1996年新西兰仲裁法(Arbitration Act 1996 )
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1996年新西兰仲裁法

Arbitration Act 1996

In force 1 July 1997

 

An Act to reform the law relating to arbitration

 

BE IT ENACTED by the Parliament of New Zealand as follows:

 

1.SHORT TITLE AND COMMENCEMENT

 

(1)  This Act may be cited as the Arbitration Act 1996.
(2)  This Act shall come into force on the 1st day of July 1997.

 

2.INTERPRETATION

 

(1)  In this Act, unless the context otherwise requires,-

“Arbitral tribunal” means a sole arbitrator or a panel of arbitrators:

“Arbitration” means any arbitration whether or not administered by a permanent arbitral institution:

“Arbitration agreement” means 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:

“Award” means a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award:

“Party” means a party to an arbitration agreement, or, in any case where an arbitration does not invoke all of the parties to the arbitration agreement, means a party to the arbitration.

(2)  In this Act, unless the context otherwise requires,-

(a) A reference to a Part, section, or Schedule, is a reference to a Part, section, or Schedule of this Act:

(b) A reference in a section to a subsection is a reference to a subsection of that section:

(c) A reference in a subsection to a paragraph is a reference to a paragraph of that subsection:

(d) A reference in a section to a paragraph is a reference to a paragraph of that section:

(e) A reference in a Schedule to an article is a reference to an article of that Schedule:

(f) A reference in an article of a Schedule to a paragraph is a reference to a paragraph of that article:

(g) A reference in a Schedule to a clause is a reference to a clause of that Schedule:

(h) A reference in a clause of a Schedule to a subclause is a reference to a subclause of that clause:

(i) A reference in a subclause of a clause of a Schedule to a paragraph is a reference to a paragraph of that subclause.

 

3. FURTHER PROVISION RELATING TO INTERPRETATION

 

The material to which an arbitral tribunal or a court may refer in interpreting this Act includes the documents relating to the Model Law referred to in section 5(b) and originating from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law.

 

4.ACT TO BIND THE CROWN

 

This Act binds the Crown.

 

5.PURPOSES OF ACT

 

The purposes of this Act are-

(a) To encourage the use of arbitration as an agreed method of resolving commercial and other disputes; and

(b) To promote international consistency of arbitral regimes based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on the 21st day of June 1985; and

(c) To promote consistency between the international and domestic arbitral regimes in New Zealand; and

(d) To redefine and clarify the limits of judicial review of the arbitral process and of arbitral awards; and

(e) To facilitate the recognition and enforcement of arbitration agreements and arbitral award; and

(f) To give effect to the obligations of the Government of New Zealand under the Protocol on Arbitration Clauses (1923), the Convention on the Execution of Foreign Arbitral Awards (1927), and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the English texts of which are set out in the Third Schedule).

 

6. RULES APPLYING TO ARBITRATIONS IN NEW ZEALAND

 

(1)  If the place of arbitration is, or would be, in New Zealand,-

(a) The provisions of the First Schedule; and

(b) Those provisions of the Second Schedule (if any), which apply to that arbitration under subsection (2), apply in respect of the arbitration.
(2)  A provision of the Second Schedule applies-

(a) To an arbitration referred to in subsection (1) which-

(i) Is an international arbitration as defined in article 1(3) of the First Schedule; or

(ii) Is covered by the provisions of the Protocol on Arbitration Clauses (1923); or the Convention on the Execution of Foreign Arbitral Awards (1927), or both, only if the parties so agree; and

(b) To every other arbitration referred to in subsection (1), unless the parties agree otherwise.

 

7. ARBITRATIONS AND AWARDS OUTSIDE NEW ZEALAND

 

If the place of arbitration is not in New Zealand, articles 8, 9, 35, and 36 of the First Schedule, with any necessary modifications, apply in respect of the arbitration.

 

8. PROVISIONS APPLYING WHERE PLACE OF ARBITRATION NOT AGREED OR DETERMINED

 

If it still has to be agreed or determined whether the place of arbitration will be in New Zealand, articles 8 and 9 of the First Schedule, with any necessary modifications, apply in respect of the arbitration.

