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 [Page Break] 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 i International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] 2 international arbitration, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the International Arbitration Amendment 6 Act 2009. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 International Arbitration Amendment Bill 2009 No. , 2009 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day this Act receives the Royal Assent. and anything in this Act not elsewhere covered by this table 2. Schedule 1, The day this Act receives the Royal Assent. items 1 to 5 3. Schedule 1, Immediately after the commencement of item 6 Schedule 2 to the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009. 4. Schedule 1, The day this Act receives the Royal Assent. item 7 5. Schedule 1, The earlier of: item 8 (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, The day this Act receives the Royal Assent. items 9 to 12 7. Schedule 1, The later of: item 13 (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, The day this Act receives the Royal Assent. items 14 to 24 9. Schedule 1, Immediately after the commencement of item 25 Schedule 2 to the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009. 10. Schedule 1, The day this Act receives the Royal Assent. items 26 to 35 2 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 International Arbitration Amendment Bill 2009 No. , 2009 3 [Page Break] Part 1 Amendments 1 Schedule 1--Encouraging international 2 arbitration 3 Part 1--Amendments 4 International Arbitration Act 1974 5 1 At the end of Part I 6 Add: 7 2D Objects of this Act 8 The objects of this Act are: 9 (a) to facilitate international trade and commerce by encouraging 10 the use of arbitration as a method of resolving disputes; and 11 (b) to facilitate the use of arbitration agreements made in relation 12 to international trade and commerce; and 13 (c) to facilitate the recognition and enforcement of arbitral 14 awards made in relation to international trade and commerce; 15 and 16 (d) to give effect to Australia's obligations under the Convention 17 on the Recognition and Enforcement of Foreign Arbitral 18 Awards adopted in 1958 by the United Nations Conference 19 on International Commercial Arbitration at its twenty-fourth 20 meeting; and 21 (e) to give effect to the UNCITRAL Model Law on International 22 Commercial Arbitration adopted by the United Nations 23 Commission on International Trade Law on 21 June 1985 24 and amended by the United Nations Commission on 25 International Trade Law on 7 July 2006; and 26 (f) to give effect to the Convention on the Settlement of 27 Investment Disputes between States and Nationals of Other 28 States signed by Australia on 24 March 1975. 29 2 Subsection 3(1) 30 Insert: 31 data message means information generated, sent, received or 32 stored by electronic, magnetic, optical or similar means, including, 4 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 but not limited to, electronic data interchange (EDI), email, 2 telegram, telex or telecopy. 3 3 Subsection 3(1) 4 Insert: 5 electronic communication means any communication made by 6 means of data messages. 7 4 At the end of section 3 8 Add: 9 (4) For the avoidance of doubt and without limiting subsection (1), an 10 agreement is in writing if: 11 (a) its content is recorded in any form whether or not the 12 agreement or the contract to which it relates has been 13 concluded orally, by conduct, or by other means; or 14 (b) it is contained in an electronic communication and the 15 information in that communication is accessible so as to be 16 usable for subsequent reference; or 17 (c) it is contained in an exchange of statements of claim and 18 defence in which the existence of an agreement is alleged by 19 one party and not denied by the other. 20 (5) For the avoidance of doubt and without limiting subsection (1), a 21 reference in a contract to any document containing an arbitration 22 clause is an arbitration agreement, provided that the reference is 23 such as to make the clause part of the contract. 24 5 Subsection 8(2) 25 Repeal the subsection, substitute: 26 (2) Subject to this Part, a foreign award may be enforced in a court of 27 a State or Territory with the leave of that court as if the award were 28 a judgment or order of that court. 29 6 Subsection 8(3) 30 Repeal the subsection, substitute: 31 (3) Subject to this Part, a foreign award may be enforced in the Federal 32 Court of Australia with the leave of that court as if the award were 33 a judgment or order of that court. International Arbitration Amendment Bill 2009 No. , 2009 5 [Page Break] Part 1 Amendments 1 7 Before subsection 8(4) 2 Insert: 3 (3A) The court may only refuse leave to enforce the foreign award in the 4 circumstances mentioned in subsections (5) and (7). 5 8 Subsection 8(4) 6 Omit "subsections (1) and (2) do", substitute "this section does". 7 9 After subsection 8(7) 8 Insert: 9 (7A) To avoid doubt and without limiting paragraph (7)(b), the 10 enforcement of a foreign award would be contrary to public policy 11 if: 12 (a) the making of the award was induced or affected by fraud or 13 corruption; or 14 (b) a breach of the rules of natural justice occurred in connection 15 with the making of the award. 16 10 At the end of section 8 17 Add: 18 (9) A court may, if satisfied of any of the matters mentioned in 19 subsection (10), make an order for one or more of the following: 20 (a) for proceedings that have been adjourned, or that part of the 21 proceedings that has been adjourned, under subsection (8) to 22 be resumed; 23 (b) for costs against the person who made the application for the 24 setting aside or suspension of the foreign award; 25 (c) for any other order appropriate in the circumstances. 26 (10) The matters are: 27 (a) the application for the setting aside or suspension of the 28 award is not being pursued in good faith; and 29 (b) the application for the setting aside or suspension of the 30 award is not being pursued with reasonable diligence; and 31 (c) the application for the setting aside or suspension of the 32 award has been withdrawn or dismissed; and 6 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (d) the continued adjournment of the proceedings is, for any 2 reason, not justified. 3 (11) An order under subsection (9) may only be made on the application 4 of a party to the proceedings that have, or a part of which has, been 5 adjourned. 6 11 Subsection 15(1) 7 Repeal the subsection, substitute: 8 (1) In this Part: 9 confidential information, in relation to arbitral proceedings, means 10 information that relates to the proceedings or to an award made in 11 the proceedings and includes: 12 (a) the statement of claim, statement of defence, and all other 13 pleadings, submissions, statements, or other information 14 supplied to the arbitral tribunal by a party to the proceedings; 15 and 16 (b) any evidence (whether documentary or other) supplied to the 17 arbitral tribunal; and 18 (c) any notes made by the arbitral tribunal of oral evidence or 19 submissions given before the arbitral tribunal; and 20 (d) any transcript of oral evidence or submissions given before 21 the arbitral tribunal; and 22 (e) any rulings of the arbitral tribunal; and 23 (f) any award of the arbitral tribunal. 24 disclose, in relation to confidential information, includes giving or 25 communicating the confidential information in any way. 26 Model Law means the UNCITRAL Model Law on International 27 Commercial Arbitration adopted by the United Nations 28 Commission on International Trade Law on 21 June 1985 and 29 amended by the United Nations Commission on International 30 Trade Law on 7 July 2006, the English text of which is set out in 31 Schedule 2. 32 12 Subsection 16(2) 33 Insert: International Arbitration Amendment Bill 2009 No. , 2009 7 [Page Break] Part 1 Amendments 1 arbitration agreement has the meaning given in Option 1 of 2 Article 7 of the Model Law. 3 13 Section 18 4 Repeal the section, substitute: 5 18 Court or authority taken to have been specified in Article 6 of the 6 Model Law 7 (1) A court or authority prescribed for the purposes of this subsection 8 is taken to have been specified in Article 6 of the Model Law as a 9 court or authority competent to perform the functions referred to in 10 Article 11(3) of the Model Law. 11 (2) A court or authority prescribed for the purposes of this subsection 12 is taken to have been specified in Article 6 of the Model Law as a 13 court or authority competent to perform the functions referred to in 14 Article 11(4) of the Model Law. 15 (3) The following courts are taken to have been specified in Article 6 16 of the Model Law as courts competent to perform the functions 17 referred to in Articles 13(3), 14, 16(3) and 34(2) of the Model Law: 18 (a) if the place of arbitration is, or is to be, in a State--the 19 Supreme Court of that State; 20 (b) if the place of arbitration is, or is to be, in a Territory: 21 (i) the Supreme Court of that Territory; or 22 (ii) if there is no Supreme Court established in that 23 Territory--the Supreme Court of the State or Territory 24 that has jurisdiction in relation to that Territory; 25 (c) in any case--the Federal Court of Australia. 26 14 After section 18 27 Insert: 28 18A Article 12--justifiable doubts as to the impartiality or 29 independence of an arbitrator 30 (1) For the purposes of Article 12(1) of the Model Law, there are 31 justifiable doubts as to the impartiality or independence of a person 32 approached in connection with a possible appointment as arbitrator 8 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 only if there is a real danger of bias on the part of that person in 2 conducting the arbitration. 