INTERNATIONAL COMMERCIAL ARBITRATION
,.
Section
3.
S.
• I
ACT, 2007 -45
Arrangement of Sections
PART I
Preliminary
Short title. Interpretation. Application of Act. Objectives of Act.
I
Administration of Act. Receipt of written communications. Waiver of right to object. Extent of court intervention.
Court of Appeal and High Court to perfonn certain functions of arbitration·assistance and supervision.
PART II
Arbitration Agreement
Fonn of arbitration agreement. Substantive claim before court. Interim measures by court not incompatible with arbitration
agreement.
( (
(ii)
PART III
Composition of Arbitral Tribunal Section
'I
PART IV
Jurisdiction of Arbitral Tribunal
19. Competence of arbitral tribunal to rule on itsjurisdiction.
PART V
Interim Measures and Preliminary Orders
(iii)
Section
PART VI
Conduct of Arbitral Proceedings
40. Court assistance in taking evidence. PART VII
. (
Making of Award and Termination of Proceedings
41. Rules applicable to substance of dispute.
(
(iv)
Section
..
PART VIII
Recourse Against Award
47. Application for setting aside as exclusive recourse against arbitral award.
PART IX
Recognition and Enforcement of Awards
PART X
Miscellaneous
BARBADOS
I assent
C. STRAUGHN HUSBANDS Governor-General 20th December, 2007.
2007 45
-
An Act to make provision for international commercial arbitration.
(By Proclamation). Commence
ENACTED by the Parliament of Barbados as follows:
PART I
Preliminary
1. This Act may be cited as the International Commercial Short title. Arbitration Act, 2007.
(
2
Interpretation.
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
2. In this Act,
"arbitral tribunal" or ''tribunal'' means a sole arbitrator or a panel of arbitrators;
"arbitration" means any arbitration whether or not administered by a permanent , . arbitral institution;
"arbitration· agreement" means an agreement by parties to submit to arbitration all or certain disputes which have arisen or may arise between them in respect of a defined legal relationship, whether contractural or not;
"court" means a body or organ of the judicial system of a State;
"party" means a party to an arbitration agreement;
"telecommunications" has the meaning assigned to it in section 2 of the
Cap.
282B
Telecommunications Act,·
"UNCITRAL" means the United Nations Committee on International Trade Law.
I •
INTERNATIONAL COMMERCIA L ARBITRATION ACT, 2007 -45
(aJ the preservation of party autonomy;
(bJ the definition of the relations between courts and arbitral tribunals in respect of arbitral proceedings;
3. (1) This Act applies to international commercial arbitration, Application
of Act.
subject to any agreement in force bet ween Barbados and any other State or States.
(2) For the purpose of this Act,
(aJ the term "commercial" shall be given a wide interpretation so as to cover matters arising from all relationships of a commercial
(
4 INTERNATIONAL COMME RCIA L ARBITRATION ACT, 2007 -45
nature, whether contractual or not and relationshipfO of a commercial nature include the following transactions:
, .
(iii) commercial representation or agency;
(vii) consulting;
(viii) engineering;
(xii) g;
(xiii) insurance;
(xiv) exploitation agreement or concession;
(xv) joint venture and other forms of industrial or business cooperation; and
(xvi) carriage of goods or passengers by air, sea, rail or road; and
(
INTERNATIONAL COMMERCIAL ARBITRAT ION ACT, 2007 -45
(b) an arbitration is international where
(i) parties to an arbitration agreement have, at the time of the conclusion of the agreement, their places of business in different States;
(ii) one of the following places is situated outside the State in which the parties have their places of business:
(iii) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.
(4) The provisions of this Act, except sections 11,12,28,29,30,48 and 49, apply only where the place of arbitration is in Barbados.
(5) This Act shall not affect any other law of Barbados by virtue of
. ...
which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.
(6) For the avoidance of doubt
6 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Cap. 110. (a) where this Act applies, the Arbitration Act shall not apply; and
(b) nothing in this Act shall affect the right of any person to seek recognition and enforcement of an award under the Arbitration
Cap. IIOA.
(Foreign Arbitral Awards) Act.
Objectives 4. The objectives of this Act are to
f.
of Act.
internationally recognized centre for international commercial arbitration.
Administra-5. The Minister with responsibility for legal affairs shall be tion of Act. responsible for the general administration of this Act.
Receipt of 6. (1) Unless the parties otherwise agree
written
communica
(a) a written communication is deemed to have been received
tions.
(iii) if none of these can be found after making a reasonable inquiry, where it is sent to the last-known place ofbusiness, habitual residence or mailing address of the addressee by registered letter or any other means which provides a record of the attempt to deliver it; and
(b) a written communication is deemed to have been received on the day it is so delivered.
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(2) The provisions of this section do not apply to communications in court proceedings.
7. A party who knows that Waiver of
right to object.
has not been complied with and proceeds with the arbitration without stating an objection to such non-compliance without undue delay or, where a timelimit is provided therefor, within such period of time, shall be deemed to have waived the right to object.
