Arbitration
(Jersey) Law 1998
A LAW to make further provision with
respect to arbitration; to give effect to the New York Convention on the
recognition and enforcement of foreign arbitral awards; and for connected
purposes
Commencement [see
endnotes]
PART 1
INTERPRETATION
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“arbitration agreement” means, except as
provided in paragraph (2), a written agreement to submit present or future
differences to arbitration, whether an arbitrator is mentioned therein or not;
“Convention award” means, except as provided
in paragraph (2), an award made in pursuance of an arbitration agreement
in the territory of a State which is a party to the New York Convention;
“Court” means the Royal Court;
“foreign award” means an award to which Part
3 applies;
“Geneva
Convention” means the Convention on the
Execution of Foreign Arbitral Awards signed at Geneva on behalf of His late
Majesty King George V on 26th September 1927, the text of which is set out
in Schedule 2;
“New
York Convention” means the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards adopted by the
United Nations Conference on International Commercial Arbitration on 10th
June 1958, the text of which is set out in Schedule 3;
“Protocol” means the Protocol on Arbitration Clauses signed on behalf
of His late Majesty King George V at a Meeting of the Assembly of the League of
Nations held on 24th September 1923, the text of which is set out in Schedule
1.
(2) In –
(a) the
definition of “Convention award” in paragraph (1) of this Article;
and
(b) Article 5,
“arbitration agreement” means an agreement
in writing (including an agreement contained in an exchange of letters or
telegrams) to submit to arbitration present or future differences capable of
settlement by arbitration.
(3) Unless
the context otherwise requires, a reference in this Law to an enactment,
including an enactment of the United Kingdom, is a reference to that enactment
as amended from time to time, and includes a reference to that enactment as
extended or applied by or under another enactment, including any other
provision of that enactment.
PART 2
ARBITRATION WITHIN Jersey
2 Authority of arbitrators
and umpires to be irrevocable
The authority of an arbitrator or umpire appointed by, or by virtue
of, an arbitration agreement shall, unless a contrary intention is expressed in
the agreement, be irrevocable except by leave of the Court.
3 Death of party
(1) An
arbitration agreement shall not be discharged by the death of any party
thereto, either as respects the deceased or any other party, but shall in such
an event be enforceable by or against the executor or administrator of the deceased
or, in the case of immovable property, the heir or devisee.
(2) The
authority of an arbitrator shall not be revoked by the death of any party by
whom the arbitrator was appointed.
(3) Nothing
in this Article shall be taken to affect the operation of any enactment or rule
of law by virtue of which any right of action is extinguished by the death of a
person.
4 Bankruptcy
(1) Where
it is provided by a term in a contract to which a person who has become
bankrupt is a party that any differences arising thereout or in connection
therewith shall be referred to arbitration, the said term shall, if the
Viscount or other person acting on behalf of the creditors seeks the
performance of the contract, be enforceable by or against the bankrupt person
so far as relates to any such differences.
(2) Where
a person who has become bankrupt had, before the commencement of the
bankruptcy, become a party to an arbitration agreement, and any matter to which
the agreement applies requires to be determined in connection with or for the
purposes of the bankruptcy proceedings, then, if the case is one to which paragraph (1)
does not apply, the Viscount or other person acting on behalf of the creditors,
or any other party to the agreement, may apply to the Court for an order directing
that the matter in question shall be referred to arbitration in accordance with
the agreement, and the Court may, if it is of opinion that, having regard to
all the circumstances of the case, the matter ought to be determined by
arbitration, make an order accordingly.
5 Mandatory stay of court
proceedings where party proves arbitration agreement
If any party to an arbitration
agreement, or any person claiming through or under the party, commences any
legal proceedings in any court against any other party to the agreement, or any
person claiming through or under him or her, in respect of any matter agreed to
be referred, any party to those legal proceedings may at any time before the
expiration of a period of 3 weeks from the date on which the action was placed
on the pending list or en preuve apply to the
court to stay the proceedings; and the court, unless satisfied that the
arbitration 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 matter agreed to be referred, shall make an order staying the
proceedings.[1]
6 When reference is to single arbitrator
Unless a contrary intention is
expressed therein, every arbitration agreement shall, if no other mode of
reference is provided, be deemed to include a provision that the reference
shall be to a single arbitrator.
7 Power of parties in certain cases to supply vacancy
(1) Subject
to paragraph (2), where an arbitration agreement provides that the
reference shall be to 2 arbitrators, one to be appointed by each party, then,
unless a contrary intention is expressed therein –
(a) if
either of the appointed arbitrators refuses to act, or is incapable of acting,
or dies, the party who appointed the arbitrator may appoint a new
arbitrator in the arbitrator’s place; and
(b) if,
on such a reference, one party fails to appoint an arbitrator, either
originally or by way of substitution as aforesaid, for 7 clear days after the
other party, having appointed an arbitrator, has served the party making
default with notice to make the appointment, the party who has appointed an
arbitrator may appoint that arbitrator to act as sole arbitrator in the
reference, and the arbitrator’s award shall be binding
on both parties as if the arbitrator had been appointed by
consent.
(2) The
Court may set aside any appointment made in pursuance of this Article.
8 Umpires
(1) Unless
a contrary intention is expressed therein, every arbitration agreement shall,
where the reference is to 2 arbitrators, be deemed to include a provision that
the 2 arbitrators may appoint an umpire at any time after they are themselves
appointed and shall do so forthwith if they cannot agree.
(2) Unless
a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to include a
provision that if the arbitrators have delivered to any party to the
arbitration agreement, or to the umpire, a notice in writing stating that they
cannot agree, the umpire may forthwith enter on the reference in lieu of the
arbitrators.
(3) At
any time after the appointment of an umpire, however appointed, the Court may,
on the application of any party to the reference and notwithstanding anything
to the contrary in the arbitration agreement, order that the umpire shall enter
upon the reference in lieu of the arbitrators and as if the umpire were a sole
arbitrator and shall do so forthwith if they cannot agree.
9 Majority award of 3 arbitrators
Unless the contrary intention is
expressed in the arbitration agreement, in any case where there is a reference
to 3 arbitrators, the award of any 2 of the arbitrators shall be binding and in
the event that no 2 of the arbitrators agree the award, the award of the
arbitrator appointed to be chairman shall be binding.
