IRELAND ARBITRATION ACT
ARBITRATION
(INTERNATIONAL COMMERCIAL) ACT, 1998
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY AND GENERAL
Section
1. Short title and collective citation.
2. References.
PART II
INTERNATIONAL COMMERCIAL
ARBITRATION
3. Interpretation of this
Part.
4. Adoption of Model Law.
5. Construction of Model Law.
6. Functions of High Court.
7. Court powers exercisable in support of international
commercial arbitration proceedings.
8. Powers of arbitral tribunal in relation to examination
of witnesses, etc.
9. Consolidation of arbitral proceedings and concurrent
hearings.
10. Interest.
11. Recoverable costs of arbitration and recoverable
fees and expenses of arbitral tribunal.
12. Restriction on liability of arbitrators, etc.
13. Time limits for setting aside award.
14. Effect of award.
15. Transitional provisions.
16. Non-application of Arbitration Acts.
PART III
AMENDMENTS TO ARBITRATION
ACTS, 1954 AND 1980
17. Amendment to Arbitration
Act, 1954.
17. Amendment to Arbitration Act, 1980.
SCHEDULE
TEXT OF UNCITRAL MODEL
LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
____________________________
ACTS REFERRED TO
Arbitration Act, 1954 1954, No. 26
Arbitration Act, 1980 1980, No. 7
Arbitration Acts, 1954 and 1980
Patents Act, 1992 1992, No. 1
Property Values (Arbitration and Appeals) Act, 1960
1960, No. 45
Trade Marks Act, 1996 1996, No. 6
____________________________
Number 14 of 1998
____________________________
ARBITRATION (INTERNATIONAL
COMMERCIAL) ACT, 1998
____________________________
AN ACT TO ENABLE EFFECT
TO BE GIVEN IN THE STATE TO THE UNCITRAL MODEL LAW ON
INTERNATIONAL COMMERCIAL ARBITRATION (AS ADOPTED BY
THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE
LAW ON 21 JUNE 1985) AND TO AMEND THE ARBITRATION ACTS;
1954 AND 1980, AND TO MAKE FURTHER AND BETTER PROVISION
IN RESPECT OF ARBITRATIONS. [20th May, 1998]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART I
PRELIMINARY AND GENERAL
Short title and collective
citation.
1.-(1) This Act may be cited as the Arbitration (International
Commercial) Act, 1998.
(2) The Arbitration Acts, 1954 and 1980 and this Act
may be cited together as the Arbitration Acts, 1954
to 1998.
References.
2.-In this Act-
(a) a reference to any other enactment is to that enactment
as amended by or under any other enactment including
this Act, unless the context otherwise requires,
(b) a reference to a section, Part or Schedule is to
a section or Part of, or Schedule to, this Act unless
it is indicated that reference to some other enactment
is intended,
(c) a reference to a subsection is to a subsection of
the provision in which the reference occurs, unless
it is indicated that reference to some other provision
is intended, and
(d) a reference to an Article is to an Article of the
Model Law.
PART II
INTERNATIONAL COMMERCIAL
ARBITRATION
Interpretation of this
Part.
3.-(1) In this Part, unless the context otherwise requires-
"arbitration agreement" means an arbitration
agreement concerning international commercial arbitration;
"award" includes an interim award;
"international commercial arbitration" means
arbitration to which the Model Law applies;
"the Model Law" means the UNCITRAL Model Law
on International Commercial Arbitration (as adopted
by the United Nations Commission on International Trade
Law on 21 June 1985), the text in the English language
of which is set out in the Schedule.
(2) Terms and expressions that are used in this Part
and defined in the Model Law have the same meaning in
this Part as in that Law unless the context otherwise
requires.
Adoption of Model Law.
4.-Subject to this Part, the Model Law shall apply in
the State.
Construction of Model Law.
5.-(1) The reference to an agreement in Article 1(1)
shall be construed as referring only to an agreement
which has the force of law in the State.
(2) The documents of the United Nations Commission on
International Trade Law and its working group relating
to the preparation of the Model Law may be considered
in ascertaining the meaning or effect of any provision
of the Model Law.
Functions of High Court.
6.-(1) The High Court is specified for the purposes
of Article 6 and is the court for the purposes of Article
9 and the court of competent jurisdiction for the purposes
of Articles 27, 35 and 36.
(2) The functions of the High Court under an Article
referred to in subsection (1) and its functions under
sections 7, 11 (7) and (9) and 14(1) shall be performed
by-
(a) the President of the High Court, or
(b) such Judge of the High Court as may be nominated
by the President, subject to any rules of court made
in that behalf.
(3) An application may be made in a summary manner to
the President of the High Court or to a judge referred
to in subsection (2)(b) to exercise any of the functions
referred to in subsection (2).
Court powers exercisable
in support of international commercial arbitration proceedings.