8. In matters governed by this Act, no court shall intervene except Extent of court
where so provided in this Act.
intervention.
9. (1) The functions referred to in sections 16(4), 17, 19(8) and Court of Appeal and
47(2) shall be performed by the Court of Appeal.
HIgh Court to perform
(2) The functions referred to in section 14 shall be performed by the certain
functions
High Court.
of arbitration assistance and supervision.
PART II
Arbitration Agreement
10. (1) An arbitration agreement Form of
arbitration agreement.
(a) may be in the form of
(i) an arbitration clause in a contract; or
8 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(ii) a separate agreement; and
r..
(3) A reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement where the contract is in writing and the reference is such as to make that clause part of the contract.
Substantive 11. (1) A court before which an action is brought in a matter which
is the subject of an arbitration agreement shall where a party so requests,
court. not later than when submitting the first statement of the party on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.
12. It is not incompatible with an arbitration agreement for a party to measures by request from a court, before or during arbitral proceedings, an interim
Interim
court not
incompat-measure of protection and for the court to grant such a measure.
ible with
arbitration
10 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(c) a third party, including an institution, fails to perfonn any function entrusted to it under the procedure,
any party may request the High Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by subsection (3) or (4) to the <.. High Court is not subject to an appeal.
Grounds for 15. (1) Where a person is approached in connection with the
possible appointment of the person as an arbitrator, the person shall disclose any circumstances likely to give rise to justifiable doubts as to the impartiality or independence of the person.
(2) An arbitrator shall, from the time of appointment and throughout the arbitni.l proceedings, without delay disclose to the parties any circumstances referred to in subsection (1) unless the parties have already been infonned of them by the arbitrator.
(3) An arbitrator may be challenged only where
I •
(aJ circumstances exist that give rise to justifiable doubts as to the impartiality or independence of the arbitrator; or
(
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INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
the arbitrator does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by the party or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made .
....
16. (1) Subject to subsection (4), parties are free to agree on a Challenge procedure.
procedure for challenging an arbitrat()r.
(2) Where the parties fail to agree on the procedure referred to subsection (1), a party who intends to challenge an arbitrator shall, within 15 days after becoming aware of
send a written statement of the reasons for the challenge to the tribunal.
12 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Failure or 17. (1) Where an arbitrator impossibil ity to act.
the mandate of the arbitrator terminates if the arbitrator withdraws from office or if the parties agree on the termination.
(2) Where a controversy concerning any of the grounds referred to in subsetion(1) exists, any party may request the Court of Appeal to decide on the termination of the mandate; and that decision is not subject to an appeal.
an arbitrator withdraws from office; or a party agrees to the termination of the mandate of an arbitrator,
the withdrawal from office by the arbitrator or the agreement by the party to terminate the mandate of the arbitrator shall not be deemed to imply acceptance of the validity of any ground referred to in this section or section 15(3).
Appoint18. where the mandate of an arbitrator terminates ment of
substitute
arbitrator.
under section 16or 17;
(b) because of the withdrawal of the arbitrator from office for any other reason; or
(
INTERNATIONAL COMMERCIA L ARBITRATION ACT, 2007 -45
(c) because of the revocation of the mandate of the arbitrator by the agreement ofthe parties or in any other case oftermination of the mandate of the arbitrator,
a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment ofthe arbitrator being replaced.
PART IV
Jurisdiction of Arbitral Tribunal
19. (1) An arbitral tribunal may rule on its own jurisdiction, Competence of arbitral
including any objections with respect to the existence or validity of the
tribunal to
arbitration agreement and, for that purpose, an arbitration clause which
rule on its
forms part of a contract shall be treated as an agreement independent of jurisdiction. the other terms ofthe contract.
(
14 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(7) The tribunal may rule on a plea referred to in subsection (3), (4),
PART V
Interim Measures and Preliminary Orders
Power of 20. (1) Unless the parties otherwise agree, an arbitral tribunal may,
at the request of a party, grant interim measures.
tribunal to
grant
(2) For the purpose of this Act "interim measure" means, in relation
to arbitral proceedings, any temporary measure, whether in the form of an award orin another form, by which, at anytime prior to the issuance of the award by which the dispute is finally decided, a tribunal orders a party to
16 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45 Specific 23. (1) Immediately after an arbitral tribunal has made a
regime for
determination in respect of an application for a preliminary order, the tribunal
preliminary
shall
notice to all parties of
orders.
(7) A preliminary order does not constitute an award.
"
17
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
24. An arbitral tribunal may modify, suspend or tenninate an interim Modifica
tion,
measure or a preliminary order it has granted
suspension, termination.
upon application of any party; or
(b) on the initiative of the tribunal, in exceptional circumstances and upon prior notice to the parties.
25. (1) An arbitral tribunal may require a party who requests an Provision of security.
interim measure to provide appropriate security in connection with the measure.