3 (2) For the purposes of Article 12(2) of the Model Law, there are 4 justifiable doubts as to the impartiality or independence of an 5 arbitrator only if there is a real danger of bias on the part of the 6 arbitrator in conducting the arbitration. 7 18B Article 17B--preliminary orders 8 Despite Article 17B of the Model Law: 9 (a) no party to an arbitration agreement may make an application 10 for a preliminary order directing another party not to frustrate 11 the purpose of an interim measure requested; and 12 (b) no arbitral tribunal may grant such a preliminary order. 13 15 Section 19 14 Repeal the section, substitute: 15 19 Articles 17I, 34 and 36 of Model Law--public policy 16 Without limiting the generality of Articles 17I(1)(b)(ii), 17 34(2)(b)(ii) and 36(1)(b)(ii) of the Model Law, it is declared, for 18 the avoidance of any doubt, that, for the purposes of those Articles, 19 an interim measure or award is in conflict with, or is contrary to, 20 the public policy of Australia if: 21 (a) the making of the interim measure or award was induced or 22 affected by fraud or corruption; or 23 (b) a breach of the rules of natural justice occurred in connection 24 with the making of the interim measure or award. 25 16 Section 21 26 Repeal the section, substitute: 27 21 Model law covers the field 28 If the Model Law applies to an international commercial 29 arbitration, the law of a State or Territory does not apply to that 30 arbitration. 31 17 After section 22 International Arbitration Amendment Bill 2009 No. , 2009 9 [Page Break] Part 1 Amendments 1 Insert: 2 22A Interpretation 3 In this Division: 4 court means: 5 (a) in relation to arbitral proceedings that are, or are to be, 6 conducted in a State--the Supreme Court of that State; and 7 (b) in relation to arbitral proceedings that are, or are to be, 8 conducted in a Territory: 9 (i) the Supreme Court of the Territory; or 10 (ii) if there is no Supreme Court established in that 11 Territory--the Supreme Court of the State or Territory 12 that has jurisdiction in relation to that Territory; and 13 (c) in any case--the Federal Court of Australia. 14 18 Section 23 15 Repeal the section, substitute: 16 23 Parties may obtain subpoenas 17 (1) A party to arbitral proceedings commenced in reliance on an 18 arbitration agreement may apply to a court to issue a subpoena 19 under subsection (3). 20 (2) However, this may only be done with the permission of the arbitral 21 tribunal conducting the arbitral proceedings. 22 (3) The court may, for the purposes of the arbitral proceedings, issue a 23 subpoena requiring a person to do either or both of the following: 24 (a) to attend for examination before the arbitral tribunal; 25 (b) to produce to the arbitral tribunal the documents specified in 26 the subpoena. 27 (4) A person must not be compelled under a subpoena issued under 28 subsection (3) to answer any question or produce any document 29 which that person could not be compelled to answer or produce in 30 a proceeding before that court. 31 (5) The court must not issue a subpoena under subsection (3) to a 32 person who is not a party to the arbitral proceedings unless: 10 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (a) before the subpoena is issued, the person is given an 2 opportunity to make representations to the court; and 3 (b) the court is satisfied that it is reasonable in all the 4 circumstances to issue the subpoena to the person. 5 23A Failure to assist arbitral tribunal 6 (1) A party to arbitral proceedings commenced in reliance on an 7 arbitration agreement may apply to a court for an order under 8 subsection (3) if a person: 9 (a) refuses or fails to attend before the arbitral tribunal 10 conducting the arbitral proceedings for examination when 11 required to do so under a subpoena issued under subsection 12 23(3); or 13 (b) refuses or fails to attend before the arbitral tribunal when 14 required to do so by the arbitral tribunal; or 15 (c) refuses or fails to produce a document that the person is 16 required to produce under a subpoena issued under 17 subsection 23(3); or 18 (d) refuses or fails to produce a document that the person is 19 required to produce by the arbitral tribunal; or 20 (e) appearing as a witness before the arbitral tribunal: 21 (i) refuses or fails to take an oath or to make an affirmation 22 or affidavit when required by the arbitral tribunal to do 23 so; or 24 (ii) refuses or fails to answer a question that the witness is 25 required by the arbitral tribunal to answer; or 26 (f) refuses or fails to do any other thing which the arbitral 27 tribunal may require to assist the arbitral tribunal in the 28 performance of its functions. 29 (2) However, an application may only be made under paragraph (1)(b), 30 (d), (e) or (f) with the permission of the arbitral tribunal. 31 (3) The court may, for the purposes of the arbitral proceedings, order: 32 (a) the person to attend before the court for examination or to 33 produce to the court the relevant document or to do the 34 relevant thing; and 35 (b) the person, or any other person, to transmit to the arbitral 36 tribunal one or more of the following: International Arbitration Amendment Bill 2009 No. , 2009 11 [Page Break] Part 1 Amendments 1 (i) a record of any evidence given in compliance with the 2 order; 3 (ii) any document produced in compliance with the order, 4 or a copy of the document; 5 (iii) particulars of any other thing done in compliance with 6 the order. 7 (4) A person must not be compelled under an order made under 8 subsection (3) to answer any question or produce any document 9 which that person could not be compelled to answer or produce in 10 a proceeding before that court. 11 (5) The court must not make an order under subsection (3) in relation 12 to a person who is not a party to the arbitral proceedings unless: 13 (a) before the order is made, the person is given an opportunity 14 to make representations to the court; and 15 (b) the court is satisfied that it is reasonable in all the 16 circumstances to make the order in relation to the person. 17 23B Default by party to an arbitration agreement 18 (1) This section applies if a party to arbitral proceedings commenced 19 in reliance on an arbitration agreement: 20 (a) refuses or fails to attend before an arbitral tribunal for 21 examination when required to do so under a subpoena issued 22 under subsection 23(3) (regardless of whether an application 23 is made for an order under subsection 23A(3)); or 24 (b) refuses or fails to produce a document to an arbitral tribunal 25 when required to do so under a subpoena issued under 26 subsection 23(3) (regardless of whether an application is 27 made for an order under subsection 23A(3)); or 28 (c) refuses or fails to comply with an order made by a court 29 under subsection 23A(3); or 30 (d) fails within the time specified by an arbitral tribunal, or if no 31 time is specified within a reasonable time, to comply with 32 any other requirement made by the arbitral tribunal to assist it 33 in the performance of its functions. 34 (2) The arbitral tribunal may continue with the arbitration proceedings 35 in default of appearance or of the other act and make an award on 36 the evidence before it. 12 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (3) Nothing in this provision affects any other power which the arbitral 2 tribunal or a court may have in relation to the refusal or failure. 3 23C Disclosure of confidential information 4 (1) The parties to arbitral proceedings commenced in reliance on an 5 arbitration agreement must not disclose confidential information in 6 relation to the arbitral proceedings unless: 7 (a) the disclosure is allowed under section 23D; or 8 (b) the disclosure is allowed under an order made under 9 section 23E and no order is in force under section 23F 10 prohibiting that disclosure; or 11 (c) the disclosure is allowed under an order made under 12 section 23G. 13 (2) An arbitral tribunal must not disclose confidential information in 14 relation to arbitral proceedings commenced in reliance on an 15 arbitration agreement unless: 16 (a) the disclosure is allowed under section 23D; or 17 (b) the disclosure is allowed under an order made under 18 section 23E and no order is in force under section 23F 19 prohibiting that disclosure; or 20 (c) the disclosure is allowed under an order made under 21 section 23G. 22 23D Circumstances in which confidential information may be 23 disclosed 24 (1) This section sets out the circumstances in which confidential 25 information in relation to arbitral proceedings may be disclosed by: 26 (a) a party to the arbitral proceedings; or 27 (b) an arbitral tribunal. 28 (2) The information may be disclosed with the consent of all of the 29 parties to the arbitral proceedings. 30 (3) The information may be disclosed to a professional or other adviser 31 of any of the parties to the arbitral proceedings. 32 (4) The information may be disclosed if it is necessary to ensure that a 33 party to the arbitral proceedings has a full opportunity to present International Arbitration Amendment Bill 2009 No. , 2009 13 [Page Break] Part 1 Amendments 1 the party's case and the disclosure is no more than reasonable for 2 that purpose. 3 (5) The information may be disclosed if it is necessary for the 4 establishment or protection of the legal rights of a party to the 5 arbitral proceedings in relation to a third party and the disclosure is 6 no more than reasonable for that purpose. 7 (6) The information may be disclosed if it is necessary for the purpose 8 of enforcing an arbitral award and the disclosure is no more than 9 reasonable for that purpose. 