10 Power of Court in certain cases to appoint arbitrator or umpire
(1) In
any of the following cases, namely –
(a) where
an arbitration agreement provides that the reference shall be to a single
arbitrator, and all the parties do not, after differences have arisen, concur
in the appointment of an arbitrator;
(b) if
an appointed arbitrator refuses to act, or is incapable of acting, or dies, and
the arbitration agreement does not show that it was intended that the vacancy
should not be supplied and the parties do not supply the vacancy;
(c) where
the parties or 2 arbitrators are required or are at liberty to appoint an
umpire or third arbitrator and do not appoint an umpire or third arbitrator;
and
(d) where
an appointed umpire or third arbitrator refuses to act, or is incapable of
acting, or dies, and the arbitration agreement does not show that it was
intended that the vacancy should not be supplied, and the parties or
arbitrators do not supply the vacancy,
any party may serve the other
parties or the arbitrators, as the case may be, with a written notice to
appoint or, as the case may be, concur in appointing, an arbitrator, umpire or third
arbitrator; and, if the appointment is not made within 7 clear days after the
service of the notice, the Court may, on application by the party who gave the
notice, appoint an arbitrator, umpire or third arbitrator who shall have the
like powers to act in the reference and make an award as if the arbitrator or
umpire had been appointed by consent of all parties.
(2) In
any case where –
(a) an
arbitration agreement provides for the appointment of an arbitrator or umpire
by a person who is neither one of the parties nor an existing arbitrator
(whether the provision applies directly or in default of agreement by the
parties or otherwise); and
(b) that
person refuses to make the appointment or does not make it within the time
specified in the agreement or, if no time is so specified, within a reasonable
time,
any party to the agreement may
serve the person in question with a written notice to appoint an arbitrator or
umpire and, if the appointment is not made within 7 clear days after the
service of the notice, the Court may, on the application of the party who gave
the notice, appoint an arbitrator or umpire who shall have the like powers to
act in the reference and make an award as if the arbitrator or umpire had been
appointed in accordance with the terms of the agreement.
11 Conduct of proceedings, witnesses, etc.
(1) Unless
a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that the parties to the reference, and all persons claiming through
them respectively, shall, subject to any legal objection, submit to be examined
by the arbitrator or umpire, on oath or solemn affirmation, in relation to the
matters in dispute, and shall, subject as aforesaid, produce before the
arbitrator or umpire all documents within their possession or power respectively
which may be required or called for, and do all other things which during the
proceedings on the reference the arbitrator or umpire may require.
(2) Unless
a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that the witnesses on the reference shall, if the arbitrator or
umpire thinks fit, be examined on oath or solemn affirmation.
(3) An
arbitrator or umpire shall, unless a contrary intention is expressed in the
arbitration agreement, have power to administer oaths to, or take the solemn
affirmations of, the parties to and witnesses on a reference under the
agreement.
(4) Any
party to a reference under an arbitration agreement may cause a summons to be
served on any person, in the same manner as a summons may be served upon any person
in respect of a civil action before the Court, summoning that person to attend
before the arbitrator or umpire for the purpose of giving evidence or producing
any document likely to assist the arbitrator or umpire in determining the
question in dispute; and a person so summoned shall be under a like obligation
as to the giving of any evidence and the production of any document as if the person
were so summoned in respect of such an action.
(5) The
Court shall have, for the purpose of and in relation to a reference under an
arbitration agreement, the same power of making orders in respect
of –
(a) the
issue of a commission or request for the examination of a witness out of Jersey;
and
(b) matters
of procedure and other matters incidental to the reference,
as it has for the purpose of and
in relation to a civil action before the Court:
Provided that nothing in this Article
shall be taken to prejudice any power which may be vested in an arbitrator or
umpire of making orders with respect to any of the matters aforesaid.
12 Time for making award
(1) Subject
to the provisions of Article 25(2), and anything to the contrary in the
arbitration agreement, an arbitrator or umpire shall have power to make an
award at any time.
(2) The
time, if any, limited for making an award, whether under this Law or otherwise,
may from time to time be enlarged by order of the Court, whether that time has
expired or not.
(3) The
Court may, on the application of any party to a reference, remove an arbitrator
or umpire who fails to use all reasonable dispatch in entering on and
proceeding with the reference and making an award, and an arbitrator or umpire
who is removed by the Court under this paragraph shall not be entitled to
receive any remuneration in respect of services.
(4) For
the purposes of paragraph (3) the expression “proceeding with a
reference” includes, in a case where 2 arbitrators are unable to agree,
giving notice of that fact to the parties and to the umpire.
13 Interim awards
Unless a contrary intention is
expressed therein, every arbitration agreement shall, where such a provision is
applicable to the reference, be deemed to contain a provision that the
arbitrator or umpire may, if the arbitrator or umpire thinks fit, make an interim award,
and any reference in this Part to an award includes a reference to an interim
award.
14 Specific performance
Unless a contrary intention is
expressed therein, every arbitration agreement shall, where such a provision is
applicable to the reference, be deemed to contain a provision that the
arbitrator or umpire shall have the same power as the Court to order specific
performance of any contract other than a contract relating to immovable
property or any interest in immovable property.
15 Awards to be final
Unless a contrary intention is
expressed therein, every arbitration agreement shall, where such a provision is
applicable to the reference, be deemed to contain a provision that the award to
be made by the arbitrator or umpire shall be final and binding on the parties
and the persons claiming under them respectively.
16 Power to correct slips
Unless a contrary intention is
expressed in the arbitration agreement, the arbitrator or umpire shall have
power to correct in an award any clerical mistake or error arising from any
accidental slip or omission.
17 Costs
(1) Unless
a contrary intention is expressed therein, every arbitration agreement shall be
deemed to include a provision that the costs of the reference and award shall
be in the discretion of the arbitrator or umpire, who may direct to and by whom
and in what manner those costs or any part thereof shall be paid, and may tax
or settle the amount of costs to be so paid.
(2) For
the purposes of Article 18, costs taxed or settled pursuant to paragraph (1)
shall be deemed to form part of the award.
(3) Subject
to paragraph (4), any provision in an arbitration agreement to the effect
that the parties or any party thereto shall in any event pay their or the
party’s own costs of the reference or award or any part thereof shall be
void, and this Part shall, in the case of an arbitration agreement containing
any such provision, have effect as if that provision were not contained
therein.
(4) Nothing
in paragraph (3) shall invalidate such a provision when it is a part of an
agreement to submit to arbitration a dispute which has arisen before the making
of that agreement.
(5) If
no provision is made by an award with respect to the costs of the reference,
any party to the reference may, within 14 days of the publication of the award
or such further time as the Court may direct, apply to the arbitrator for an order
directing by and to whom those costs shall be paid, and thereupon the
arbitrator shall, after hearing any party who may desire to be heard, amend the
arbitrator’s award by adding thereto such directions as the arbitrator
may think proper with respect to the payment of the costs of the reference and
may tax or settle the amount of costs to be so paid.
18 Taxation of arbitrator’s or umpire’s fees
(1) If,
in any case, an arbitrator or umpire refuses to deliver the arbitrator’s
or umpire’s award except on payment of the fees demanded by the
arbitrator or umpire, the Court may, on an application for the purpose, order
that the arbitrator or umpire shall deliver the award to the applicant on
payment into court by the applicant of the fees demanded, and further that the
fees demanded shall be taxed by the Court and that out of the money paid into
court there shall be paid out to the arbitrator or umpire by way of fees such
sums as may be found reasonable on taxation, and that the balance of the money,
if any, shall be paid out to the applicant.