 

9.ARBITRATION UNDER OTHER ACTS

 

(1)  Where a provision of this Act is inconsistent with a provision of any other enactment, that other enactment shall, to the extent of the inconsistency, prevail.
(2)  Subject to subsection (1), where a provision of this Act applies to an arbitration under any other enactment, the provisions of that other enactment shall be read as if it were an arbitration agreement.

 

10.ARBITRABILITY OF DISPUTES

 

(1)  Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or, under any other law, such a dispute is not capable of determination by arbitration.
(2)  The fact that an enactment confers jurisdiction in respect of any matter on the High Court or a District Court but does not refer to the determination of that matter by arbitration does not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration.

 

11.CONSUMER ARBITRATION AGREEMENTS

 

(1)  Where-

(a) A contract contains an arbitration agreement; and

(b) A person enters into that contract as a consumer,-

the arbitration agreement is enforceable against the consumer only if-

(c) The consumer by separate written agreement, certifies that, having read and understood the arbitration agreement, the consumer agrees to be bound by it; and

(d) The separate written agreement referred to in paragraph (c) discloses, if it is the case, the fact that all or any of the provisions of the Second Schedule do not apply to the arbitration agreement.

(2)  For the purposes of this section, a person enters into a contract as a consumer if-

(a) That person enters into the contract otherwise than in trade; and

(b) The other party to the contract enters into that contract in trade.

(3) Subsection (1) applies to every contract containing an arbitration agreement entered into in New Zealand notwithstanding a provision in the contract to the effect that the contract is governed by a law other than New Zealand law.

(4) For the purposes of article 4 of the First Schedule, subsection (1) shall be treated as if it were a requirement of the arbitration agreement.

(5) Unless a party who is a consumer has, under article 4 of the First Schedule, waived the right to object to non-compliance with subsection (1), an arbitration agreement which is not enforceable by reason of non-compliance with subsection (1) shall be treated as inoperative for the purposes of article 8(1) of the First Schedule and as not valid under the law of New Zealand for the purposes of articles 16(1), 34(2)(a)(i), and 36(1)(a)(i) of the First Schedule.

(6) Nothing in this section applies to a contract of insurance to which section 8 of the Insurance Law Reform Act 1977 applies.

 

12. POWERS OF ARBITRAL TRIBUNAL IN DECIDING DISPUTES

 

(1) An arbitration agreement, unless otherwise agreed by the parties, is deemed to provide that an arbitral tribunal-

(a) May award any remedy or relief that could have been ordered by the High Court if the dispute had been the subject of civil proceedings in that Court:

(b) May award interest on the whole or any part of any sum which-

(i) Is awarded to any party, for the whole or any part of the period up to the date of the award; or

(ii) Is in issue in the arbitral proceedings but is paid before the date of the award, for the whole or any part of the period up to the date of payment.

(2) Nothing in this section affects the application of section 10 or article 34(2)(b) or article 36(1)(b) of the First Schedule.

 

13.LIABILITY OF ARBITRATORS

 

An arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator.

 

14. DISCLOSURE OF INFORMATION RELATING TO ARBITRAL PROCEEDINGS AND AWARDS PROHIBITED

 

(1) Subject to subsection (2), an arbitration agreement, unless otherwise agreed by the parties, is deemed to provide that the parties shall not publish, disclose, or communicate any information relating to arbitral proceedings under the agreement or to an award made in those proceedings.
(2) Nothing in subsection (1) prevents the publication, disclosure, or communication of information referred to in that subsection-

(a) If the publication, disclosure, or communication is contemplated by this Act; or

(b) To a professional or other adviser of any of the parties.

 

15. CERTIFICATES CONCERNING PARTIES TO THE CONVENTIONS

 

A certificate purporting to be signed by the Secretary of Foreign Affairs and Trade, or a Deputy Secretary of Foreign Affairs and Trade, that, at the time specified in the certificate, any country had signed and ratified or had denounced, or had taken any other treaty action under, the Protocol on Arbitration Clauses (1923) or the Convention on the Execution of Foreign Arbitral Awards (1927) in respect of the territory specified in the certificate is presumptive evidence of the facts stated.