10 (7) The information may be disclosed if it is necessary for the 11 purposes of this Act, or the Model Law as in force under 12 subsection 16(1) of this Act, and the disclosure is no more than 13 reasonable for that purpose. 14 (8) The information may be disclosed if the disclosure is in accordance 15 with an order made or a subpoena issued by a court. 16 (9) The information may be disclosed if the disclosure is authorised or 17 required by another relevant law, or required by a competent 18 regulatory body, and the person making the disclosure gives 19 written details of the disclosure including an explanation of reasons 20 for the disclosure to: 21 (a) if the person is a party to the arbitral proceedings--the other 22 parties to the proceedings and the arbitral tribunal; and 23 (b) if the arbitral tribunal is making the disclosure--all the 24 parties to the proceedings. 25 (10) In subsection (9): 26 another relevant law means: 27 (a) a law of the Commonwealth, other than this Act; and 28 (b) a law of a State or Territory; and 29 (c) a law of a foreign country, or of a part of a foreign country: 30 (i) in which a party to the arbitration agreement has its 31 principal place of business; or 32 (ii) in which a substantial part of the obligations of the 33 commercial relationship are to be performed; or 34 (iii) to which the subject matter of the dispute is most 35 commonly connected. 14 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 23E Arbitral tribunal may allow disclosure in certain circumstances 2 (1) An arbitral tribunal may make an order allowing a party to arbitral 3 proceedings to disclose confidential information in relation to the 4 proceedings in circumstances other than those mentioned in 5 section 23D. 6 (2) An order under subsection (1) may only be made at the request of 7 one of the parties to the arbitral proceedings and after giving each 8 of the parties to the arbitral proceedings the opportunity to be 9 heard. 10 23F Court may prohibit disclosure in certain circumstances 11 (1) A court may make an order prohibiting a party to arbitral 12 proceedings from disclosing confidential information in relation to 13 the arbitral proceedings if: 14 (a) the court is satisfied in the circumstances of the particular 15 case that the public interest in preserving the confidentiality 16 of arbitral proceedings is not outweighed by other 17 considerations that render it desirable in the public interest 18 for the information to be disclosed; or 19 (b) the disclosure is more than is reasonable for that purpose. 20 (2) An order under subsection (1) may only be made on the application 21 of a party to the arbitral proceedings and after giving each of the 22 parties to the arbitral proceedings the opportunity to be heard. 23 (3) A party to arbitral proceedings may only apply for an order under 24 subsection (1) if the arbitral tribunal has made an order under 25 subsection 23E(1) allowing the disclosure of the information. 26 (4) The court may order that the confidential information not be 27 disclosed pending the outcome of the application under 28 subsection (2). 29 (5) An order under this section is final. 30 23G Court may allow disclosure in certain circumstances 31 (1) A court may make an order allowing a party to arbitral proceedings 32 to disclose confidential information in relation to the arbitral International Arbitration Amendment Bill 2009 No. , 2009 15 [Page Break] Part 1 Amendments 1 proceedings in circumstances other than those mentioned in 2 section 23D if: 3 (a) the court is satisfied, in the circumstances of the particular 4 case, that the public interest in preserving the confidentiality 5 of arbitral proceedings is outweighed by other considerations 6 that render it desirable in the public interest for the 7 information to be disclosed; and 8 (b) the disclosure is not more than is reasonable for that purpose. 9 (2) An order under subsection (1) may only be made on the application 10 of a person who is or was a party to the arbitral proceedings and 11 after giving each person who is or was a party to the arbitral 12 proceedings the opportunity to be heard. 13 (3) A party to arbitral proceedings may only apply for an order under 14 subsection (1) if: 15 (a) the mandate of the arbitral tribunal has been terminated under 16 Article 32 of the Model Law; or 17 (b) a request by the party to the arbitral tribunal to make an order 18 under subsection 23E(1) allowing the disclosure has been 19 refused. 20 (4) An order under this section is final. 21 23H Death of a party to an arbitration agreement 22 (1) If a party to an arbitration agreement dies: 23 (a) the agreement is not discharged (either in respect of the 24 deceased or any other party); and 25 (b) the authority of an arbitral tribunal is not revoked; and 26 (c) the arbitration agreement is enforceable by or against the 27 personal representative of the deceased. 28 (2) Nothing in subsection (1) is taken to affect the operation of any 29 enactment or rule of law by virtue of which a right of action is 30 extinguished by the death of a person. 31 19 Subsection 25(1) 32 Omit "Unless the parties to an arbitration agreement have (whether in 33 the agreement or in any other document in writing) otherwise agreed, 34 where", substitute "Where". 16 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 20 Section 26 2 Repeal the section, substitute: 3 26 Interest on debt under award 4 (1) This section applies if: 5 (a) an arbitral tribunal makes an award for the payment of an 6 amount of money; and 7 (b) under the award, the amount is to be paid by a particular day 8 (the due date). 9 (2) The arbitral tribunal may direct that interest, including compound 10 interest, is payable if the amount is not paid on or before the due 11 date. 12 (3) The arbitral tribunal may set a reasonable rate of interest. 13 (4) The interest is payable: 14 (a) from the day immediately following the due date; and 15 (b) on so much of the amount as remains unpaid. 16 (5) The direction is taken to form part of the award. 17 21 Subsection 27(1) 18 Omit "Unless the parties to an arbitration agreement have (whether in 19 the agreement or in any other document in writing) otherwise agreed, 20 the", substitute "The". 21 22 At the end of subsection 27(2) 22 Add: 23 ; and (d) limit the amount of costs that a party is to pay to a specified 24 amount. 25 23 After subsection 27(2) 26 Insert: 27 (2A) An arbitral tribunal must, if it intends to make a direction under 28 paragraph (2)(d), give the parties to the arbitration agreement 29 notice of that intention sufficiently in advance of the incurring of 30 costs to which it relates, or the taking of any steps in the arbitral International Arbitration Amendment Bill 2009 No. , 2009 17 [Page Break] Part 1 Amendments 1 proceedings which may be affected by it, for the limit to be taken 2 into account. 3 24 Subsection 35(2) 4 Repeal the subsection, substitute: 5 (2) An award may be enforced in the Supreme Court of a State or 6 Territory with the leave of that court as if the award were a 7 judgment or order of that court. 8 25 Subsection 35(4) 9 Repeal the subsection, substitute: 10 (4) An award may be enforced in the Federal Court of Australia with 11 the leave of that court as if the award were a judgment or order of 12 that court. 13 26 After Part IV 14 Add: 15 Part V--Matters to which courts and other 16 authorities must have regard 17 18 39 Matters to which court must have regard 19 (1) This section applies where: 20 (a) a court is considering: 21 (i) exercising a power under section 8 to enforce a foreign 22 award; or 23 (ii) exercising the power under section 8 to refuse to enforce 24 a foreign award, including a refusal because the 25 enforcement of the award would be contrary to public 26 policy; or 27 (iii) exercising a power under Article 35 of the Model Law, 28 as in force under subsection 16(1) of this Act, to 29 recognise or enforce an arbitral award; or 30 (iv) exercising a power under Article 36 of the Model Law, 31 as in force under subsection 16(1) of this Act, to refuse 32 to recognise or enforce an arbitral award, including a 18 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 refusal under Article 36(1)(b)(ii) because the 2 recognition or enforcement of the arbitral award would 3 be contrary to the public policy of Australia; or 4 (v) if, under section 18, the court is taken to have been 5 specified in Article 6 of the Model Law as a court 6 competent to perform the functions referred to in that 7 article--performing one or more of those functions; or 8 (vi) performing any other functions or exercising any other 9 powers under this Act, or the Model Law as in force 10 under subsection 16(1) of this Act; or 11 (vii) performing any function or exercising any power under 12 an agreement or award to which this Act applies; or 13 (b) a court is interpreting this Act, or the Model Law as in force 14 under subsection 16(1) of this Act; or 15 (c) a court is interpreting an agreement or award to which this 16 Act applies; or 17 (d) if, under section 18, an authority is taken to have been 18 specified in Article 6 of the Model Law as an authority 19 competent to perform the functions referred to in Articles 20 11(3) or 11(4) of the Model Law--the authority is 21 considering performing one or more of those functions. 22 (2) The court or authority must, in doing so, have regard to: 23 (a) the objects of the Act; and 24 (b) the fact that: 25 (i) arbitration is an efficient, impartial, enforceable and 26 timely method by which to resolve commercial 27 disputes; and 28 (ii) awards are intended to provide certainty and finality. 