designated -
(a) by the parties to the
arbitration agreement, or
(b) by any arbitral or
other institution or person vested by the parties with
powers in that regard, or
(c) by the arbitral tribunal
if so authorised by the parties,
or determined, in the absence
of any such designation, having regard to the parties'
agreement and all the relevant circumstances.
4. - Mandatory and non
- mandatory provisions.
(1) The mandatory provisions
of this Part are listed in Schedule 1 and have effect
notwithstanding any agreement to the contrary.
(2) The other provisions
of this Part (the "non-mandatory provisions")
allow the parties to make their own arrangements by
agreement but provide rules which apply in the absence
of such agreement.
(3) The parties may make
such arrangements by agreeing to the application of
institutional rules or providing any other means by
which a matter may be decided.
(4) It is immaterial whether
or not the law applicable to the parties' agreement
is the law of England and Wales or, as the case may
be, Northern Ireland.
(5) The choice of a law
other than the law of England and Wales or Northern
Ireland as the applicable law in respect of a matter
provided for by a non-mandatory provision of this Part
is equivalent to an agreement making provision about
that matter. For this purpose an applicable law determined
in accordance with the parties' agreement, or which
is objectively determined in the absence of any express
or implied choice, shall be treated as chosen by the
parties.
5. - Agreements to be
in writing.
(1) The provisions of this
Part apply only where the arbitration agreement is in
writing, and any other agreement between the parties
as to any matter is effective for the purposes of this
Part only if in writing. The expressions"agreement","agree"
and"agreed" shall be construed accordingly.
(2) There is an agreement
in writing -
(a) if the agreement is
made in writing (whether or not it is signed by the
parties),
(b) if the agreement is
made by exchange of communications in writing, or
(c) if the agreement is
evidenced in writing.
(3) Where parties agree
otherwise than in writing by reference to terms which
are in writing, they make an agreement in writing.
(4) An agreement is evidenced
in writing if an agreement made otherwise than in writing
is recorded by one of the parties, or by a third party,
with the authority of the parties to the agreement.
(5) An exchange of written
submissions in arbitral or legal proceedings in which
the existence of an agreement otherwise than in writing
is alleged by one party against another party and not
denied by the other party in his response constitutes
as between those parties an agreement in writing to
the effect alleged.
(6) References in this
Part to anything being written or in writing include
its being recorded by any means.
Definition of arbitration
agreement.
6. - The arbitration
agreement
(1) In this Part an"arbitration
agreement" means an agreement to submit to arbitration
present or future disputes (whether they are contractual
or not).
(2) The reference in an
agreement to a written form of arbitration clause or
to a document containing an arbitration clause constitutes
an arbitration agreement if the reference is such as
to make that clause part of the agreement.
7. - Separability of
arbitration agreement.
Unless otherwise agreed
by the parties, an arbitration agreement which forms
or was intended to form part of another agreement (whether
or not in writing) shall not be regarded as invalid,
non-existent or ineffective because that other agreement
is invalid, or did not come into existence or has become
ineffective, and it shall for that purpose be treated
as a distinct agreement.
8. - Whether agreement
discharged by death of a party.
(1) Unless otherwise agreed
by the parties, an arbitration agreement is not discharged
by the death of a party and may be enforced by or against
the personal representatives of that party.
(2) Subsection (1) does
not affect the operation of any enactment or rule of
law by virtue of which a substantive right or obligation
is extinguished by death.
Stay of legal proceedings
9. - Stay of legal proceedings
(1) A party to an arbitration
agreement against whom legal proceedings are brought
(whether by way of claim or counterclaim) in respect
of a matter which under the agreement is to be referred
to arbitration may (upon notice to the other parties
to the proceedings) apply to the court in which the
proceedings have been brought to stay the proceedings
so far as they concern that matter.
(2) An application may
be made notwithstanding that the matter is to be referred
to arbitration only after the exhaustion of other dispute
resolution procedures.
(3) An application may
not be made by a person before taking the appropriate
procedural step (if any) to acknowledge the legal proceedings
against him or after he has taken any step in those
proceedings to answer the substantive claim.
(4) On an application under
this section the court shall grant a stay unless satisfied
that the arbitration agreement is null and void, inoperative,
or incapable of being performed.
(5) If the court refuses
to stay the legal proceedings, any provision that an
award is a condition precedent to the bringing of legal
proceedings in respect of any matter is of no effect
in relation to those proceedings.
10. - Reference of interpleader
issue to arbitration.
(1) Where in legal proceedings
relief by way of interpleader is granted and any issue
between the claimants is one in respect of which there
is an arbitration agreement between them, the court
granting the relief shall direct that the issue be determined
in accordance with the agreement unless the circumstances
are such that proceedings brought by a claimant in respect
of the matter would not be stayed.
(2) Where subsection (1)
applies but the court does not direct that the issue
be determined in accordance with the arbitration agreement,
any provision that an award is a condition precedent
to the bringing of legal proceedings in respect of any
matter shall not affect the determination of that issue
by the court.
11. - Retention of security
where Admiralty proceedings stayed.
(1) Where Admiralty proceedings
are stayed on the ground that the dispute in question
should be submitted to arbitration, the court granting
the stay may, if in those proceedings property has been
arrested or bail or other security has been given to
prevent or obtain release from arrest -
(a) order that the property
arrested be retained as security for the satisfaction
of any award given in the arbitration in respect of
that dispute, or
(b) order that the stay
of those proceedings be conditional on the provision
of equivalent security for the satisfaction of any such
award.
(2) Subject to any provision
made by rules of court and to any necessary modifications,
the same law and practice shall apply in relation to
property retained in pursuance of an order as would
apply if it were held for the purposes of proceedings
in the court making the order. Commencement of arbitral
proceedings
Commencement of arbitral
proceedings
12. - Power of court
to extend time for beginning arbitral proceedings, &c.
(1) Where an arbitration
agreement to refer future disputes to arbitration provides
that a claim shall be barred, or the claimant's right
extinguished, unless the claimant takes within a time
fixed by the agreement some step -
(a) to begin arbitral proceedings,
or
(b) to begin other dispute
resolution procedures which must be exhausted before
arbitral proceedings can be begun, the court may by
order extend the time for taking that step.
(2) Any party to the arbitration
agreement may apply for such an order (upon notice to
the other parties), but only after a claim has arisen
and after exhausting any available arbitral process
for obtaining an extension of time.
(3) The court shall make
an order only if satisfied -
(a) that the circumstances
are such as were outside the reasonable contemplation
of the parties when they agreed the provision in question,
and that it would be just to extend the time, or
(b) that the conduct of
one party makes it unjust to hold the other party to
the strict terms of the provision in question.
(4) The court may extend
the time for such period and on such terms as it thinks
fit, and may do so whether or not the time previously
fixed (by agreement or by a previous order) has expired.
(5) An order under this
section does not affect the operation of the Limitation
Acts (see section 13).
(6) The leave of the court
is required for any appeal from a decision of the court
under this section.
13. - Application of
Limitation Acts.
(1) The Limitation Acts
apply to arbitral proceedings as they apply to legal
proceedings.
(2) The court may order
that in computing the time prescribed by the Limitation
Acts for the commencement of proceedings (including
arbitral proceedings) in respect of a dispute which
was the subject matter -
(a) of an award which the
court orders to be set aside or declares to be of no
effect, or
(b) of the affected part
of an award which the court orders to be set aside in
part, or declares to be in part of no effect, the period
between the commencement of the arbitration and the
date of the order referred to in paragraph (a) or (b)
shall be excluded.
(3) In determining for
the purposes of the Limitation Acts when a cause of
action accrued, any provision that an award is a condition
precedent to the bringing of legal proceedings in respect
of a matter to which an arbitration agreement applies
shall be disregarded.
(4) In this Part"the
Limitation Acts" means -
(a) in England and Wales,
the Limitation Act 1980, the Foreign Limitation Periods
Act 1984 and any other enactment (whenever passed) relating
to the limitation of actions;
(b) in Northern Ireland,
the Limitation (Northern Ireland) Order 1989, the Foreign
Limitation Periods (Northern Ireland) Order 1985 and
any other enactment (whenever passed) relating to the
limitation of actions. 1980 c. 58. 1984 c. 16. S.I.
1989/1339 (N.I. 11). S.I. 1985/754 (N.I. 5).
14. - Commencement
of arbitral proceedings.
(1) The parties are free
to agree when arbitral proceedings are to be regarded
as commenced for the purposes of this Part and for the
purposes of the Limitation Acts.
(2) If there is no such
agreement the following provisions apply.
(3) Where the arbitrator
is named or designated in the arbitration agreement,
arbitral proceedings are commenced in respect of a matter
when one party serves on the other party or parties
a notice in writing requiring him or them to submit
that matter to the person so named or designated.
(4) Where the arbitrator
or arbitrators are to be appointed by the parties, arbitral
proceedings are commenced in respect of a matter when
one party serves on the other party or parties notice
in writing requiring him or them to appoint an arbitrator
or to agree to the appointment of an arbitrator in respect
of that matter.
(5) Where the arbitrator
or arbitrators are to be appointed by a person other
than a party to the proceedings, arbitral proceedings
are commenced in respect of a matter when one party
gives notice in writing to that person requesting him
to make the appointment in respect of that matter.
ARBITRATION ACT 1996
(OF ENGLAND)
The arbitral tribunal
15. - The arbitral
tribunal.
(1) The parties are free
to agree on the number of arbitrators to form the tribunal
and whether there is to be a chairman or umpire.
(2) Unless otherwise agreed
by the parties, an agreement that the number of arbitrators
shall be two or any other even number shall be understood
as requiring the appointment of an additional arbitrator
as chairman of the tribunal.
(3) If there is no agreement
as to the number of arbitrators, the tribunal shall
consist of a sole arbitrator.
16. - Procedure for
appointment of arbitrators.
(1) The parties are free
to agree on the procedure for appointing the arbitrator
or arbitrators, including the procedure for appointing
any chairman or umpire.
(2) If or to the extent
that there is no such agreement, the following provisions
apply.
(3) If the tribunal is
to consist of a sole arbitrator, the parties shall jointly
appoint the arbitrator not later than 28 days after
service of a request in writing by either party to do
so.
(4) If the tribunal is
to consist of two arbitrators, each party shall appoint
one arbitrator not later than 14 days after service
of a request in writing by either party to do so.
(5) If the tribunal is
to consist of three arbitrators -
(a) each party shall appoint
one arbitrator not later than 14 days after service
of a request in writing by either party to do so, and
(b) the two so appointed
shall forthwith appoint a third arbitrator as the chairman
of the tribunal.