 

16.RULES

 

Rules may be made for the purposes of this Act,

(a) In the case of the High Court, under section 51C of the Judicature Act 1908:

(b) In the case of District Courts, under section 122 of the District Courts Act 1947.

 

17.AMENDMENTS TO OTHER ACTS

 

The Acts specified in the Fourth Schedule are hereby amended in the manner indicated in that Schedule.

 

18.REPEALS

 

The enactments specified in the Fifth Schedule are hereby repealed.

 

19.TRANSITIONAL PROVISIONS

 

(1)  Subject to subsections (2) and (3),-

(a) This Act applies to every arbitration agreement, whether made before or after the commencement of this Act, and to every arbitration under such an agreement; and

(b) A reference in an arbitration agreement to the Arbitration Act 1908, or to a provision of that Act, shall be construed as a reference to this Act, or to any corresponding provision of this Act.

(2)  Where the arbitral proceedings were commenced before the commencement of this Act, the law governing the arbitration agreement and the arbitration shall be the law which would have applied if this Act had not been passed.

(3)  Where an arbitration agreement, which is made before the commencement of this Act, provides for the appointment of 2 arbitrators, and arbitral proceedings are commenced after the commencement of this Act,-

(a) Unless a contrary intention is expressed in the arbitration agreement, the 2 arbitrators shall, immediately after they are appointed, appoint an umpire; and

(b) The law governing the arbitration agreement and the arbitration is the law that would have applied if this Act had not been passed.

(4) For the purposes of this section, arbitral proceedings are to be taken as having commenced on the date of the receipt by the respondent of a request for the dispute to be referred to arbitration, or, where the parties have agreed that any other date is to be taken as the date of commencement of the arbitral proceedings, then on that date.

(5)  This Act applies to every arbitral award, whether made before or after the commencement of this Act.

 

20. ACT PASSED IN SUBSTITUTION FOR ARBITRATION ACT 1908

 

For the avoidance of doubt, it is hereby declared that, for the purposes of section 21 of the Acts Interpretation Act 1924, this Act is passed in substitution for the Arbitration Act 1908.


First Schedule - Rules Applying to Arbitration Generally

[The provisions of this Schedule correspond, for the most part, to the provisions of the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, and approved by the General Assembly of the United Nations on 11 December 1985 (General Assembly Resolution 40/72). Certain changes have been made to amend or supplement the provisions of the Model Law in its application to New Zealand. The original numbering of the articles of the Model Law and their paragraphs has been retained.] (3)

Chapter I. General Provisions

Article 1 -SCOPE OF APPLICATION

(1) This Schedule applies as provided in sections 6, 7, 8, and 9.

(2) (deleted)

(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 any commercial or other 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),-

(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 that party's habitual residence.

[text omitted]

Article 2 -DEFINITIONS AND RULES OF INTERPRETATION

For the purposes of this Schedule,-

(a) “Arbitration”, “arbitration agreement”, “arbitral tribunal”, and “award” have the meanings assigned to those terms by section 2:

(b) “Court” means a body or organ of the judicial system of a State:

(c) Where a provision of this Schedule, 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:

(d) Where a provision of this Schedule 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:

(e) Where a provision of this Schedule, other than in articles 25(a) and 32(2)(a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim:

(f) Article headings are for reference purposes only and are not to be used for purposes of interpretation.

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 the addressee's 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 Schedule 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 that party's 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 the right to object.

Article 5 -EXTENT OF COURT INTERVENTION

In matters governed by this Schedule, no court shall intervene except where so provided in this Schedule.

Article 6 - COURT OR OTHER AUTHORITY FOR CERTAIN FUNCTIONS OF ARBITRATION ASSISTANCE AND SUPERVISION

Any court having jurisdiction may perform any function conferred on a court by these articles, except where the article provides that the function shall be performed by a specified court or courts.

