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This is a Bill, not an Act. For current law, see the Acts databases.
INTERNATIONAL ARBITRATION AMENDMENT BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
International Arbitration Amendment
Bill 2009
No. , 2009
(Attorney-General)
A Bill for an Act to amend the law in relation to
international arbitration, and for related purposes
i International Arbitration Amendment Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
3
Schedule 1--Encouraging international arbitration
4
Part 1--Amendments
4
International Arbitration Act 1974
4
Part 2--Application
44
International Arbitration Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend the law in relation to
1
international arbitration, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the International Arbitration Amendment
5
Act 2009.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 International Arbitration Amendment Bill 2009 No. , 2009
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
items 1 to 5
The day this Act receives the Royal Assent.
3. Schedule 1,
item 6
Immediately after the commencement of
Schedule 2 to the Federal Justice System
Amendment (Efficiency Measures) Act
(No. 1) 2009.
4. Schedule 1,
item 7
The day this Act receives the Royal Assent.
5. Schedule 1,
item 8
The earlier of:
(a) the commencement of Schedule 2 to the
Federal Justice System Amendment
(Efficiency Measures) Act (No. 1) 2009;
and
(b) the day this Act receives the Royal
Assent.
6. Schedule 1,
items 9 to 12
The day this Act receives the Royal Assent.
7. Schedule 1,
item 13
The later of:
(a) the day after the commencement of
Schedule 2 to the Federal Justice System
Amendment (Efficiency Measures) Act
(No. 1) 2009; and
(b) the day this Act receives the Royal
Assent.
8. Schedule 1,
items 14 to 24
The day this Act receives the Royal Assent.
9. Schedule 1,
item 25
Immediately after the commencement of
Schedule 2 to the Federal Justice System
Amendment (Efficiency Measures) Act
(No. 1) 2009.
10. Schedule 1,
items 26 to 35
The day this Act receives the Royal Assent.
International Arbitration Amendment Bill 2009 No. , 2009 3
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Schedule 1 Encouraging international arbitration
Part 1 Amendments
4 International Arbitration Amendment Bill 2009 No. , 2009
Schedule 1--Encouraging international
1
arbitration
2
Part 1--Amendments
3
International Arbitration Act 1974
4
1 At the end of Part I
5
Add:
6
2D Objects of this Act
7
The objects of this Act are:
8
(a) to facilitate international trade and commerce by encouraging
9
the use of arbitration as a method of resolving disputes; and
10
(b) to facilitate the use of arbitration agreements made in relation
11
to international trade and commerce; and
12
(c) to facilitate the recognition and enforcement of arbitral
13
awards made in relation to international trade and commerce;
14
and
15
(d) to give effect to Australia's obligations under the Convention
16
on the Recognition and Enforcement of Foreign Arbitral
17
Awards adopted in 1958 by the United Nations Conference
18
on International Commercial Arbitration at its twenty-fourth
19
meeting; and
20
(e) to give effect to the UNCITRAL Model Law on International
21
Commercial Arbitration adopted by the United Nations
22
Commission on International Trade Law on 21 June 1985
23
and amended by the United Nations Commission on
24
International Trade Law on 7 July 2006; and
25
(f) to give effect to the Convention on the Settlement of
26
Investment Disputes between States and Nationals of Other
27
States signed by Australia on 24 March 1975.
28
2 Subsection 3(1)
29
Insert:
30
data message means information generated, sent, received or
31
stored by electronic, magnetic, optical or similar means, including,
32
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 5
but not limited to, electronic data interchange (EDI), email,
1
telegram, telex or telecopy.
2
3 Subsection 3(1)
3
Insert:
4
electronic communication means any communication made by
5
means of data messages.
6
4 At the end of section 3
7
Add:
8
(4) For the avoidance of doubt and without limiting subsection (1), an
9
agreement is in writing if:
10
(a) its content is recorded in any form whether or not the
11
agreement or the contract to which it relates has been
12
concluded orally, by conduct, or by other means; or
13
(b) it is contained in an electronic communication and the
14
information in that communication is accessible so as to be
15
usable for subsequent reference; or
16
(c) it is contained in an exchange of statements of claim and
17
defence in which the existence of an agreement is alleged by
18
one party and not denied by the other.
19
(5) For the avoidance of doubt and without limiting subsection (1), a
20
reference in a contract to any document containing an arbitration
21
clause is an arbitration agreement, provided that the reference is
22
such as to make the clause part of the contract.
23
5 Subsection 8(2)
24
Repeal the subsection, substitute:
25
(2) Subject to this Part, a foreign award may be enforced in a court of
26
a State or Territory with the leave of that court as if the award were
27
a judgment or order of that court.
28
6 Subsection 8(3)
29
Repeal the subsection, substitute:
30
(3) Subject to this Part, a foreign award may be enforced in the Federal
31
Court of Australia with the leave of that court as if the award were
32
a judgment or order of that court.
33
Schedule 1 Encouraging international arbitration
Part 1 Amendments
6 International Arbitration Amendment Bill 2009 No. , 2009
7 Before subsection 8(4)
1
Insert:
2
(3A) The court may only refuse leave to enforce the foreign award in the
3
circumstances mentioned in subsections (5) and (7).
4
8 Subsection 8(4)
5
Omit "subsections (1) and (2) do", substitute "this section does".
6
9 After subsection 8(7)
7
Insert:
8
(7A) To avoid doubt and without limiting paragraph (7)(b), the
9
enforcement of a foreign award would be contrary to public policy
10
if:
11
(a) the making of the award was induced or affected by fraud or
12
corruption; or
13
(b) a breach of the rules of natural justice occurred in connection
14
with the making of the award.
15
10 At the end of section 8
16
Add:
17
(9) A court may, if satisfied of any of the matters mentioned in
18
subsection (10), make an order for one or more of the following:
19
(a) for proceedings that have been adjourned, or that part of the
20
proceedings that has been adjourned, under subsection (8) to
21
be resumed;
22
(b) for costs against the person who made the application for the
23
setting aside or suspension of the foreign award;
24
(c) for any other order appropriate in the circumstances.
25
(10) The matters are:
26
(a) the application for the setting aside or suspension of the
27
award is not being pursued in good faith; and
28
(b) the application for the setting aside or suspension of the
29
award is not being pursued with reasonable diligence; and
30
(c) the application for the setting aside or suspension of the
31
award has been withdrawn or dismissed; and
32
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 7
(d) the continued adjournment of the proceedings is, for any
1
reason, not justified.
2
(11) An order under subsection (9) may only be made on the application
3
of a party to the proceedings that have, or a part of which has, been
4
adjourned.
5
11 Subsection 15(1)
6
Repeal the subsection, substitute:
7
(1) In this Part:
8
confidential information, in relation to arbitral proceedings, means
9
information that relates to the proceedings or to an award made in
10
the proceedings and includes:
11
(a) the statement of claim, statement of defence, and all other
12
pleadings, submissions, statements, or other information
13
supplied to the arbitral tribunal by a party to the proceedings;
14
and
15
(b) any evidence (whether documentary or other) supplied to the
16
arbitral tribunal; and
17
(c) any notes made by the arbitral tribunal of oral evidence or
18
submissions given before the arbitral tribunal; and
19
(d) any transcript of oral evidence or submissions given before
20
the arbitral tribunal; and
21
(e) any rulings of the arbitral tribunal; and
22
(f) any award of the arbitral tribunal.
23
disclose, in relation to confidential information, includes giving or
24
communicating the confidential information in any way.
25
Model Law means the UNCITRAL Model Law on International
26
Commercial Arbitration adopted by the United Nations
27
Commission on International Trade Law on 21 June 1985 and
28
amended by the United Nations Commission on International
29
Trade Law on 7 July 2006, the English text of which is set out in
30
Schedule 2.
31
12 Subsection 16(2)
32
Insert:
33
Schedule 1 Encouraging international arbitration
Part 1 Amendments
8 International Arbitration Amendment Bill 2009 No. , 2009
arbitration agreement has the meaning given in Option 1 of
1
Article 7 of the Model Law.
2
13 Section 18
3
Repeal the section, substitute:
4
18 Court or authority taken to have been specified in Article 6 of the
5
Model Law
6
(1) A court or authority prescribed for the purposes of this subsection
7
is taken to have been specified in Article 6 of the Model Law as a
8
court or authority competent to perform the functions referred to in
9
Article 11(3) of the Model Law.