(6) If the tribunal is
to consist of two arbitrators and an umpire -
(a) each party shall appoint
one arbitrator not later than 14 days after service
of a request in writing by either party to do so, and
(b) the two so appointed
may appoint an umpire at any time after they themselves
are appointed and shall do so before any substantive
hearing or forthwith if they cannot agree on a matter
relating to the arbitration.
(7) In any other case (in
particular, if there are more than two parties) section
18 applies as in the case of a failure of the agreed
appointment procedure.
17. - Power in case
of default to appoint sole arbitrator.
(1) Unless the parties
otherwise agree, where each of two parties to an arbitration
agreement is to appoint an arbitrator and one party
("the party in default") refuses to do so,
or fails to do so within the time specified, the other
party, having duly appointed his arbitrator, may give
notice in writing to the party in default that he proposes
to appoint his arbitrator to act as sole arbitrator.
(2) If the party in default
does not within 7 clear days of that notice being given
-
(a) make the required appointment,
and
(b) notify the other party
that he has done so, the other party may appoint his
arbitrator as sole arbitrator whose award shall be binding
on both parties as if he had been so appointed by agreement.
(3) Where a sole arbitrator
has been appointed under subsection (2), the party in
default may (upon notice to the appointing party) apply
to the court which may set aside the appointment.
(4) The leave of the court
is required for any appeal from a decision of the court
under this section.
18. - Failure of appointment
procedure.
(1) The parties are free
to agree what is to happen in the event of a failure
of the procedure for the appointment of the arbitral
tribunal. There is no failure if an appointment is duly
made under section 17 (power in case of default to appoint
sole arbitrator), unless that appointment is set aside.
(2) If or to the extent
that there is no such agreement any party to the arbitration
agreement may (upon notice to the other parties) apply
to the court to exercise its powers under this section.
(3) Those powers are -
(a) to give directions
as to the making of any necessary appointments;
(b) to direct that the
tribunal shall be constituted by such appointments (or
any one or more of them) as have been made;
(c) to revoke any appointments
already made;
(d) to make any necessary
appointments itself.
(4) An appointment made
by the court under this section has effect as if made
with the agreement of the parties.
(5) The leave of the court
is required for any appeal from a decision of the court
under this section.
19. - Court to have
regard to agreed qualifications.
In deciding whether to
exercise, and in considering how to exercise, any of
its powers under section 16 (procedure for appointment
of arbitrators) or section 18 (failure of appointment
procedure), the court shall have due regard to any agreement
of the parties as to the qualifications required of
the arbitrators.
20. - Chairman.
(1) Where the parties have
agreed that there is to be a chairman, they are free
to agree what the functions of the chairman are to be
in relation to the making of decisions, orders and awards.
(2) If or to the extent
that there is no such agreement, the following provisions
apply.
(3) Decisions, orders and
awards shall be made by all or a majority of the arbitrators
(including the chairman).
(4) The view of the chairman
shall prevail in relation to a decision, order or award
in respect of which there is neither unanimity nor a
majority under subsection (3).
21. - Umpire.
(1) Where the parties have
agreed that there is to be an umpire, they are free
to agree what the functions of the umpire are to be,
and in particular -
(a) whether he is to attend
the proceedings, and
(b) when he is to replace
the other arbitrators as the tribunal with power to
make decisions, orders and awards.
(2) If or to the extent
that there is no such agreement, the following provisions
apply.
(3) The umpire shall attend
the proceedings and be supplied with the same documents
and other materials as are supplied to the other arbitrators.
(4) Decisions, orders and
awards shall be made by the other arbitrators unless
and until they cannot agree on a matter relating to
the arbitration. In that event they shall forthwith
give notice in writing to the parties and the umpire,
whereupon the umpire shall replace them as the tribunal
with power to make decisions, orders and awards as if
he were sole arbitrator.
(5) If the arbitrators
cannot agree but fail to give notice of that fact, or
if any of them fails to join in the giving of notice,
any party to the arbitral proceedings may (upon notice
to the other parties and to the tribunal) apply to the
court which may order that the umpire shall replace
the other arbitrators as the tribunal with power to
make decisions, orders and awards as if he were sole
arbitrator.
(6) The leave of the court
is required for any appeal from a decision of the court
under this section.
22. - Decision - making
where no chairman or umpire.
(1) Where the parties agree
that there shall be two or more arbitrators with no
chairman or umpire, the parties are free to agree how
the tribunal is to make decisions, orders and awards.
(2) If there is no such
agreement, decisions, orders and awards shall be made
by all or a majority of the arbitrators.
23. - Revocation of
arbitrator's authority.
(1) The parties are free
to agree in what circumstances the authority of an arbitrator
may be revoked.
(2) If or to the extent
that there is no such agreement the following provisions
apply.
(3) The authority of an
arbitrator may not be revoked except -
(a) by the parties acting
jointly, or
(b) by an arbitral or other
institution or person vested by the parties with powers
in that regard.
(4) Revocation of the authority
of an arbitrator by the parties acting jointly must
be agreed in writing unless the parties also agree (whether
or not in writing) to terminate the arbitration agreement.
(5) Nothing in this section
affects the power of the court -
(a) to revoke an appointment
under section 18 (powers exercisable in case of failure
of appointment procedure), or
(b) to remove an arbitrator
on the grounds specified in section 24.
24. - Power of court
to remove arbitrator.
(1) A party to arbitral
proceedings may (upon notice to the other parties, to
the arbitrator concerned and to any other arbitrator)
apply to the court to remove an arbitrator on any of
the following grounds -
(a) that circumstances
exist that give rise to justifiable doubts as to his
impartiality;
(b) that he does not possess
the qualifications required by the arbitration agreement;
(c) that he is physically
or mentally incapable of conducting the proceedings
or there are justifiable doubts as to his capacity to
do so;
(d) that he has refused
or failed -
(i) properly to conduct
the proceedings, or
(ii) to use all reasonable
despatch in conducting the proceedings or making an
award, and that substantial injustice has been or will
be caused to the applicant.
(2) If there is an arbitral
or other institution or person vested by the parties
with power to remove an arbitrator, the court shall
not exercise its power of removal unless satisfied that
the applicant has first exhausted any available recourse
to that institution or person.
(3) The arbitral tribunal
may continue the arbitral proceedings and make an award
while an application to the court under this section
is pending.
(4) Where the court removes
an arbitrator, it may make such order as it thinks fit
with respect to his entitlement (if any) to fees or
expenses, or the repayment of any fees or expenses already
paid.
(5) The arbitrator concerned
is entitled to appear and be heard by the court before
it makes any order under this section.
(6) The leave of the court
is required for any appeal from a decision of the court
under this section.
25. - Resignation of
arbitrator.
(1) The parties are free
to agree with an arbitrator as to the consequences of
his resignation as regards -
(a) his entitlement (if
any) to fees or expenses, and
(b) any liability thereby
incurred by him.
(2) If or to the extent
that there is no such agreement the following provisions
apply.
(3) An arbitrator who resigns
his appointment may (upon notice to the parties) apply
to the court -
(a) to grant him relief
from any liability thereby incurred by him, and
(b) to make such order
as it thinks fit with respect to his entitlement (if
any) to fees or expenses or the repayment of any fees
or expenses already paid.
(4) If the court is satisfied
that in all the circumstances it was reasonable for
the arbitrator to resign, it may grant such relief as
is mentioned in subsection (3)(a) on such terms as it
thinks fit.
(5) The leave of the court
is required for any appeal from a decision of the court
under this section.
26. - Death of arbitrator
or person appointing him.
(1) The authority of an
arbitrator is personal and ceases on his death.
(2) Unless otherwise agreed
by the parties, the death of the person by whom an arbitrator
was appointed does not revoke the arbitrator's authority.
27. - Filling of vacancy,
&c.
(1) Where an arbitrator
ceases to hold office, the parties are free to agree
-
(a) whether and if so how
the vacancy is to be filled,
(b) whether and if so to
what extent the previous proceedings should stand, and
(c) what effect (if any)
his ceasing to hold office has on any appointment made
by him (alone or jointly).
(2) If or to the extent
that there is no such agreement, the following provisions
apply.
(3) The provisions of sections
16 (procedure for appointment of arbitrators) and 18
(failure of appointment procedure) apply in relation
to the filling of the vacancy as in relation to an original
appointment.
(4) The tribunal (when
reconstituted) shall determine whether and if so to
what extent the previous proceedings should stand. This
does not affect any right of a party to challenge those
proceedings on any ground which had arisen before the
arbitrator ceased to hold office.
(5) His ceasing to hold
office does not affect any appointment by him (alone
or jointly) of another arbitrator, in particular any
appointment of a chairman or umpire.
28. - Joint and several
liability of parties to arbitrators for fees and expenses.
(1) The parties are jointly
and severally liable to pay to the arbitrators such
reasonable fees and expenses (if any) as are appropriate
in the circumstances.
(2) Any party may apply
to the court (upon notice to the other parties and to
the arbitrators) which may order that the amount of
the arbitrators' fees and expenses shall be considered
and adjusted by such means and upon such terms as it
may direct.
(3) If the application
is made after any amount has been paid to the arbitrators
by way of fees or expenses, the court may order the
repayment of such amount (if any) as is shown to be
excessive, but shall not do so unless it is shown that
it is reasonable in the circumstances to order repayment.
(4) The above provisions
have effect subject to any order of the court under
section 24(4) or 25(3)(b) (order as to entitlement to
fees or expenses in case of removal or resignation of
arbitrator).
(5) Nothing in this section
affects any liability of a party to any other party
to pay all or any of the costs of the arbitration (see
sections 59 to 65) or any contractual right of an arbitrator
to payment of his fees and expenses.
(6) In this section references
to arbitrators include an arbitrator who has ceased
to act and an umpire who has not replaced the other
arbitrators.
29. - Immunity of arbitrator.
(1) An arbitrator is not
liable for anything done or omitted in the discharge
or purported discharge of his functions as arbitrator
unless the act or omission is shown to have been in
bad faith.
(2) Subsection (1) applies
to an employee or agent of an arbitrator as it applies
to the arbitrator himself.
(3) This section does not
affect any liability incurred by an arbitrator by reason
of his resigning (but see section 25).
Jurisdiction of the
arbitral tribunal
30. - Competence of
tribunal to rule on its own jurisdiction.