29 (3) In this section: 30 arbitral award has the same meaning as in the Model Law. 31 foreign award has the same meaning as in Part II. 32 Model Law has the same meaning as in Part III. 33 27 Schedule 2 34 Repeal the Schedule, substitute: International Arbitration Amendment Bill 2009 No. , 2009 19 [Page Break] Part 1 Amendments 1 Schedule 2--UNCITRAL Model Law on 2 International Commercial Arbitration 3 (As adopted by the United Nations 4 Commission on International Trade 5 Law on 21 June 1985, and as amended 6 by the United Nations Commission on 7 International Trade Law on 7 July 8 2006) 9 Note: See subsection 15(1). 10 11 CHAPTER I. GENERAL PROVISIONS 12 Article 1. Scope of application1 13 (1) This Law applies to international commercial2 arbitration, subject to any 14 agreement in force between this State and any other State or States. 15 (2) The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35 and 16 36, apply only if the place of arbitration is in the territory of this State. 17 18 (Article 1(2) has been amended by the Commission at its thirty-ninth session, in 2006) 19 (3) An arbitration is international if: 20 (a) the parties to an arbitration agreement have, at the time of the 21 conclusion of that agreement, their places of business in different States; or 22 (b) one of the following places is situated outside the State in 23 which the parties have their places of business: 24 (i) the place of arbitration if determined in, or pursuant to, 25 the arbitration agreement; 26 (ii) any place where a substantial part of the obligations of 27 the commercial relationship is to be performed or the 28 place with which the subject-matter of the dispute is 29 most closely connected; or 30 (c) the parties have expressly agreed that the subject matter of the 31 arbitration agreement relates to more than one country. 20 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (4) For the purposes of paragraph (3) of this article: 2 (a) if a party has more than one place of business, the place of 3 business is that which has the closest relationship to the arbitration agreement; 4 (b) if a party does not have a place of business, reference is to be 5 made to his habitual residence. 6 (5) This Law shall not affect any other law of this State by virtue of which 7 certain disputes may not be submitted to arbitration or may be submitted to 8 arbitration only according to provisions other than those of this Law. 9 10 Article 2. Definitions and rules of interpretation 11 For the purposes of this Law: 12 (a) "arbitration" means any arbitration whether or not administered 13 by a permanent arbitral institution; 14 (b) "arbitral tribunal" means a sole arbitrator or a panel of 15 arbitrators; 16 (c) "court" means a body or organ of the judicial system of a State; 17 (d) where a provision of this Law, except article 28, leaves the 18 parties free to determine a certain issue, such freedom includes the right of the 19 parties to authorize a third party, including an institution, to make that 20 determination; 21 (e) where a provision of this Law refers to the fact that the parties 22 have agreed or that they may agree or in any other way refers to an agreement 23 of the parties, such agreement includes any arbitration rules referred to in that 24 agreement; 25 (f) where a provision of this Law, other than in articles 25(a) and 26 32(2) (a), refers to a claim, it also applies to a counter-claim, and where it refers 27 to a defence, it also applies to a defence to such counter-claim. 28 29 Article 2 A. International origin and general principles International Arbitration Amendment Bill 2009 No. , 2009 21 [Page Break] Part 1 Amendments 1 (As adopted by the Commission at its thirty-ninth session, in 2006) 2 (1) In the interpretation of this Law, regard is to be had to its international 3 origin and to the need to promote uniformity in its application and the 4 observance of good faith. 5 (2) Questions concerning matters governed by this Law which are not 6 expressly settled in it are to be settled in conformity with the general principles 7 on which this Law is based. 8 9 Article 3. Receipt of written communications 10 (1) Unless otherwise agreed by the parties: 11 (a) any written communication is deemed to have been received if 12 it is delivered to the addressee personally or if it is delivered at his place of 13 business, habitual residence or mailing address; if none of these can be found 14 after making a reasonable inquiry, a written communication is deemed to have 15 been received if it is sent to the addressee's last-known place of business, 16 habitual residence or mailing address by registered letter or any other means 17 which provides a record of the attempt to deliver it; 18 (b) the communication is deemed to have been received on the day 19 it is so delivered. 20 (2) The provisions of this article do not apply to communications in court 21 proceedings. 22 23 Article 4. Waiver of right to object 24 A party who knows that any provision of this Law from which the parties may 25 derogate or any requirement under the arbitration agreement has not been 26 complied with and yet proceeds with the arbitration without stating his 27 objection to such non-compliance without undue delay or, if a time-limit is 28 provided therefor, within such period of time, shall be deemed to have waived 29 his right to object. 30 22 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 Article 5. Extent of court intervention 2 In matters governed by this Law, no court shall intervene except where so 3 provided in this Law. 4 5 Article 6. Court or other authority for certain functions 6 of arbitration assistance and supervision 7 The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) 8 shall be performed by ... [Each State enacting this model law specifies the court, 9 courts or, where referred to therein, other authority competent to perform these 10 functions.] 11 12 13 CHAPTER II. ARBITRATION AGREEMENT 14 15 Option I 16 Article 7. Definition and form of arbitration agreement 17 (As adopted by the Commission at its thirty-ninth session, in 2006) 18 (1) "Arbitration agreement" is an agreement by the parties to submit to 19 arbitration all or certain disputes which have arisen or which may arise between 20 them in respect of a defined legal relationship, whether contractual or not. An 21 arbitration agreement may be in the form of an arbitration clause in a contract or 22 in the form of a separate agreement. 23 (2) The arbitration agreement shall be in writing. 24 (3) An arbitration agreement is in writing if its content is recorded in any 25 form, whether or not the arbitration agreement or contract has been concluded 26 orally, by conduct, or by other means. 27 (4) The requirement that an arbitration agreement be in writing is met by an 28 electronic communication if the information contained therein is accessible so 29 as to be useable for subsequent reference; "electronic communication" means International Arbitration Amendment Bill 2009 No. , 2009 23 [Page Break] Part 1 Amendments 1 any communication that the parties make by means of data messages; "data 2 message" means information generated, sent, received or stored by electronic, 3 magnetic, optical or similar means, including, but not limited to, electronic data 4 interchange (EDI), electronic mail, telegram, telexor telecopy. 5 (5) Furthermore, an arbitration agreement is in writing if it is contained in 6 an exchange of statements of claim and defence in which the existence of an 7 agreement is alleged by one party and not denied by the other. 8 (6) The reference in a contract to any document containing an arbitration 9 clause constitutes an arbitration agreement in writing, provided that the 10 reference is such as to make that clause part of the contract. 11 12 Option II 13 Article 7. Definition of arbitration agreement 14 (As adopted by the Commission at its thirty-ninth session, in 2006) 15 16 "Arbitration agreement" is an agreement by the parties to submit to arbitration 17 all or certain disputes which have arisen or which may arise between them in 18 respect of a defined legal relationship, whether contractual or not. 19 20 Article 8. Arbitration agreement and substantive claim before court 21 (1) A court before which an action is brought in a matter which is the 22 subject of an arbitration agreement shall, if a party so requests not later than 23 when submitting his first statement on the substance of the dispute, refer the 24 parties to arbitration unless it finds that the agreement is null and void, 25 inoperative or incapable of being performed. 26 (2) Where an action referred to in paragraph (1) of this article has been 27 brought, arbitral proceedings may nevertheless be commenced or continued, 28 and an award may be made, while the issue is pending before the court. 29 30 Article 9. Arbitration agreement and interim measures by court 24 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 It is not incompatible with an arbitration agreement for a party to request, before 2 or during arbitral proceedings, from a court an interim measure of protection 3 and for a court to grant such measure. 4 5 6 7 CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL 8 Article 10. Number of arbitrators 9 (1) The parties are free to determine the number of arbitrators. 10 (2) Failing such determination, the number of arbitrators shall be three. 11 12 Article 11. Appointment of arbitrators 13 (1) No person shall be precluded by reason of his nationality from acting as 14 an arbitrator, unless otherwise agreed by the parties. 15 (2) The parties are free to agree on a procedure of appointing the arbitrator 16 or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. 