7.-(1) For the purposes of giving effect to Article
9 or 27, the High Court may, on application under section
6(3), make, in relation to an international commercial
arbitration, any order in respect of-
(a) the preservation, interim custody or sale of any
goods which are the subject matter of the arbitral proceedings,
(b) securing the amount at issue in the arbitral proceedings,
(c) security for costs,
(d) interim injunctions,
(e) the appointment of a receiver,
(f) the detention, preservation or inspection of any
property or thing which is the subject matter of the
arbitral proceedings and authorising-
(i) for any of those purposes any person to enter any
land or building in the possession of a party, or
(ii) any sample to be taken, any observation to be made
or any experiment to be tried which may be necessary
or expedient for obtaining full information or evidence,
(g) securing the attendance of witnesses before the
arbitral tribunal in order that evidence be given or
documents be produced,
(h) the examination on oath or affirmation of any witness
before an officer of the Court or other person,
(i) the issue of a commission or request for the examination
of a witness outside the State, or
(j) the discovery and inspection of documents and interrogatories,
that it has power to make for the purpose of and in
relation to an action or other matter before the High
Court.
(2) A party shall not be ordered under this section
to provide security for costs solely on the ground that
the party is-
(a) an individual who is ordinarily resident outside
the State, or
(b) a corporation or association incorporated or formed
under a law other than the law of the State or whose
central management and control is exercised outside
the State.
(3) Nothing in this section shall be taken to prejudice-
(a) the generality of Articles 9 and 27, or
(b) any power of an arbitral tribunal to make orders
in respect of any of the matters mentioned in subsection
(1).
Powers of arbitral tribunal
in relation to examination of witnesses, etc.
8.-Unless otherwise agreed by the parties, the arbitral
tribunal may-
(a) direct that a party to an arbitration agreement
or a witness who gives evidence in proceedings before
the arbitral tribunal be examined on oath or affirmation,
and
(b) administer any oaths or take any affirmations necessary
for the purposes of the examination.
Consolidation of arbitral
proceedings and concurrent hearings.
9.-(1) The parties to an arbitration agreement may 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) The arbitral tribunal has no power to order consolidation
of proceedings or concurrent hearings unless the parties
agree to confer such power on that tribunal.
Interest.
10.-(1) The parties to an arbitration agreement may
agree on the arbitral tribunal's powers regarding the
award of interest.
(2) Unless otherwise agreed by the parties, the arbitral
tribunal may award simple or compound interest from
the dates, at the rates and with the rests that it considers
meet the justice of the case-
(a) on all or part of any amount awarded by the arbitral
tribunal, in respect of any period up to the date of
the award;
(b) on all or part of any amount claimed in the arbitration
and outstanding at the commencement of the arbitration
but paid before the award was made, in respect of any
period up to the date of payment.
(3) Unless otherwise agreed by the parties, the arbitral
tribunal may award simple or compound interest from
the date of the award (or any later date) until payment,
at the rates and with the rests that it considers meet
the justice of the case, on the outstanding amount of
any award (including any award of interest under subsection
(2) and any award of costs).
(4) References in this section to an amount awarded
by the arbitral tribunal include an amount payable in
consequence of a declaratory award by the arbitral tribunal.
(5) This section shall not affect any other power of
the arbitral tribunal to award interest.
Recoverable costs of arbitration
and recoverable fees and expenses of arbitral tribunal.
11.-(1) The parties to an arbitration agreement are
free to agree on how the costs of the international
commercial arbitration are to be allocated and on the
costs that are recoverable.
(2) An agreement of the parties to arbitrate subject
to the rules of an arbitral institution shall be deemed
to be an agreement to abide by the rules of that institution
as to how costs are to be allocated and as to the costs
that are recoverable.
(3) References in subsections (1) and (2) to "costs"
include the costs as between the parties and the fees
and expenses of the arbitral tribunal.
(4) Where there is no agreement of the parties as to
the recoverable costs of the international commercial
arbitration as between the parties, the arbitral tribunal
may, with the consent of the parties to the arbitral
proceedings, determine by award those costs on the basis
it thinks fit.
(5) Where there is no agreement of the parties as to
the recoverable fees and expenses of the arbitral tribunal,
the tribunal may determine by award those fees and expenses
on the basis it thinks fit.
(6) Where the tribunal makes a determination under subsection
(4) or (5), it shall specify-
(a) the basis on which it acted,
(b) the items of recoverable costs, fees or expenses,
as appropriate, and the amount referable to each, and
(c) by and to whom they shall be paid.
(7) Where a party does not consent to the arbitral tribunal
making a determination under subsection (4) or where
for any other reason the arbitral tribunal does not
make that determination-
(a) any party to the arbitral proceedings may apply
to the High Court within 30 days after receipt of the
award, or such further time as the Court may direct,
for a determination of the recoverable costs as between
the parties, and
(b) the Court may determine those costs on the basis
it thinks fit or may order that they be determined by
the means and on the terms it specifies.