(1) Unless otherwise agreed
by the parties, the arbitral tribunal may rule on its
own substantive jurisdiction, that is, as to
(a) whether there is a
valid arbitration agreement,
(b) whether the tribunal
is properly constituted, and
(c) what matters have been
submitted to arbitration in accordance with the arbitration
agreement.
(2) Any such ruling may
be challenged by any available arbitral process of appeal
or review or in accordance with the provisions of this
Part.
31. - Objection to
substantive jurisdiction of tribunal.
(1) An objection that the
arbitral tribunal lacks substantive jurisdiction at
the outset of the proceedings must be raised by a party
not later than the time he takes the first step in the
proceedings to contest the merits of any matter in relation
to which he challenges the tribunal's jurisdiction.
A party is not precluded from raising such an objection
by the fact that he has appointed or participated in
the appointment of an arbitrator.
(2) Any objection during
the course of the arbitral proceedings that the arbitral
tribunal is exceeding its substantive jurisdiction must
be made as soon as possible after the matter alleged
to be beyond its jurisdiction is raised.
(3) The arbitral tribunal
may admit an objection later than the time specified
in subsection (1) or (2) if it considers the delay justified.
(4) Where an objection
is duly taken to the tribunal's substantive jurisdiction
and the tribunal has power to rule on its own jurisdiction,
it may
(a) rule on the matter
in an award as to jurisdiction, or
(b) deal with the objection
in its award on the merits. If the parties agree which
of these courses the tribunal should take, the tribunal
shall proceed accordingly.
(5) The tribunal may in
any case, and shall if the parties so agree, stay proceedings
whilst an application is made to the court under section
32 (determination of preliminary point of jurisdiction).
32. - Determination
of preliminary point of jurisdiction.
(1) The court may, on the
application of a party to arbitral proceedings (upon
notice to the other parties), determine any question
as to the substantive jurisdiction of the tribunal.
A party may lose the right to object (see section 73).
(2) An application under
this section shall not be considered unless
(a) it is made with the
agreement in writing of all the other parties to the
proceedings, or
(b) it is made with the
permission of the tribunal and the court is satisfied
(i) that the determination
of the question is likely to produce substantial savings
in costs,
(ii) that the application
was made without delay, and
(iii) that there is good
reason why the matter should be decided by the court.
(3) An application under
this section, unless made with the agreement of all
the other parties to the proceedings, shall state the
grounds on which it is said that the matter should be
decided by the court.
(4) Unless otherwise agreed
by the parties, the arbitral tribunal may continue the
arbitral proceedings and make an award while an application
to the court under this section is pending.
(5) Unless the court gives
leave, no appeal lies from a decision of the court whether
the conditions specified in subsection (2) are met.
(6) The decision of the
court on the question of jurisdiction shall be treated
as a judgment of the court for the purposes of an appeal.
But no appeal lies without the leave of the court which
shall not be given unless the court considers that the
question involves a point of law which is one of general
importance or is one which for some other special reason
should be considered by the Court of Appeal.
ARBITRATION ACT 1996
(OF ENGLAND)
The arbitral proceedings
33. - General duty
of the tribunal.
(1) The tribunal shall
(a) act fairly and impartially
as between the parties, giving each party a reasonable
opportunity of putting his case and dealing with that
of his opponent, and
(b) adopt procedures suitable
to the circumstances of the particular case, avoiding
unnecessary delay or expense, so as to provide a fair
means for the resolution of the matters falling to be
determined.
(2) The tribunal shall
comply with that general duty in conducting the arbitral
proceedings, in its decisions on matters of procedure
and evidence and in the exercise of all other powers
conferred on it.
34. - Procedural and
evidential matters.
(1) It shall be for the
tribunal to decide all procedural and evidential matters,
subject to the right of the parties to agree any matter.
(2) Procedural and evidential
matters include -
(a) when and where any
part of the proceedings is to be held;
(b) the language or languages
to be used in the proceedings and whether translations
of any relevant documents are to be supplied;
(c) whether any and if
so what form of written statements of claim and defence
are to be used, when these should be supplied and the
extent to which such statements can be later amended;
(d) whether any and if
so which documents or classes of documents should be
disclosed between and produced by the parties and at
what stage;
(e) whether any and if
so what questions should be put to and answered by the
respective parties and when and in what form this should
be done;
(f) whether to apply strict
rules of evidence (or any other rules) as to the admissibility,
relevance or weight of any material (oral, written or
other) sought to be tendered on any matters of fact
or opinion, and the time, manner and form in which such
material should be exchanged and presented;
(g) whether and to what
extent the tribunal should itself take the initiative
in ascertaining the facts and the law;
(h) whether and to what
extent there should be oral or written evidence or submissions.
(3) The tribunal may fix
the time within which any directions given by it are
to be complied with, and may if it thinks fit extend
the time so fixed (whether or not it has expired).
35. - Consolidation
of proceedings and concurrent hearings.
(1) The parties are free
to agree -
(a) that the arbitral proceedings
shall be consolidated with other arbitral proceedings,
or
(b) that concurrent hearings
shall be held, on such terms as may be agreed.
(2) Unless the parties
agree to confer such power on the tribunal, the tribunal
has no power to order consolidation of proceedings or
concurrent hearings.
36. - Legal or other
representation.
Unless otherwise agreed
by the parties, a party to arbitral proceedings may
be represented in the proceedings by a lawyer or other
person chosen by him.
37. - Power to appoint
experts, legal advisers or assessors.
(1) Unless otherwise agreed
by the parties -
(a) the tribunal may -
(i) appoint experts or
legal advisers to report to it and the parties, or
(ii) appoint assessors
to assist it on technical matters, and may allow any
such expert, legal adviser or assessor to attend the
proceedings; and
(b) the parties shall be
given a reasonable opportunity to comment on any information,
opinion or advice offered by any such person.
(2) The fees and expenses
of an expert, legal adviser or assessor appointed by
the tribunal for which the arbitrators are liable are
expenses of the arbitrators for the purposes of this
Part. 38. - General
powers exercisable by the tribunal.
(1) The parties are free
to agree on the powers exercisable by the arbitral tribunal
for the purposes of and in relation to the proceedings.
(2) Unless otherwise agreed
by the parties the tribunal has the following powers.
(3) The tribunal may order
a claimant to provide security for the costs of the
arbitration. This power shall not be exercised on the
ground that the claimant is -
(a) an individual ordinarily
resident outside the United Kingdom, or
(b) a corporation or association
incorporated or formed under the law of a country outside
the United Kingdom, or whose central management and
control is exercised outside the United Kingdom.
(4) The tribunal may give
directions in relation to any property which is the
subject of the proceedings or as to which any question
arises in the proceedings, and which is owned by or
is in the possession of a party to the proceedings -
(a) for the inspection,
photographing, preservation, custody or detention of
the property by the tribunal, an expert or a party,
or
(b) ordering that samples
be taken from, or any observation be made of or experiment
conducted upon, the property.
(5) The tribunal may direct
that a party or witness shall be examined on oath or
affirmation, and may for that purpose administer any
necessary oath or take any necessary affirmation.
(6) The tribunal may give
directions to a party for the preservation for the purposes
of the proceedings of any evidence in his custody or
control.
39. - Power to make
provisional awards.
(1) The parties are free
to agree that the tribunal shall have power to order
on a provisional basis any relief which it would have
power to grant in a final award.
(2) This includes, for
instance, making -
(a) a provisional order
for the payment of money or the disposition of property
as between the parties, or
(b) an order to make an
interim payment on account of the costs of the arbitration.
(3) Any such order shall
be subject to the tribunal's final adjudication; and
the tribunal's final award, on the merits or as to costs,
shall take account of any such order.
(4) Unless the parties
agree to confer such power on the tribunal, the tribunal
has no such power. This does not affect its powers under
section 47 (awards on different issues, &c.).
40. - General duty
of parties.
(1) The parties shall do
all things necessary for the proper and expeditious
conduct of the arbitral proceedings.
(2) This includes -
(a) complying without delay
with any determination of the tribunal as to procedural
or evidential matters, or with any order or directions
of the tribunal, and
(b) where appropriate,
taking without delay any necessary steps to obtain a
decision of the court on a preliminary question of jurisdiction
or law (see sections 32 and 45).
41. - Powers of tribunal
in case of party's default.
(1) The parties are free
to agree on the powers of the tribunal in case of a
party's failure to do something necessary for the proper
and expeditious conduct of the arbitration.
(2) Unless otherwise agreed
by the parties, the following provisions apply.
(3) If the tribunal is
satisfied that there has been inordinate and inexcusable
delay on the part of the claimant in pursuing his claim
and that the delay -
(a) gives rise, or is likely
to give rise, to a substantial risk that it is not possible
to have a fair resolution of the issues in that claim,
or
(b) has caused, or is likely
to cause, serious prejudice to the respondent, the tribunal
may make an award dismissing the claim.
(4) If without showing
sufficient cause a party -
(a) fails to attend or
be represented at an oral hearing of which due notice
was given, or
(b) where matters are to
be dealt with in writing, fails after due notice to
submit written evidence or make written submissions,
the tribunal may continue the proceedings in the absence
of that party or, as the case may be, without any written
evidence or submissions on his behalf, and may make
an award on the basis of the evidence before it.
(5) If without showing
sufficient cause a party fails to comply with any order
or directions of the tribunal, the tribunal may make
a peremptory order to the same effect, prescribing such
time for compliance with it as the tribunal considers
appropriate.
(6) If a claimant fails
to comply with a peremptory order of the tribunal to
provide security for costs, the tribunal may make an
award dismissing his claim.
(7) If a party fails to
comply with any other kind of peremptory order, then,
without prejudice to section 42 (enforcement by court
of tribunal's peremptory orders), the tribunal may do
any of the following -
(a) direct that the party
in default shall not be entitled to rely upon any allegation
or material which was the subject matter of the order;
(b) draw such adverse inferences
from the act of non-compliance as the circumstances
justify;
(c) proceed to an award
on the basis of such materials as have been properly
provided to it;
(d) make such order as
it thinks fit as to the payment of costs of the arbitration
incurred in consequence of the non-compliance.
Powers of court in relation
to arbitral proceedings
42. - Enforcement of
peremptory orders of tribunal.
(1) Unless otherwise agreed
by the parties, the court may make an order requiring
a party to comply with a peremptory order made by the
tribunal. (2) An application for an order under this
section may be made -
(a) by the tribunal (upon
notice to the parties),
(b) by a party to the arbitral
proceedings with the permission of the tribunal (and
upon notice to the other parties), or
(c) where the parties have
agreed that the powers of the court under this section
shall be available.