(2) An
application for the purposes of this Article may be made by any party to the
reference unless the fees demanded have been fixed by a written agreement
between the party and the arbitrator or umpire.
(3) The
arbitrator or umpire shall be entitled to appear and be heard on any taxation
under this Article.
19 Power of arbitrator to award interest
(1) Unless
a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that the arbitrator or umpire may, if the arbitrator or umpire thinks
fit, award simple interest at such rate as the arbitrator or umpire thinks
fit –
(a) on
any sum which is the subject of the reference but which is paid before the
award, for such period ending not later than the date of the payment as the arbitrator or umpire thinks fit; and
(b) on
any sum which the arbitrator or umpire awards, for such period
ending not later than the date of the award as the
arbitrator or umpire thinks fit.
(2) The
power to award interest conferred on an arbitrator or umpire by paragraph (1)
is without prejudice to any other power of an arbitrator or umpire to award
interest.
20 Interest on awards
A sum directed to be paid by an
award shall, unless the award otherwise directs, carry simple interest at such
rate as the arbitrator or umpire thinks fit for the whole or any part of the
period from the date of the award until such later date, not being a date later
than the date on which the award is satisfied, as the arbitrator or umpire
shall think fit and payment of such interest shall be enforceable by the
Viscount as if it is a judgment debt without the necessity for any further
action or proceedings by the party to whom the award is made.
21 Judicial review of arbitration awards
(1) Without
prejudice to the right of appeal conferred by paragraph (2), the Court
shall not have jurisdiction to set aside or remit an award on an arbitration
agreement on the ground of errors of fact or law on the face of the award.
(2) Subject
to paragraph (3), an appeal shall lie to the Court on any question of law
arising out of an award made on an arbitration agreement; and on the
determination of such an appeal the Court may –
(a) confirm,
vary or set aside the award; or
(b) remit
the award to the reconsideration of the arbitrator or umpire together with the
Court’s opinion on the question of law which was the subject of the
appeal,
and where the award is remitted
under sub-paragraph (b) the arbitrator or umpire shall, unless the order
otherwise directs, make his or her award within 3 months after the date of the order.
(3) An
appeal under this Article may be brought by any of the parties to the
reference –
(a) with
the consent of all the other parties to the reference; or
(b) subject
to Article 23, with the leave of the Court.
(4) The
Court shall not grant leave under paragraph (3)(b) 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 to the arbitration agreement; and the Court may make any leave which it
grants conditional upon the applicant complying with such conditions as it
considers appropriate.
(5) Subject
to paragraph (6), if an award is made and, on an application made by any
of the parties to the reference –
(a) with
the consent of all the other parties to the reference; or
(b) subject
to Article 23, with the leave of the Court,
it appears to the Court that the
award does not or does not sufficiently set out the reasons for the award, the
Court may order the arbitrator or umpire concerned to state the reasons for his
or her award in sufficient detail to enable the Court, should an appeal be
brought under this Article, to consider any question of law arising out of the
award.
(6) In
any case where an award is made without any reason being given, the Court shall
not make an order under paragraph (5) unless it is satisfied –
(a) that
before the award was made one of the parties to the reference gave notice to
the arbitrator or umpire concerned that a reasoned award would be required; or
(b) that
there is some special reason why such a notice was not given.
(7) No
appeal shall lie to the Court of Appeal from a decision of the Court on an
appeal under this Article unless –
(a) the
Court or the Court of Appeal grants leave; and
(b) it
is certified by the Court that the question of law to which its decision
relates either is one of general public importance or is one which for some
other special reason should be considered by the Court of Appeal.
(8) Where
the award of an arbitrator or umpire is varied on appeal, the award as varied
shall have effect (except for the purposes of this Article) as if it were the
award of the arbitrator or umpire.
(9) Any
appeal under the provisions of paragraph (2) shall be made to the Court
within one month from the date of the publication to the parties of the award:
Provided that the Court may
extend the period prescribed under this paragraph for making an appeal upon
application being made to the Court before the expiration of that period.
22 Determination of preliminary point of law by Court
(1) Subject
to paragraph (2) and Article 23, on an application to the Court made by
any of the parties to a reference –
(a) with
the consent of an arbitrator who has entered on the reference or, if an umpire
has entered on the reference, with the umpire’s consent; or
(b) with
the consent of all the other parties,
the Court shall have jurisdiction
to determine any question of law arising in the course of the reference.
(2) The
Court shall not entertain an application under paragraph (1)(a) with
respect to any question of law unless it is satisfied that –
(a) the
determination of the application might produce substantial savings in costs to
the parties; and
(b) the
question of law is one in respect of which leave to appeal would be likely to
be granted under Article 21(3)(b).
(3) No
appeal shall lie from such a decision unless –
(a) the
Court or the Court of Appeal grants leave; and
(b) it
is certified by the Court that the question of law to which its decision
relates either is one of general public importance or is one which for some
other special reason should be considered by the Court of Appeal.
23 Exclusion agreements affecting rights under Articles 21 and
22
(1) Subject
to the following provisions of this Article –
(a) the
Court shall not, under Article 21(3)(b), grant leave to appeal with
respect to a question of law arising out of an award;
(b) the
Court shall not, under Article 21(5)(b), grant leave to make an
application with respect to an award; and
(c) no
application may be made under Article 22(1)(a) with respect to a question
of law,
if the parties to the reference
in question have entered into an agreement in writing (in this Article referred
to as an “exclusion agreement”) which excludes the right of appeal
under Article 21 in relation to that award or, in a case falling within sub-paragraph (c),
in relation to an award to which the determination of the question of law is
material.
(2) If
the parties to an exclusion agreement subsequently enter into an agreement in
writing to revoke the exclusion agreement, the provisions of paragraph (1)
shall cease to apply to the reference or references in question until such time
as a further exclusion agreement is entered into by the parties.
(3) An
exclusion agreement may be expressed so as to relate to a particular award, to
awards under a particular reference or to any other description of awards,
whether arising out of the same reference or not; and an agreement may be an
exclusion agreement for the purposes of this Article whether it is entered into
before or after the passing of this Law and whether or not it forms part of an
arbitration agreement.
(4) Except
as provided by paragraph (1), Articles 21 and 22 shall have effect notwithstanding
anything in any agreement purporting –
(a) to
prohibit or restrict access to the Court;
(b) to
restrict the jurisdiction of the Court; or
(c) to
prohibit or restrict the making of a reasoned award.