10
(2) A court or authority prescribed for the purposes of this subsection
11
is taken to have been specified in Article 6 of the Model Law as a
12
court or authority competent to perform the functions referred to in
13
Article 11(4) of the Model Law.
14
(3) The following courts are taken to have been specified in Article 6
15
of the Model Law as courts competent to perform the functions
16
referred to in Articles 13(3), 14, 16(3) and 34(2) of the Model Law:
17
(a) if the place of arbitration is, or is to be, in a State--the
18
Supreme Court of that State;
19
(b) if the place of arbitration is, or is to be, in a Territory:
20
(i) the Supreme Court of that Territory; or
21
(ii) if there is no Supreme Court established in that
22
Territory--the Supreme Court of the State or Territory
23
that has jurisdiction in relation to that Territory;
24
(c) in any case--the Federal Court of Australia.
25
14 After section 18
26
Insert:
27
18A Article 12--justifiable doubts as to the impartiality or
28
independence of an arbitrator
29
(1) For the purposes of Article 12(1) of the Model Law, there are
30
justifiable doubts as to the impartiality or independence of a person
31
approached in connection with a possible appointment as arbitrator
32
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 9
only if there is a real danger of bias on the part of that person in
1
conducting the arbitration.
2
(2) For the purposes of Article 12(2) of the Model Law, there are
3
justifiable doubts as to the impartiality or independence of an
4
arbitrator only if there is a real danger of bias on the part of the
5
arbitrator in conducting the arbitration.
6
18B Article 17B--preliminary orders
7
Despite Article 17B of the Model Law:
8
(a) no party to an arbitration agreement may make an application
9
for a preliminary order directing another party not to frustrate
10
the purpose of an interim measure requested; and
11
(b) no arbitral tribunal may grant such a preliminary order.
12
15 Section 19
13
Repeal the section, substitute:
14
19 Articles 17I, 34 and 36 of Model Law--public policy
15
Without limiting the generality of Articles 17I(1)(b)(ii),
16
34(2)(b)(ii) and 36(1)(b)(ii) of the Model Law, it is declared, for
17
the avoidance of any doubt, that, for the purposes of those Articles,
18
an interim measure or award is in conflict with, or is contrary to,
19
the public policy of Australia if:
20
(a) the making of the interim measure or award was induced or
21
affected by fraud or corruption; or
22
(b) a breach of the rules of natural justice occurred in connection
23
with the making of the interim measure or award.
24
16 Section 21
25
Repeal the section, substitute:
26
21 Model law covers the field
27
If the Model Law applies to an international commercial
28
arbitration, the law of a State or Territory does not apply to that
29
arbitration.
30
17 After section 22
31
Schedule 1 Encouraging international arbitration
Part 1 Amendments
10 International Arbitration Amendment Bill 2009 No. , 2009
Insert:
1
22A Interpretation
2
In this Division:
3
court means:
4
(a) in relation to arbitral proceedings that are, or are to be,
5
conducted in a State--the Supreme Court of that State; and
6
(b) in relation to arbitral proceedings that are, or are to be,
7
conducted in a Territory:
8
(i) the Supreme Court of the Territory; or
9
(ii) if there is no Supreme Court established in that
10
Territory--the Supreme Court of the State or Territory
11
that has jurisdiction in relation to that Territory; and
12
(c) in any case--the Federal Court of Australia.
13
18 Section 23
14
Repeal the section, substitute:
15
23 Parties may obtain subpoenas
16
(1) A party to arbitral proceedings commenced in reliance on an
17
arbitration agreement may apply to a court to issue a subpoena
18
under subsection (3).
19
(2) However, this may only be done with the permission of the arbitral
20
tribunal conducting the arbitral proceedings.
21
(3) The court may, for the purposes of the arbitral proceedings, issue a
22
subpoena requiring a person to do either or both of the following:
23
(a) to attend for examination before the arbitral tribunal;
24
(b) to produce to the arbitral tribunal the documents specified in
25
the subpoena.
26
(4) A person must not be compelled under a subpoena issued under
27
subsection (3) to answer any question or produce any document
28
which that person could not be compelled to answer or produce in
29
a proceeding before that court.
30
(5) The court must not issue a subpoena under subsection (3) to a
31
person who is not a party to the arbitral proceedings unless:
32
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 11
(a) before the subpoena is issued, the person is given an
1
opportunity to make representations to the court; and
2
(b) the court is satisfied that it is reasonable in all the
3
circumstances to issue the subpoena to the person.
4
23A Failure to assist arbitral tribunal
5
(1) A party to arbitral proceedings commenced in reliance on an
6
arbitration agreement may apply to a court for an order under
7
subsection (3) if a person:
8
(a) refuses or fails to attend before the arbitral tribunal
9
conducting the arbitral proceedings for examination when
10
required to do so under a subpoena issued under subsection
11
23(3); or
12
(b) refuses or fails to attend before the arbitral tribunal when
13
required to do so by the arbitral tribunal; or
14
(c) refuses or fails to produce a document that the person is
15
required to produce under a subpoena issued under
16
subsection 23(3); or
17
(d) refuses or fails to produce a document that the person is
18
required to produce by the arbitral tribunal; or
19
(e) appearing as a witness before the arbitral tribunal:
20
(i) refuses or fails to take an oath or to make an affirmation
21
or affidavit when required by the arbitral tribunal to do
22
so; or
23
(ii) refuses or fails to answer a question that the witness is
24
required by the arbitral tribunal to answer; or
25
(f) refuses or fails to do any other thing which the arbitral
26
tribunal may require to assist the arbitral tribunal in the
27
performance of its functions.
28
(2) However, an application may only be made under paragraph (1)(b),
29
(d), (e) or (f) with the permission of the arbitral tribunal.
30
(3) The court may, for the purposes of the arbitral proceedings, order:
31
(a) the person to attend before the court for examination or to
32
produce to the court the relevant document or to do the
33
relevant thing; and
34
(b) the person, or any other person, to transmit to the arbitral
35
tribunal one or more of the following:
36
Schedule 1 Encouraging international arbitration
Part 1 Amendments
12 International Arbitration Amendment Bill 2009 No. , 2009
(i) a record of any evidence given in compliance with the
1
order;
2
(ii) any document produced in compliance with the order,
3
or a copy of the document;
4
(iii) particulars of any other thing done in compliance with
5
the order.
6
(4) A person must not be compelled under an order made under
7
subsection (3) to answer any question or produce any document
8
which that person could not be compelled to answer or produce in
9
a proceeding before that court.
10
(5) The court must not make an order under subsection (3) in relation
11
to a person who is not a party to the arbitral proceedings unless:
12
(a) before the order is made, the person is given an opportunity
13
to make representations to the court; and
14
(b) the court is satisfied that it is reasonable in all the
15
circumstances to make the order in relation to the person.
16
23B Default by party to an arbitration agreement
17
(1) This section applies if a party to arbitral proceedings commenced
18
in reliance on an arbitration agreement:
19
(a) refuses or fails to attend before an arbitral tribunal for
20
examination when required to do so under a subpoena issued
21
under subsection 23(3) (regardless of whether an application
22
is made for an order under subsection 23A(3)); or
23
(b) refuses or fails to produce a document to an arbitral tribunal
24
when required to do so under a subpoena issued under
25
subsection 23(3) (regardless of whether an application is
26
made for an order under subsection 23A(3)); or
27
(c) refuses or fails to comply with an order made by a court
28
under subsection 23A(3); or
29
(d) fails within the time specified by an arbitral tribunal, or if no
30
time is specified within a reasonable time, to comply with
31
any other requirement made by the arbitral tribunal to assist it
32
in the performance of its functions.
33
(2) The arbitral tribunal may continue with the arbitration proceedings
34
in default of appearance or of the other act and make an award on
35
the evidence before it.
36
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 13
(3) Nothing in this provision affects any other power which the arbitral
1
tribunal or a court may have in relation to the refusal or failure.
2
23C Disclosure of confidential information
3
(1) The parties to arbitral proceedings commenced in reliance on an
4
arbitration agreement must not disclose confidential information in
5
relation to the arbitral proceedings unless:
6
(a) the disclosure is allowed under section 23D; or
7
(b) the disclosure is allowed under an order made under
8
section 23E and no order is in force under section 23F
9
prohibiting that disclosure; or
10
(c) the disclosure is allowed under an order made under
11
section 23G.