(3) The court shall not
act unless it is satisfied that the applicant has exhausted
any available arbitral process in respect of failure
to comply with the tribunal's order.
(4) No order shall be made
under this section unless the court is satisfied that
the person to whom the tribunal's order was directed
has failed to comply with it within the time prescribed
in the order or, if no time was prescribed, within a
reasonable time.
(5) The leave of the court
is required for any appeal from a decision of the court
under this section.
43. - Securing the
attendance of witnesses.
(1) A party to arbitral
proceedings may use the same court procedures as are
available in relation to legal proceedings to secure
the attendance before the tribunal of a witness in order
to give oral testimony or to produce documents or other
material evidence.
(2) This may only be done
with the permission of the tribunal or the agreement
of the other parties.
(3) The court procedures
may only be used if -
(a) the witness is in the
United Kingdom, and
(b) the arbitral proceedings
are being conducted in England and Wales or, as the
case may be, Northern Ireland.
(4) A person shall not
be compelled by virtue of this section to produce any
document or other material evidence which he could not
be compelled to produce in legal proceedings.
44. - Court powers
exercisable in support of arbitral proceedings.
(1) Unless otherwise agreed
by the parties, the court has for the purposes of and
in relation to arbitral proceedings the same power of
making orders about the matters listed below as it has
for the purposes of and in relation to legal proceedings.
(2) Those matters are -
(a) the taking of the evidence
of witnesses;
(b) the preservation of
evidence;
(c) making orders relating
to property which is the subject of the proceedings
or as to which any question arises in the proceedings
-
(i) for the inspection,
photographing, preservation, custody or detention of
the property, or
(ii) ordering that samples
be taken from, or any observation be made of or experiment
conducted upon, the property; and for that purpose authorising
any person to enter any premises in the possession or
control of a party to the arbitration;
(d) the sale of any goods
the subject of the proceedings;
(e) the granting of an
interim injunction or the appointment of a receiver.
(3) If the case is one
of urgency, the court may, on the application of a party
or proposed party to the arbitral proceedings, make
such orders as it thinks necessary for the purpose of
preserving evidence or assets.
(4) If the case is not
one of urgency, the court shall act only on the application
of a party to the arbitral proceedings (upon notice
to the other parties and to the tribunal) made with
the permission of the tribunal or the agreement in writing
of the other parties.
(5) In any case the court
shall act only if or to the extent that the arbitral
tribunal, and any arbitral or other institution or person
vested by the parties with power in that regard, has
no power or is unable for the time being to act effectively.
(6) If the court so orders,
an order made by it under this section shall cease to
have effect in whole or in part on the order of the
tribunal or of any such arbitral or other institution
or person having power to act in relation to the subject-matter
of the order.
(7) The leave of the court
is required for any appeal from a decision of the court
under this section.
45. - Determination
of preliminary point of law.
(1) Unless otherwise agreed
by the parties, the court may on the application of
a party to arbitral proceedings (upon notice to the
other parties) determine any question of law arising
in the course of the proceedings which the court is
satisfied substantially affects the rights of one or
more of the parties. An agreement to dispense with reasons
for the tribunal's award shall be considered an agreement
to exclude the court's jurisdiction under this section.
(2) An application under
this section shall not be considered unless -
(a) it is made with the
agreement of all the other parties to the proceedings,
or
(b) it is made with the
permission of the tribunal and the court is satisfied
-
(i) that the determination
of the question is likely to produce substantial savings
in costs, and
(ii) that the application
was made without delay.
(3) The application shall
identify the question of law to be determined and, unless
made with the agreement of all the other parties to
the proceedings, shall state the grounds on which it
is said that the question should be decided by the court.
(4) Unless otherwise agreed
by the parties, the arbitral tribunal may continue the
arbitral proceedings and make an award while an application
to the court under this section is pending.
(5) Unless the court gives
leave, no appeal lies from a decision of the court whether
the conditions specified in subsection (2) are met.
(6) The decision of the
court on the question of law shall be treated as a judgment
of the court for the purposes of an appeal. But no appeal
lies without the leave of the court which shall not
be given unless the court considers that the question
is one of general importance, or is one which for some
other special reason should be considered by the Court
of Appeal.
ARBITRATION ACT 1996
(OF ENGLAND)
The award
46. - Rules applicable
to substance of dispute.
(1) The arbitral tribunal
shall decide the dispute -
(a) in accordance with
the law chosen by the parties as applicable to the substance
of the dispute, or
(b) if the parties so agree,
in accordance with such other considerations as are
agreed by them or determined by the tribunal.
(2) For this purpose the
choice of the laws of a country shall be understood
to refer to the substantive laws of that country and
not its conflict of laws rules.
(3) If or to the extent
that there is no such choice or agreement, the tribunal
shall apply the law determined by the conflict of laws
rules which it considers applicable.
47. - Awards on different
issues, &c.
(1) Unless otherwise agreed
by the parties, the tribunal may make more than one
award at different times on different aspects of the
matters to be determined.
(2) The tribunal may, in
particular, make an award relating -
(a) to an issue affecting
the whole claim, or
(b) to a part only of the
claims or cross-claims submitted to it for decision.
(3) If the tribunal does
so, it shall specify in its award the issue, or the
claim or part of a claim, which is the subject matter
of the award.
48. - Remedies.
(1) The parties are free
to agree on the powers exercisable by the arbitral tribunal
as regards remedies.
(2) Unless otherwise agreed
by the parties, the tribunal has the following powers.
(3) The tribunal may make
a declaration as to any matter to be determined in the
proceedings.
(4) The tribunal may order
the payment of a sum of money, in any currency.
(5) The tribunal has the
same powers as the court -
(a) to order a party to
do or refrain from doing anything;
(b) to order specific performance
of a contract (other than a contract relating to land);
(c) to order the rectification,
setting aside or cancellation of a deed or other document.
49. - Interest.
(1) The parties are free
to agree on the powers of the tribunal as regards the
award of interest.
(2) Unless otherwise agreed
by the parties the following provisions apply.
(3) The tribunal may award
simple or compound interest from such dates, at such
rates and with such rests as it considers meets the
justice of the case -
(a) on the whole or part
of any amount awarded by the tribunal, in respect of
any period up to the date of the award;
(b) on the whole or part
of any amount claimed in the arbitration and outstanding
at the commencement of the arbitral proceedings but
paid before the award was made, in respect of any period
up to the date of payment.
(4) The tribunal may award
simple or compound interest from the date of the award
(or any later date) until payment, at such rates and
with such rests as it considers meets the justice of
the case, on the outstanding amount of any award (including
any award of interest under subsection (3) and any award
as to costs).
(5) References in this
section to an amount awarded by the tribunal include
an amount payable in consequence of a declaratory award
by the tribunal.
(6) The above provisions
do not affect any other power of the tribunal to award
interest.
50. - Extension of
time for making award.
(1) Where the time for
making an award is limited by or in pursuance of the
arbitration agreement, then, unless otherwise agreed
by the parties, the court may in accordance with the
following provisions by order extend that time.
(2) An application for
an order under this section may be made -
(a) by the tribunal (upon
notice to the parties), or
(b) by any party to the
proceedings (upon notice to the tribunal and the other
parties), but only after exhausting any available arbitral
process for obtaining an extension of time.
(3) The court shall only
make an order if satisfied that a substantial injustice
would otherwise be done.
(4) The court may extend
the time for such period and on such terms as it thinks
fit, and may do so whether or not the time previously
fixed (by or under the agreement or by a previous order)
has expired.
(5) The leave of the court
is required for any appeal from a decision of the court
under this section.
51. - Settlement.
(1) If during arbitral
proceedings the parties settle the dispute, the following
provisions apply unless otherwise agreed by the parties.
(2) The tribunal shall
terminate the substantive proceedings and, if so requested
by the parties and not objected to by the tribunal,
shall record the settlement in the form of an agreed
award.
(3) An agreed award shall
state that it is an award of the tribunal and shall
have the same status and effect as any other award on
the merits of the case.
(4) The following provisions
of this Part relating to awards (sections 52 to 58)
apply to an agreed award.
(5) Unless the parties
have also settled the matter of the payment of the costs
of the arbitration, the provisions of this Part relating
to costs (sections 59 to 65) continue to apply.
52. - Form of award.
(1) The parties are free
to agree on the form of an award.
(2) If or to the extent
that there is no such agreement, the following provisions
apply.
(3) The award shall be
in writing signed by all the arbitrators or all those
assenting to the award.
(4) The award shall contain
the reasons for the award unless it is an agreed award
or the parties have agreed to dispense with reasons.
(5) The award shall state
the seat of the arbitration and the date when the award
is made.
53. - Place where award
treated as made.
Unless otherwise agreed
by the parties, where the seat of the arbitration is
in England and Wales or Northern Ireland, any award
in the proceedings shall be treated as made there, regardless
of where it was signed, despatchedor delivered to any
of the parties.
54. - Date of award.
(1) Unless otherwise agreed
by the parties, the tribunal may decide what is to be
taken to be the date on which the award was made.
(2) In the absence of any
such decision, the date of the award shall be taken
to be the date on which it is signed by the arbitrator
or, where more than one arbitrator signs the award,
by the last of them.
55. - Notification
of award.
(1) The parties are free
to agree on the requirements as to notification of the
award to the parties.
(2) If there is no such
agreement, the award shall be notified to the parties
by service on them of copies of the award, which shall
be done without delay after the award is made.
(3) Nothing in this section
affects section 56 (power to withhold award in case
of non-payment).
56. - Power to withhold
award in case of non - payment.
(1) The tribunal may refuse
to deliver an award to the parties except upon full
payment of the fees and expenses of the arbitrators.
(2) If the tribunal refuses
on that ground to deliver an award, a party to the arbitral
proceedings may (upon notice to the other parties and
the tribunal) apply to the court, which may order that
-
(a) the tribunal shall
deliver the award on the payment into court by the applicant
of the fees and expenses demanded, or such lesser amount
as the court may specify,
(b) the amount of the fees
and expenses properly payable shall be determined by
such means and upon such terms as the court may direct,
and
(c) out of the money paid
into court there shall be paid out such fees and expenses
as may be found to be properly payable and the balance
of the money (if any) shall be paid out to the applicant.
(3) For this purpose the
amount of fees and expenses properly payable is the
amount the applicant is liable to pay under section
28 or any agreement relating to the payment of the arbitrators.
(4) No application to the
court may be made where there is any available arbitral
process for appeal or review of the amount of the fees
or expenses demanded.