(8) Notice of an application to the High Court under
subsection (7) or subsection (9) shall be given to the
arbitral tribunal and to the other parties to the arbitral
proceedings.
(9) Where the arbitral tribunal makes a determination
under subsection (5)-
(a) any party to the arbitral proceedings may apply
to the High Court within 30 days after receipt of the
determination, and
(b) the Court may order that the amount of the arbitral
tribunal's fees and expenses be reviewed and adjusted
by the means and on the terms the Court specifies.
(10) Subject to an order under subsection (9)(b), nothing
in this section affects any right of the arbitral tribunal
to payment of its fees and expenses.
(11) References in this section to the fees and expenses
of the arbitral tribunal include the fees and expenses
of any expert appointed by the tribunal.
Restriction on liability
of arbitrators, etc.
12.-(1) An arbitrator shall not be liable for anything
done or omitted in the discharge or purported discharge
of his or her functions as arbitrator unless the act
or omission is shown to have been in bad faith.
(2) Subsection (1) shall apply to an employee, agent
or advisor of an arbitrator and to an expert appointed
under Article 26, as it applies to the arbitrator:
(3) An arbitral or other institution or person designated
or requested by the parties to appoint or nominate an
arbitrator shall not be 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.
(4) An arbitral or other institution or person by whom
an arbitrator is appointed or nominated shall not be
liable for anything done or omitted by the arbitrator
(or his or her employees or agents) in the discharge
or purported discharge of his or her functions as arbitrator.
(5) Subsections (3) and (4)) shall apply to an employee
or agent of an arbitral or other institution or person
as they apply to the institution or person himself or
herself.
(6) A witness who gives evidence in proceedings before
an arbitral tribunal shall have the same privileges
and immunities as witnesses have in proceedings before
the High Court.
(7) A person who-
(a) is a barrister or solicitor or holds qualifications
that have been obtained in another jurisdiction and
are equivalent to those of a barrister or solicitor,
and
(b) appears in proceedings before an arbitral tribunal,
shall have the same privileges and immunities as barristers
and solicitors have in proceedings before the High Court.
(8) A person who is a patent agent as defined in section
94(3) of the Patents Act, 1992, or a registered agent
as defined in section 91(3) of the Trade Marks Act,
1996, shall have the same privileges and immunities
referred to in subsection (7) when appearing in proceedings
before an arbitral tribunal on-
(a) in the case of a patent agent, any matter concerning
the protection of an invention, patent, design or technical
information or any matter involving passing off, and
(b) in the case of a registered agent, any matter relating
to the protection of a trade mark or any matter involving
passing off.
Time limits for setting
aside award.
13.-The time limit specified in Article 34(3) shall
not apply to an application to the High Court to have
an arbitral award set aside on the grounds that the
award is in conflict with the public policy of the State.
Effect of award.
14.-(1) An award made by an arbitral tribunal under
an arbitration agreement shall be enforceable in the
State either by action or, by leave of the High Court,
in the same manner as a judgment or order of that Court
to the same effect and, where leave is given, judgment
may be entered in terms of the award.
(2) An award referred to in subsection (1) shall be
treated as binding for all purposes on the parties between
whom it was made, and may accordingly be relied on by
any of those parties by way of defence, set-off or otherwise
in any legal proceedings in the State, and any reference
in this section to the enforcement of an award shall
be construed as including a reference to the reliance
on such an award.
(3) Unless otherwise agreed by the parties, Articles
35 and 36 shall apply to orders made by an arbitral
tribunal under Article 17 as if a reference in Articles
35 or 36 to an award were a reference to such an order
and subsections (1) and (2) shall apply accordingly.
(4) Nothing in this section affects the recognition
or enforcement of an award under-
(a) Part V of the Arbitration Act, 1954 (enforcement
of awards under the Geneva Convention), or
(b) Parts III and IV of the Arbitration Act, 1980 (enforcement
of awards under the New York and Washington Conventions).
(c)
Transitional provisions.
15.-(1) This Part shall not apply to an international
commercial arbitration commenced before the day on which
this Act comes into operation unless-
(a) the arbitration is concluded after that day, and
(b) the parties agree that this Part shall apply.
(2) This Part shall apply to an international commercial
arbitration commenced on or after the day on which this
Act comes into operation-
(a) under an arbitration agreement entered into on or
after that day, or
(b) if the parties so agree, under an arbitration agreement
entered into before that day.
Non-application of Arbitration
Acts.
16.-Subject to section 14(4), the Arbitration Acts,
1954 and 1980, shall not apply to an arbitration to
which this Part applies.
PART III
AMENDMENTS TO ARBITRATION
ACTS, 1954 AND 1980
Amendment to Arbitration
Act, 1954.