Chapter II. Arbitration Agreement

Article 7 -FORM OF ARBITRATION AGREEMENT

(1) An arbitration agreement may be made orally or in writing. [text omitted] Subject to section 9, an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(2) A reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement, provided that [text omitted] 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 proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting that party's first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred.
(2) Where proceedings referred to in paragraph (1) have 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

(1) 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.

(2) For the purposes of paragraph (1), the High Court or a District Court shall have the same power as it has for the purposes of proceedings before that court to make-

(a) Orders for the preservation, interim custody, or sale of any goods which are the subject-matter of the dispute; or

(b) An order securing the amount in dispute; or

(c) An order appointing a receiver; or

(d) Any other orders to ensure that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by the other party; or

(e) An interim injunction or other interim order.

(3)  Where a party applies to a court for an interim injunction or other interim order and an arbitral tribunal has already ruled on any matter relevant to the application, the court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

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,-

(a) In the case of international arbitration, the number of arbitrators shall be 3:

(b) In every other case, the number of arbitrators shall be one.

Article 11 -APPOINTMENT OF ARBITRATORS

(1) No person shall be precluded by reason of that person's 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).
(3) Failing such agreement,-

(a) In an arbitration with 3 arbitrators and 2 parties, each party shall appoint one arbitrator, and the 2 arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made, upon request of a party, by the High Court:

(b) In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, that arbitrator shall be appointed, upon request of a party, by the High Court.

(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 2 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 High Court 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 paragraphs (3), (4), or (6) to the High Court shall be subject to no appeal. The court, [text omitted] 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, in the case of an international arbitration, take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.
(6) In an arbitration, where-

(a) The parties have agreed to an arbitration with 2 or 4 or more arbitrators; or

(b) There are 3 arbitrators and more than 2 parties, and no procedure for the appointment of arbitrators has been agreed upon, the High Court may, upon request of a party, appoint the requisite number of arbitrators, having due regard to the matters referred to in paragraph (5).

Article 12 -GROUNDS FOR CHALLENGE

(1) A person who is approached in connection with that person's possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to that person's impartiality or independence. An arbitrator, from the time of 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 that arbitrator.

(2)  An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to that arbitrator's impartiality or independence, or if that arbitrator does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by that party, or in whose appointment that party has participated, only for reasons of which that party 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).

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within 15 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 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) is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the High Court 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 (in law or in fact) unable to perform the functions of that office or for other reasons fails to act without undue delay, that arbitrator's mandate terminates on withdrawal from office or, if the parties agree, on the termination. Otherwise, if a controversy remains concerning any of those grounds, any party may request the High Court 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 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

(1) Where the mandate of an arbitrator terminates under article 13 or 14, or because of withdrawal from office for any other reason, or because of the revocation of that arbitrator's mandate by agreement of the parties, or in any other case of termination of that mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
(2) Unless otherwise agreed by the parties,

(a) Where the sole or the presiding arbitrator is replaced, any hearings previously held shall be repeated; and

(b) Where an arbitrator, other than a sole or a presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(3) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this article is not invalid solely because there has been a change in the composition of the arbitral tribunal.

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 (necessarily) 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 that party 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) either as a preliminary question or in an award on the merits. If the arbitral tribunal rules on such a plea as a preliminary question [text omitted], any party may request, within 30 days after having received notice of that ruling, the High Court 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

(1) 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.

(2) Unless otherwise agreed by the parties, articles 35 and 36 apply to orders made by an arbitral tribunal under this article as if a reference in those articles to an award were a reference to such an order.

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 that party's case.

Article 19 -DETERMINATION OF RULES OF PROCEDURE

(1) Subject to the provisions of this Schedule, 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 Schedule, 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.

(3) Every witness giving evidence, and every counsel or expert or other person appearing before an arbitral tribunal, shall have the same privileges and immunities as witnesses and counsel in proceedings before a court.

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), 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, 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 the claim, the points at issue and the relief or remedy sought, and the respondent shall state the 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 the 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.

(4) At any hearing or any meeting of the arbitral tribunal of which notice is required to be given under paragraph (2), or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice.