(5) References in this
section to arbitrators include an arbitrator who has
ceased to act and an umpire who has not replaced the
other arbitrators.
(6) The above provisions
of this section also apply in relation to any arbitral
or other institution or person vested by the parties
with powers in relation to the delivery of the tribunal's
award. As they so apply, the references to the fees
and expenses of the arbitrators shall be construed as
including the fees and expenses of that institution
or person.
(7) The leave of the court
is required for any appeal from a decision of the court
under this section.
(8) Nothing in this section
shall be construed as excluding an application under
section 28 where payment has been made to the arbitrators
in order to obtain the award.
57. - Correction of
award or additional award.
(1) The parties are free
to agree on the powers of the tribunal to correct an
award or make an additional award.
(2) If or to the extent
there is no such agreement, the following provisions
apply.
(3) The tribunal may on
its own initiative or on the application of a party
-
(a) correct an award so
as to remove any clerical mistake or error arising from
an accidental slip or omission or clarify or remove
any ambiguity in the award, or
(b) make an additional
award in respect of any claim (including a claim for
interest or costs) which was presented to the tribunal
but was not dealt with in the award. These powers shall
not be exercised without first affording the other parties
a reasonable opportunity to make representations to
the tribunal.
(4) Any application for
the exercise of those powers must be made within 28
days of the date of the award or such longer period
as the parties may agree.
(5) Any correction of an
award shall be made within 28 days of the date the application
was received by the tribunal or, where the correction
is made by the tribunal on its own initiative, within
28 days of the date of the award or, in either case,
such longer period as the parties may agree.
(6) Any additional award
shall be made within 56 days of the date of the original
award or such longer period as the parties may agree.
(7) Any correction of an
award shall form part of the award.
58. - Effect of award.
(1) Unless otherwise agreed
by the parties, an award made by the tribunal pursuant
to an arbitration agreement is final and binding both
on the parties and on any persons claiming through or
under them.
(2) This does not affect
the right of a person to challenge the award by any
available arbitral process of appeal or review or in
accordance with the provisions of this Part.
Costs of the arbitration
59. - Costs of the
arbitration.
(1) References in this
Part to the costs of the arbitration are to -
(a) the arbitrators' fees
and expenses,
(b) the fees and expenses
of any arbitral institution concerned, and
(c) the legal or other
costs of the parties.
(2) Any such reference
includes the costs of or incidental to any proceedings
to determine the amount of the recoverable costs of
the arbitration (see section 63).
60. - Agreement to
pay costs in any event.
An agreement which has
the effect that a party is to pay the whole or part
of the costs of the arbitration in any event is only
valid if made after the dispute in question has arisen.
61. - Award of costs.
(1) The tribunal may make
an award allocating the costs of the arbitration as
between the parties, subject to any agreement of the
parties.
(2) Unless the parties
otherwise agree, the tribunal shall award costs on the
general principle that costs should follow the event
except where it appears to the tribunal that in the
circumstances this is not appropriate in relation to
the whole or part of the costs.
62. - Effect of agreement
or award about costs.
Unless the parties otherwise
agree, any obligation under an agreement between them
as to how the costs of the arbitration are to be borne,
or under an award allocating the costs of the arbitration,
extends only to such costs as are recoverable.
63. - The recoverable
costs of the arbitration.
(1) The parties are free
to agree what costs of the arbitration are recoverable.
(2) If or to the extent
there is no such agreement, the following provisions
apply.
(3) The tribunal may determine
by award the recoverable costs of the arbitration on
such basis as it thinks fit. If it does so, it shall
specify -
(a) the basis on which
it has acted, and
(b) the items of recoverable
costs and the amount referable to each.
(4) If the tribunal does
not determine the recoverable costs of the arbitration,
any party to the arbitral proceedings may apply to the
court (upon notice to the other parties) which may -
(a) determine the recoverable
costs of the arbitration on such basis as it thinks
fit, or
(b) order that they shall
be determined by such means and upon such terms as it
may specify.
(5) Unless the tribunal
or the court determines otherwise -
(a) the recoverable costs
of the arbitration shall be determined on the basis
that there shall be allowed a reasonable amount in respect
of all costs reasonably incurred, and
(b) any doubt as to whether
costs were reasonably incurred or were reasonable in
amount shall be resolved in favour of the paying party.
(6) The above provisions
have effect subject to section 64 (recoverable fees
and expenses of arbitrators).
(7) Nothing in this section
affects any right of the arbitrators, any expert, legal
adviser or assessor appointed by the tribunal, or any
arbitral institution, to payment of their fees and expenses.
64. - Recoverable fees
and expenses of arbitrators.
(1) Unless otherwise agreed
by the parties, the recoverable costs of the arbitration
shall include in respect of the fees and expenses of
the arbitrators only such reasonable fees and expenses
as are appropriate in the circumstances.
(2) If there is any question
as to what reasonable fees and expenses are appropriate
in the circumstances, and the matter is not already
before the court on an application under section 63(4),
the court may on the application of any party (upon
notice to the other parties) -(a) determine the matter,
or (b) order that it be determined by such means and
upon such terms as the court may specify.
(3) Subsection (1) has
effect subject to any order of the court under section
24(4) or 25(3)(b) (order as to entitlement to fees or
expenses in case of removal or resignation of arbitrator).
(4) Nothing in this section
affects any right of the arbitrator to payment of his
fees and expenses.
65. - Power to limit
recoverable costs.
(1) Unless otherwise agreed
by the parties, the tribunal may direct that the recoverable
costs of the arbitration, or of any part of the arbitral
proceedings, shall be limited to a specified amount.
(2) Any direction may be
made or varied at any stage, but this must be done sufficiently
in advance of the incurring of costs to which it relates,
or the taking of any steps in the proceedings which
may be affected by it, for the limit to be taken into
account. Powers of the court in relation to award
66. - Enforcement of
the award.
(1) An award made by the
tribunal pursuant to an arbitration agreement may, by
leave of the court, be enforced in the same manner as
a judgment or order of the court to the same effect.
(2) Where leave is so given,
judgment may be entered in terms of the award.
(3) Leave to enforce an
award shall not be given where, or to the extent that,
the person against whom it is sought to be enforced
shows that the tribunal lacked substantive jurisdiction
to make the award. The right to raise such an objection
may have been lost (see section 73). 1950 c. 27.
(4) Nothing in this section
affects the recognition or enforcement of an award under
any other enactment or rule of law, in particular under
Part II of the Arbitration Act 1950 (enforcement of
awards under Geneva Convention) or the provisions of
Part III of this Act relating to the recognition and
enforcement of awards under the New York Convention
or by an action on the award.
67. - Challenging the
award: substantive jurisdiction.
(1) A party to arbitral
proceedings may (upon notice to the other parties and
to the tribunal) apply to the court -
(a) challenging any award
of the arbitral tribunal as to its substantive jurisdiction;
or
(b) for an order declaring
an award made by the tribunal on the merits to be of
no effect, in whole or in part, because the tribunal
did not have substantive jurisdiction. A party may lose
the right to object (see section 73) and the right to
apply is subject to the restrictions in section 70(2)
and (3).
(2) The arbitral tribunal
may continue the arbitral proceedings and make a further
award while an application to the court under this section
is pending in relation to an award as to jurisdiction.
(3) On an application under
this section challenging an award of the arbitral tribunal
as to its substantive jurisdiction, the court may by
order -
(a) confirm the award,
(b) vary the award, or
(c) set aside the award
in whole or in part.
(4) The leave of the court
is required for any appeal from a decision of the court
under this section.
68. - Challenging the
award: serious irregularity.
(1) A party to arbitral
proceedings may (upon notice to the other parties and
to the tribunal) apply to the court challenging an award
in the proceedings on the ground of serious irregularity
affecting the tribunal, the proceedings or the award.
A party may lose the right to object (see section 73)
and the right to apply is subject to the restrictions
in section 70(2) and (3).
(2) Serious irregularity
means an irregularity of one or more of the following
kinds which the court considers has caused or will cause
substantial injustice to the applicant -
(a) failure by the tribunal
to comply with section 33 (general duty of tribunal);
(b) the tribunal exceeding
its powers (otherwise than by exceeding its substantive
jurisdiction: see section 67);
(c) failure by the tribunal
to conduct the proceedings in accordance with the procedure
agreed by the parties;
(d) failure by the tribunal
to deal with all the issues that were put to it;
(e) any arbitral or other
institution or person vested by the parties with powers
in relation to the proceedings or the award exceeding
its powers;
(f) uncertainty or ambiguity
as to the effect of the award;
(g) the award being obtained
by fraud or the award or the way in which it was procured
being contrary to public policy;
(h) failure to comply with
the requirements as to the form of the award; or
(i) any irregularity in
the conduct of the proceedings or in the award which
is admitted by the tribunal or by any arbitral or other
institution or person vested by the parties with powers
in relation to the proceedings or the award.
(3) If there is shown to
be serious irregularity affecting the tribunal, the
proceedings or the award, the court may -
(a) remit the award to
the tribunal, in whole or in part, for reconsideration,
(b) set the award aside
in whole or in part, or
(c) declare the award to
be of no effect, in whole or in part. The court shall
not exercise its power to set aside or to declare an
award to be of no effect, in whole or in part, unless
it is satisfied that it would be inappropriate to remit
the matters in question to the tribunal for reconsideration.
(4) The leave of the court
is required for any appeal from a decision of the court
under this section.
69. - Appeal on point
of law.
(1) Unless otherwise agreed
by the parties, a party to arbitral proceedings may
(upon notice to the other parties and to the tribunal)
appeal to the court on a question of law arising out
of an award made in the proceedings. An agreement to
dispense with reasons for the tribunal's award shall
be considered an agreement to exclude the court's jurisdiction
under this section.
(2) An appeal shall not
be brought under this section except -
(a) with the agreement
of all the other parties to the proceedings, or
(b) with the leave of the
court. The right to appeal is also subject to the restrictions
in section 70(2) and (3).
(3) Leave to appeal shall
be given only if the court is satisfied -
(a) that the determination
of the question will substantially affect the rights
of one or more of the parties,
(b) that the question is
one which the tribunal was asked to determine,
(c) that, on the basis
of the findings of fact in the award -
(i) the decision of the
tribunal on the question is obviously wrong, or
(ii) the question is one
of general public importance and the decision of the
tribunal is at least open to serious doubt, and
(d) that, despite the agreement
of the parties to resolve the matter by arbitration,
it is just and proper in all the circumstances for the
court to determine the question.
