Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where a person who
has a power to appoint an arbitrator defaults in the exercise of that power, a
party to the relevant arbitration agreement may, by notice in
writing —
(a)
require the person in default to exercise the power within such period (not
being a period of less than 7 days after service of the notice) as may be
specified in the notice; and
(b)
propose that in default of that person so doing —
(i)
a person named in the notice ( a default nominee ) should
be appointed to the office in respect of which the power is exercisable; or
(ii)
specified arbitrators (being the arbitrators who have
prior to the date of the notice been appointed in relation to the arbitration)
should be the sole arbitrators in relation to the arbitration.
(2) A notice under
subsection (1) (or, where appropriate, a copy of the notice) must be
served upon —
(a) each
party to the arbitration agreement (except the party by whom the notice is
given); and
(b) each
other person (not being a party to the arbitration agreement) who is in
default in the exercise of a power of appointment in relation to the office in
question,
and the notice shall
be deemed to have been served when service is last effected under this
subsection.
(3) Where a person who
is in default in the exercise of a power of appointment fails to exercise the
power as required by a notice under subsection (1),
then —
(a)
where the notice named a default nominee — that nominee shall
be deemed to have been duly appointed to the office in respect of which the
power was exercisable; or
(b)
where the notice proposed that specified arbitrators should be the sole
arbitrators in relation to the arbitration —
(i)
the power to which the notice relates shall lapse;
(ii)
the arbitrators specified in the notice may enter on the
arbitration as if they were the sole arbitrators to be appointed in relation
to the arbitration; and
(iii)
the arbitration agreement shall be construed subject to
such modifications (if any) as are necessary to enable those arbitrators
effectively to enter on and conduct the arbitration.
(4) The Court may, on
the application of a party to an arbitration agreement, set aside an
appointment or any other consequence of non-compliance with a notice under
this section that takes effect by operation of subsection (3), and may
itself make an appointment to the office in respect of which the relevant
power of appointment was exercisable.
(5) For the purposes
of this section, a person defaults in the exercise of a power of appointment
if, after an occasion for the exercise of the power has arisen, that person
does not exercise the power within the time fixed by the relevant arbitration
agreement or, if no time is so fixed, within a reasonable time.