Article 25 -DEFAULT OF A PARTY

Unless otherwise agreed by the parties, if, without showing sufficient cause,-

(a) The claimant fails to communicate the statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings:

(b) The respondent fails to communicate the 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:

(d) The claimant fails to prosecute the claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim.

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 the expert's 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 a written or oral report, participate in a hearing where the parties have the opportunity to put questions and to present expert witnesses in order to testify on the points at issue.

Article 27 -COURT ASSISTANCE IN TAKING EVIDENCE

(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the court assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.
(2) For the purposes of paragraph (1),-

(a) The High Court may make an order of subpoena or a District Court may issue a witness summons to compel the attendance of a witness before an arbitral tribunal to give evidence or produce documents:

(b) The High Court or a District Court may order any witness to submit to examination on oath or affirmation before the arbitral tribunal, or before an officer of the court, or any other person for the use of the arbitral tribunal:

(c) The High Court or a District Court shall have, for the purpose of the arbitral proceedings, the same power as it has for the purpose of proceedings before that court to make an order for-

(i) The discovery of documents and interrogatories:

(ii) The issue of a commission or request for the taking of evidence out of the jurisdiction:

(iii) The detention, preservation, or inspection of any property or thing which is in issue in the arbitral proceedings and authorising for any of those purposes any person to enter upon any land or building in the possession of a party, or authorising any sample to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or 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 (according to considerations of general justice and fairness) only if the parties have expressly authorised it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of any contract and shall take into account any 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 authorised 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) shall be delivered to each party.

(5) Unless the arbitration agreement otherwise provides, or the award otherwise directs, a sum directed to be paid by an award shall carry interest as from the date of the award and at the same rate as a judgment debt.

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).

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when-

(a) The claimant withdraws the claim, unless the respondent objects thereto and the arbitral tribunal recognises a legitimate interest on the respondent's 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).

(4) Unless otherwise agreed by the parties, the death of a party does not terminate the arbitral proceedings or the authority of the arbitral tribunal.

(5) Paragraph (4) does not affect any rule of law or enactment under which the death of a person extinguishes a cause of action.

Article 33 - CORRECTION AND INTERPRETATION OF AWARD; ADDITIONAL AWARD

(1) Within 30 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 30 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) on its own initiative within 30 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 30 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 60 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 paragraphs (1) or (3).

(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).

(2) An arbitral award may be set aside by the High Court only if-

(a) The party making the application furnishes proof that-

(i) A party to the arbitration agreement 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 on that question, under the law of New Zealand; 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 that party's 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 Schedule from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Schedule; or

(b) The High Court finds that-

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of New Zealand; or

(ii) The award is in conflict with the public policy of New Zealand.

(3) An application for setting aside may not be made after 3 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. This paragraph does not apply to an application for setting aside on the ground that the award was induced or affected by fraud or corruption.

(4) The High 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.

(5) Where an application is made to set aside an award, the High Court may order that any money made payable by the award shall be brought into Court or otherwise secured pending the determination of the application.

(6) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii), it is hereby declared that an award is in conflict with the public policy of New Zealand if

(a) The making of the award was induced or affected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred -

(i) During the arbitral proceedings; or

(ii) In connection with the making of the award.

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 recognised as binding and, upon application in writing to the High Court, shall be enforced by entry as a judgment in terms of the award, or by action, 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 and, if recorded in writing, the original arbitration agreement or a duly certified copy. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English 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 court where recognition or enforcement is sought proof that-

(i) A party to the arbitration agreement 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 on that question, 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 that party's 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 recognised 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 New Zealand; or

(ii) The recognition or enforcement of the award would be contrary to the public policy of New Zealand.

(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), 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.

(3) For the avoidance of doubt, and without limiting the generality of paragraph (1)(b)(ii), it is hereby declared that an award is contrary to the public policy of New Zealand if -

(a) The making of the award was induced or affected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred -

(i) During the arbitral proceedings; or

(ii) In connection with the making of the award.

Second Schedule - Additional Optional Rules Applying to Arbitration

Section1DEFAULT APPOINTMENT OF ARBITRATORS

(1)  For the purposes of article 11 of the First Schedule, the parties shall be taken as having agreed on the procedure for appointing the arbitrator or arbitrators set out in subclauses (2) to (5), unless the parties agree otherwise.

