Western Australian Current Acts

COMMERCIAL ARBITRATION ACT 2012 - SECT 25

25 .         Default of a party (cf. Model Law Art 25)

        (1)         Unless otherwise agreed by the parties, if, without showing sufficient cause —

            (a)         the claimant fails to communicate the claimant’s statement of claim in accordance with section 23(1), the arbitral tribunal may terminate the proceedings; or

            (b)         the respondent fails to communicate the respondent’s statement of defence in accordance with section 23(1), the arbitral tribunal may continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; or

            (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.

        (2)         Unless otherwise agreed by the parties, if a party fails to do any other thing necessary for the proper and expeditious conduct of the arbitration, the arbitral tribunal —

            (a)         if satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim, may make an award dismissing the claim or may give directions (with or without conditions) for the speedy determination of the claim; or

            (b)         if without sufficient cause a party fails to comply with any order or direction of the arbitral tribunal, may make an order requiring the party to comply with the terms of the earlier order or direction within the period specified by the arbitral tribunal (a peremptory order ).

        (3)         If a party fails to comply with a peremptory order, the arbitral tribunal may do any of the following —

            (a)         direct that the party in default is not to be entitled to rely on any allegation or material which was the subject matter of the peremptory order;

            (b)         draw such adverse inferences from the failure to comply as the circumstances justify;

            (c)         proceed to an award on the basis of any materials that have been properly provided to the arbitral tribunal;

            (d)         without limiting section 33B(4), in making an award give any direction or order that it thinks fit as to the payment of the costs of the arbitration incurred in consequence of the non-compliance.

        Note for this section:

                Subsection (1) is substantially the same as Art 25 of the Model Law. There are no equivalents to the other provisions of the section in the Model Law.