(4) An application for
leave to appeal under this section shall identify the
question of law to be determined and state the grounds
on which it is alleged that leave to appeal should be
granted.
(5) The court shall determine
an application for leave to appeal under this section
without a hearing unless it appears to the court that
a hearing is required.
(6) The leave of the court
is required for any appeal from a decision of the court
under this section to grant or refuse leave to appeal.
(7) On an appeal under
this section the court may by order -
(a) confirm the award,
(b) vary the award,
(c) remit the award to
the tribunal, in whole or in part, for reconsideration
in the light of the court's determination, or
(d) set aside the award
in whole or in part. The court shall not exercise its
power to set aside an award, in whole or in part, unless
it is satisfied that it would be inappropriate to remit
the matters in question to the tribunal for reconsideration.
(8) The decision of the
court on an appeal under this section shall be treated
as a judgment of the court for the purposes of a further
appeal. But no such appeal lies without the leave of
the court which shall not be given unless the court
considers that the question is one of general importance
or is one which for some other special reason should
be considered by the Court of Appeal.
70. - Challenge or
appeal: supplementary provisions.
(1) The following provisions
apply to an application or appeal under section 67,
68 or 69.
(2) An application or appeal
may not be brought if the applicant or appellant has
not first exhausted -
(a) any available arbitral
process of appeal or review, and
(b) any available recourse
under section 57 (correction of award or additional
award).
(3) Any application or
appeal must be brought within 28 days of the date of
the award or, if there has been any arbitral process
of appeal or review, of the date when the applicant
or appellant was notified of the result of that process.
(4) If on an application
or appeal it appears to the court that the award -
(a) does not contain the
tribunal's reasons, or
(b) does not set out the
tribunal's reasons in sufficient detail to enable the
court properly to consider the application or appeal,
the court may order the tribunal to state the reasons
for its award in sufficient detail for that purpose.
(5) Where the court makes
an order under subsection (4), it may make such further
order as it thinks fit with respect to any additional
costs of the arbitration resulting from its order.
(6) The court may order
the applicant or appellant to provide security for the
costs of the application or appeal, and may direct that
the application or appeal be dismissed if the order
is not complied with. The power to order security for
costs shall not be exercised on the ground that the
applicant or appellant is -
(a) an individual ordinarily
resident outside the United Kingdom, or
(b) a corporation or association
incorporated or formed under the law of a country outside
the United Kingdom, or whose central management and
control is exercised outside the United Kingdom.
(7) The court may order
that any money payable under the award shall be brought
into court or otherwise secured pending the determination
of the application or appeal, and may direct that the
application or appeal be dismissed if the order is not
complied with.
(8) The court may grant
leave to appeal subject to conditions to the same or
similar effect as an order under subsection (6) or (7).
This does not affect the general discretion of the court
to grant leave subject to conditions.
71. - Challenge or
appeal: effect of order of court.
(1) The following provisions
have effect where the court makes an order under section
67, 68 or 69 with respect to an award.
(2) Where the award is
varied, the variation has effect as part of the tribunal's
award.
(3) Where the award is
remitted to the tribunal, in whole or in part, for reconsideration,
the tribunal shall make a fresh award in respect of
the matters remitted within three months of the date
of the order for remission or such longer or shorter
period as the court may direct.
(4) Where the award is
set aside or declared to be of no effect, in whole or
in part, the court may also order that any provision
that an award is a condition precedent to the bringing
of legal proceedings in respect of a matter to which
the arbitration agreement applies, is of no effect as
regards the subject matter of the award or, as the case
may be, the relevant part of the award.
ARBITRATION ACT 1996
(OF ENGLAND)
Miscellaneous
72. - Saving for rights
of person who takes no part in proceedings.
(1) A person alleged to
be a party to arbitral proceedings but who takes no
part in the proceedings may question -
(a) whether there is a
valid arbitration agreement,
(b) whether the tribunal
is properly constituted, or
(c) what matters have been
submitted to arbitration in accordance with the arbitration
agreement, by proceedings in the court for a declaration
or injunction or other appropriate relief.
(2) He also has the same
right as a party to the arbitral proceedings to challenge
an award -
(a) by an application under
section 67 on the ground of lack of substantive jurisdiction
in relation to him, or
(b) by an application under
section 68 on the ground of serious irregularity (within
the meaning of that section) affecting him; and section
70(2) (duty to exhaust arbitral procedures) does not
apply in his case.
73. - Loss of right
to object.
(1) If a party to arbitral
proceedings takes part, or continues to take part, in
the proceedings without making, either forthwith or
within such time as is allowed by the arbitration agreement
or the tribunal or by any provision of this Part, any
objection -
(a) that the tribunal lacks
substantive jurisdiction,
(b) that the proceedings
have been improperly conducted,
(c) that there has been
a failure to comply with the arbitration agreement or
with any provision of this Part, or
(d) that there has been
any other irregularity affecting the tribunal or the
proceedings, he may not raise that objection later,
before the tribunal or the court, unless he shows that,
at the time he took part or continued to take part in
the proceedings, he did not know and could not with
reasonable diligence have discovered the grounds for
the objection.
(2) Where the arbitral
tribunal rules that it has substantive jurisdiction
and a party to arbitral proceedings who could have questioned
that ruling -
(a) by any available arbitral
process of appeal or review, or
(b) by challenging the
award, does not do so, or does not do so within the
time allowed by the arbitration agreement or any provision
of this Part, he may not object later to the tribunal's
substantive jurisdiction on any ground which was the
subject of that ruling.
74. - Immunity of arbitral
institutions, &c.
(1) An arbitral or other
institution or person designated or requested by the
parties to appoint or nominate an arbitrator is not
liable for anything done or omitted in the discharge
or purported discharge of that function unless the act
or omission is shown to have been in bad faith.
(2) An arbitral or other
institution or person by whom an arbitrator is appointed
or nominated is not liable, by reason of having appointed
or nominated him, for anything done or omitted by the
arbitrator (or his employees or agents) in the discharge
or purported discharge of his functions as arbitrator.
(3) The above provisions
apply to an employee or agent of an arbitral or other
institution or person as they apply to the institution
or person himself.
75. - Charge to secure
payment of solicitors' costs.
The powers of the court
to make declarations and orders under section 73 of
the Solicitors Act 1974 or Article 71H of the Solicitors
(Northern Ireland) Order 1976 (power to charge property
recovered in the proceedings with the payment of solicitors'
costs) may be exercised in relation to arbitral proceedings
as if those proceedings were proceedings in the court.
1974 c. 47. S.I. 1976/582 (N.I. 12).
Supplementary
76. - Service of notices,
&c.
(1) The parties are free
to agree on the manner of service of any notice or other
document required or authorised to be given or served
in pursuance of the arbitration agreement or for the
purposes of the arbitral proceedings.
(2) If or to the extent
that there is no such agreement the following provisions
apply.
(3) A notice or other document
may be served on a person by any effective means.
(4) If a notice or other
document is addressed, pre-paid and delivered by post
-
(a) to the addressee's
last known principal residence or, if he is or has been
carrying on a trade, profession or business, his last
known principal business address, or
(b) where the addressee
is a body corporate, to the body's registered or principal
office, it shall be treated as effectively served.
(5) This section does not
apply to the service of documents for the purposes of
legal proceedings, for which provision is made by rules
of court.
(6) References in this
Part to a notice or other document include any form
of communication in writing and references to giving
or serving a notice or other document shall be construed
accordingly.
77. - Powers of court
in relation to service of documents.
(1) This section applies
where service of a document on a person in the manner
agreed by the parties, or in accordance with provisions
of section 76 having effect in default of agreement,
is not reasonably practicable.
(2) Unless otherwise agreed
by the parties, the court may make such order as it
thinks fit -
(a) for service in such
manner as the court may direct, or
(b) dispensing with service
of the document.
(3) Any party to the arbitration
agreement may apply for an order, but only after exhausting
any available arbitral process for resolving the matter.
(4) The leave of the court
is required for any appeal from a decision of the court
under this section.
78. - Reckoning periods
of time.
(1) The parties are free
to agree on the method of reckoning periods of time
for the purposes of any provision agreed by them or
any provision of this Part having effect in default
of such agreement.
(2) If or to the extent
there is no such agreement, periods of time shall be
reckoned in accordance with the following provisions.
(3) Where the act is required
to be done within a specified period after or from a
specified date, the period begins immediately after
that date.
(4) Where the act is required
to be done a specified number of clear days after a
specified date, at least that number of days must intervene
between the day on which the act is done and that date.
1971 c. 80.
(5) Where the period is
a period of seven days or less which would include a
Saturday, Sunday or a public holiday in the place where
anything which has to be done within the period falls
to be done, that day shall be excluded. In relation
to England and Wales or Northern Ireland, a"public
holiday" means Christmas Day, Good Friday or a
day which under the Banking and Financial Dealings Act
1971 is a bank holiday.
79. - Power of court
to extend time limits relating to arbitral proceedings.
(1) Unless the parties
otherwise agree, the court may by order extend any time
limit agreed by them in relation to any matter relating
to the arbitral proceedings or specified in any provision
of this Part having effect in default of such agreement.
This section does not apply to a time limit to which
section 12 applies (power of court to extend time for
beginning arbitral proceedings, &c.).
(2) An application for
an order may be made -
(a) by any party to the
arbitral proceedings (upon notice to the other parties
and to the tribunal), or
(b) by the arbitral tribunal
(upon notice to the parties).
(3) The court shall not
exercise its power to extend a time limit unless it
is satisfied -
(a) that any available
recourse to the tribunal, or to any arbitral or other
institution or person vested by the parties with power
in that regard, has first been exhausted, and
(b) that a substantial
injustice would otherwise be done.
(4) The court's power under
this section may be exercised whether or not the time
has already expired.
(5) An order under this
section may be made on such terms as the court thinks
fit.
(6) The leave of the court
is required for any appeal from a decision of the court
under this section.
80. - Notice and other
requirements in connection with legal proceedings.
(1) References in this
Part to an application, appeal or other step in relation
to legal proceedings being taken "upon notice"
to the other parties to the arbitral proceedings, or
to the tribunal, are to such notice of the originating
process as is required by rules of court and do not
impose any separate requirement.
(2) Rules of court shall
be made -
(a) requiring such notice
to be given as indicated by any provision of this Part,
and
(b) as to the manner, form
and content of any such notice.