17.-The Arbitration Act, 1954, is hereby amended by
substituting the following for section 34:
"Interest on awards.
34.-(1) The parties to an arbitration agreement may
agree on the powers of the arbitrator or umpire as regards
the award of interest.
(2) Unless otherwise agreed by the parties, the arbitrator
or umpire may award simple or compound interest from
the dates, at the rates and with the rests that he or
she considers meet the justice of the case-
(a) on all or part of any amount awarded by the arbitrator
or umpire, in respect of any period up to the date of
the award;
(b) on all or part of any amount claimed in the arbitration
and outstanding at the commencement of the arbitration
but paid before the award was made, in respect of any
period up to the date of payment.
(3) Unless otherwise agreed by the parties, the arbitrator
or umpire may award simple or compound interest from
the date of the award (or any later date) until payment,
at the rates and with the rests that he or she considers
meet the justice of the case, on the outstanding amount
of any award (including an award of interest under subsection
(2) and an award of costs).
(4) References in this section to an amount awarded
by an arbitrator or umpire include an amount payable
in consequence of a declaratory award by the arbitrator
or umpire.
(5) This section shall not apply to an arbitration commenced
before the day on which the Arbitration (International
Commercial) Act, 1998, comes into operation unless-
(a) the arbitration is concluded after that day, and
(b) the parties agree that this section shall apply.
(6) This section shall apply to an arbitration commenced
on or after the day on which the Arbitration (International
Commercial) Act, 1998 comes into operation-
(a) under an arbitration agreement entered into on or
after that day, or
(b) if the parties so agree, under an arbitration agreement
entered into before that day.
(7) This section shall not apply to an arbitration conducted
by a property arbitrator appointed under section 2 of
the Property Values (Arbitration and Appeals) Act, 1960.".
Amendment to Arbitration
Act, 1980.
18.-Section 5 of the Arbitration Act, 1980, is hereby
amended by the insertion of the following subsection
after subsection (2):
"(3) Nothing in this section shall prevent any
party to an arbitration agreement from invoking the
alternative method, provided by the Rules of Court (as
amended from time to time), of commencing and dealing
with a civil proceeding in respect of a small claim.".
SCHEDULE
Text of UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL
ARBITRATION as adopted by the United Nations Commission
on International Trade Law on 21 June 1985
(UNCITRAL) Model Law
CHAPTER I.
GENERAL PROVISIONS
Article 1.
Scope of application*
(1) This Law applies to
international commercial* arbitration, subject to any
agreement in force between this State and any other
State or States.
(2) The provisions of this Law, except articles 8, 9,
35 and 36, apply only if the place of arbitration is
in the territory of this State.
(3) An arbitration is international if:
(a) the parties to an arbitration agreement have, at
the time of the conclusion of that agreement, their
places of business in different States; or
(b) one of the following places is situated outside
the State in which the parties have their places of
business:
(i) the place of arbitration if determined in, or pursuant
to, the arbitration agreement;
(ii) any place where a substantial part of the obligations
of the commercial relationship is to be performed or
the place with which the subject-matter of the dispute
is most closely connected; or
(c) the parties have expressly agreed that the subject-matter
of the arbitration agreement relates to more than one
country.
(4) For the purposes of paragraph (3) of this article:
(a) if a party has more than one place of business,
the place of business is that which has the closest
relationship to the arbitration agreement;
(b) if a party does not have a place of business, reference
is to be made to his habitual residence.
(5) This Law shall not affect any other law of this
State by virtue of which certain disputes may not be
submitted to arbitration or may be submitted to arbitration
only according to provisions other than those of this
Law.
Article 2.
Definitions and rules of interpretation
For the purposes of this
Law:
(a) "arbitration" means any arbitration whether
or not administered by a permanent arbitral institution;
(b) "arbitral tribunal" means a sole arbitrator
or a panel of arbitrators;
(c) "court" means a body or organ of the judicial
system of a State;
(d) where a provision of this Law, except article 28,
leaves the parties free to determine a certain issue,
such freedom includes the right of the parties to authorise
a third party, including an institution, to make that
determination;
(e) where a provision of this Law refers to the fact
that the parties have agreed or that they may agree
or in any other way refers to an agreement of the parties,
such agreement includes any arbitration rules referred
to in that agreement;
(f) where a provision of this Law, other than in articles
25(a) and 32(2)(a), refers to a claim, it also applies
to a counterclaim, and where it refers to a defence,
it also applies to a defence to such counter-claim.
Article 3.
Receipt of written communications
(1) Unless otherwise agreed
by the parties:
(a) any written communication is deemed to have been
received if it is delivered to the addressee personally
or if it is delivered at his place of business, habitual
residence or mailing address; if none of these can be
found after making a reasonable inquiry, a written communication
is deemed to have been received if it is sent to the
addressee's last-known place of business, habitual residence
or mailing address by registered letter or any other
means which provides a record of the attempt to deliver
it;
(b) the communication is deemed to have been received
on the day it is so delivered.