12
(2) An arbitral tribunal must not disclose confidential information in
13
relation to arbitral proceedings commenced in reliance on an
14
arbitration agreement unless:
15
(a) the disclosure is allowed under section 23D; or
16
(b) the disclosure is allowed under an order made under
17
section 23E and no order is in force under section 23F
18
prohibiting that disclosure; or
19
(c) the disclosure is allowed under an order made under
20
section 23G.
21
23D Circumstances in which confidential information may be
22
disclosed
23
(1) This section sets out the circumstances in which confidential
24
information in relation to arbitral proceedings may be disclosed by:
25
(a) a party to the arbitral proceedings; or
26
(b) an arbitral tribunal.
27
(2) The information may be disclosed with the consent of all of the
28
parties to the arbitral proceedings.
29
(3) The information may be disclosed to a professional or other adviser
30
of any of the parties to the arbitral proceedings.
31
(4) The information may be disclosed if it is necessary to ensure that a
32
party to the arbitral proceedings has a full opportunity to present
33
Schedule 1 Encouraging international arbitration
Part 1 Amendments
14 International Arbitration Amendment Bill 2009 No. , 2009
the party's case and the disclosure is no more than reasonable for
1
that purpose.
2
(5) The information may be disclosed if it is necessary for the
3
establishment or protection of the legal rights of a party to the
4
arbitral proceedings in relation to a third party and the disclosure is
5
no more than reasonable for that purpose.
6
(6) The information may be disclosed if it is necessary for the purpose
7
of enforcing an arbitral award and the disclosure is no more than
8
reasonable for that purpose.
9
(7) The information may be disclosed if it is necessary for the
10
purposes of this Act, or the Model Law as in force under
11
subsection 16(1) of this Act, and the disclosure is no more than
12
reasonable for that purpose.
13
(8) The information may be disclosed if the disclosure is in accordance
14
with an order made or a subpoena issued by a court.
15
(9) The information may be disclosed if the disclosure is authorised or
16
required by another relevant law, or required by a competent
17
regulatory body, and the person making the disclosure gives
18
written details of the disclosure including an explanation of reasons
19
for the disclosure to:
20
(a) if the person is a party to the arbitral proceedings--the other
21
parties to the proceedings and the arbitral tribunal; and
22
(b) if the arbitral tribunal is making the disclosure--all the
23
parties to the proceedings.
24
(10) In subsection (9):
25
another relevant law means:
26
(a) a law of the Commonwealth, other than this Act; and
27
(b) a law of a State or Territory; and
28
(c) a law of a foreign country, or of a part of a foreign country:
29
(i) in which a party to the arbitration agreement has its
30
principal place of business; or
31
(ii) in which a substantial part of the obligations of the
32
commercial relationship are to be performed; or
33
(iii) to which the subject matter of the dispute is most
34
commonly connected.
35
Encouraging international arbitration Schedule 1
Amendments Part 1
International Arbitration Amendment Bill 2009 No. , 2009 15
23E Arbitral tribunal may allow disclosure in certain circumstances
1
(1) An arbitral tribunal may make an order allowing a party to arbitral
2
proceedings to disclose confidential information in relation to the
3
proceedings in circumstances other than those mentioned in
4
section 23D.
5
(2) An order under subsection (1) may only be made at the request of
6
one of the parties to the arbitral proceedings and after giving each
7
of the parties to the arbitral proceedings the opportunity to be
8
heard.
9
23F Court may prohibit disclosure in certain circumstances
10
(1) A court may make an order prohibiting a party to arbitral
11
proceedings from disclosing confidential information in relation to
12
the arbitral proceedings if:
13
(a) the court is satisfied in the circumstances of the particular
14
case that the public interest in preserving the confidentiality
15
of arbitral proceedings is not outweighed by other
16
considerations that render it desirable in the public interest
17
for the information to be disclosed; or
18
(b) the disclosure is more than is reasonable for that purpose.
19
(2) An order under subsection (1) may only be made on the application
20
of a party to the arbitral proceedings and after giving each of the
21
parties to the arbitral proceedings the opportunity to be heard.
22
(3) A party to arbitral proceedings may only apply for an order under
23
subsection (1) if the arbitral tribunal has made an order under
24
subsection 23E(1) allowing the disclosure of the information.
25
(4) The court may order that the confidential information not be
26
disclosed pending the outcome of the application under
27
subsection (2).
28
(5) An order under this section is final.
29
23G Court may allow disclosure in certain circumstances
30
(1) A court may make an order allowing a party to arbitral proceedings
31
to disclose confidential information in relation to the arbitral
32
Schedule 1 Encouraging international arbitration
Part 1 Amendments
16 International Arbitration Amendment Bill 2009 No. , 2009
proceedings in circumstances other than those mentioned in
1
section 23D if:
2
(a) the court is satisfied, in the circumstances of the particular
3
case, that the public interest in preserving the confidentiality
4
of arbitral proceedings is outweighed by other considerations
5
that render it desirable in the public interest for the
6
information to be disclosed; and
7
(b) the disclosure is not more than is reasonable for that purpose.
8
(2) An order under subsection (1) may only be made on the application
9
of a person who is or was a party to the arbitral proceedings and
10
after giving each person who is or was a party to the arbitral
11
proceedings the opportunity to be heard.
12
(3) A party to arbitral proceedings may only apply for an order under
13
subsection (1) if:
14
(a) the mandate of the arbitral tribunal has been terminated under
15
Article 32 of the Model Law; or
16
(b) a request by the party to the arbitral tribunal to make an order
17
under subsection 23E(1) allowing the disclosure has been
18
refused.
19
(4) An order under this section is final.
20
23H Death of a party to an arbitration agreement
21
(1) If a party to an arbitration agreement dies:
22
(a) the agreement is not discharged (either in respect of the
23
deceased or any other party); and
24
(b) the authority of an arbitral tribunal is not revoked; and
25
(c) the arbitration agreement is enforceable by or against the
26
personal representative of the deceased.
27
(2) Nothing in subsection (1) is taken to affect the operation of any
28
enactment or rule of law by virtue of which a right of action is
29
extinguished by the death of a person.
30
19 Subsection 25(1)
31
Omit "Unless the parties to an arbitration agreement have (whether in
32
the agreement or in any other document in writing) otherwise agreed,
33
where", substitute "Where".
34
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20 Section 26
1
Repeal the section, substitute:
2
26 Interest on debt under award
3
(1) This section applies if:
4
(a) an arbitral tribunal makes an award for the payment of an
5
amount of money; and
6
(b) under the award, the amount is to be paid by a particular day
7
(the due date).
8
(2) The arbitral tribunal may direct that interest, including compound
9
interest, is payable if the amount is not paid on or before the due
10
date.
11
(3) The arbitral tribunal may set a reasonable rate of interest.
12
(4) The interest is payable:
13
(a) from the day immediately following the due date; and
14
(b) on so much of the amount as remains unpaid.
15
(5) The direction is taken to form part of the award.
16
21 Subsection 27(1)
17
Omit "Unless the parties to an arbitration agreement have (whether in
18
the agreement or in any other document in writing) otherwise agreed,
19
the", substitute "The".
20
22 At the end of subsection 27(2)
21
Add:
22
; and (d) limit the amount of costs that a party is to pay to a specified
23
amount.
24
23 After subsection 27(2)
25
Insert:
26
(2A) An arbitral tribunal must, if it intends to make a direction under
27
paragraph (2)(d), give the parties to the arbitration agreement
28
notice of that intention sufficiently in advance of the incurring of
29
costs to which it relates, or the taking of any steps in the arbitral
30
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18 International Arbitration Amendment Bill 2009 No. , 2009
proceedings which may be affected by it, for the limit to be taken
1
into account.
2
24 Subsection 35(2)
3
Repeal the subsection, substitute:
4
(2) An award may be enforced in the Supreme Court of a State or
5
Territory with the leave of that court as if the award were a
6
judgment or order of that court.
7
25 Subsection 35(4)
8
Repeal the subsection, substitute:
9
(4) An award may be enforced in the Federal Court of Australia with
10
the leave of that court as if the award were a judgment or order of
11
that court.