(3) Subject to any provision
made by rules of court, a requirement to give notice
to the tribunal of legal proceedings shall be construed
-
(a) if there is more than
one arbitrator, as a requirement to give notice to each
of them; and
(b) if the tribunal is
not fully constituted, as a requirement to give notice
to any arbitrator who has been appointed.
(4) References in this
Part to making an application or appeal to the court
within a specified period are to the issue within that
period of the appropriate originating process in accordance
with rules of court.
(5) Where any provision
of this Part requires an application or appeal to be
made to the court within a specified time, the rules
of court relating to the reckoning of periods, the extending
or abridging of periods, and the consequences of not
taking a step within the period prescribed by the rules,
apply in relation to that requirement.
(6) Provision may be made
by rules of court amending the provisions of this Part
-
(a) with respect to the
time within which any application or appeal to the court
must be made,
(b) so as to keep any provision
made by this Part in relation to arbitral proceedings
in step with the corresponding provision of rules of
court applyig in relation to proceedings in the court,
or
(c) so as to keep any provision
made by this Part in relation to legal proceedings in
step with the corresponding provision of rules of court
applying generally in relation to proceedings in the
court.
(7) Nothing in this section
affects the generality of the power to make rules of
court.
81. - Saving for certain
matters governed by common law.
(1) Nothing in this Part
shall be construed as excluding the operation of any
rule of law consistent with the provisions of this Part,
in particular, any rule of law as to -
(a) matters which are not
capable of settlement by arbitration;
(b) the effect of an oral
arbitration agreement; or
(c) the refusal of recognition
or enforcement of an arbitral award on grounds of public
policy.
(2) Nothing in this Act
shall be construed as reviving any jurisdiction of the
court to set aside or remit an award on the ground of
errors of fact or law on the face of the award.
82. - Minor definitions.
(1) In this Part - "arbitrator",
unless the context otherwise requires, includes an umpire;
"available arbitral process", in relation
to any matter, includes any process of appeal to or
review by an arbitral or other institution or person
vested by the parties with powers in relation to that
matter; "claimant", unless the context otherwise
requires, includes a counterclaimant, and related expressions
shall be construed accordingly; "dispute"
includes any difference; "enactment" includes
an enactment contained in Northern Ireland legislation;
"legal proceedings" means civil proceedings
in the High Court or a county court; "peremptory
order" means an order made under section 41(5)
or made in exercise of any corresponding power conferred
by the parties; "premises" includes land,
buildings, moveable structures, vehicles, vessels, aircraft
and hovercraft; "question of law" means -
(a) for a court in England
and Wales, a question of the law of England and Wales,
and
(b) for a court in Northern
Ireland, a question of the law of Northern Ireland;
"substantive jurisdiction", in relation to
an arbitral tribunal, refers to the matters specified
in section 30(1)(a) to (c), and references to the tribunal
exceeding its substantive jurisdiction shall be construed
accordingly.
(2) References in this
Part to a party to an arbitration agreement include
any person claiming under or through a party to the
agreement.
83. - Index of defined
expressions: Part I.
In this Part the expressions
listed below are defined or otherwise explained by the
provisions indicated -agreement, agree and agreed section
5(1) agreement in writing section 5(2) to (5) arbitration
agreement sections 6 and 5(1) arbitrator section 82(1)
available arbitral process section 82(1) claimant section
82(1) commencement (in relation to arbitral proceedings)
section 14 costs of the arbitration section 59 the court
section 105 dispute section 82(1) enactment section
82(1) legal proceedings section 82(1) Limitation Acts
section 13(4) notice (or other document) section 76(6)
party -- in relation to an arbitration agreement section
82(2) - where section 106(2) or (3) applies section
106(4) peremptory order section 82(1) (and see section
41(5)) premises section 82(1) question of law section
82(1) recoverable costs sections 63 and 64 seat of the
arbitration section 3 serve and service (of notice or
other document) section 76(6) substantive jurisdiction
(in relation to an arbitral tribunal) section 82(1)
(and see section 30(1)(a) to (c)) upon notice (to the
parties or the tribunal) section 80 written and in writing
section 5(6)
84. - Transitional
provisions.
(1) The provisions of this
Part do not apply to arbitral proceedings commenced
before the date on which this Part comes into force.
(2) They apply to arbitral
proceedings commenced on or after that date under an
arbitration agreement whenever made.
(3) The above provisions
have effect subject to any transitional provision made
by an order under section 109(2) (power to include transitional
provisions in commencement order).
ARBITRATION ACT 1996
(OF ENGLAND)
PART II - OTHER PROVISIONS
RELATING TO ARBITRATION
Domestic arbitration
agreements
85. - Modification
of Part I in relation to domestic arbitration agreement.
(1) In the case of a domestic
arbitration agreement the provisions of Part I are modified
in accordance with the following sections.
(2) For this purpose a"domestic
arbitration agreement" means an arbitration agreement
to which none of the parties is -
(a) an individual who is
a national of, or habitually resident in, a state other
than the United Kingdom, or
(b) a body corporate which
is incorporated in, or whose central control and management
is exercised in, a state other than the United Kingdom,
and under which the seat of the arbitration (if the
seat has been designated or determined) is in the United
Kingdom.
(3) In subsection (2)"arbitration
agreement" and"seat of the arbitration"
have the same meaning as in Part I (see sections 3,
5(1) and 6).
86. - Staying of legal
proceedings.
(1) In section 9 (stay
of legal proceedings), subsection (4) (stay unless the
arbitration agreement is null and void, inoperative,
or incapable of being performed) does not apply to a
domestic arbitration agreement.
(2) On an application under
that section in relation to a domestic arbitration agreement
the court shall grant a stay unless satisfied -
(a) that the arbitration
agreement is null and void, inoperative, or incapable
of being performed, or
(b) that there are other
sufficient grounds for not requiring the parties to
abide by the arbitration agreement.
(3) The court may treat
as a sufficient ground under subsection (2)(b) the fact
that the applicant is or was at any material time not
ready and willing to do all things necessary for the
proper conduct of the arbitration or of any other dispute
resolution procedures required to be exhausted before
resorting to arbitration.
(4) For the purposes of
this section the question whether an arbitration agreement
is a domestic arbitration agreement shall be determined
by reference to the facts at the time the legal proceedings
are commenced.
87. - Effectiveness
of agreement to exclude court's jurisdiction.
(1) In the case of a domestic
arbitration agreement any agreement to exclude the jurisdiction
of the court under -
(a) section 45 (determination
of preliminary point of law), or
(b) section 69 (challenging
the award: appeal on point of law), is not effective
unless entered into after the commencement of the arbitral
proceedings in which the question arises or the award
is made.
(2) For this purpose the
commencement of the arbitral proceedings has the same
meaning as in Part I (see section 14).
(3) For the purposes of
this section the question whether an arbitration agreement
is a domestic arbitration agreement shall be determined
by reference to the facts at the time the agreement
is entered into.
88. - Power to repeal
or amend sections 85 to 87.
(1) The Secretary of State
may by order repeal or amend the provisions of sections
85 to 87.
(2) An order under this
section may contain such supplementary, incidental and
transitional provisions as appear to the Secretary of
State to be appropriate.
(3) An order under this
section shall be made by statutory instrument and no
such order shall be made unless a draft of it has been
laid before and approved by a resolution of each House
of Parliament. Consumer arbitration agreements
89. - Application of
unfair terms regulations to consumer arbitration agreements.
(1) The following sections
extend the application of the Unfair Terms in Consumer
Contracts Regulations 1994 in relation to a term which
constitutes an arbitration agreement. For this purpose"arbitration
agreement" means an agreement to submit to arbitration
present or future disputes or differences (whether or
not contractual). S.I. 1994/3159
(2) In those sections"the
Regulations" means those regulations and includes
any regulations amending or replacing those regulations.
(3) Those sections apply
whatever the law applicable to the arbitration agreement.
90. - Regulations apply
where consumer is a legal person.
The Regulations apply where
the consumer is a legal person as they apply where the
consumer is a natural person.
91. - Arbitration agreement
unfair where modest amount sought.
(1) A term which constitutes
an arbitration agreement is unfair for the purposes
of the Regulations so far as it relates to a claim for
a pecuniary remedy which does not exceed the amount
specified by order for the purposes of this section.
(2) Orders under this section
may make different provision for different cases and
for different purposes.
(3) The power to make orders
under this section is exercisable -
(a) for England and Wales,
by the Secretary of State with the concurrence of the
Lord Chancellor,
(b) for Scotland, by the
Secretary of State with the concurrence of the Lord
Advocate, and
(c) for Northern Ireland,
by the Department of Economic Development for Northern
Ireland with the concurrence of the Lord Chancellor.
(4) Any such order for
England and Wales or Scotland shall be made by statutory
instrument which shall be subject to annulment in pursuance
of a resolution of either House of Parliament. S.I.
1979/1573 (N.I. 12). 1954 c. 33 (N.I.). (5) Any such
order for Northern Ireland shall be a statutory rule
for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 and shall be subject to negative resolution,
within the meaning of section 41(6) of the Interpretation
Act (Northern Ireland) 1954.
Small claims arbitration
in the county court
92. - Exclusion of
Part I in relation to small claims arbitration in the
county court.
Nothing in Part I of this
Act applies to arbitration under section 64 of the County
Courts Act 1984. 1984 c. 28.
93. - Appointment of
judges as arbitratorsAppointment of judges as arbitrators.
(1) A judge of the Commercial
Court or an official referee may, if in all the circumstances
he thinks fit, accept appointment as a sole arbitrator
or as umpire by or by virtue of an arbitration agreement.
(2) A judge of the Commercial
Court shall not do so unless the Lord Chief Justice
has informed him that, having regard to the state of
business in the High Court and the Crown Court, he can
be made available.
(3) An official referee
shall not do so unless the Lord Chief Justice has informed
him that, having regard to the state of official referees'
business, he can be made available.
(4) The fees payable for
the services of a judge of the Commercial Court or official
referee as arbitrator or umpire shall be taken in the
High Court.
(5) In this section -"arbitration
agreement" has the same meaning as in Part I; and
1981 c. 54. "official referee" means a person
nominated under section 68(1)(a) of the Supreme Court
Act 1981 to deal with official referees' business.
(6) The provisions of Part
I of this Act apply to arbitration before a person appointed
under this section with the modifications specified
in Schedule 2.
Statutory arbitrations
94. - Application of
Part I to statutory arbitrations.
(1) The provisions of Part
I apply to every arbitration under an enactment (a "statutory
arbitration"), whether the enactment was passed
or made before or after the commencement of this Act,
subject to the adaptations and exclusions specified
in sections 95 to 98.