(2) The provisions of this article do not apply to communications
in court proceedings.
Article 4.
Waiver of right to object
A party who knows that
any provision of this Law from which the parties may
derogate or any requirement under the arbitration agreement
has not been complied with and yet proceeds with the
arbitration without stating his objection to such non-compliance
without undue delay or, if a time-limit is provided
therefor, within such period of time, shall be deemed
to have waived his right to object.
Article 5.
Extent of court intervention
In matters governed by
this Law, no court shall intervene except where so provided
in this Law.
Article 6.
Court or other authority for certain functions of arbitration
assistance and supervision
The functions referred
to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2)
shall be performed by..... [Each State enacting this
model law specifies the court, courts or, where referred
to therein, other authority competent to perform these
functions.]
CHAPTER II.
ARBITRATION AGREEMENT
Article 7.
Definition and form of arbitration agreement
(1) "Arbitration agreement"
is an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship,
whether contractual or not. An arbitration agreement
may be in the form of an arbitration clause in a contract
or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An
agreement is in writing if it is contained in a document
signed by the parties or in an exchange of letters,
telex, telegrams or other means of telecommunication
which provide a record of the agreement, or in an exchange
of statements of claim and defence in which the existence
of an agreement is alleged by one party and not denied
by another. The reference in a contract to a document
containing an arbitration clause constitutes an arbitration
agreement provided that the contract is in writing and
the reference is such as to make that clause part of
the contract.
Article 8.
Arbitration agreement and substantive claim before court
(1) A court before which
an action is brought in a matter which is the subject
of an arbitration agreement shall, if a party so requests
not later than when submitting his first statement on
the substance of the dispute, refer the parties to arbitration
unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of
this article has been brought, arbitral proceedings
may nevertheless be commenced or continued, and an award
may be made, while the issue is pending before the court.
Article 9.
Arbitration agreement and interim measures by court
It is not incompatible with an arbitration agreement
for a party to request, before or during arbitral proceedings,
from a court an interim measure of protection and for
a court to grant such measure.
CHAPTER III.
COMPOSITION OF ARBITRAL
TRIBUNAL
Article 10.
Number of arbitrators
(1) The parties are free
to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators
shall be three.
Article 11.
Appointment of arbitrators
(1) No person shall be
precluded by reason of his nationality from acting as
an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of
appointing the arbitrator or arbitrators, subject to
the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party
shall appoint one arbitrator, and the two arbitrators
thus appointed shall appoint the third arbitrator; if
a party fails to appoint the arbitrator within thirty
days of receipt of a request to do so from the other
party, or if the two arbitrators fail to agree on the
third arbitrator within thirty days of their appointment,
the appointment shall be made, upon request of a party,
by the court or other authority specified in article
6;
(b) in an arbitration with a sole arbitrator, if the
parties are unable to agree on the arbitrator, he shall
be appointed, upon request of a party, by the court
or other authority specified in article 6.
(4) Where, under an appointment procedure agreed upon
by the parties,
(a) a party fails to act as required under such procedure,
or
(b) the parties, or two arbitrators, are unable to reach
an agreement expected of them under such procedure,
or
(c) a third party, including an institution, fails to
perform any function entrusted to it under such procedure,
any party may request the court or other authority specified
in article 6 to take the necessary measure, unless the
agreement on the appointment procedure provides other
means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3)
or (4) of this article to the court or other authority
specified in article 6 shall be subject to no appeal.
The court or other authority, in appointing an arbitrator,
shall have due regard to any qualifications required
of the arbitrator by the agreement of the parties and
to such considerations as are likely to secure the appointment
of an independent and impartial arbitrator and, in the
case of a sole or third arbitrator, shall take into
account as well the advisability of appointing an arbitrator
of a nationality other than those of the parties.
Article 12.
Grounds for challenge
(1) When a person is approached
in connection with his possible appointment as an arbitrator,
he shall disclose any circumstances likely to give rise
to justifiable doubts as to his impartiality or independence.
An arbitrator, from the time of his appointment and
throughout the arbitral proceedings, shall without delay
disclose any such circumstances to the parties unless
they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances
exist that give rise to justifiable doubts as to his
impartiality or independence, or if he does not possess
qualifications agreed to by the parties. A party may
challenge an arbitrator appointed by him, or in whose
appointment he has participated, only for reasons of
which he becomes aware after the appointment has been
made.
Article 13.