17 (3) Failing such agreement, 18 (a) in an arbitration with three arbitrators, each party shall appoint 19 one arbitrator, and the two arbitrators thus appointed shall appoint the third 20 arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of 21 a request to do so from the other party, or if the two arbitrators fail to agree on 22 the third arbitrator within thirty days of their appointment, the appointment shall 23 be made, upon request of a party, by the court or other authority specified in 24 article 6; 25 (b) in an arbitration with a sole arbitrator, if the parties are unable 26 to agree on the arbitrator, he shall be appointed, upon request of a party, by the 27 court or other authority specified in article 6. 28 (4) Where, under an appointment procedure agreed upon by the parties, 29 (a) a party fails to act as required under such procedure, or 30 (b) the parties, or two arbitrators, are unable to reach an agreement 31 expected of them under such procedure, or International Arbitration Amendment Bill 2009 No. , 2009 25 [Page Break] Part 1 Amendments 1 (c) a third party, including an institution, fails to perform any 2 function entrusted to it under such procedure, 3 any party may request the court or other authority specified in article 6 to take 4 the necessary measure, unless the agreement on the appointment procedure 5 provides other means for securing the appointment. 6 (5) A decision on a matter entrusted by paragraph (3) or (4) of this article to 7 the court or other authority specified in article 6 shall be subject to no appeal. 8 The court or other authority, in appointing an arbitrator, shall have due regard to 9 any qualifications required of the arbitrator by the agreement of the parties and 10 to such considerations as are likely to secure the appointment of an independent 11 and impartial arbitrator and, in the case of a sole or third arbitrator, shall take 12 into account as well the advisability of appointing an arbitrator of a nationality 13 other than those of the parties. 14 15 Article 12. Grounds for challenge 16 (1) When a person is approached in connection with his possible 17 appointment as an arbitrator, he shall disclose any circumstances likely to give 18 rise to justifiable doubts as to his impartiality or independence. An arbitrator, 19 from the time of his appointment and throughout the arbitral proceedings, shall 20 without delay disclose any such circumstances to the parties unless they have 21 already been informed of them by him. 22 (2) An arbitrator may be challenged only if circumstances exist that give 23 rise to justifiable doubts as to his impartiality or independence, or if he does not 24 possess qualifications agreed to by the parties. A party may challenge an 25 arbitrator appointed by him, or in whose appointment he has participated, only 26 for reasons of which he becomes aware after the appointment has been made. 27 28 Article 13. Challenge procedure 29 (1) The parties are free to agree on a procedure for challenging an 30 arbitrator, subject to the provisions of paragraph (3) of this article. 31 (2) Failing such agreement, a party who intends to challenge an arbitrator 32 shall, within fifteen days after becoming aware of the constitution of the arbitral 33 tribunal or after becoming aware of any circumstance referred to in article 26 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 12(2), send a written statement of the reasons for the challenge to the arbitral 2 tribunal. Unless the challenged arbitrator withdraws from his office or the other 3 party agrees to the challenge, the arbitral tribunal shall decide on the challenge. 4 (3) If a challenge under any procedure agreed upon by the parties or under 5 the procedure of paragraph (2) of this article is not successful, the challenging 6 party may request, within thirty days after having received notice of the 7 decision rejecting the challenge, the court or other authority specified in article 8 6 to decide on the challenge, which decision shall be subject to no appeal; while 9 such a request is pending, the arbitral tribunal, including the challenged 10 arbitrator, may continue the arbitral proceedings and make an award. 11 12 Article 14. Failure or impossibility to act 13 (1) If an arbitrator becomes de jure or de facto unable to perform his 14 functions or for other reasons fails to act without undue delay, his mandate 15 terminates if he withdraws from his office or if the parties agree on the 16 termination. Otherwise, if a controversy remains concerning any of these 17 grounds, any party may request the court or other authority specified in article 6 18 to decide on the termination of the mandate, which decision shall be subject to 19 no appeal. 20 (2) If, under this article or article 13(2), an arbitrator withdraws from his 21 office or a party agrees to the termination of the mandate of an arbitrator, this 22 does not imply acceptance of the validity of any ground referred to in this article 23 or article 12(2). 24 25 Article 15. Appointment of substitute arbitrator 26 Where the mandate of an arbitrator terminates under article 13 or 14 or because 27 of his withdrawal from office for any other reason or because of the revocation 28 of his mandate by agreement of the parties or in any other case of termination of 29 his mandate, a substitute arbitrator shall be appointed according to the rules that 30 were applicable to the appointment of the arbitrator being replaced. 31 32 International Arbitration Amendment Bill 2009 No. , 2009 27 [Page Break] Part 1 Amendments 1 CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL 2 Article 16. Competence of arbitral tribunal to rule on its jurisdiction 3 (1) The arbitral tribunal may rule on its own jurisdiction, including any 4 objections with respect to the existence or validity of the arbitration agreement. 5 For that purpose, an arbitration clause which forms part of a contract shall be 6 treated as an agreement independent of the other terms of the contract. A 7 decision by the arbitral tribunal that the contract is null and void shall not entail 8 ipso jure the invalidity of the arbitration clause. 9 (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised 10 not later than the submission of the statement of defence. A party is not 11 precluded from raising such a plea by the fact that he has appointed, or 12 participated in the appointment of, an arbitrator. A plea that the arbitral tribunal 13 is exceeding the scope of its authority shall be raised as soon as the matter 14 alleged to be beyond the scope of its authority is raised during the arbitral 15 proceedings. The arbitral tribunal may, in either case, admit a later plea if it 16 considers the delay justified. 17 (3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of 18 this article either as a preliminary question or in an award on the merits. If the 19 arbitral tribunal rules as a preliminary question that it has jurisdiction, any party 20 may request, within thirty days after having received notice of that ruling, the 21 court specified in article 6 to decide the matter, which decision shall be subject 22 to no appeal; while such a request is pending, the arbitral tribunal may continue 23 the arbitral proceedings and make an award. 24 25 26 27 CHAPTER IV A. INTERIM MEASURES 28 AND PRELIMINARY ORDERS 29 30 (As adopted by the Commission at its thirty-ninth session, in 2006) 31 32 Section 1. Interim measures 33 Article 17. Power of arbitral tribunal to order interim measures 28 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the 2 request of a party, grant interim measures. 3 (2) An interim measure is any temporary measure, whether in the form of 4 an award or in another form, by which, at any time prior to the issuance of the 5 award by which the dispute is finally decided, the arbitral tribunal orders a party 6 to: 7 (a) Maintain or restore the status quo pending determination of the 8 dispute; 9 (b) Take action that would prevent, or refrain from taking action 10 that is likely to cause, current or imminent harm or prejudice to the arbitral 11 process itself; 12 (c) Provide a means of preserving assets out of which a subsequent 13 award may be satisfied; or 14 (d) Preserve evidence that may be relevant and material to the 15 resolution of the dispute. 16 17 Article 17 A. Conditions for granting interim measures 18 (1) The party requesting an interim measure under article 17(2)(a), (b) and 19 (c) shall satisfy the arbitral tribunal that: 20 (a) Harm not adequately reparable by an award of damages is 21 likely to result if the measure is not ordered, and such harm substantially 22 outweighs the harm that is likely to result to the party against whom the 23 measure is directed if the measure is granted; and 24 (b) There is a reasonable possibility that the requesting party will 25 succeed on the merits of the claim. The determination on this possibility shall 26 not affect the discretion of the arbitral tribunal in making any subsequent 27 determination. 28 (2) With regard to a request for an interim measure under article 17(2)(d), 29 the requirements in paragraphs (1)(a) and (b) of this article shall apply only to 30 the extent the arbitral tribunal considers appropriate. 31 32 Section 2. Preliminary orders 33 Article 17 B. Applications for preliminary orders and International Arbitration Amendment Bill 2009 No. , 2009 29 [Page Break] Part 1 Amendments 1 conditions for granting preliminary orders 2 (1) Unless otherwise agreed by the parties, a party may, without notice to 3 any other party, make a request for an interim measure together with an 4 application for a preliminary order directing a party not to frustrate the purpose 5 of the interim measure requested. 