24 Interlocutory orders
(1) If
any party to a reference under an arbitration agreement fails within the time
specified in the order or, if no time is so specified, within a reasonable time
to comply with an order made by the arbitrator or umpire in the course of the
reference, then, on the application of the arbitrator or umpire or of any party
to the reference, the Court may make an order extending the powers of the
arbitrator or umpire as mentioned in paragraph (2).
(2) If
an order is made by the Court under this Article, the arbitrator or umpire
shall have power, to the extent and subject to any conditions specified in that
order, to continue with the reference in default of appearance or of any other
act by one of the parties in like manner as the Court might continue with
proceedings in the Court where a party fails to comply with an order of the
Court or a requirement of rules of court.
(3) The
preceding provisions of this Article shall have effect notwithstanding anything
in any agreement but shall not derogate from any powers conferred on an
arbitrator or umpire, whether by an arbitration agreement or otherwise.
25 Power to remit award
(1) In
all cases of reference to arbitration, the Court may from time to time remit
the matters referred, or any of them, to the reconsideration of the arbitrator
or umpire.
(2) Where
an award is remitted, the arbitrator or umpire shall, unless the Court
otherwise directs, make his or her award within 3 months after the date of the order
of the Court.
(3) An
application to the Court to remit an award under paragraph (1) may be made
at any time within one month after the award has been made and published to the
parties.
26 Removal of arbitrator and setting aside of award
(1) Where
an arbitrator or umpire has misconducted himself or herself or the proceedings,
the Court may remove the arbitrator or umpire.
(2) Where
an arbitrator or umpire has misconducted himself or herself or the proceedings,
or an arbitration or award has been improperly procured, the Court may set the
award aside.
(3) Where
an application is made to set aside an award, the Court may order that any
money made payable by the award shall be paid into court or otherwise secured
pending the determination of the application.
(4) Any
money ordered to be paid into court under paragraph (3) shall be paid to
the Judicial Greffier.
(5) An
application to the Court to set aside an award under paragraph (2) may be
made at any time within one month after the award has been made and published
to the parties.
27 Power of Court to give relief where arbitrator is not impartial or
dispute involves question of fraud
(1) Where
an agreement between any parties provides that disputes which may arise in the
future between them shall be referred to an arbitrator named or designated in
the agreement, and after a dispute has arisen any party applies, on the ground
that the arbitrator so named or designated is not or may not be impartial, for
leave to revoke the authority of the arbitrator or for an order to restrain any
other party or the arbitrator from proceeding with the arbitration, it shall
not be a ground for refusing the application that the said party at the time
when the party made the agreement knew, or ought to have known, that the
arbitrator, by reason of his or her relation towards any other party to the
agreement or of the arbitrator’s connection with the subject referred,
might not be capable of impartiality.
(2) Where
an agreement between any parties provides that disputes which may arise in the
future between them shall be referred to arbitration, and a dispute which so
arises involves the question whether any such party has been guilty of fraud,
the Court shall, so far as may be necessary to enable that question to be
determined by the Court, have power to order that the agreement shall cease to
have effect and power to give leave to revoke the authority of any arbitrator
or umpire appointed by or by virtue of the agreement.
(3) In
any case where, by virtue of this Article, the Court has power to order that an
arbitration agreement shall cease to have effect or to give leave to revoke the
authority of an arbitrator or umpire, the Court may refuse to stay any action
brought in breach of the agreement.
28 Power of Court where arbitrator is removed or authority of
arbitrator is revoked
(1) Where
an arbitrator (not being a sole arbitrator) or 2 or more arbitrators (not being
all the arbitrators) or an umpire who has not entered on the reference is or
are removed by the Court, the Court may, on the application of any party to the
arbitration agreement, appoint a person or persons to act as arbitrator or
arbitrators or umpire in place of the person or persons so removed.
(2) Where
the authority of an arbitrator or arbitrators or umpire is revoked by leave of
the Court, or a sole arbitrator or all the arbitrators or an umpire who has
entered on the reference is or are removed by the Court, the Court may, on the
application of any party to the arbitration agreement, either –
(a) appoint
a person to act as sole arbitrator in place of the person or persons removed;
or
(b) order
that the arbitration agreement shall cease to have effect with respect to the
dispute referred.
(3) A
person appointed under this Article by the Court as an arbitrator or umpire
shall have the like power to act in the reference, and to make an award, as if the
person had been appointed in accordance with the terms of the arbitration
agreement.
(4) Where
it is provided (whether by means of a provision in the arbitration agreement or
otherwise) that an award under an arbitration agreement shall be a prerequisite
to the bringing of an action with respect to any matter to which the agreement
applies, the Court, if it orders (whether under this Article or under any other
enactment) that the agreement shall cease to have effect as regards any
particular dispute, may further order that the provision making an award a
condition precedent to the bringing of an action shall also cease to have
effect as regards that dispute.
29 Enforcement of award
An award on an arbitration
agreement may, by leave of the Court on an application made ex parte, be enforced in the same manner as a
judgment or order to the same effect; and, where leave is so granted, the act
of court shall specify the manner of enforcement.
30 Power of Court to extend time for commencing arbitration
proceedings
Where the terms of an agreement to
refer future disputes to arbitration provide that any claims to which the
agreement applies shall be barred unless notice to appoint an arbitrator is
given or an arbitrator is appointed or some other step to commence arbitration
proceedings is taken within a time fixed by the agreement, and a dispute arises
to which the agreement applies, the Court, if it is of the opinion that, in the
circumstances of the case, undue hardship would otherwise be caused, and
notwithstanding that the time so fixed has expired, may, on such terms, if any,
as the justice of the case may require, but without prejudice to the provisions
of any enactment limiting the time for the commencement of arbitration
proceedings, extend the time for such period as it thinks proper.
31 Delay in prosecuting claims
(1) In
every arbitration agreement, unless the contrary be expressly provided therein,
there is an implied term that in the event of a difference arising which is
capable of a settlement by arbitration it shall be the duty of the claimant to
exercise due diligence in the prosecution of the claimant’s claim.
(2) Where
there has been undue delay by a claimant in instituting or prosecuting a claim
pursuant to an arbitration agreement, then, on the application of the
arbitrator or umpire or of any party to the arbitration proceedings, the Court
may make an order terminating the arbitration proceedings and prohibiting the claimant
from commencing further arbitration proceedings in respect of any matter which
was the subject of the terminated proceedings.
(3) The
Court shall not make an order under paragraph (2) unless it is satisfied
that –
(a) the
delay has been intentional; or
(b) there
has been inordinate and inexcusable delay on the part of the claimant or the claimant’s advisers which –
(i) gives
rise to a substantial risk that it is not possible to have a fair trial of the
issues in the arbitration proceedings, or
(ii) is
likely to cause or to have caused serious prejudice to the other party or
parties to the arbitration proceedings or any of them, either as between the
other party or parties and the claimant or between the other party or parties
and a third party or between the other parties themselves.