12
26 After Part IV
13
Add:
14
Part V--Matters to which courts and other
15
authorities must have regard
16
17
39 Matters to which court must have regard
18
(1) This section applies where:
19
(a) a court is considering:
20
(i) exercising a power under section 8 to enforce a foreign
21
award; or
22
(ii) exercising the power under section 8 to refuse to enforce
23
a foreign award, including a refusal because the
24
enforcement of the award would be contrary to public
25
policy; or
26
(iii) exercising a power under Article 35 of the Model Law,
27
as in force under subsection 16(1) of this Act, to
28
recognise or enforce an arbitral award; or
29
(iv) exercising a power under Article 36 of the Model Law,
30
as in force under subsection 16(1) of this Act, to refuse
31
to recognise or enforce an arbitral award, including a
32
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refusal under Article 36(1)(b)(ii) because the
1
recognition or enforcement of the arbitral award would
2
be contrary to the public policy of Australia; or
3
(v) if, under section 18, the court is taken to have been
4
specified in Article 6 of the Model Law as a court
5
competent to perform the functions referred to in that
6
article--performing one or more of those functions; or
7
(vi) performing any other functions or exercising any other
8
powers under this Act, or the Model Law as in force
9
under subsection 16(1) of this Act; or
10
(vii) performing any function or exercising any power under
11
an agreement or award to which this Act applies; or
12
(b) a court is interpreting this Act, or the Model Law as in force
13
under subsection 16(1) of this Act; or
14
(c) a court is interpreting an agreement or award to which this
15
Act applies; or
16
(d) if, under section 18, an authority is taken to have been
17
specified in Article 6 of the Model Law as an authority
18
competent to perform the functions referred to in Articles
19
11(3) or 11(4) of the Model Law--the authority is
20
considering performing one or more of those functions.
21
(2) The court or authority must, in doing so, have regard to:
22
(a) the objects of the Act; and
23
(b) the fact that:
24
(i) arbitration is an efficient, impartial, enforceable and
25
timely method by which to resolve commercial
26
disputes; and
27
(ii) awards are intended to provide certainty and finality.
28
(3) In this section:
29
arbitral award has the same meaning as in the Model Law.
30
foreign award has the same meaning as in Part II.
31
Model Law has the same meaning as in Part III.
32
27 Schedule 2
33
Repeal the Schedule, substitute:
34
Schedule 1 Encouraging international arbitration
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20 International Arbitration Amendment Bill 2009 No. , 2009
Schedule 2--UNCITRAL Model Law on
1
International Commercial Arbitration
2
(As adopted by the United Nations
3
Commission on International Trade
4
Law on 21 June 1985, and as amended
5
by the United Nations Commission on
6
International Trade Law on 7 July
7
2006)
8
Note:
See subsection 15(1).
9
10
CHAPTER I. GENERAL PROVISIONS
11
Article 1. Scope of application
1
12
(1)
This Law applies to international commercial
2
arbitration, subject to any
13
agreement in force between this State and any other State or States.
14
(2)
The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35 and
15
36, apply only if the place of arbitration is in the territory of this State.
16
17
(Article 1(2) has been amended by the Commission at its thirty-ninth session, in 2006)
18
(3)
An arbitration is international if:
19
(a) the parties to an arbitration agreement have, at the time of the
20
conclusion of that agreement, their places of business in different States; or
21
(b)
one of the following places is situated outside the State in
22
which the parties have their places of business:
23
(i)
the place of arbitration if determined in, or pursuant to,
24
the arbitration agreement;
25
(ii)
any place where a substantial part of the obligations of
26
the commercial relationship is to be performed or the
27
place with which the subject-matter of the dispute is
28
most closely connected; or
29
(c)
the parties have expressly agreed that the subject matter of the
30
arbitration agreement relates to more than one country.
31
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(4)
For the purposes of paragraph (3) of this article:
1
(a) if a party has more than one place of business, the place of
2
business is that which has the closest relationship to the arbitration agreement;
3
(b) if a party does not have a place of business, reference is to be
4
made to his habitual residence.
5
(5)
This Law shall not affect any other law of this State by virtue of which
6
certain disputes may not be submitted to arbitration or may be submitted to
7
arbitration only according to provisions other than those of this Law.
8
9
Article 2. Definitions and rules of interpretation
10
For the purposes of this Law:
11
(a) "arbitration" means any arbitration whether or not administered
12
by a permanent arbitral institution;
13
(b) "arbitral tribunal" means a sole arbitrator or a panel of
14
arbitrators;
15
(c)
"court" means a body or organ of the judicial system of a State;
16
(d) where a provision of this Law, except article 28, leaves the
17
parties free to determine a certain issue, such freedom includes the right of the
18
parties to authorize a third party, including an institution, to make that
19
determination;
20
(e)
where a provision of this Law refers to the fact that the parties
21
have agreed or that they may agree or in any other way refers to an agreement
22
of the parties, such agreement includes any arbitration rules referred to in that
23
agreement;
24
(f)
where a provision of this Law, other than in articles 25(a) and
25
32(2) (a), refers to a claim, it also applies to a counter-claim, and where it refers
26
to a defence, it also applies to a defence to such counter-claim.
27
28
Article 2 A. International origin and general principles
29
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22 International Arbitration Amendment Bill 2009 No. , 2009
(As adopted by the Commission at its thirty-ninth session, in 2006)
1
(1)
In the interpretation of this Law, regard is to be had to its international
2
origin and to the need to promote uniformity in its application and the
3
observance of good faith.
4
(2)
Questions concerning matters governed by this Law which are not
5
expressly settled in it are to be settled in conformity with the general principles
6
on which this Law is based.
7
8
Article 3. Receipt of written communications
9
(1)
Unless otherwise agreed by the parties:
10
(a) any written communication is deemed to have been received if
11
it is delivered to the addressee personally or if it is delivered at his place of
12
business, habitual residence or mailing address; if none of these can be found
13
after making a reasonable inquiry, a written communication is deemed to have
14
been received if it is sent to the addressee's last-known place of business,
15
habitual residence or mailing address by registered letter or any other means
16
which provides a record of the attempt to deliver it;
17
(b) the communication is deemed to have been received on the day
18
it is so delivered.
19
(2)
The provisions of this article do not apply to communications in court
20
proceedings.
21
22
Article 4. Waiver of right to object
23
A party who knows that any provision of this Law from which the parties may
24
derogate or any requirement under the arbitration agreement has not been
25
complied with and yet proceeds with the arbitration without stating his
26
objection to such non-compliance without undue delay or, if a time-limit is
27
provided therefor, within such period of time, shall be deemed to have waived
28
his right to object.
29
30
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Article 5. Extent of court intervention
1
In matters governed by this Law, no court shall intervene except where so
2
provided in this Law.
3
4
Article 6. Court or other authority for certain functions
5
of arbitration assistance and supervision
6
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2)
7
shall be performed by ... [Each State enacting this model law specifies the court,
8
courts or, where referred to therein, other authority competent to perform these
9
functions.]
10
11
12
CHAPTER II. ARBITRATION AGREEMENT
13
14
Option I
15
Article 7. Definition and form of arbitration agreement
16
(As adopted by the Commission at its thirty-ninth session, in 2006)
17
(1)
"Arbitration agreement" is an agreement by the parties to submit to
18
arbitration all or certain disputes which have arisen or which may arise between
19
them in respect of a defined legal relationship, whether contractual or not. An
20
arbitration agreement may be in the form of an arbitration clause in a contract or
21
in the form of a separate agreement.
22
(2)
The arbitration agreement shall be in writing.
23
(3)
An arbitration agreement is in writing if its content is recorded in any
24
form, whether or not the arbitration agreement or contract has been concluded
25
orally, by conduct, or by other means.
26
(4)
The requirement that an arbitration agreement be in writing is met by an
27
electronic communication if the information contained therein is accessible so
28
as to be useable for subsequent reference; "electronic communication" means
29
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any communication that the parties make by means of data messages; "data
1
message" means information generated, sent, received or stored by electronic,
2
magnetic, optical or similar means, including, but not limited to, electronic data
3
interchange (EDI), electronic mail, telegram, telexor telecopy.
4
(5)
Furthermore, an arbitration agreement is in writing if it is contained in
5
an exchange of statements of claim and defence in which the existence of an
6
agreement is alleged by one party and not denied by the other.
7
(6)
The reference in a contract to any document containing an arbitration
8
clause constitutes an arbitration agreement in writing, provided that the
9
reference is such as to make that clause part of the contract.
10
11
Option II
12
Article 7. Definition of arbitration agreement
13
(As adopted by the Commission at its thirty-ninth session, in 2006)
14
15
"Arbitration agreement" is an agreement by the parties to submit to arbitration
16
all or certain disputes which have arisen or which may arise between them in
17
respect of a defined legal relationship, whether contractual or not.