6 (2) The arbitral tribunal may grant a preliminary order provided it considers 7 that prior disclosure of the request for the interim measure to the party against 8 whom it is directed risks frustrating the purpose of the measure. 9 (3) The conditions defined under article 17A apply to any preliminary 10 order, provided that the harm to be assessed under article 17A(1)(a), is the harm 11 likely to result from the order being granted or not. 12 13 Article 17 C. Specific regime for preliminary orders 14 (1) Immediately after the arbitral tribunal has made a determination in 15 respect of an application for a preliminary order, the arbitral tribunal shall give 16 notice to all parties of the request for the interim measure, the application for 17 the preliminary order, the preliminary order, if any, and all other 18 communications, including by indicating the content of any oral 19 communication, between any party and the arbitral tribunal in relation thereto. 20 (2) At the same time, the arbitral tribunal shall give an opportunity to any 21 party against whom a preliminary order is directed to present its case at the 22 earliest practicable time. 23 (3) The arbitral tribunal shall decide promptly on any objection to the 24 preliminary order. 25 (4) A preliminary order shall expire after twenty days from the date on 26 which it was issued by the arbitral tribunal. However, the arbitral tribunal may 27 issue an interim measure adopting or modifying the preliminary order, after the 28 party against whom the preliminary order is directed has been given notice and 29 an opportunity to present its case. 30 (5) A preliminary order shall be binding on the parties but shall not be 31 subject to enforcement by a court. Such a preliminary order does not constitute 32 an award. 30 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 2 3 4 5 Section 3. Provisions applicable to interim measures 6 and preliminary orders 7 Article 17 D. Modification, suspension, termination 8 The arbitral tribunal may modify, suspend or terminate an interim 9 measure or a preliminary order it has granted, upon application of any party or, 10 in exceptional circumstances and upon prior notice to the parties, on the arbitral 11 tribunal's own initiative. 12 13 Article 17 E. Provision of security 14 (1) The arbitral tribunal may require the party requesting an interim 15 measure to provide appropriate security in connection with the measure. 16 (2) The arbitral tribunal shall require the party applying for a preliminary 17 order to provide security in connection with the order unless the arbitral tribunal 18 considers it inappropriate or unnecessary to do so. 19 20 Article 17 F. Disclosure 21 (1) The arbitral tribunal may require any party promptly to disclose any 22 material change in the circumstances on the basis of which the measure was 23 requested or granted. 24 (2) The party applying for a preliminary order shall disclose to the arbitral 25 tribunal all circumstances that are likely to be relevant to the arbitral tribunal's 26 determination whether to grant or maintain the order, and such obligation shall 27 continue until the party against whom the order has been requested has had an 28 opportunity to present its case. Thereafter, paragraph (1) of this article shall 29 apply. 30 International Arbitration Amendment Bill 2009 No. , 2009 31 [Page Break] Part 1 Amendments 1 Article 17 G. Costs and damages 2 The party requesting an interim measure or applying for a preliminary 3 order shall be liable for any costs and damages caused by the measure or the 4 order to any party if the arbitral tribunal later determines that, in the 5 circumstances, the measure or the order should not have been granted. The 6 arbitral tribunal may award such costs and damages at any point during the 7 proceedings. 8 9 10 11 12 Section 4. Recognition and enforcement of interim measures 13 Article 17 H. Recognition and enforcement 14 (1) An interim measure issued by an arbitral tribunal shall be recognized as 15 binding and, unless otherwise provided by the arbitral tribunal, enforced upon 16 application to the competent court, irrespective of the country in which it was 17 issued, subject to the provisions of article 17 I. 18 (2) The party who is seeking or has obtained recognition or enforcement of 19 an interim measure shall promptly inform the court of any termination, 20 suspension or modification of that interim measure. 21 (3) The court of the State where recognition or enforcement is sought may, 22 if it considers it proper, order the requesting party to provide appropriate 23 security if the arbitral tribunal has not already made a determination with 24 respect to security or where such a decision is necessary to protect the rights of 25 third parties. 26 27 Article 17 I. Grounds for refusing recognition or enforcement3 28 (1) Recognition or enforcement of an interim measure may be refused only: 29 (a) At the request of the party against whom it is invoked if the 30 court is satisfied that: 31 (i) Such refusal is warranted on the grounds set forth in 32 article 36(1)(a)(i), (ii), (iii) or (iv); or 32 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (ii) The arbitral tribunal's decision with respect to the 2 provision of security in connection with the interim 3 measure issued by the arbitral tribunal has not been 4 complied with; or 5 (iii) The interim measure has been terminated or suspended 6 by the arbitral tribunal or, where so empowered, by the 7 court of the State in which the arbitration takes place or 8 under the law of which that interim measure was 9 granted; or 10 (b) If the court finds that: 11 (i) The interim measure is incompatible with the powers 12 conferred upon the court unless the court decides to 13 reformulate the interim measure to the extent necessary 14 to adapt it to its own powers and procedures for the 15 purposes of enforcing that interim measure and without 16 modifying its substance; or 17 (ii) Any of the grounds set forth in article 36(1)(b)(i) or (ii), 18 apply to the recognition and enforcement of the interim 19 measure. 20 (2) Any determination made by the court on any ground in paragraph (1) of 21 this article shall be effective only for the purposes of the application to 22 recognize and enforce the interim measure. The court where recognition or 23 enforcement is sought shall not, in making that determination, undertake a 24 review of the substance of the interim measure. 25 26 Section 5. Court-ordered interim measures 27 Article 17 J. Court-ordered interim measures 28 A court shall have the same power of issuing an interim measure in 29 relation to arbitration proceedings, irrespective of whether their place is in the 30 territory of this State, as it has in relation to proceedings in courts. The court 31 shall exercise such power in accordance with its own procedures in 32 consideration of the specific features of international arbitration. 33 34 35 CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS International Arbitration Amendment Bill 2009 No. , 2009 33 [Page Break] Part 1 Amendments 1 Article 18. Equal treatment of parties 2 The parties shall be treated with equality and each party shall be given a full 3 opportunity of presenting his case. 4 5 Article 19. Determination of rules of procedure 6 (1) Subject to the provisions of this Law, the parties are free to agree on the 7 procedure to be followed by the arbitral tribunal in conducting the proceedings. 8 (2) Failing such agreement, the arbitral tribunal may, subject to the 9 provisions of this Law, conduct the arbitration in such manner as it considers 10 appropriate. The power conferred upon the arbitral tribunal includes the power 11 to determine the admissibility, relevance, materiality and weight of any 12 evidence. 13 14 Article 20. Place of arbitration 15 (1) The parties are free to agree on the place of arbitration. Failing such 16 agreement, the place of arbitration shall be determined by the arbitral tribunal 17 having regard to the circumstances of the case, including the convenience of the 18 parties. 19 (2) Notwithstanding the provisions of paragraph (1) of this article, the 20 arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it 21 considers appropriate for consultation among its members, for hearing 22 witnesses, experts or the parties, or for inspection of goods, other property or 23 documents. 24 25 Article 21. Commencement of arbitral proceedings 26 Unless otherwise agreed by the parties, the arbitral proceedings in respect of a 27 particular dispute commence on the date on which a request for that dispute to 28 be referred to arbitration is received by the respondent. 29 34 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 Article 22. Language 2 (1) The parties are free to agree on the language or languages to be used in 3 the arbitral proceedings. Failing such agreement, the arbitral tribunal shall 4 determine the language or languages to be used in the proceedings. This 5 agreement or determination, unless otherwise specified therein, shall apply to 6 any written statement by a party, any hearing and any award, decision or other 7 communication by the arbitral tribunal. 8 (2) The arbitral tribunal may order that any documentary evidence shall be 9 accompanied by a translation into the language or languages agreed upon by the 10 parties or determined by the arbitral tribunal. 11 12 Article 23. Statements of claim and defence 13 (1) Within the period of time agreed by the parties or determined by the 14 arbitral tribunal, the claimant shall state the facts supporting his claim, the 15 points at issue and the relief or remedy sought, and the respondent shall state his 16 defence in respect of these particulars, unless the parties have otherwise agreed 17 as to the required elements of such statements. The parties may submit with 18 their statements all documents they consider to be relevant or may add a 19 reference to the documents or other evidence they will submit. 