(4) No
appeal shall lie to the Court of Appeal from a decision of the Court under paragraph (2)
unless the Court or the Court of Appeal grants leave, in which event the Court
of Appeal shall have jurisdiction to consider the appeal.
32 Terms as to costs, etc.
Any order made under this Part may
be made on such terms as to costs or otherwise as the authority making the order
thinks just.
33 Prescription of actions
(1) Subject
to the provisions of this Article, the rules of customary and statutory law
relating to the prescription of actions shall apply to arbitrations as they
apply to civil actions before the Court.
(2) No
rule of customary or statutory law relating to the prescription of actions nor
the provisions of paragraph (3) shall operate to prevent the bringing of
an action to enforce an award on an arbitration agreement where such action is
brought within 10 years after the award has been made and published to the
parties.
(3) Subject
to paragraph (2), notwithstanding any term in an arbitration agreement to
the effect that no cause of action shall accrue in respect of any matter
required by the agreement to be referred until an award is made under the
agreement, the cause of action shall, for the purpose of this Article and of
any such enactment as aforesaid, be deemed to have accrued in respect of any
such matter at the time when it would have accrued but for that term in the
agreement.
(4) For
the purpose of this Article, an arbitration shall be deemed to be commenced when
one party to the arbitration serves on any other party a notice requiring the
party to appoint an arbitrator or to agree to the appointment of an arbitrator,
or, where the arbitration agreement provides that the reference shall be to a person
named or designated in the agreement, requiring the party to submit the dispute
to the person so named or designated.
(5) Where
the Court orders that an award be set aside or orders, after the commencement
of an arbitration, that the arbitration shall cease to have effect with respect
to the dispute referred, the period between the commencement of the arbitration
and the date of the order of the Court shall, unless the Court otherwise
orders, be excluded in computing the time prescribed by this Article or any
such rule of customary or statutory law as aforesaid for the commencement of
proceedings (including arbitration) with respect to the dispute referred.
34 Transitional – Part 2
This Part shall not affect any
arbitration commenced, within the meaning of Article 33, before the
commencement of this Law, but shall apply to an arbitration so commenced after
the commencement of this Law under an agreement made before the commencement of
this Law.
PART 3
ENFORCEMENT OF AWARDS UNDER PROTOCOL AND GENEVA CONVENTION
35 Awards to which Part 3 applies
(1) Subject
to Article 41, this Part applies to any award made –
(a) in
pursuance of an agreement for arbitration to which the Protocol applies;
(b) between
persons of whom one is subject to the jurisdiction of some one of such Powers
as Her Majesty may, by Order in Council, have declared to be parties to the
Geneva Convention and of whom the other is subject to the jurisdiction of some
other of the Powers aforesaid; and
(c) in
one of such territories as Her Majesty may, by Order in Council, have declared
to be territories to which the Geneva Convention applies.
(2) In
this Article the expression “Order in Council” means an Order in
Council which is in force and which –
(a) has
been made under section 35 of the Arbitration
Act 1950 of the United Kingdom; or
(b) has
effect, by virtue of section 35(3) thereof, as if it had been so made.
36 Effect of foreign awards
(1) A
foreign award shall, subject to the provisions of this Part, be enforceable in Jersey
either by action or in the same manner as the award of an arbitrator is
enforceable by virtue of Article 29.
(2) Any
foreign award which would be enforceable under this Part shall be treated as
binding for all purposes on the persons as between whom it was made, and may
accordingly be relied on by any of those persons by way of defence, set off or
otherwise in any legal proceedings in Jersey, and any references in this Part
to enforcing a foreign award shall be construed as including references to
relying on an award.
37 Conditions for enforcement of foreign awards
(1) In
order that a foreign award may be enforceable under this Part, it must
have –
(a) been
made in pursuance of an agreement for arbitration which was valid under the law
by which it is governed;
(b) been
made by the tribunal provided for in the agreement or constituted in manner
agreed upon by the parties;
(c) been
made in conformity with the law governing the arbitration procedure;
(d) become
final in the country in which it was made; and
(e) been
in respect of a matter which may lawfully be referred to arbitration under the law
of Jersey,
and the enforcement thereof must
not be contrary to the public policy or the law of Jersey.
(2) Subject
to the provisions of this paragraph, a foreign award shall not be enforceable
under this Part if the Court is satisfied that –
(a) the
award has been annulled in the country in which it was made;
(b) the
party against whom it is sought to enforce the award was not given notice of
the arbitration proceedings in sufficient time to enable the party to present the party’s case, or was under some legal
incapacity and was not properly represented; or
(c) the
award does not deal with all the questions referred or contains decisions on
matters beyond the scope of the agreement for arbitration,
but, if the award does not deal
with all the questions referred, the Court may, if it thinks fit, either
postpone the enforcement of the award or order its enforcement subject to the
giving of such security by the person seeking to enforce it as the Court may
think fit.
(3) If
a party seeking to resist the enforcement of a foreign award proves that there
is any ground other than the non-existence of the conditions specified in paragraph (1)(a),
(b) and (c) or the existence of the conditions specified in paragraph (2)(b)
and (c), entitling the party to contest the validity of the award, the Court
may, if it thinks fit, either refuse to enforce the award or adjourn the
hearing until after the expiration of such period as appears to the Court to be
reasonably sufficient to enable that party to take the necessary steps to have
the award annulled by the competent tribunal.
38 Evidence
(1) The
party seeking to enforce a foreign award must produce –
(a) the
original award or a copy thereof duly authenticated in the manner required by
the law of the country in which it was made;
(b) evidence
proving that the award has become final; and
(c) such
evidence as may be necessary to prove that the award is a foreign award and
that the conditions mentioned in Article 37(1)(a), (b) and (c) are
satisfied.
(2) In
any case where any document required to be produced under paragraph (1) is
in a foreign language, it shall be the duty of the party seeking to enforce the
award to produce a translation thereof in the English language certified as
correct by an official or sworn translator or by a diplomatic or consular agent
of the country to which that party belongs, or certified as correct in such
other manner as may be satisfactory to the Court.
39 Meaning of “final award”
For the purposes of this Part, an
award shall not be deemed final if any proceedings for the purpose of
contesting the validity of the award are pending in the country in which it was
made.
40 Saving for other rights, etc.
Nothing in this Part
shall –
(a) prejudice
any rights which any person has of enforcing in Jersey any award or of availing
himself or herself of any award to which the Arbitration (International Investment Disputes)
(Jersey) Order 1979[2] applies;
(b) prejudice
any rights which any person would have had of enforcing in Jersey any award or
of availing the person in Jersey of any award if this Part had not been
enacted; or
(c) apply
to any award made on an arbitration agreement governed by the law of Jersey.
PART 4
ENFORCEMENT OF AWARDS UNDER NEW YORK CONVENTION
41 Replacement of Part 3 in certain cases
This Part shall have effect with
respect to the enforcement of Convention awards; and where a Convention award
would, but for this Article, be also a foreign award within the meaning of Part
3, that Part shall not apply to it.