18
19
Article 8. Arbitration agreement and substantive claim before court
20
(1)
A court before which an action is brought in a matter which is the
21
subject of an arbitration agreement shall, if a party so requests not later than
22
when submitting his first statement on the substance of the dispute, refer the
23
parties to arbitration unless it finds that the agreement is null and void,
24
inoperative or incapable of being performed.
25
(2)
Where an action referred to in paragraph (1) of this article has been
26
brought, arbitral proceedings may nevertheless be commenced or continued,
27
and an award may be made, while the issue is pending before the court.
28
29
Article 9. Arbitration agreement and interim measures by court
30
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It is not incompatible with an arbitration agreement for a party to request, before
1
or during arbitral proceedings, from a court an interim measure of protection
2
and for a court to grant such measure.
3
4
5
6
CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL
7
Article 10. Number of arbitrators
8
(1)
The parties are free to determine the number of arbitrators.
9
(2)
Failing such determination, the number of arbitrators shall be three.
10
11
Article 11. Appointment of arbitrators
12
(1)
No person shall be precluded by reason of his nationality from acting as
13
an arbitrator, unless otherwise agreed by the parties.
14
(2)
The parties are free to agree on a procedure of appointing the arbitrator
15
or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
16
(3)
Failing such agreement,
17
(a) in an arbitration with three arbitrators, each party shall appoint
18
one arbitrator, and the two arbitrators thus appointed shall appoint the third
19
arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of
20
a request to do so from the other party, or if the two arbitrators fail to agree on
21
the third arbitrator within thirty days of their appointment, the appointment shall
22
be made, upon request of a party, by the court or other authority specified in
23
article 6;
24
(b) in an arbitration with a sole arbitrator, if the parties are unable
25
to agree on the arbitrator, he shall be appointed, upon request of a party, by the
26
court or other authority specified in article 6.
27
(4)
Where, under an appointment procedure agreed upon by the parties,
28
(a) a party fails to act as required under such procedure, or
29
(b) the parties, or two arbitrators, are unable to reach an agreement
30
expected of them under such procedure, or
31
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(c)
a third party, including an institution, fails to perform any
1
function entrusted to it under such procedure,
2
any party may request the court or other authority specified in article 6 to take
3
the necessary measure, unless the agreement on the appointment procedure
4
provides other means for securing the appointment.
5
(5)
A decision on a matter entrusted by paragraph (3) or (4) of this article to
6
the court or other authority specified in article 6 shall be subject to no appeal.
7
The court or other authority, in appointing an arbitrator, shall have due regard to
8
any qualifications required of the arbitrator by the agreement of the parties and
9
to such considerations as are likely to secure the appointment of an independent
10
and impartial arbitrator and, in the case of a sole or third arbitrator, shall take
11
into account as well the advisability of appointing an arbitrator of a nationality
12
other than those of the parties.
13
14
Article 12. Grounds for challenge
15
(1)
When a person is approached in connection with his possible
16
appointment as an arbitrator, he shall disclose any circumstances likely to give
17
rise to justifiable doubts as to his impartiality or independence. An arbitrator,
18
from the time of his appointment and throughout the arbitral proceedings, shall
19
without delay disclose any such circumstances to the parties unless they have
20
already been informed of them by him.
21
(2)
An arbitrator may be challenged only if circumstances exist that give
22
rise to justifiable doubts as to his impartiality or independence, or if he does not
23
possess qualifications agreed to by the parties. A party may challenge an
24
arbitrator appointed by him, or in whose appointment he has participated, only
25
for reasons of which he becomes aware after the appointment has been made.
26
27
Article 13. Challenge procedure
28
(1)
The parties are free to agree on a procedure for challenging an
29
arbitrator, subject to the provisions of paragraph (3) of this article.
30
(2)
Failing such agreement, a party who intends to challenge an arbitrator
31
shall, within fifteen days after becoming aware of the constitution of the arbitral
32
tribunal or after becoming aware of any circumstance referred to in article
33
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12(2), send a written statement of the reasons for the challenge to the arbitral
1
tribunal. Unless the challenged arbitrator withdraws from his office or the other
2
party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
3
(3)
If a challenge under any procedure agreed upon by the parties or under
4
the procedure of paragraph (2) of this article is not successful, the challenging
5
party may request, within thirty days after having received notice of the
6
decision rejecting the challenge, the court or other authority specified in article
7
6 to decide on the challenge, which decision shall be subject to no appeal; while
8
such a request is pending, the arbitral tribunal, including the challenged
9
arbitrator, may continue the arbitral proceedings and make an award.
10
11
Article 14. Failure or impossibility to act
12
(1)
If an arbitrator becomes de jure or de facto unable to perform his
13
functions or for other reasons fails to act without undue delay, his mandate
14
terminates if he withdraws from his office or if the parties agree on the
15
termination. Otherwise, if a controversy remains concerning any of these
16
grounds, any party may request the court or other authority specified in article 6
17
to decide on the termination of the mandate, which decision shall be subject to
18
no appeal.
19
(2)
If, under this article or article 13(2), an arbitrator withdraws from his
20
office or a party agrees to the termination of the mandate of an arbitrator, this
21
does not imply acceptance of the validity of any ground referred to in this article
22
or article 12(2).
23
24
Article 15. Appointment of substitute arbitrator
25
Where the mandate of an arbitrator terminates under article 13 or 14 or because
26
of his withdrawal from office for any other reason or because of the revocation
27
of his mandate by agreement of the parties or in any other case of termination of
28
his mandate, a substitute arbitrator shall be appointed according to the rules that
29
were applicable to the appointment of the arbitrator being replaced.
30
31
32
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28 International Arbitration Amendment Bill 2009 No. , 2009
CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL
1
Article 16. Competence of arbitral tribunal to rule on its jurisdiction
2
(1)
The arbitral tribunal may rule on its own jurisdiction, including any
3
objections with respect to the existence or validity of the arbitration agreement.
4
For that purpose, an arbitration clause which forms part of a contract shall be
5
treated as an agreement independent of the other terms of the contract. A
6
decision by the arbitral tribunal that the contract is null and void shall not entail
7
ipso jure the invalidity of the arbitration clause.
8
(2)
A plea that the arbitral tribunal does not have jurisdiction shall be raised
9
not later than the submission of the statement of defence. A party is not
10
precluded from raising such a plea by the fact that he has appointed, or
11
participated in the appointment of, an arbitrator. A plea that the arbitral tribunal
12
is exceeding the scope of its authority shall be raised as soon as the matter
13
alleged to be beyond the scope of its authority is raised during the arbitral
14
proceedings. The arbitral tribunal may, in either case, admit a later plea if it
15
considers the delay justified.
16
(3)
The arbitral tribunal may rule on a plea referred to in paragraph (2) of
17
this article either as a preliminary question or in an award on the merits. If the
18
arbitral tribunal rules as a preliminary question that it has jurisdiction, any party
19
may request, within thirty days after having received notice of that ruling, the
20
court specified in article 6 to decide the matter, which decision shall be subject
21
to no appeal; while such a request is pending, the arbitral tribunal may continue
22
the arbitral proceedings and make an award.
23
24
25
26
CHAPTER IV A. INTERIM MEASURES
27
AND PRELIMINARY ORDERS
28
29
(As adopted by the Commission at its thirty-ninth session, in 2006)
30
31
Section 1. Interim measures
32
Article 17. Power of arbitral tribunal to order interim measures
33
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(1)
Unless otherwise agreed by the parties, the arbitral tribunal may, at the
1
request of a party, grant interim measures.
2
(2)
An interim measure is any temporary measure, whether in the form of
3
an award or in another form, by which, at any time prior to the issuance of the
4
award by which the dispute is finally decided, the arbitral tribunal orders a party
5
to:
6
(a) Maintain or restore the status quo pending determination of the
7
dispute;
8
(b) Take action that would prevent, or refrain from taking action
9
that is likely to cause, current or imminent harm or prejudice to the arbitral
10
process itself;
11
(c)
Provide a means of preserving assets out of which a subsequent
12
award may be satisfied; or
13
(d) Preserve evidence that may be relevant and material to the
14
resolution of the dispute.
15
16
Article 17 A. Conditions for granting interim measures
17
(1)
The party requesting an interim measure under article 17(2)(a), (b) and
18
(c) shall satisfy the arbitral tribunal that:
19
(a) Harm not adequately reparable by an award of damages is
20
likely to result if the measure is not ordered, and such harm substantially
21
outweighs the harm that is likely to result to the party against whom the
22
measure is directed if the measure is granted; and
23
(b) There is a reasonable possibility that the requesting party will
24
succeed on the merits of the claim. The determination on this possibility shall
25
not affect the discretion of the arbitral tribunal in making any subsequent
26
determination.