(2) The provisions of Part
I do not apply to a statutory arbitration if or to the
extent that their application -
(a) is inconsistent with
the provisions of the enactment concerned, with any
rules or procedure authorised or recognised by it, or
(b) is excluded by any
other enactment.
(3) In this section and
the following provisions of this Part"enactment"
-1978 c. 30.
(a) in England and Wales,
includes an enactment contained in subordinate legislation
within the meaning of the Interpretation Act 1978; 1954
c. 33 (N.I.).
(b) in Northern Ireland,
means a statutory provision within the meaning of section
1(f) of the Interpretation Act (Northern Ireland) 1954.
95. - General adaptation
of provisions in relation to statutory arbitrations.
(1) The provisions of Part
I apply to a statutory arbitration -
(a) as if the arbitration
were pursuant to an arbitration agreement and as if
the enactment were that agreement, and
(b) as if the persons by
and against whom a claim subject to arbitration in pursuance
of the enactment may be or has been made were parties
to that agreement.
(2) Every statutory arbitration
shall be taken to have its seat in England and Wales
or, as the case may be, in Northern Ireland.
96. - Specific adaptations
of provisions in relation to statutory arbitrations.
(1) The following provisions
of Part I apply to a statutory arbitration with the
following adaptations.
(2) In section 30(1) (competence
of tribunal to rule on its own jurisdiction), the reference
in paragraph (a) to whether there is a valid arbitration
agreement shall be construed as a reference to whether
the enactment applies to the dispute or difference in
question.
(3) Section 35 (consolidation
of proceedings and concurrent hearings) applies only
so as to authorise the consolidation of proceedings,
or concurrent hearings in proceedings, under the same
enactment.
(4) Section 46 (rules applicable
to substance of dispute) applies with the omission of
subsection (1)(b) (determination in accordance with
considerations agreed by parties).
97. - Provisions excluded
from applying to statutory arbitrations.
The following provisions
of Part I do not apply in relation to a statutory arbitration
-
(a) section 8 (whether
agreement discharged by death of a party);
(b) section 12 (power of
court to extend agreed time limits);
(c) sections 9(5), 10(2)
and 71(4) (restrictions on effect of provision that
award condition precedent to right to bring legal proceedings).
98. - Power to make
further provision by regulations.
(1) The Secretary of State
may make provision by regulations for adapting or excluding
any provision of Part I in relation to statutory arbitrations
in general or statutory arbitrations of any particular
description.
(2) The power is exercisable
whether the enactment concerned is passed or made before
or after the commencement of this Act.
(3) Regulations under this
section shall be made by statutory instrument which
shall be subject to annulment in pursuance of a resolution
of either House of Parliament.
ARBITRATION ACT 1996
(OF ENGLAND)
PART III - RECOGNITION
AND ENFORCEMENT OF CERTAIN FOREIGN AWARDS
Enforcement of
Geneva Convention awards
99. - Continuation
of Part II of the Arbitration Act 1950.
Part II of the Arbitration
Act 1950 (enforcement of certain foreign awards) continues
to apply in relation to foreign awards within the meaning
of that Part which are not also New York Convention
awards. 1950 c. 27.
Recognition and enforcement
of New York Convention awards
100. - New York Convention
awards.
(1) In this Part a"New
York Convention award" means an award made, in
pursuance of an arbitration agreement, in the territory
of a state (other than the United Kingdom) which is
a party to the New York Convention.
(2) For the purposes of
subsection (1) and of the provisions of this Part relating
to such awards -
(a) "arbitration agreement"
means an arbitration agreement in writing, and
(b) an award shall be treated
as made at the seat of the arbitration, regardless of
where it was signed, despatched or delivered to any
of the parties. In this subsection"agreement in
writing" and"seat of the arbitration"
have the same meaning as in Part I.
(3) If Her Majesty by Order
in Council declares that a state specified in the Order
is a party to the New York Convention, or is a party
in respect of any territory so specified, the Order
shall, while in force, be conclusive evidence of that
fact.
(4) In this section"the
New York Convention" means the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
adopted by the United Nations Conference on International
Commercial Arbitration on 10th June 1958.
101. - Recognition
and enforcement of awards.
(1) A New York Convention
award shall be recognised as binding on the persons
as between whom it was made, and may accordingly be
relied on by those persons by way of defence, set-off
or otherwise in any legal proceedings in England and
Wales or Northern Ireland.
(2) A New York Convention
award may, by leave of the court, be enforced in the
same manner as a judgment or order of the court to the
same effect. As to the meaning of "the court"
see section 105.
(3) Where leave is so given,
judgment may be entered in terms of the award.
102. - Evidence to
be produced by party seeking recognition or enforcement.
(1) A party seeking the
recognition or enforcement of a New York Convention
award must produce -
(a) the duly authenticated
original award or a duly certified copy of it, and
(b) the original arbitration
agreement or a duly certified copy of it.
(2) If the award or agreement
is in a foreign language, the party must also produce
a translation of it certified by an official or sworn
translator or by a diplomatic or consular agent.
103. - Refusal of recognition
or enforcement.
(1) Recognition or enforcement
of a New York Convention award shall not be refused
except in the following cases.
(2) Recognition or enforcement
of the award may be refused if the person against whom
it is invoked proves -
(a) that a party to the
arbitration agreement was (under the law applicable
to him) under some incapacity;
(b) that the arbitration
agreement was not valid under the law to which the parties
subjected it or, failing any indication thereon, under
the law of the country where the award was made;
(c) that he was not given
proper notice of the appointment of the arbitrator or
of the arbitration proceedings or was otherwise unable
to present his case;
(d) that the award deals
with a difference 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 (but see subsection (4));
(e) that the composition
of the arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties
or, failing such agreement, with the law of the country
in which the arbitration took place;
(f) that the award has
not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country
in which, or under the law of which, it was made.
(3) Recognition or enforcement
of the award may also be refused if the award is in
respect of a matter which is not capable of settlement
by arbitration, or if it would be contrary to public
policy to recognise or enforce the award.
(4) An award which contains
decisions on matters not submitted to arbitration may
be recognised or enforced to the extent that it contains
decisions on matters submitted to arbitration which
can be separated from those on matters not so submitted.
(5) Where an application
for the setting aside or suspension of the award has
been made to such a competent authority as is mentioned
in subsection (2)(f), the court before which the award
is sought to be relied upon may, if it considers it
proper, adjourn the decision on the recognition or enforcement
of the award. It may also on the application of the
party claiming recognition or enforcement of the award
order the other party to give suitable security.
104. - Saving for other
bases of recognition or enforcement.
Nothing in the preceding
provisions of this Part affects any right to rely upon
or enforce a New York Convention award at common law
or under section 66.
PART IV - GENERAL PROVISIONS
105. - Meaning of "the
court": jurisdiction of High Court and county court.
(1) In this Act"the
court" means the High Court or a county court,
subject to the following provisions.
(2) The Lord Chancellor
may by order make provision -
(a) allocating proceedings
under this Act to the High Court or to county courts;
or
(b) specifying proceedings
under this Act which may be commenced or taken only
in the High Court or in a county court.
(3) The Lord Chancellor
may by order make provision requiring proceedings of
any specified description under this Act in relation
to which a county court has jurisdiction to be commenced
or taken in one or more specified county courts. Any
jurisdiction so exercisable by a specified county court
is exercisable throughout England and Wales or, as the
case may be, Northern Ireland.
(4) An order under this
section -
(a) may differentiate between
categories of proceedings by reference to such criteria
as the Lord Chancellor sees fit to specify, and
(b) may make such incidental
or transitional provision as the Lord Chancellor considers
necessary or expedient.
(5) An order under this
section for England and Wales shall be made by statutory
instrument which shall be subject to annulment in pursuance
of a resolution of either House of Parliament. S.I.
1979/1573 (N.I. 12). 1946 c. 36.
(6) An order under this
section for Northern Ireland shall be a statutory rule
for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 which shall be subject to annulment in pursuance
of a resolution of either House of Parliament in like
manner as a statutory instrument and section 5 of the
Statutory Instruments Act 1946 shall apply accordingly.
106. - Crown application.
(1) Part I of this Act
applies to any arbitration agreement to which Her Majesty,
either in right of the Crown or of the Duchy of Lancaster
or otherwise, or the Duke of Cornwall, is a party.
(2) Where Her Majesty is
party to an arbitration agreement otherwise than in
right of the Crown, Her Majesty shall be represented
for the purposes of any arbitral proceedings -
(a) where the agreement
was entered into by Her Majesty in right of the Duchy
of Lancaster, by the Chancellor of the Duchy or such
person as he may appoint, and
(b) in any other case,
by such person as Her Majesty may appoint in writing
under the Royal Sign Manual.
(3) Where the Duke of Cornwall
is party to an arbitration agreement, he shall be represented
for the purposes of any arbitral proceedings by such
person as he may appoint.
(4) References in Part
I to a party or the parties to the arbitration agreement
or to arbitral proceedings shall be construed, where
subsection (2) or (3) applies, as references to the
person representing Her Majesty or the Duke of Cornwall.
107. - Consequential
amendments and repeals.
(1) The enactments specified
in Schedule 3 are amended in accordance with that Schedule,
the amendments being consequential on the provisions
of this Act.
(2) The enactments specified
in Schedule 4 are repealed to the extent specified.
108. - Extent.
(1) The provisions of this
Act extend to England and Wales and, except as mentioned
below, to Northern Ireland.
(2) The following provisions
of Part II do not extend to Northern Ireland -section
92 (exclusion of Part I in relation to small claims
arbitration in the county court), and section 93 and
Schedule 2 (appointment of judges as arbitrators).
(3) Sections 89, 90 and
91 (consumer arbitration agreements) extend to Scotland
and the provisions of Schedules 3 and 4 (consequential
amendments and repeals) extend to Scotland so far as
they relate to enactments which so extend, subject as
follows. 1975 c. 3.
(4) The repeal of the Arbitration
Act 1975 extends only to England and Wales and Northern
Ireland.
109. - Commencement.
(1) The provisions of this
Act come into force on such day as the Secretary of
State may appoint by order made by statutory instrument,
and different days may be appointed for different purposes.
(2) An order under subsection
(1) may contain such transitional provisions as appear
to the Secretary of State to be appropriate.
110. - Short title.
This Act may be cited as
the Arbitration Act 1996.
Our consultants provide business advice to help you start, plan, operate, manage, market, develop, position, improve and grow your business