Challenge procedure
(1) The parties are free
to agree on a procedure for challenging an arbitrator,
subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge
an arbitrator shall, within fifteen days after becoming
aware of the constitution of the arbitral tribunal or
after becoming aware of any circumstance referred to
in article 12(2), send a written statement of the reasons
for the challenge to the arbitral tribunal. Unless the
challenged arbitrator withdraws from his office or the
other party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by
the parties or under the procedure of paragraph (2)
of this article is not successful, the challenging party
may request, within thirty days after having received
notice of the decision rejecting the challenge, the
court or other authority specified in article 6 to decide
on the challenge, which decision shall be subject to
no appeal; while such a request is pending, the arbitral
tribunal, including the challenged arbitrator, may continue
the arbitral proceedings and make an award.
Article 14.
Failure or impossibility to act
(1) If an arbitrator becomes
de jure or de facto unable to perform his functions
or for other reasons fails to act without undue delay,
his mandate terminates if he withdraws from his office
or if the parties agree on the termination. Otherwise,
if a controversy remains concerning any of these grounds,
any party may request the court or other authority specified
in article 6 to decide on the termination of the mandate,
which decision shall be subject to no appeal.
(2) If, under this article or article 13(2), an arbitrator
withdraws from his office or a party agrees to the termination
of the mandate of an arbitrator, this does not imply
acceptance of the validity of any ground referred to
in this article or article 12(2).
Article 15.
Appointment of substitute arbitrator
Where the mandate of an arbitrator terminates under
article 13 or 14 or because of his withdrawal from office
for any other reason or because of the revocation of
his mandate by agreement of the parties or in any other
case of termination of his mandate, a substitute arbitrator
shall be appointed according to the rules that were
applicable to the appointment of the arbitrator being
replaced.
CHAPTER IV.
JURISDICTION OF ARBITRAL
TRIBUNAL
Article 16.
Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal
may rule on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause which
forms part of a contract shall be treated as an agreement
independent of the other terms of the contract. A decision
by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the
arbitration clause.
(2) A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than the submission
of the statement of defence. A party is not precluded
from raising such a plea by the fact that he has appointed,
or participated in the appointment of, an arbitrator.
A plea that the arbitral tribunal is exceeding the scope
of its authority shall be raised as soon as the matter
alleged to be beyond the scope of its authority is raised
during the arbitral proceedings. The arbitral tribunal
may, in either case, admit a later plea if it considers
the delay justified.
(3) The arbitral tribunal may rule on a plea referred
to in paragraph (2) of this article either as a preliminary
question or in an award on the merits. If the arbitral
tribunal rules as a preliminary question that it has
jurisdiction, any party may request, within thirty days
after having received notice of that ruling, the court
specified in article 6 to decide the matter, which decision
shall be subject to no appeal; while such a request
is pending, the arbitral tribunal may continue the arbitral
proceedings and make an award.
Article 17.
Power of arbitral tribunal to order interim measures
Unless otherwise agreed
by the parties, the arbitral tribunal may, at the request
of a party, order any party to take such interim measure
of protection as the arbitral tribunal may consider
necessary in respect of the subject-matter of the dispute.
The arbitral tribunal may require any party to provide
appropriate security in connection with such measure.
CHAPTER V.
CONDUCT OF ARBITRAL PROCEEDINGS
Article 18.
Equal treatment of parties
The parties shall be treated
with equality and each party shall be given a full opportunity
of presenting his case.
Article 19.
Determination of rules of procedure
(1) Subject to the provisions
of this Law, the parties are free to agree on the procedure
to be followed by the arbitral tribunal in conducting
the proceedings.
(2) Failing such agreement, the arbitral tribunal may,
subject to the provisions of this Law, conduct the arbitration
in such manner as it considers appropriate. The power
conferred upon the arbitral tribunal includes the power
to determine the admissibility, relevance, materiality
and weight of any evidence.
Article 20.
Place of arbitration
(1) The parties are free
to agree on the place of arbitration. Failing such agreement,
the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances
of the case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1)
of this article, the arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for
hearing witnesses, experts or the parties, or for inspection
of goods, other property or documents.
Article 21.
Commencement of arbitral proceedings
Unless otherwise agreed
by the parties, the arbitral proceedings in respect
of a particular dispute commence on the date on which
a request for that dispute to be referred to arbitration
is received by the respondent.
Article 22.
Language
(1) The parties are free
to agree on the language or languages to be used in
the arbitral proceedings. Failing such agreement, the
arbitral tribunal shall determine the language or languages
to be used in the proceedings. This agreement or determination,
unless otherwise specified therein, shall apply to any
written statement by a party, any hearing and any award,
decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into
the language or languages agreed upon by the parties
or determined by the arbitral tribunal.
Article 23.
Statements of claim and defence
(1) Within the period of
time agreed by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting
his claim, the points at issue and the relief or remedy
sought, and the respondent shall state his defence in
respect of these particulars, unless the parties have
otherwise agreed as to the required elements of such
statements. The parties may submit with their statements
all documents they consider to be relevant or may add
a reference to the documents or other evidence they
will submit.