42 Effect of Convention awards
(1) A
Convention award shall, subject to the following provisions of this Part, be
enforceable in Jersey either by action or in the same manner as the award of an
arbitrator is enforceable by virtue of Article 29.
(2) Any
Convention award which would be enforceable under this Part shall be treated as
binding for all purposes on the persons as between whom it was made, and may
accordingly be relied on by any of those persons by way of defence, set off or
otherwise in any legal proceedings in Jersey; and any reference in this Part to
enforcing a Convention award shall be construed as including references to
relying on such an award.
43 Evidence
The party seeking to enforce a
Convention award must produce –
(a) the
duly authenticated original award or a duly certified copy of it;
(b) the
original arbitration agreement or a duly certified copy of it; and
(c) where
the award or agreement is in a foreign language, a translation of it certified
by an official or sworn translator or by a diplomatic or consular agent.
44 Refusal of enforcement
(1) Enforcement
of a Convention award shall not be refused except in the cases mentioned in
this Article.
(2) Enforcement
of a Convention award may be refused if the person against whom it is invoked
proves –
(a) that
a party to the arbitration agreement was (under the law applicable to the party) under some incapacity;
(b) that
the arbitration agreement was not valid under the law to which the parties
subjected it or, failing any indication thereon, under the law of the country
where the award was made;
(c) that
the person was not given proper notice of the appointment of the arbitrator
or of the arbitration proceedings or was otherwise unable to present the person’s
case;
(d) subject
to paragraph (4), that the award deals with a difference 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;
(e) that
the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, with
the law of the country where the arbitration took place; or
(f) that
the award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, it was made.
(3) Enforcement
of a Convention award may also be refused if the award is in respect of a
matter which is not capable of settlement by arbitration, or if it would be
contrary to public policy to enforce the award.
(4) A
Convention award which contains decisions on matters not submitted to
arbitration may be enforced to the extent that it contains decisions on matters
submitted to arbitration which can be separated from those on matters not so
submitted.
(5) Where
an application for the setting aside or suspension of a Convention award has
been made to such a competent authority as is mentioned in paragraph (2)(f),
the Court may, if it thinks fit, adjourn the proceedings and may, on the
application of the party seeking to enforce the award, order the other party to
give security.
45 Saving
Nothing in this Part shall
prejudice any right to enforce or rely on an award otherwise than under this Part
or Part 3.
PART 5
SUPPLEMENTARY
46 Rules of Court
The power of the Court to make Rules
of Court under Article 13 of the Royal
Court (Jersey) Law 1948[3] shall include power, from time to time, to make rules dealing
generally with all matters of procedure and incidental matters arising under
this Law.
47 Service of notices
Any notice or other document
required or authorized by or under this Law to be given to or served on any person
shall be validly given or served if served in a manner provided –
(a) by
the arbitration agreement;
(b) by
the Royal Court Rules 1992;[4] or
(c) in
respect of the service within Jersey of process in a civil or commercial
matter, by the Service of Process and
Taking of Evidence (Jersey) Law 1960.[5]
48 Citation
This Law may be cited as the
Arbitration (Jersey) Law 1998.
SCHEDULE 1
(Article 1(1))
PROTOCOL ON ARBITRATION CLAUSES SIGNED ON BEHALF OF HIS MAJESTY AT
A MEETING OF THE ASSEMBLY OF THE LEAGUE OF NATIONS HELD ON 24TH
SEPTEMBER 1923
The undersigned, being duly authorized,
declare that they accept, on behalf of the countries which they represent, the
following provisions –
1 Each
of the Contracting States recognizes the validity of an agreement whether
relating to existing or future differences between parties, subject
respectively to the jurisdiction of different Contracting States by which the
parties to a contract agree to submit to arbitration all or any differences
that may arise in connection with such contract relating to commercial matters
or to any other matter capable of settlement by arbitration, whether or not the
arbitration is to take place in a country to whose jurisdiction none of the
parties is subject.
Each Contracting State reserves
the right to limit the obligation mentioned above to contracts which are
considered as commercial under its national law. Any Contracting State which
avails itself of this right will notify the Secretary-General of the League of
Nations, in order that the other Contracting States may be so informed.
2 The
arbitral procedure, including the constitution of the arbitral tribunal, shall
be governed by the will of the parties and by the law of the country in whose
territory the arbitration takes place.
The Contracting States agree to
facilitate all steps in the procedure which require to be taken in their own
territories, in accordance with the provisions of their law governing arbitral
procedure applicable to existing differences.
3 Each
Contracting State undertakes to ensure the execution by its authorities and in
accordance with the provisions of its national laws of arbitral awards made in
its own territory under the preceding articles.
4 The
tribunals of the Contracting Parties, on being seized of a dispute regarding a
contract made between persons to whom Article 1 applies and including an
arbitration agreement whether referring to present or future differences which
is valid in virtue of the said article and capable of being carried into
effect, shall refer the parties on the application of either of them to the
decision of the arbitrators.
Such reference shall not
prejudice the competence of the judicial tribunals in case the agreement or the
arbitration cannot proceed or become inoperative.
5 The
present Protocol, which shall remain open for signature by all States, shall be
ratified. The ratifications shall be deposited as soon as possible with the
Secretary-General of the League of Nations, who shall notify such deposit to
all the signatory States.
6 The
present Protocol shall come into force as soon as two ratifications have been
deposited. Thereafter it will take effect, in the case of each Contracting
State, one month after the notification by the Secretary-General of the deposit
of its ratification.
7 The
present Protocol may be denounced by any Contracting State on giving one
year’s notice. Denunciation shall be effected by a notification addressed
to the Secretary-General of the League, who will immediately transmit copies of
such notifications to all the other signatory States and inform them of the
date of which it was received. The denunciations shall take effect one year
after the date on which it was notified to the Secretary-General, and shall
operate only in respect of the notifying State.
8 The
Contracting States may declare that their acceptance of the present Protocol
does not include any or all of the undermentioned territories: that is to say,
their colonies, overseas possessions or territories, protectorates or the
territories over which they exercise a mandate.
The said States may subsequently
adhere separately on behalf of any territory thus excluded. The
Secretary-General of the League of Nations shall be informed as soon as
possible of such adhesions. The Secretary-General shall notify such adhesions
to all signatory States. They will take effect one month after the notification
by the Secretary-General to all signatory States.
The Contracting States may also
denounce the Protocol separately on behalf of any of the territories referred
to above. Article 7 applies to such denunciation.