27
(2)
With regard to a request for an interim measure under article 17(2)(d),
28
the requirements in paragraphs (1)(a) and (b) of this article shall apply only to
29
the extent the arbitral tribunal considers appropriate.
30
31
Section 2. Preliminary orders
32
Article 17 B. Applications for preliminary orders and
33
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30 International Arbitration Amendment Bill 2009 No. , 2009
conditions for granting preliminary orders
1
(1)
Unless otherwise agreed by the parties, a party may, without notice to
2
any other party, make a request for an interim measure together with an
3
application for a preliminary order directing a party not to frustrate the purpose
4
of the interim measure requested.
5
(2)
The arbitral tribunal may grant a preliminary order provided it considers
6
that prior disclosure of the request for the interim measure to the party against
7
whom it is directed risks frustrating the purpose of the measure.
8
(3)
The conditions defined under article 17A apply to any preliminary
9
order, provided that the harm to be assessed under article 17A(1)(a), is the harm
10
likely to result from the order being granted or not.
11
12
Article 17 C. Specific regime for preliminary orders
13
(1)
Immediately after the arbitral tribunal has made a determination in
14
respect of an application for a preliminary order, the arbitral tribunal shall give
15
notice to all parties of the request for the interim measure, the application for
16
the preliminary order, the preliminary order, if any, and all other
17
communications, including by indicating the content of any oral
18
communication, between any party and the arbitral tribunal in relation thereto.
19
(2)
At the same time, the arbitral tribunal shall give an opportunity to any
20
party against whom a preliminary order is directed to present its case at the
21
earliest practicable time.
22
(3)
The arbitral tribunal shall decide promptly on any objection to the
23
preliminary order.
24
(4)
A preliminary order shall expire after twenty days from the date on
25
which it was issued by the arbitral tribunal. However, the arbitral tribunal may
26
issue an interim measure adopting or modifying the preliminary order, after the
27
party against whom the preliminary order is directed has been given notice and
28
an opportunity to present its case.
29
(5)
A preliminary order shall be binding on the parties but shall not be
30
subject to enforcement by a court. Such a preliminary order does not constitute
31
an award.
32
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1
2
3
4
Section 3. Provisions applicable to interim measures
5
and preliminary orders
6
Article 17 D. Modification, suspension, termination
7
The arbitral tribunal may modify, suspend or terminate an interim
8
measure or a preliminary order it has granted, upon application of any party or,
9
in exceptional circumstances and upon prior notice to the parties, on the arbitral
10
tribunal's own initiative.
11
12
Article 17 E. Provision of security
13
(1)
The arbitral tribunal may require the party requesting an interim
14
measure to provide appropriate security in connection with the measure.
15
(2)
The arbitral tribunal shall require the party applying for a preliminary
16
order to provide security in connection with the order unless the arbitral tribunal
17
considers it inappropriate or unnecessary to do so.
18
19
Article 17 F. Disclosure
20
(1)
The arbitral tribunal may require any party promptly to disclose any
21
material change in the circumstances on the basis of which the measure was
22
requested or granted.
23
(2)
The party applying for a preliminary order shall disclose to the arbitral
24
tribunal all circumstances that are likely to be relevant to the arbitral tribunal's
25
determination whether to grant or maintain the order, and such obligation shall
26
continue until the party against whom the order has been requested has had an
27
opportunity to present its case. Thereafter, paragraph (1) of this article shall
28
apply.
29
30
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32 International Arbitration Amendment Bill 2009 No. , 2009
Article 17 G. Costs and damages
1
The party requesting an interim measure or applying for a preliminary
2
order shall be liable for any costs and damages caused by the measure or the
3
order to any party if the arbitral tribunal later determines that, in the
4
circumstances, the measure or the order should not have been granted. The
5
arbitral tribunal may award such costs and damages at any point during the
6
proceedings.
7
8
9
10
11
Section 4. Recognition and enforcement of interim measures
12
Article 17 H. Recognition and enforcement
13
(1)
An interim measure issued by an arbitral tribunal shall be recognized as
14
binding and, unless otherwise provided by the arbitral tribunal, enforced upon
15
application to the competent court, irrespective of the country in which it was
16
issued, subject to the provisions of article 17 I.
17
(2)
The party who is seeking or has obtained recognition or enforcement of
18
an interim measure shall promptly inform the court of any termination,
19
suspension or modification of that interim measure.
20
(3)
The court of the State where recognition or enforcement is sought may,
21
if it considers it proper, order the requesting party to provide appropriate
22
security if the arbitral tribunal has not already made a determination with
23
respect to security or where such a decision is necessary to protect the rights of
24
third parties.
25
26
Article 17 I. Grounds for refusing recognition or enforcement
3
27
(1)
Recognition or enforcement of an interim measure may be refused only:
28
(a) At the request of the party against whom it is invoked if the
29
court is satisfied that:
30
(i)
Such refusal is warranted on the grounds set forth in
31
article 36(1)(a)(i), (ii), (iii) or (iv); or
32
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(ii)
The arbitral tribunal's decision with respect to the
1
provision of security in connection with the interim
2
measure issued by the arbitral tribunal has not been
3
complied with; or
4
(iii)
The interim measure has been terminated or suspended
5
by the arbitral tribunal or, where so empowered, by the
6
court of the State in which the arbitration takes place or
7
under the law of which that interim measure was
8
granted; or
9
(b) If the court finds that:
10
(i)
The interim measure is incompatible with the powers
11
conferred upon the court unless the court decides to
12
reformulate the interim measure to the extent necessary
13
to adapt it to its own powers and procedures for the
14
purposes of enforcing that interim measure and without
15
modifying its substance; or
16
(ii)
Any of the grounds set forth in article 36(1)(b)(i) or (ii),
17
apply to the recognition and enforcement of the interim
18
measure.
19
(2)
Any determination made by the court on any ground in paragraph (1) of
20
this article shall be effective only for the purposes of the application to
21
recognize and enforce the interim measure. The court where recognition or
22
enforcement is sought shall not, in making that determination, undertake a
23
review of the substance of the interim measure.
24
25
Section 5. Court-ordered interim measures
26
Article 17 J. Court-ordered interim measures
27
A court shall have the same power of issuing an interim measure in
28
relation to arbitration proceedings, irrespective of whether their place is in the
29
territory of this State, as it has in relation to proceedings in courts. The court
30
shall exercise such power in accordance with its own procedures in
31
consideration of the specific features of international arbitration.
32
33
34
CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS
35
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Article 18. Equal treatment of parties
1
The parties shall be treated with equality and each party shall be given a full
2
opportunity of presenting his case.
3
4
Article 19. Determination of rules of procedure
5
(1)
Subject to the provisions of this Law, the parties are free to agree on the
6
procedure to be followed by the arbitral tribunal in conducting the proceedings.
7
(2)
Failing such agreement, the arbitral tribunal may, subject to the
8
provisions of this Law, conduct the arbitration in such manner as it considers
9
appropriate. The power conferred upon the arbitral tribunal includes the power
10
to determine the admissibility, relevance, materiality and weight of any
11
evidence.
12
13
Article 20. Place of arbitration
14
(1)
The parties are free to agree on the place of arbitration. Failing such
15
agreement, the place of arbitration shall be determined by the arbitral tribunal
16
having regard to the circumstances of the case, including the convenience of the
17
parties.
18
(2)
Notwithstanding the provisions of paragraph (1) of this article, the
19
arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it
20
considers appropriate for consultation among its members, for hearing
21
witnesses, experts or the parties, or for inspection of goods, other property or
22
documents.
23
24
Article 21. Commencement of arbitral proceedings
25
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
26
particular dispute commence on the date on which a request for that dispute to
27
be referred to arbitration is received by the respondent.
28
29
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Article 22. Language
1
(1)
The parties are free to agree on the language or languages to be used in
2
the arbitral proceedings. Failing such agreement, the arbitral tribunal shall
3
determine the language or languages to be used in the proceedings. This
4
agreement or determination, unless otherwise specified therein, shall apply to
5
any written statement by a party, any hearing and any award, decision or other
6
communication by the arbitral tribunal.
7
(2)
The arbitral tribunal may order that any documentary evidence shall be
8
accompanied by a translation into the language or languages agreed upon by the
9
parties or determined by the arbitral tribunal.