20 (2) Unless otherwise agreed by the parties, either party may amend or 21 supplement his claim or defence during the course of the arbitral proceedings, 22 unless the arbitral tribunal considers it inappropriate to allow such amendment 23 having regard to the delay in making it. 24 25 Article 24. Hearings and written proceedings 26 (1) Subject to any contrary agreement by the parties, the arbitral tribunal 27 shall decide whether to hold oral hearings for the presentation of evidence or for 28 oral argument, or whether the proceedings shall be conducted on the basis of 29 documents and other materials. However, unless the parties have agreed that no 30 hearings shall be held, the arbitral tribunal shall hold such hearings at an 31 appropriate stage of the proceedings, if so requested by a party. International Arbitration Amendment Bill 2009 No. , 2009 35 [Page Break] Part 1 Amendments 1 (2) The parties shall be given sufficient advance notice of any hearing and 2 of any meeting of the arbitral tribunal for the purposes of inspection of goods, 3 other property or documents. 4 (3) All statements, documents or other information supplied to the arbitral 5 tribunal by one party shall be communicated to the other party. Also any expert 6 report or evidentiary document on which the arbitral tribunal may rely in 7 making its decision shall be communicated to the parties. 8 9 Article 25. Default of a party 10 Unless otherwise agreed by the parties, if, without showing sufficient cause, 11 (a) the claimant fails to communicate his statement of claim in 12 accordance with article 23(1), the arbitral tribunal shall terminate the 13 proceedings; 14 (b) the respondent fails to communicate his statement of defence in 15 accordance with article 23(1), the arbitral tribunal shall continue the 16 proceedings without treating such failure in itself as an admission of the 17 claimant's allegations; 18 (c) any party fails to appear at a hearing or to produce documentary 19 evidence, the arbitral tribunal may continue the proceedings and make the 20 award on the evidence before it. 21 22 Article 26. Expert appointed by arbitral tribunal 23 (1) Unless otherwise agreed by the parties, the arbitral tribunal 24 (a) may appoint one or more experts to report to it on specific 25 issues to be determined by the arbitral tribunal; 26 (b) may require a party to give the expert any relevant information 27 or to produce, or to provide access to, any relevant documents, goods or other 28 property for his inspection. 29 (2) Unless otherwise agreed by the parties, if a party so requests or if the 30 arbitral tribunal considers it necessary, the expert shall, after delivery of his 31 written or oral report, participate in a hearing where the parties have the 36 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 opportunity to put questions to him and to present expert witnesses in order to 2 testify on the points at issue. 3 4 Article 27. Court assistance in taking evidence 5 The arbitral tribunal or a party with the approval of the arbitral tribunal may 6 request from a competent court of this State assistance in taking evidence. The 7 court may execute the request within its competence and according to its rules 8 on taking evidence. 9 10 11 CHAPTER VI. MAKING OF AWARD AND 12 TERMINATION OF PROCEEDINGS 13 Article 28. Rules applicable to substance of dispute 14 (1) The arbitral tribunal shall decide the dispute in accordance with such 15 rules of law as are chosen by the parties as applicable to the substance of the 16 dispute. Any designation of the law or legal system of a given State shall be 17 construed, unless otherwise expressed, as directly referring to the substantive 18 law of that State and not to its conflict of laws rules. 19 (2) Failing any designation by the parties, the arbitral tribunal shall apply 20 the law determined by the conflict of laws rules which it considers applicable. 21 (3) The arbitral tribunal shall decide ex aequo et bono or as amiable 22 compositeur only if the parties have expressly authorized it to do so. 23 (4) In all cases, the arbitral tribunal shall decide in accordance with the 24 terms of the contract and shall take into account the usages of the trade 25 applicable to the transaction. 26 27 Article 29. Decision-making by panel of arbitrators 28 In arbitral proceedings with more than one arbitrator, any decision of the 29 arbitral tribunal shall be made, unless otherwise agreed by the parties, by a 30 majority of all its members. However, questions of procedure may be decided International Arbitration Amendment Bill 2009 No. , 2009 37 [Page Break] Part 1 Amendments 1 by a presiding arbitrator, if so authorized by the parties or all members of the 2 arbitral tribunal. 3 4 Article 30. Settlement 5 (1) If, during arbitral proceedings, the parties settle the dispute, the arbitral 6 tribunal shall terminate the proceedings and, if requested by the parties and not 7 objected to by the arbitral tribunal, record the settlement in the form of an 8 arbitral award on agreed terms. 9 (2) An award on agreed terms shall be made in accordance with the 10 provisions of article 31 and shall state that it is an award. Such an award has the 11 same status and effect as any other award on the merits of the case. 12 13 Article 31. Form and contents of award 14 (1) The award shall be made in writing and shall be signed by the arbitrator 15 or arbitrators. In arbitral proceedings with more than one arbitrator, the 16 signatures of the majority of all members of the arbitral tribunal shall suffice, 17 provided that the reason for any omitted signature is stated. 18 (2) The award shall state the reasons upon which it is based, unless the 19 parties have agreed that no reasons are to be given or the award is an award on 20 agreed terms under article 30. 21 (3) The award shall state its date and the place of arbitration as determined 22 in accordance with article 20(1). The award shall be deemed to have been made 23 at that place. 24 (4) After the award is made, a copy signed by the arbitrators in accordance 25 with paragraph (1) of this article shall be delivered to each party. 26 27 Article 32. Termination of proceedings 28 (1) The arbitral proceedings are terminated by the final award or by an 29 order of the arbitral tribunal in accordance with paragraph (2) of this article. 38 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (2) The arbitral tribunal shall issue an order for the termination of the 2 arbitral proceedings when: 3 (a) the claimant withdraws his claim, unless the respondent objects 4 thereto and the arbitral tribunal recognizes a legitimate interest on his part in 5 obtaining a final settlement of the dispute; 6 (b) the parties agree on the termination of the proceedings; 7 (c) the arbitral tribunal finds that the continuation of the 8 proceedings has for any other reason become unnecessary or impossible. 9 (3) The mandate of the arbitral tribunal terminates with the termination of 10 the arbitral proceedings, subject to the provisions of articles 33 and 34(4). 11 12 Article 33. Correction and interpretation of award; additional award 13 (1) Within thirty days of receipt of the award, unless another period of time 14 has been agreed upon by the parties: 15 (a) a party, with notice to the other party, may request the arbitral 16 tribunal to correct in the award any errors in computation, any clerical or 17 typographical errors or any errors of similar nature; 18 (b) if so agreed by the parties, a party, with notice to the other 19 party, may request the arbitral tribunal to give an interpretation of a specific 20 point or part of the award. 21 If the arbitral tribunal considers the request to be justified, it shall make the 22 correction or give the interpretation within thirty days of receipt of the request. 23 The interpretation shall form part of the award. 24 (2) The arbitral tribunal may correct any error of the type referred to in 25 paragraph (1)(a) of this article on its own initiative within thirty days of the date 26 of the award. 27 (3) Unless otherwise agreed by the parties, a party, with notice to the other 28 party, may request, within thirty days of receipt of the award, the arbitral 29 tribunal to make an additional award as to claims presented in the arbitral 30 proceedings but omitted from the award. If the arbitral tribunal considers the 31 request to be justified, it shall make the additional award within sixty days. International Arbitration Amendment Bill 2009 No. , 2009 39 [Page Break] Part 1 Amendments 1 (4) The arbitral tribunal may extend, if necessary, the period of time within 2 which it shall make a correction, interpretation or an additional award under 3 paragraph (1) or (3) of this article. 4 (5) The provisions of article 31 shall apply to a correction or interpretation 5 of the award or to an additional award. 6 7 8 9 CHAPTER VII. RECOURSE AGAINST AWARD 10 Article 34. Application for setting aside as exclusive 11 recourse against arbitral award 12 (1) Recourse to a court against an arbitral award may be made only by an 13 application for setting aside in accordance with paragraphs (2) and (3) of this 14 article. 