(2)  In an arbitration with 3 arbitrators and 2 parties, each party shall appoint one arbitrator, and the 2 arbitrators thus appointed shall appoint the third arbitrator.

(3)  In an arbitration with-

(a) A sole arbitrator; or

(b) Two or 4 or more arbitrators; or

(c) Three arbitrators and more than 2 parties, he parties shall agree on the person or persons to be appointed as arbitrator.

(4)  Where, under subclause (2) or subclause (3), or any other appointment procedure agreed upon by the parties,-

(a) A party fails to act as required under such procedure; or

(b) The parties, or the 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, by written communication delivered to every such party, arbitrator or third party, specify the details of that person's default and propose that, if that default is not remedied within the period specified in the communication (being not less than 7 days after the date on which the communication is received by all of the persons to whom it is delivered), a person named in the communication shall be appointed to such vacant office of arbitrator as is specified in the communication, or the arbitral tribunal shall consist only of the person or persons who have already been appointed to the office of arbitrator.

(5)  If the default specified in the communication is not remedied within the period specified in the communication,-

(a) The proposal made in the communication shall take effect as part of the arbitration agreement on the day after the expiration of that period; and

(b) The arbitration agreement shall be read with all necessary modifications accordingly.

Section2CONSOLIDATION OF ARBITRAL PROCEEDINGS

(1)  Where arbitral proceedings all have the same arbitral tribunal,-

(a) The arbitral tribunal may, on the application of at least one party in each of the arbitral proceedings, order-

(i) Those proceedings to be consolidated on such terms as the arbitral tribunal thinks just; or

(ii) Those proceedings to be heard at the same time, or one immediately after the other; or

(iii) Any of those proceedings to be stayed until after the determination of any other of them:

(b) If an application has been made to the arbitral tribunal under paragraph (a) and the arbitral tribunal refuses or fails to make an order under that paragraph, the High Court may, on application by a party in any of the proceedings, make any such order as could have been made by the arbitral tribunal.

(2)  Where arbitral proceedings do not all have the same arbitral tribunal,-

(a) The arbitral tribunal for any one of the arbitral proceedings may, on the application of a party in the proceedings, provisionally order-

(i) The proceedings to be consolidated with other arbitral proceedings on such terms as the arbitral tribunal thinks just; or

(ii) The proceedings to be heard at the same time as other arbitral proceedings, or one immediately after the other; or

(iii) Any of those proceedings to be stayed until after the determination of any other of them:

(b) An order ceases to be provisional when consistent provisional orders have been made for all of the arbitral proceedings concerned:

(c) The arbitral tribunals may communicate with each other for the purpose of conferring on the desirability of making orders under this subclause and of deciding on the terms of any such order:

(d) If a provisional order is made for at least one of the arbitral proceedings concerned, but the arbitral tribunal for another of the proceedings refuses or fails to make such an order (having received an application from a party to make such an order), the High Court may, on application by a party in any of the proceedings, make an order or orders that could have been made under this subclause:

(e) If inconsistent provisional orders are made for the arbitral proceedings, the High Court may, on application by a party in any of the proceedings, alter the orders to make them consistent.

(3)  When arbitral proceedings are to be consolidated under subclause (2), the arbitral tribunal for the consolidated proceedings shall be that agreed on for the purpose by all the parties to the individual proceedings, but, failing such an agreement, the High Court may appoint an arbitral tribunal for the consolidated proceedings.

(4)  An order or a provisional order may not be made under this clause unless it appears-

(a) That some common question of law or fact arises in all of the arbitral proceedings; or

(b) That the rights to relief claimed in all of the proceedings are in respect of, or arise out of, the same transaction or series of transactions; or

(c) That for some other reason it is desirable to make the order or provisional order.

(5)  Any proceedings before an arbitral tribunal for the purposes of this clause shall be treated as part of the arbitral proceedings concerned.

(6)  Arbitral proceedings may be commenced or continued, although an application to consolidate them is pending under subclause (1) or (2) and although a provisional order has been made in relation to them under subclause (2).