SCHEDULE 2
(Article 1(1))
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS SIGNED AT
GENEVA ON BEHALF OF HIS MAJESTY ON 26TH SEPTEMBER 1927
ARTICLE 1
In the territories of any High
Contracting Party to which the present Convention applies, an arbitral award
made in pursuance of an agreement, whether relating to existing or future
differences (hereinafter called a “submission to arbitration”)
covered by the Protocol on Arbitration Clauses, opened at Geneva on September
24 1923 shall be recognized as binding and shall be enforced in accordance
with the rules of the procedure of the territory where the award is relied
upon, provided that the said award has been made in a territory of one of the
High Contracting Parties to which the present Convention applies and between
persons who are subject to the jurisdiction of one of the High Contracting
Parties.
To obtain such recognition or
enforcement, it shall, further, be necessary:–
(a) That
the award has been made in pursuance of a submission to arbitration which is
valid under the law applicable thereto;
(b) That
the subject-matter of the award is capable of settlement by arbitration under
the law of the country in which the award is sought to be relied upon;
(c) That
the award has been made by the Arbitral Tribunal provided for in the submission
to arbitration or constituted in the manner agreed upon by the parties and in
conformity with the law governing the arbitration procedure;
(d) That
the award has become final in the country in which it has been made, in the
sense that it will not be considered as such if it is open to opposition, appel or pourvoi en
cassation (in the countries where such forms of procedure exist) or if it is proved
that any proceedings for the purpose of contesting the validity of the award
are pending;
(e) That
the recognition or enforcement of the award is not contrary to the public
policy or to the principles of the law of the country in which it is sought to
be relied upon.
ARTICLE 2
Even if the conditions laid down in
Article 1 hereof are fulfilled, recognition and enforcement of the award
shall be refused if the Court is satisfied –
(a) That
the award has been annulled in the country in which it was made;
(b) That
the party against whom it is sought to use the award was not given notice of
the arbitration proceedings in sufficient time to enable him to present his
case; or that, being under a legal incapacity, he was not properly represented;
(c) That
the award does not deal with the differences contemplated by or falling within
the terms of the submission to arbitration or that it contains decisions on
matters beyond the scope of the submission to arbitration.
If the award has not covered all
the questions submitted to the arbitral tribunal, the competent authority of
the country where recognition or enforcement of the award is sought can, if it
thinks fit, postpone such recognition or enforcement or grant it subject to
such guarantee as that authority may decide.
ARTICLE 3
If the party against whom the award
has been made proves that, under the law governing the arbitration procedure,
there is a ground, other than the grounds referred to in Article 1(a) and
(c), and Article 2(b) and (c), entitling the party to contest the validity
of the award in a Court of Law, the Court may, if it thinks fit, either refuse
recognition or enforcement of the award or adjourn the consideration thereof,
giving such party a reasonable time within which to have the award annulled by
the competent tribunal.
ARTICLE 4
The party relying upon an award or
claiming its enforcement must supply, in particular –
(1) The
original award or a copy thereof duly authenticated, according to the
requirements of the law of the country in which it was made;
(2) Documentary
or other evidence to prove that the award has become final, in the sense
defined in Article 1(d), in the country in which it was made;
(3) When
necessary, documentary or other evidence to prove that the conditions laid down
in Article 1, paragraph 1 and paragraph 2(a) and (c), have been fulfilled.
A translation of the award and of
the other documents mentioned in this Article into the official language of the
country where the award is sought to be relied upon may be demanded. Such
translation must be certified correct by a diplomatic or consular agent of the
country to which the party who seeks to rely upon the award belongs or by a
sworn translator of the country where the award is sought to be relied upon.
ARTICLE 5
The provisions of the above Articles
shall not deprive any interested party of the right of availing the party of an
arbitral award in the manner and to the extent allowed by the law or the
treaties of the country where such award is sought to be relied upon.
ARTICLE 6
The present Convention applies only
to arbitral awards made after the coming into force of the Protocol on
Arbitration Clauses, opened at Geneva on September 24th 1923.
ARTICLE 7
The present Convention, which will
remain open to the signature of all the signatories of the Protocol
of 1923 on Arbitration Clauses, shall be ratified.
It may be ratified only on behalf
of those Members of the League of Nations and non-Member States on whose behalf
the Protocol of 1923 shall have been ratified.
Ratifications shall be deposited as
soon as possible with the Secretary-General of the League of Nations, who will
notify such deposit to all the signatories.
ARTICLE 8
The present Convention shall come
into force three months after it shall have been ratified on behalf of two High
Contracting Parties. Thereafter, it shall take effect, in the case of each High
Contracting Party, three months after the deposit of the ratification on its
behalf with the Secretary-General of the League of Nations.
ARTICLE 9
The present Convention may be
denounced on behalf of any Member of the League or non-Member State.
Denunciation shall be notified in writing to the Secretary-General of the
League of Nations, who will immediately send a copy thereof, certified to be in
conformity with the notification, to all the other Contracting Parties, at the
same time informing them of the date on which he received it.
The denunciation shall come into
force only in respect of the High Contracting Party which shall have notified
it and one year after such notification shall have reached the
Secretary-General of the League of Nations.
The denunciation of the Protocol on
Arbitration Clauses shall entail ipso facto, the denunciation of the present
Convention.
ARTICLE 10
The present Convention does not
apply to the Colonies, Protectorates or territories under suzerainty or mandate
of any High Contracting Party unless they are specially mentioned.
The application of this Convention
to one or more of such Colonies, Protectorates or territories to which the Protocol
on Arbitration Clauses, opened at Geneva on September 24th 1923, applies,
can be effected at any time by means of a declaration addressed to the
Secretary-General of the League of Nations by one of the High Contracting
Parties.
Such declaration shall take effect three
months after the deposit thereof.
The High Contracting Parties can at
any time denounce the Convention for all or any of the Colonies, Protectorates
or territories referred to above. Article 9 hereof applies to such
denunciation.
ARTICLE 11
A certified copy of the present
Convention shall be transmitted by the Secretary-General of the League of
Nations to every Member of the League of Nations and to every non-Member State
which signs the same.
SCHEDULE 3
(Article 1(1))
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS DONE AT NEW YORK ON 10TH JUNE 1958
ARTICLE I
1 This
Convention shall apply to the recognition and enforcement of arbitral awards
made in the territory of a State other than the State where the recognition and
enforcement of such awards are sought, and arising out of differences between
persons, whether physical or legal. It shall also apply to arbitral awards not
considered as domestic awards in the State where their recognition and
enforcement are sought.
2 The
term “arbitral awards” shall include not only awards made by
arbitrators appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted.
3 When
signing, ratifying or acceding to this Convention, or notifying extension under
Article X hereof, any State may on the basis of reciprocity declare that it
will apply the Convention to the recognition and enforcement of awards made
only in the territory of another Contracting State. It may also declare that it
will apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial
under the national law of the State making such declaration.
ARTICLE II
1 Each
Contracting State shall recognize an agreement in writing under which the
parties undertake to submit to arbitration all or any differences which have
arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not, concerning a subject matter capable
of settlement by arbitration.