(2) Unless otherwise agreed by the parties, either party
may amend or supplement his claim or defence during
the course of the arbitral proceedings, unless the arbitral
tribunal considers it inappropriate to allow such amendment
having regard to the delay in making it.
Article 24.
Hearings and written proceedings
(1) Subject to any contrary
agreement by the parties, the arbitral tribunal shall
decide whether to hold oral hearings for the presentation
of evidence or for oral argument, or whether the proceedings
shall be conducted on the basis of documents and other
materials. However, unless the parties have agreed that
no hearings shall be held, the arbitral tribunal shall
hold such hearings at an appropriate stage of the proceedings,
if so requested by a party.
(2) The parties shall be given sufficient advance notice
of any hearing and of any meeting of the arbitral tribunal
for the purposes of inspection of goods, other property
or documents.
(3) All statements, documents or other information supplied
to the arbitral tribunal by one party shall be communicated
to the other party. Also any expert report or evidentiary
document on which the arbitral tribunal may rely in
making its decision shall be communicated to the parties.
Article 25.
Default of a party
Unless otherwise agreed
by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement
of claim in accordance with article 23(1), the arbitral
tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement
of defence in accordance with article 23(1), the arbitral
tribunal shall continue the proceedings without treating
such failure in itself as an admission of the claimant's
allegations;
(c) any party fails to appear at a hearing or to produce
documentary evidence, the arbitral tribunal may continue
the proceedings and make the award on the evidence before
it.
Article 26.
Expert appointed by arbitral tribunal
(1) Unless otherwise agreed
by the parties, the arbitral tribunal
(a) may appoint one or more experts to report to it
on specific issues to be determined by the arbitral
tribunal;
(b) may require a party to give the expert any relevant
information or to produce, or to provide access to,
any relevant documents, goods or other property for
his inspection.
(2) Unless otherwise agreed by the parties, if a party
so requests or if the arbitral tribunal considers it
necessary, the expert shall, after delivery of his written
or oral report, participate in a hearing where the parties
have the opportunity to put questions to him and to
present expert witnesses in order to testify on the
points at issue:
Article 27.
Court assistance in taking evidence
The arbitral tribunal or
a party with the approval of the arbitral tribunal may
request from a competent court of this State assistance
in taking evidence. The court may execute the request
within its competence and according to its rules on
taking evidence.
CHAPTER VI.
MAKING OF AWARD AND TERMINATION
OF PROCEEDINGS
Article 28.
Rules applicable to substance of dispute
(1) The arbitral tribunal
shall decide the dispute in accordance with such rules
of law as are chosen by the parties as applicable to
the substance of the dispute. Any designation of the
law or legal system of a given State shall be construed,
unless otherwise expressed, as directly referring to
the substantive law of that State and not to its conflict
of laws rules.
(2) Failing any designation by the parties, the arbitral
tribunal shall apply the law determined by the conflict
of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono
or as amiable compositeur only if the parties have expressly
authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide
in accordance with the terms of the contract and shall
take into account the usages of the trade applicable
to the transaction.
Article 29.
Decision making by panel of arbitrators
In arbitral proceedings
with more than one arbitrator, any decision of the arbitral
tribunal shall be made, unless otherwise agreed by the
parties, by a majority of all its members. However,
questions of procedure may be decided by a presiding
arbitrator, if so authorized by the parties or all members
of the arbitral tribunal.
Article 30.
Settlement
(1) If, during arbitral
proceedings, the parties settle the dispute, the arbitral
tribunal shall terminate the proceedings and, if requested
by the parties and not objected to by the arbitral tribunal,
record the settlement in the form of an arbitral award
on agreed terms.
(2) An award on agreed terms shall be made in accordance
with the provisions of article 31 and shall state that
it is an award. Such an award has the same status and
effect as any other award on the merits of the case.
Article 31.
Form and contents of award
(1) The award shall be
made in writing and shall be signed by the arbitrator
or arbitrators. In arbitral proceedings with more than
one arbitrator, the signatures of the majority of all
members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it
is based, unless the parties have agreed that no reasons
are to be given or the award is an award on agreed terms
under article 30.
(3) The award shall state its date and the place of
arbitration as determined in accordance with article
20(1). The award shall be deemed to have been made at
that place.
(4) After the award is made, a copy signed by the arbitrators
in accordance with paragraph (1) of this article shall
be delivered to each party.
Article 32.
Termination of proceedings
(1) The arbitral proceedings are terminated by the final
award or by an order of the arbitral tribunal in accordance
with paragraph (2) of this article.
(2) The arbitral tribunal shall issue an order for the
termination of the arbitral proceedings when:
(a) the claimant withdraws his claim, unless the respondent
objects thereto and the arbitral tribunal recognizes
a legitimate interest on his part in obtaining a final
settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation
of the proceedings has for any other reason become unnecessary
or impossible.