15 (2) An arbitral award may be set aside by the court specified in article 6 16 only if: 17 (a) the party making the application furnishes proof that: 18 (i) a party to the arbitration agreement referred to in article 19 7 was under some incapacity; or the said agreement is 20 not valid under the law to which the parties have 21 subjected it or, failing any indication thereon, under the 22 law of this State; or 23 (ii) the party making the application was not given proper 24 notice of the appointment of an arbitrator or of the 25 arbitral proceedings or was otherwise unable to present 26 his case; or 27 (iii) the award deals with a dispute not contemplated by or 28 not falling within the terms of the submission to 29 arbitration, or contains decisions on matters beyond the 30 scope of the submission to arbitration, provided that, if 31 the decisions on matters submitted to arbitration can be 32 separated from those not so submitted, only that part of 33 the award which contains decisions on matters not 34 submitted to arbitration may be set aside; or 40 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (iv) the composition of the arbitral tribunal or the arbitral 2 procedure was not in accordance with the agreement of 3 the parties, unless such agreement was in conflict with a 4 provision of this Law from which the parties cannot 5 derogate, or, failing such agreement, was not in 6 accordance with this Law; or 7 (b) the court finds that: 8 (i) the subject-matter of the dispute is not capable of 9 settlement by arbitration under the law of this State; or 10 (ii) the award is in conflict with the public policy of this 11 State. 12 (3) An application for setting aside may not be made after three months 13 have elapsed from the date on which the party making that application had 14 received the award or, if a request had been made under article 33, from the date 15 on which that request had been disposed of by the arbitral tribunal. 16 (4) The court, when asked to set aside an award, may, where appropriate 17 and so requested by a party, suspend the setting aside proceedings for a period 18 of time determined by it in order to give the arbitral tribunal an opportunity to 19 resume the arbitral proceedings or to take such other action as in the arbitral 20 tribunal's opinion will eliminate the grounds for setting aside. 21 22 CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF 23 AWARDS 24 Article 35. Recognition and enforcement 25 (1) An arbitral award, irrespective of the country in which it was made, 26 shall be recognized as binding and, upon application in writing to the competent 27 court, shall be enforced subject to the provisions of this article and of article 36. 28 (2) The party relying on an award or applying for its enforcement shall 29 supply the original award or a copy thereof. If the award is not made in an 30 official language of this State, the court may request the party to supply a 31 translation thereof into such language.4 32 (Article 35(2) has been amended by the Commission at its thirty-ninth session, in 2006) International Arbitration Amendment Bill 2009 No. , 2009 41 [Page Break] Part 1 Amendments 1 2 Article 36. Grounds for refusing recognition or enforcement 3 (1) Recognition or enforcement of an arbitral award, irrespective of the 4 country in which it was made, may be refused only: 5 (a) at the request of the party against whom it is invoked, if that 6 party furnishes to the competent court where recognition or enforcement is 7 sought proof that: 8 (i) a party to the arbitration agreement referred to in article 9 7 was under some incapacity; or the said agreement is 10 not valid under the law to which the parties have 11 subjected it or, failing any indication thereon, under the 12 law of the country where the award was made; or 13 (ii) the party against whom the award is invoked was not 14 given proper notice of the appointment of an arbitrator 15 or of the arbitral proceedings or was otherwise unable 16 to present his case; or 17 (iii) the award deals with a dispute not contemplated by or 18 not falling within the terms of the submission to 19 arbitration, or it contains decisions on matters beyond 20 the scope of the submission to arbitration, provided that, 21 if the decisions on matters submitted to arbitration can 22 be separated from those not so submitted, that part of 23 the award which contains decisions on matters 24 submitted to arbitration may be recognized and 25 enforced; or 26 (iv) the composition of the arbitral tribunal or the arbitral 27 procedure was not in accordance with the agreement of 28 the parties or, failing such agreement, was not in 29 accordance with the law of the country where the 30 arbitration took place; or 31 (v) the award has not yet become binding on the parties or 32 has been set aside or suspended by a court of the 33 country in which, or under the law of which, that award 34 was made; or 35 (b) if the court finds that: 42 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Amendments Part 1 1 (i) the subject-matter of the dispute is not capable of 2 settlement by arbitration under the law of this State; or 3 (ii) the recognition or enforcement of the award would be 4 contrary to the public policy of this State. 5 (2) If an application for setting aside or suspension of an award has been 6 made to a court referred to in paragraph (1)(a)(v) of this article, the court where 7 recognition or enforcement is sought may, if it considers it proper, adjourn its 8 decision and may also, on the application of the party claiming recognition or 9 enforcement of the award, order the other party to provide appropriate security. 10 1 11 Article headings are for reference purposes only and are not to be used for purposes of 12 interpretation. 2 13 The term "commercial" should be given a wide interpretation so as to cover matters arising from 14 all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature 15 include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of 16 goods or services; distribution agreement; commercial representation or agency; factoring; leasing; 17 construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; 18 exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; 19 carriage of goods or passengers by air, sea, rail or road. 3 20 The conditions set forth in article 17 I are intended to limit the number of circumstances in which 21 the court may refuse to enforce an interim measure. It would not be contrary to the level of harmonization 22 sought to be achieved by these model provisions if a State were to adopt fewer circumstances in which 23 enforcement may be refused. 4 24 The conditions set forth in this paragraph are intended to set maximum standards. It would, thus, 25 not be contrary to the harmonization to be achieved by the model law if a State retained even less onerous 26 conditions. 27 International Arbitration Amendment Bill 2009 No. , 2009 43 [Page Break] Part 2 Application 1 Part 2--Application 2 28 Application of items 2 to 4 3 The amendments made by items 2 to 4 of this Schedule apply in relation 4 to agreements entered into on or after the commencement of those 5 items. 6 29 Application of items 5 to 9 7 (1) The amendments made by items 5, 7 and 9 of this Schedule apply in 8 relation to proceedings to enforce a foreign award brought on or after 9 the commencement of those items. 10 (2) The amendment made by item 6 of this Schedule applies in relation to 11 proceedings to enforce a foreign award brought on or after the 12 commencement of that item. 13 (3) The amendment made by item 8 of this Schedule applies in relation to 14 proceedings to enforce a foreign award brought on or after the 15 commencement of that item. 16 30 Application of item 10 17 The amendment made by item 10 of this Schedule applies whether the 18 proceedings are adjourned before or after the commencement of that 19 item. 20 31 Application of item 14 21 (1) The amendment made by item 14 of this Schedule, to the extent that it 22 relates to Article 12(1) of the Model Law, applies in relation to an 23 approach on or after the commencement of that item in connection with 24 a possible appointment of a person as arbitrator. 25 (2) The amendment made by item 14 of this Schedule, to the extent that it 26 relates to Article 12(2) of the Model Law, applies in relation to a person 27 acting as arbitrator on or after the commencement of that item. 28 32 Application of items 18 to 23 29 (1) The amendments made by items 18 to 23 of this Schedule apply in 30 relation to arbitration agreements entered into on or after the 31 commencement of those items. 44 International Arbitration Amendment Bill 2009 No. , 2009 [Page Break] Application Part 2 1 (2) To avoid doubt, subitem (1) does not prevent the parties to an 2 arbitration agreement entered into before the commencement of those 3 items from making an agreement, after that commencement, in 4 accordance with section 22 of the International Arbitration Act 1974, in 5 relation to any provision inserted or amended by items 18 to 23 of this 6 Schedule. 7 33 Application of items 24 and 25 8 (1) The amendment made by item 24 of this Schedule applies in relation to 9 proceedings to enforce an award brought on or after the commencement 10 of that item. 11 (2) The amendment made by item 25 of this Schedule applies in relation to 12 proceedings to enforce an award brought on or after the commencement 13 of that item. 14 34 Application of item 26 15 The amendment made by item 26 of this Schedule applies in relation to: 16 (a) the exercise of a power; or 17 (b) the performance of a function; or 18 (c) the interpretation of this Act; or 19 (d) the interpretation of the Model Law; or 20 (e) the interpretation of an agreement or award; 21 on or after the commencement of that item. 22 35 Definitions 23 In this Part: 24 foreign award has the same meaning as in Part II of the International 25 Arbitration Act 1974. 26 Model Law has the same meaning as in Part III of that Act. International Arbitration Amendment Bill 2009 No. , 2009 45