10
11
Article 23. Statements of claim and defence
12
(1)
Within the period of time agreed by the parties or determined by the
13
arbitral tribunal, the claimant shall state the facts supporting his claim, the
14
points at issue and the relief or remedy sought, and the respondent shall state his
15
defence in respect of these particulars, unless the parties have otherwise agreed
16
as to the required elements of such statements. The parties may submit with
17
their statements all documents they consider to be relevant or may add a
18
reference to the documents or other evidence they will submit.
19
(2)
Unless otherwise agreed by the parties, either party may amend or
20
supplement his claim or defence during the course of the arbitral proceedings,
21
unless the arbitral tribunal considers it inappropriate to allow such amendment
22
having regard to the delay in making it.
23
24
Article 24. Hearings and written proceedings
25
(1)
Subject to any contrary agreement by the parties, the arbitral tribunal
26
shall decide whether to hold oral hearings for the presentation of evidence or for
27
oral argument, or whether the proceedings shall be conducted on the basis of
28
documents and other materials. However, unless the parties have agreed that no
29
hearings shall be held, the arbitral tribunal shall hold such hearings at an
30
appropriate stage of the proceedings, if so requested by a party.
31
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36 International Arbitration Amendment Bill 2009 No. , 2009
(2)
The parties shall be given sufficient advance notice of any hearing and
1
of any meeting of the arbitral tribunal for the purposes of inspection of goods,
2
other property or documents.
3
(3)
All statements, documents or other information supplied to the arbitral
4
tribunal by one party shall be communicated to the other party. Also any expert
5
report or evidentiary document on which the arbitral tribunal may rely in
6
making its decision shall be communicated to the parties.
7
8
Article 25. Default of a party
9
Unless otherwise agreed by the parties, if, without showing sufficient cause,
10
(a) the claimant fails to communicate his statement of claim in
11
accordance with article 23(1), the arbitral tribunal shall terminate the
12
proceedings;
13
(b) the respondent fails to communicate his statement of defence in
14
accordance with article 23(1), the arbitral tribunal shall continue the
15
proceedings without treating such failure in itself as an admission of the
16
claimant's allegations;
17
(c)
any party fails to appear at a hearing or to produce documentary
18
evidence, the arbitral tribunal may continue the proceedings and make the
19
award on the evidence before it.
20
21
Article 26. Expert appointed by arbitral tribunal
22
(1)
Unless otherwise agreed by the parties, the arbitral tribunal
23
(a) may appoint one or more experts to report to it on specific
24
issues to be determined by the arbitral tribunal;
25
(b) may require a party to give the expert any relevant information
26
or to produce, or to provide access to, any relevant documents, goods or other
27
property for his inspection.
28
(2)
Unless otherwise agreed by the parties, if a party so requests or if the
29
arbitral tribunal considers it necessary, the expert shall, after delivery of his
30
written or oral report, participate in a hearing where the parties have the
31
Encouraging international arbitration Schedule 1
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opportunity to put questions to him and to present expert witnesses in order to
1
testify on the points at issue.
2
3
Article 27. Court assistance in taking evidence
4
The arbitral tribunal or a party with the approval of the arbitral tribunal may
5
request from a competent court of this State assistance in taking evidence. The
6
court may execute the request within its competence and according to its rules
7
on taking evidence.
8
9
10
CHAPTER VI. MAKING OF AWARD AND
11
TERMINATION OF PROCEEDINGS
12
Article 28. Rules applicable to substance of dispute
13
(1)
The arbitral tribunal shall decide the dispute in accordance with such
14
rules of law as are chosen by the parties as applicable to the substance of the
15
dispute. Any designation of the law or legal system of a given State shall be
16
construed, unless otherwise expressed, as directly referring to the substantive
17
law of that State and not to its conflict of laws rules.
18
(2)
Failing any designation by the parties, the arbitral tribunal shall apply
19
the law determined by the conflict of laws rules which it considers applicable.
20
(3)
The arbitral tribunal shall decide ex aequo et bono or as amiable
21
compositeur only if the parties have expressly authorized it to do so.
22
(4)
In all cases, the arbitral tribunal shall decide in accordance with the
23
terms of the contract and shall take into account the usages of the trade
24
applicable to the transaction.
25
26
Article 29. Decision-making by panel of arbitrators
27
In arbitral proceedings with more than one arbitrator, any decision of the
28
arbitral tribunal shall be made, unless otherwise agreed by the parties, by a
29
majority of all its members. However, questions of procedure may be decided
30
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by a presiding arbitrator, if so authorized by the parties or all members of the
1
arbitral tribunal.
2
3
Article 30. Settlement
4
(1)
If, during arbitral proceedings, the parties settle the dispute, the arbitral
5
tribunal shall terminate the proceedings and, if requested by the parties and not
6
objected to by the arbitral tribunal, record the settlement in the form of an
7
arbitral award on agreed terms.
8
(2)
An award on agreed terms shall be made in accordance with the
9
provisions of article 31 and shall state that it is an award. Such an award has the
10
same status and effect as any other award on the merits of the case.
11
12
Article 31. Form and contents of award
13
(1)
The award shall be made in writing and shall be signed by the arbitrator
14
or arbitrators. In arbitral proceedings with more than one arbitrator, the
15
signatures of the majority of all members of the arbitral tribunal shall suffice,
16
provided that the reason for any omitted signature is stated.
17
(2)
The award shall state the reasons upon which it is based, unless the
18
parties have agreed that no reasons are to be given or the award is an award on
19
agreed terms under article 30.
20
(3)
The award shall state its date and the place of arbitration as determined
21
in accordance with article 20(1). The award shall be deemed to have been made
22
at that place.
23
(4)
After the award is made, a copy signed by the arbitrators in accordance
24
with paragraph (1) of this article shall be delivered to each party.
25
26
Article 32. Termination of proceedings
27
(1)
The arbitral proceedings are terminated by the final award or by an
28
order of the arbitral tribunal in accordance with paragraph (2) of this article.
29
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(2)
The arbitral tribunal shall issue an order for the termination of the
1
arbitral proceedings when:
2
(a) the claimant withdraws his claim, unless the respondent objects
3
thereto and the arbitral tribunal recognizes a legitimate interest on his part in
4
obtaining a final settlement of the dispute;
5
(b) the parties agree on the termination of the proceedings;
6
(c)
the arbitral tribunal finds that the continuation of the
7
proceedings has for any other reason become unnecessary or impossible.
8
(3)
The mandate of the arbitral tribunal terminates with the termination of
9
the arbitral proceedings, subject to the provisions of articles 33 and 34(4).
10
11
Article 33. Correction and interpretation of award; additional award
12
(1)
Within thirty days of receipt of the award, unless another period of time
13
has been agreed upon by the parties:
14
(a) a party, with notice to the other party, may request the arbitral
15
tribunal to correct in the award any errors in computation, any clerical or
16
typographical errors or any errors of similar nature;
17
(b) if so agreed by the parties, a party, with notice to the other
18
party, may request the arbitral tribunal to give an interpretation of a specific
19
point or part of the award.
20
If the arbitral tribunal considers the request to be justified, it shall make the
21
correction or give the interpretation within thirty days of receipt of the request.
22
The interpretation shall form part of the award.
23
(2)
The arbitral tribunal may correct any error of the type referred to in
24
paragraph (1)(a) of this article on its own initiative within thirty days of the date
25
of the award.
26
(3)
Unless otherwise agreed by the parties, a party, with notice to the other
27
party, may request, within thirty days of receipt of the award, the arbitral
28
tribunal to make an additional award as to claims presented in the arbitral
29
proceedings but omitted from the award. If the arbitral tribunal considers the
30
request to be justified, it shall make the additional award within sixty days.
31
Schedule 1 Encouraging international arbitration
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40 International Arbitration Amendment Bill 2009 No. , 2009
(4)
The arbitral tribunal may extend, if necessary, the period of time within
1
which it shall make a correction, interpretation or an additional award under
2
paragraph (1) or (3) of this article.
3
(5)
The provisions of article 31 shall apply to a correction or interpretation
4
of the award or to an additional award.
5
6
7
8
CHAPTER VII. RECOURSE AGAINST AWARD
9
Article 34. Application for setting aside as exclusive
10
recourse against arbitral award
11
(1)
Recourse to a court against an arbitral award may be made only by an
12
application for setting aside in accordance with paragraphs (2) and (3) of this
13
article.