(3) The mandate of the arbitral tribunal terminates
with the termination of the arbitral proceedings, subject
to the provisions of articles 33 and 34(4).
Article 33.
Correction and interpretation of award; additional award
(1) Within thirty days
of receipt of the award, unless another period of time
has been agreed upon by the parties:
(a) a party, with notice to the other party, may request
the arbitral tribunal to correct in the award any errors
in computation, any clerical or typographical errors
or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice
to the other party, may request the arbitral tribunal
to give an interpretation of a specific point or part
of the award.
If the arbitral tribunal considers the request to be
justified, it shall make the correction or give the
interpretation within thirty days of receipt of the
request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the
type referred to in paragraph (1)(a) of this article
on its own initiative within thirty days of the date
of the award.
(3) Unless otherwise agreed by the parties, a party,
with notice to the other party, may request, within
thirty days of receipt of the award, the arbitral tribunal
to make an additional award as to claims presented in
the arbitral proceedings but omitted from the award.
If the arbitral tribunal considers the request to be
justified, it shall make the additional award within
sixty days.
(4) The arbitral tribunal may extend, if necessary,
the period of time within which it shall make a correction,
interpretation or an additional award under paragraph
(1) or (3) of this article.
(5) The provisions of article 31 shall apply to a correction
or interpretation of the award or to an additional award.
CHAPTER VII.
RECOURSE AGAINST AWARD
Article 34.
Application for setting aside as exclusive recourse
against arbitral award
(1) Recourse to a court
against an arbitral award may be made only by an application
for setting aside in accordance with paragraphs (2)
and (3) of this article.
(2) An arbitral award may be set aside by the court
specified in article 6 only if:
(a) the party making the application furnishes proof
that:
(i) a party to the arbitration agreement referred to
in article 7 was under some incapacity; or the said
agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon,
under the law of this State; or
(ii) the party making the application was not given
proper notice of the appointment of an arbitrator or
of the arbitral proceedings or was otherwise unable
to present his case; or
(iii) the award deals with a dispute 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, provided
that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, only that
part of the award which contains decisions on matters
not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the agreement
of the parties, unless such agreement was in conflict
with a provision of this Law from which the parties
cannot derogate, or, failing such agreement, was not
in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable
of settlement by arbitration under the law of this State;
or
(ii) the award is in conflict with the public policy
of this State.
(3) An application for setting aside may not be made
after three months have elapsed from the date on which
the party making that application had received the award
or, if a request had been made under article 33, from
the date on which that request had been disposed of
by the arbitral tribunal.
(4) The court, when asked to set aside an award, may,
where appropriate and so requested by a party, suspend
the setting aside proceedings for a period of time determined
by it in order to give the arbitral tribunal an opportunity
to resume the arbitral proceedings or to take such other
action as in the arbitral tribunal's opinion will eliminate
the grounds for setting aside.
CHAPTER VIII.
RECOGNITION AND ENFORCEMENT
OF AWARDS
Article 35.
Recognition and enforcement
(1) An arbitral award,
irrespective of the country in which it was made, shall
be recognized as binding and, upon application in writing
to the competent court, shall be enforced subject to
the provisions of this article and of article 36.
(2) The party relying on an award or applying for its
enforcement shall supply the duly authenticated original
award or a duly certified copy thereof, and the original
arbitration agreement referred to in article 7 or a
duly certified copy thereof. If the award or agreement
is not made in an official language of this State, the
party shall supply a duly certified translation thereof
into such language.***
Article 36.
Grounds for refusing recognition or enforcement
(1) Recognition or enforcement
of an arbitral award, irrespective of the country in
which it was made, may be refused only:
(a) at the request of the party against whom it is invoked,
if that party furnishes to the competent court where
recognition or enforcement is sought proof that:
(i) a party to the arbitration agreement referred to
in article 7 was under some incapacity; or the said
agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon,
under the law of the country where the award was made;
or
(ii) the party against whom the award is invoked was
not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable
to present his case; or
(iii) the award deals with a dispute not contemplated
by or not falling within the terms of the submission
to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, that part
of the award which contains decisions on matters submitted
to arbitration may be recognized and enforced; or
(iv) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the agreement
of the parties or, failing such agreement, was not in
accordance with the law of the country where the arbitration
took place; or
(v) the award has not yet become binding on the parties
or has been set aside or suspended by a court of the
country in which, or under the law of which, that award
was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable
of settlement by arbitration under the law of this State;
or
(ii) the recognition or enforcement of the award would
be contrary to the public policy of this State.
(2) If an application for setting aside or suspension
of an award has been made to a court referred to in
paragraph (1)(a)(v) of this article, the court where
recognition or enforcement is sought may, if it considers
it proper, adjourn its decision and may also, on the
application of the party claiming recognition or enforcement
of the award, order the other party to provide appropriate
security.
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