2 The
term “agreement in writing” shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.
3 The
court of a Contracting State, when seized of an action in a matter in respect
of which the parties made an agreement within the meaning of this Article, at
the request of one of the parties, refer the parties to arbitration unless it
finds that the said agreement is null and void, inoperative or incapable of
being performed.
ARTICLE III
Each Contracting State shall recognize
arbitral awards as binding and enforce them in accordance with the rules of
procedure of the territory where the award is relied upon, under the conditions
laid down in the following Articles. There shall not be imposed substantially
more onerous conditions or higher fees or charges on the recognition or
enforcement of arbitral awards to which this Convention applies than are
imposed on the recognition or enforcement of domestic arbitral awards.
ARTICLE IV
1 To
obtain the recognition and enforcement mentioned in the preceding Article, the
party applying for recognition and enforcement shall, at the time of the
application, supply –
(a) the
duly authenticated original award or a duly certified copy thereof;
(b) the
original agreement referred to in Article II or a duly certified copy thereof.
2 If
the said award or agreement is not made in an official language of the country
in which the award is relied upon, the party applying for recognition and
enforcement of the award shall produce a translation of these documents into
such language. The translation shall be certified by an official or sworn
translator or by a diplomatic or consular agent.
ARTICLE V
1 Recognition
and enforcement of the award may be refused, at the request of the party
against whom it is invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought, proof
that –
(a) the
parties to the agreement referred to in Article II were, under the law
applicable to them, under some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made; or
(b) the
party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was otherwise
unable to present the party’s case; or
(c) the
award deals with a difference 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 recognized and enforced; or
(d) the
composition of the arbitral authority 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
(e) the
award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which or under the law of
which, that award was made.
2 Recognition
and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds
that –
(a) the
subject matter of the difference is not capable of settlement by arbitration
under the law of that country; or
(b) the
recognition or enforcement of the award would be contrary to the public policy
of that country.
ARTICLE VI
If an application for the setting
aside or suspension of the award has been made to a competent authority
referred to in Article V(1)(e), the authority before which the award is sought
to be relied upon may, if it considers it proper, adjourn the decision on the
enforcement of the award and may also, on the application of the party claiming
enforcement of the award, order the other party to give suitable security.
ARTICLE VII
1 The
provisions of the present Convention shall not affect the validity of
multilateral or bilateral agreements concerning the recognition and enforcement
of arbitral awards entered into by the Contracting States nor deprive any
interested party of any right the party may have to avail himself of an
arbitral award in the manner and to the extent allowed by the law or the
treaties of the country where such award is sought to be relied upon.
2 The
Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention
on the Execution of Foreign Arbitral Awards of 1927 shall cease to have
effect between Contracting States on their becoming bound and to the extent
that they become bound, by this Convention.
ARTICLE VIII
1 This
Convention shall be open until 31 December 1958 for signature on behalf of
any Member of the United Nations and also on behalf of any other State which it
is or hereafter becomes a member of any specialised agency of the United
Nations, or which is or hereafter becomes a party to the Statute of the
International Court of Justice, or any other State to which an invitation has
been addressed by the General Assembly of the United Nations.
2 This
Convention shall be ratified and the instrument of ratification shall be
deposited with the Secretary-General of the United Nations.
ARTICLE IX
1 This
Convention shall be open for accession to all States referred to in Article
VIII.
2 Accession
shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
ARTICLE X
1 Any
State may, at the time of signature, ratification or accession, declare that
this Convention shall extend to all or any of the territories for the
international relations of which it is responsible. Such a declaration shall
take effect when the Convention enters into force for the State concerned.
2 At
any time thereafter any such extension shall be made by notification addressed
to the Secretary-General of the United Nations and shall take effect as from
the ninetieth day after the day of receipt by the Secretary-General of the
United Nations of this notification, or as from the date of entry into force of
the Convention for the Slate concerned, whichever is the later.
3 With
respect to those territories to which this Convention is not extended at the
time of signature, ratification or accession, each State concerned shall
consider the possibility of taking the necessary steps in order to extend the
application of this Convention to such territories, subject, where necessary
for constitutional reasons, to the consent of the Governments of such
territories.
ARTICLE XI
In the case of a federal or
non-unitary State, the following provisions shall apply –
(a) with
respect to those Articles of this Convention that come within the legislative
jurisdiction of the federal authority, the obligations of the federal
Government shall to this extent be the same as those of Contracting States
which are not federal States;
(b) with
respect to those Articles of this Convention that come within the legislative
jurisdiction of constituent states or provinces which are not, under the
constitutional system of the federation, bound to take legislative action, the
federal Government shall bring such Articles with a favourable recommendation
to the notice of the appropriate authorities of constituent states or provinces
at the earliest possible moment;
(c) a
federal State Party to this Convention shall, at the request of any other
Contracting State transmitted through the Secretary-General of the United
Nations, supply a statement of the law and practice of the federation and its
constituent units in regard to any particular provision of this Convention,
showing the extent to which effect has been given to that provision by
legislative or other action.
ARTICLE XII
1 This
Convention shall come into force on the ninetieth day following the date of the
third instrument of ratification or accession.
2 For
each State ratifying or acceding to this Convention after the deposit of the third
instrument of ratification or accession, this Convention shall enter into force
on the ninetieth day after deposit by such State of its instrument of
ratification or accession.
ARTICLE XIII
1 Any
Contracting State may denounce this Convention by a written notification to the
Secretary-General of the United Nations. Denunciation shall take effect one
year after the date of receipt of the notification by the Secretary-General.
2 Any
State which has made a declaration or notification under Article X may, at any
time thereafter, by notification to the Secretary-General of the United
Nations, declare that this Convention shall cease to extend to the territory
concerned one year after the date of the receipt of the notification by the
Secretary-General.
3 This
Convention shall continue to be applicable to arbitral awards in respect of
which recognition or enforcement proceedings have been instituted before the
denunciation takes effect.
ARTICLE XIV
A Contracting State shall not be
entitled to avail itself of the present Convention against other Contracting
States except to the extent that it is itself bound to apply the Convention.
ARTICLE XV
The Secretary-General of the United
Nations shall notify the States contemplated in Article VIII of the
following –
(a) signatures
and ratifications in accordance with Article VIII;
(b) accessions
in accordance with Article IX;
(c) declarations
and notifications under Articles I, X and XI;
(d) the
date upon which this Convention enters into force in accordance with Article
XII;
(e) denunciations
and notifications in accordance with Article XIII.
ARTICLE XVI
1 This
Convention of which the Chinese, English, French, Russian and Spanish texts
shall be equally authentic, shall be deposited in the archives of the United
Nations.
2 The
Secretary-General of the United Nations shall transmit a certified copy of this
Convention to the States contemplated in Article VIII.