14
(2)
An arbitral award may be set aside by the court specified in article 6
15
only if:
16
(a) the party making the application furnishes proof that:
17
(i)
a party to the arbitration agreement referred to in article
18
7 was under some incapacity; or the said agreement is
19
not valid under the law to which the parties have
20
subjected it or, failing any indication thereon, under the
21
law of this State; or
22
(ii)
the party making the application was not given proper
23
notice of the appointment of an arbitrator or of the
24
arbitral proceedings or was otherwise unable to present
25
his case; or
26
(iii)
the award deals with a dispute not contemplated by or
27
not falling within the terms of the submission to
28
arbitration, or contains decisions on matters beyond the
29
scope of the submission to arbitration, provided that, if
30
the decisions on matters submitted to arbitration can be
31
separated from those not so submitted, only that part of
32
the award which contains decisions on matters not
33
submitted to arbitration may be set aside; or
34
Encouraging international arbitration Schedule 1
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(iv)
the composition of the arbitral tribunal or the arbitral
1
procedure was not in accordance with the agreement of
2
the parties, unless such agreement was in conflict with a
3
provision of this Law from which the parties cannot
4
derogate, or, failing such agreement, was not in
5
accordance with this Law; or
6
(b) the court finds that:
7
(i)
the subject-matter of the dispute is not capable of
8
settlement by arbitration under the law of this State; or
9
(ii)
the award is in conflict with the public policy of this
10
State.
11
(3)
An application for setting aside may not be made after three months
12
have elapsed from the date on which the party making that application had
13
received the award or, if a request had been made under article 33, from the date
14
on which that request had been disposed of by the arbitral tribunal.
15
(4)
The court, when asked to set aside an award, may, where appropriate
16
and so requested by a party, suspend the setting aside proceedings for a period
17
of time determined by it in order to give the arbitral tribunal an opportunity to
18
resume the arbitral proceedings or to take such other action as in the arbitral
19
tribunal's opinion will eliminate the grounds for setting aside.
20
21
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF
22
AWARDS
23
Article 35. Recognition and enforcement
24
(1)
An arbitral award, irrespective of the country in which it was made,
25
shall be recognized as binding and, upon application in writing to the competent
26
court, shall be enforced subject to the provisions of this article and of article 36.
27
(2)
The party relying on an award or applying for its enforcement shall
28
supply the original award or a copy thereof. If the award is not made in an
29
official language of this State, the court may request the party to supply a
30
translation thereof into such language.
4
31
(Article 35(2) has been amended by the Commission at its thirty-ninth session, in 2006)
32
Schedule 1 Encouraging international arbitration
Part 1 Amendments
42 International Arbitration Amendment Bill 2009 No. , 2009
1
Article 36. Grounds for refusing recognition or enforcement
2
(1)
Recognition or enforcement of an arbitral award, irrespective of the
3
country in which it was made, may be refused only:
4
(a) at the request of the party against whom it is invoked, if that
5
party furnishes to the competent court where recognition or enforcement is
6
sought proof that:
7
(i)
a party to the arbitration agreement referred to in article
8
7 was under some incapacity; or the said agreement is
9
not valid under the law to which the parties have
10
subjected it or, failing any indication thereon, under the
11
law of the country where the award was made; or
12
(ii)
the party against whom the award is invoked was not
13
given proper notice of the appointment of an arbitrator
14
or of the arbitral proceedings or was otherwise unable
15
to present his case; or
16
(iii)
the award deals with a dispute not contemplated by or
17
not falling within the terms of the submission to
18
arbitration, or it contains decisions on matters beyond
19
the scope of the submission to arbitration, provided that,
20
if the decisions on matters submitted to arbitration can
21
be separated from those not so submitted, that part of
22
the award which contains decisions on matters
23
submitted to arbitration may be recognized and
24
enforced; or
25
(iv)
the composition of the arbitral tribunal or the arbitral
26
procedure was not in accordance with the agreement of
27
the parties or, failing such agreement, was not in
28
accordance with the law of the country where the
29
arbitration took place; or
30
(v)
the award has not yet become binding on the parties or
31
has been set aside or suspended by a court of the
32
country in which, or under the law of which, that award
33
was made; or
34
(b) if the court finds that:
35
Encouraging international arbitration Schedule 1
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(i)
the subject-matter of the dispute is not capable of
1
settlement by arbitration under the law of this State; or
2
(ii)
the recognition or enforcement of the award would be
3
contrary to the public policy of this State.
4
(2)
If an application for setting aside or suspension of an award has been
5
made to a court referred to in paragraph (1)(a)(v) of this article, the court where
6
recognition or enforcement is sought may, if it considers it proper, adjourn its
7
decision and may also, on the application of the party claiming recognition or
8
enforcement of the award, order the other party to provide appropriate security.
9
10
1
Article headings are for reference purposes only and are not to be used for purposes of
11
interpretation.
12
2
The term "commercial" should be given a wide interpretation so as to cover matters arising from
13
all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature
14
include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of
15
goods or services; distribution agreement; commercial representation or agency; factoring; leasing;
16
construction of works; consulting; engineering; licensing; investment; financing; banking; insurance;
17
exploitation agreement or concession; joint venture and other forms of industrial or business cooperation;
18
carriage of goods or passengers by air, sea, rail or road.
19
3
The conditions set forth in article 17 I are intended to limit the number of circumstances in which
20
the court may refuse to enforce an interim measure. It would not be contrary to the level of harmonization
21
sought to be achieved by these model provisions if a State were to adopt fewer circumstances in which
22
enforcement may be refused.
23
4
The conditions set forth in this paragraph are intended to set maximum standards. It would, thus,
24
not be contrary to the harmonization to be achieved by the model law if a State retained even less onerous
25
conditions.
26
27
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Part 2 Application
44 International Arbitration Amendment Bill 2009 No. , 2009
Part 2--Application
1
28 Application of items 2 to 4
2
The amendments made by items 2 to 4 of this Schedule apply in relation
3
to agreements entered into on or after the commencement of those
4
items.
5
29 Application of items 5 to 9
6
(1)
The amendments made by items 5, 7 and 9 of this Schedule apply in
7
relation to proceedings to enforce a foreign award brought on or after
8
the commencement of those items.
9
(2)
The amendment made by item 6 of this Schedule applies in relation to
10
proceedings to enforce a foreign award brought on or after the
11
commencement of that item.
12
(3)
The amendment made by item 8 of this Schedule applies in relation to
13
proceedings to enforce a foreign award brought on or after the
14
commencement of that item.
15
30 Application of item 10
16
The amendment made by item 10 of this Schedule applies whether the
17
proceedings are adjourned before or after the commencement of that
18
item.
19
31 Application of item 14
20
(1)
The amendment made by item 14 of this Schedule, to the extent that it
21
relates to Article 12(1) of the Model Law, applies in relation to an
22
approach on or after the commencement of that item in connection with
23
a possible appointment of a person as arbitrator.
24
(2)
The amendment made by item 14 of this Schedule, to the extent that it
25
relates to Article 12(2) of the Model Law, applies in relation to a person
26
acting as arbitrator on or after the commencement of that item.
27
32 Application of items 18 to 23
28
(1)
The amendments made by items 18 to 23 of this Schedule apply in
29
relation to arbitration agreements entered into on or after the
30
commencement of those items.
31
Encouraging international arbitration Schedule 1
Application Part 2
International Arbitration Amendment Bill 2009 No. , 2009 45
(2)
To avoid doubt, subitem (1) does not prevent the parties to an
1
arbitration agreement entered into before the commencement of those
2
items from making an agreement, after that commencement, in
3
accordance with section 22 of the International Arbitration Act 1974, in
4
relation to any provision inserted or amended by items 18 to 23 of this
5
Schedule.
6
33 Application of items 24 and 25
7
(1)
The amendment made by item 24 of this Schedule applies in relation to
8
proceedings to enforce an award brought on or after the commencement
9
of that item.
10
(2)
The amendment made by item 25 of this Schedule applies in relation to
11
proceedings to enforce an award brought on or after the commencement
12
of that item.
13
34 Application of item 26
14
The amendment made by item 26 of this Schedule applies in relation to:
15
(a) the exercise of a power; or
16
(b) the performance of a function; or
17
(c) the interpretation of this Act; or
18
(d) the interpretation of the Model Law; or
19
(e) the interpretation of an agreement or award;
20
on or after the commencement of that item.
21
35 Definitions
22
In this Part:
23
foreign award has the same meaning as in Part II of the International
24
Arbitration Act 1974.
25
Model Law has the same meaning as in Part III of that Act.
26