(7)  Subclauses (1) and (2) apply in relation to arbitral proceedings whether or not all or any of the parties are common to some or all of the proceedings.

(8)  There shall be no appeal from any decision of the High Court under this clause.

(9)  Nothing in this clause prevents the parties to 2 or more arbitral proceedings from agreeing to consolidate those proceedings and taking such steps as are necessary to effect that consolidation.

Section 3POWERS RELATING TO CONDUCT OF ARBITRAL PROCEEDINGS

(1)  For the purposes of article 19 of the First Schedule, and unless the parties agree otherwise, the parties shall be taken as having agreed that the powers conferred upon the arbitral tribunal include the power to-

(a) Adopt inquisitorial processes:

(b) Draw on its own knowledge and expertise:

(c) Order the provision of further particulars in a statement of claim or statement of defence:

(d) Order the giving of security for costs:

(e) Fix and amend time limits within which various steps in the arbitral proceedings must be completed:

(i) Order the discovery and production of documents or materials within the possession or power of a party:

(g) Order the answering of interrogatories:

(h) Order that any evidence be given orally or by affidavit or otherwise:

(i) Order that any evidence be given on oath or affirmation:

(j) Order any party to do all such other things during the arbitral proceedings as may reasonably be needed to enable an award to be made properly and efficiently:

(k) Make an interim, interlocutory or partial award.

(2)  Notwithstanding anything in article 5 of the First Schedule, the arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the court assistance in the exercise of any power conferred on the arbitral tribunal under subclause (1).
(3)  If a request is made under subclause (2), the High Court or a District Court shall have, for the purposes of the arbitral proceedings, the same power to make an order for the doing of any thing which the arbitral tribunal is empowered to order under subclause (1) as it would have in civil proceedings before that court.

Section 4DETERMINATION OF PRELIMINARY POINT OF LAW BY COURT

(1)  Notwithstanding anything in article 5 of the First Schedule, on an application to the High Court by any party

(a) With the consent of the arbitral tribunal; or

(b) With the consent of every other party, the High Court shall have jurisdiction to determine any question of law arising in the course of the arbitration.

(2)  The High Court shall not entertain an application under subclause (1)(a) with respect to any question of law unless it is satisfied that the determination of the question of law concerned-

(a) Might produce substantial savings in costs to the parties; and

(b) Might, having regard to all the circumstances, substantially affect the rights of one or more of the parties.

(3)  With the leave of the High Court, any party may, within one month from the date of any determination of the High Court, under this clause or within such further time as that Court may allow, appeal from that determination to the Court of Appeal.

(4)  If the High Court refuses to grant leave to appeal under subclause (3), the Court of Appeal may grant special leave to appeal.

Section5APPEALS ON QUESTIONS OF LAW

(1)  Notwithstanding anything in articles 5 or 34 of the First Schedule, any party may appeal to the High Court on any question of law arising out of an award-

(a) If the parties have so agreed before the making of that award; or

(b) With the consent of every other party given after the making of that award; or

(c) With the leave of the High Court.

(2)  The High Court shall not grant leave under subclause (1)(c) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties.

(3)  The High Court may grant leave under subclause (1)(c) on such conditions as it sees fit.

(4)  On the determination of an appeal under this clause, the High Court may, by order,-

(a) Confirm, vary, or set aside the award; or

(b) Remit the award, together with the High Court's opinion on the question of law which was the subject of the appeal, to the arbitral tribunal for reconsideration or, where a new arbitral tribunal has been appointed, to that arbitral tribunal for consideration,-

and, where the award is remitted under paragraph (b), the arbitral tribunal shall, unless the order otherwise directs, make the award not later than 3 months after the date of the order.

(5)  With the leave of the High Court, any party may appeal to the Court of Appeal from any refusal of the High Court to grant leave or from any determination of the High Court under this clause.

(6)  If the High Court refuses to grant leave to appeal under subclause (5), the Court of Appeal may grant special leave to appeal.

(7)  Where the award of an arbitral tribunal is varied on an appeal under this clause, the award as varied shall have effect (except for the purposes of this clause) as if it were the award of the arbitral tribunal; and the party relying on the award or applying for its enforcement under article 35(2) of the First Schedule shall supply the duly authenticated original order of the High Court varying the award or a duly certified copy.

(8)  Article 34(3) and (4) of the First Schedule apply to an appeal under this clause as they do to an application for the setting aside of an award under that article.

(9)  For the purposes of article 36 of the First Schedule,-

(a) An appeal under this clause shall be treated as an application for the setting aside of an award; and

(b) An award which has been remitted by the High Court under subclause 4(b) to the original or a new arbitral tribunal shall be treated as an award which has been suspended.

Section6COSTS AND EXPENSES OF AN ARBITRATION

(1)  Unless the parties agree otherwise,-

(a) The costs and expenses of an arbitration, being the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal, and any other expenses related to the arbitration shall be as fixed and allocated by the arbitral tribunal in its award under article 31 of the First Schedule, or an additional award under article 33(3) of the First Schedule; or

(b) In the absence of an award or additional award fixing and allocating the costs and expenses of the arbitration, each party shall be responsible for the legal and other expenses of that party and for an equal share of the fees and expenses of the arbitral tribunal and any other expenses relating to the arbitration.

(2)  Unless the parties agree otherwise, the parties shall be taken as having agreed that,-

(a) If a party makes an offer to another party to settle the dispute or part of the dispute and the offer is not accepted and the award of the arbitral tribunal is no more favourable to the other party than was the offer, the arbitral tribunal, in fixing and allocating the costs and expenses of the arbitration, may take the fact of the offer into account in awarding costs and expenses in respect of the period from the making of the offer to the making of the award; and

(b) The fact that an offer to settle has been made shall not be communicated to the arbitral tribunal until it has made a final determination of all aspects of the dispute other than the fixing and allocation of costs and expenses.

(3)  Where an award or additional award made by an arbitral tribunal fixes or allocates the costs and expenses of the arbitration, or both, the High Court may, on the application of a party, if satisfied that the amount or the allocation of those costs and expenses is unreasonable in all the circumstances, make an order varying their amount or allocation, or both. The arbitral tribunal is entitled to appear and be heard on any application under this subclause.

(4)  Where-

(a) An arbitral tribunal refuses to deliver its award before the payment of its fees and expenses; and

(b) An application has been made under subclause (3),-

the High Court may order the arbitral tribunal to release the award on such conditions as the Court sees fit.

(5)  An application may not be made under subclause (3) after 3 months have elapsed from the date on which the party making the application received any award or additional award fixing and allocating the costs and expenses of the arbitration.

(6)  There shall be no appeal from any decision of the High Court under this clause.

Section 7EXTENSION OF TIME FOR COMMENCING ARBITRATION PROCEEDINGS

(1)  Where an arbitration agreement provides that no arbitral proceedings are to be commenced unless steps have been taken to commence the proceedings within the time specified in the agreement, the High Court or a District Court, as the case may be, may, notwithstanding that the specified time has expired, extend the time for such period as it thinks fit, if, in its opinion, undue hardship would otherwise be caused to the parties.

(2)  An extension may be subject to any such conditions as the justice of the case may require.

Fourth Schedule - Enactments Amended (excerpt)

(....)

1950. No. 65 - The Limitation Act 1950 (R.S. Vol. 6, p. 845)

By repealing the definitions of the terms “arbitration”, “award”, and “submission” in section 2.

By repealing section 29, and substituting the following section:

Application of Act and other limitation enactments to arbitrations

 

29.(1) “This Act and any other enactment relating to the limitation of actions shall apply to arbitrations as they apply to actions.

(2) “For the purposes of this Act and of any such enactment, an arbitration shall be treated as being commenced in the same manner as provided in Article 21 of the First Schedule to the Arbitration Act 1996.

(3) “Where the High Court orders that an award be set aside, the Court may further order that the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by this Act or any such enactment for the commencement of proceedings (including arbitration) with respect to the dispute referred.

(4) “This section applies to an arbitration under an Act as well as to an arbitration under an arbitration agreement.”