(2) The tribunal shall require a party who applies for a preliminary order to provide security in connection with the order unless the tribunal considers it inappropriate or unnecessary to do so.
26. (1) An arbitral tribunal may require any party to disclose Disclosure. promptly any material change in the circumstances on the basis of which a measure was requested or granted.
(2) A party who applies for a preliminary order shall disclose to the tribunal all circumstances that are likely to be relevant to the determination of the tribunal as to whether to grant or maintain the order, and the obligation to disclose shall continue until the party against whom the order has been requested has had an opportunity to present the case of the party; and thereafter, subsection (1) shall apply.
27. (1) A party who requests an interim measure or applies for a Costs and
preliminary order shall be liable for any costs and damages caused by the
.. measure or the order to any party where the arbitral tribunal subsequently detennines that, in the circumstances, the measure or the order should not have been granted.
(2) The tribunal may award such costs and damages at any point during the proceedings.
18 INTERNATIONAL COMMERCIAL ARBITRAT ION ACT, 2007 -45
Recognition 28. (1) Subject to section 29, an interim measure issued by an
and
arbitral tribunal shall, irrespective of the country in which it was issued, be
enforce ment of recognized as binding and, unless otherwise provided by the tribunal, be
enforced upon application to the court.
Grounds for 29. (1) Recognition or enforcement of an interim measure under
section 28 may be refused only
recognition
or enforce
(a) at the request of the party against whom it is invoked where the
measures. court is satisfied that
(iii) the interim measure has been terminated or suspended by
(
INTERNATIONAL COMMERCIAL ARBITRATION ACf, 2007 -45
(b) where the court finds that
30. (1) A court shall have the same power of issuing an interim Court
measure in relation to arbitral proceedings, irrespective of whether the
place of the arbitral proceedings is in Barbados, as it has in relation to measures. proceedings in courts.
(2) The court shall exercise the power referred to in subsection (1) in accordance with its own procedures and in consideration of the specific features of international commercial arbitration.
PART VI
Conduct of Arbitral Proceedings
31. Parties shall be treated with equality and each party shall be Equal
treatment
given a full opportunity of presenting the case of the party.
32. (1) Subject to the provisions of this Act, parties are free to Determinaagree on the procedure to be followed by the arbitral tribunal in the conduct s
o:f
of the proceedings. procedure.
(
20 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Place of 33. (1) Parties are free to agree on the place of arbitration.
the inspection of goods, other property or documents.
Commence-34. Unless the parties otherwise agree, arbitral proceedings in respect ment of
of a particular disDute commence on the date on which a request for the
proceedings. d'Ispute to be re erre f· d to ar b'Itration IS reCeIVe dby a respon dent.
Language. 35. (1) Parties are free to agree on the language or languages to be used in arbitral proceedings.
(2) Where the parties fail to agree on the language or languages to be used in the proceedings, the arbitral tribunal shall determine the language or languages.
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(3) The agreement or detennination with respect to the language or languages to be used, unless otherwise specified therein, shall apply to any
award, decision or other communication by the tribunal.
(4) The tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the tribunal.
36. (1) Within the period of time agreed by parties or determined Statements
by an arbitral tribunal, a claimant shall state
and
and a respondent shall state the defence of the respondent in respect of these particulars, unless the parties have otherwise agreed as to the required elements of the statements.
37. (1) Subject to anycontraryagreement bythe parties, an arbitral Hearings
and written
tribunal shall decide whether to hold oral hearings for the presentation of
evidence or for oral agrument, or whether the proceedings shall be conducted on the basis of documents and other materials.
22 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Default of 38. Unless the parties otherwise agree, where, without showing a party.
sufficient cause
any party fails to appear at a hearing or to produce documentary evidence, the tribunal may continue the proceedings and make the award on the evidence before it.
Expert 39. (1) Unless the parties otherwise agree, an arbitral tribunal may appointed
by arbitral
(a) appoint one or more experts to report to it on specific issues to
tribunal.
be determined by the tribunal;
(b) require a party to give the expert any relevant information or to produce or provide access to, any relevant documents, goods or other property for the inspection of the expert.
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
23
(2) Unless the parties otherwise agree, where a party so requests or the arbitral tribunal considers it necessaty, the expert shall, after delivery of the written or oral report of the expert, participate in a hearing in which the parties have the opportunity to put questions to the expert and to present expert witnesses in order to testify on the points at issue.
40. (1) An arbitral tribunal or a party with the approval of the Court
tribunal may request from a competent court of Barbados assistance in
taking evidence. evidence.
(2) The court may execute the request within its competence and according to its rules on taking evidence.
Making of Award and Termination of Proceedings
41. (1) An arbitral tribunal shall decide the dispute in accordance Rules
with such rules of law as are chosen by the parties as applicable to the
substance of the dispute. of dispute.
to (4) The tribunal shall decide ex aequo et bono or as amiable
compositeur only if the parties have expressly authorized it to do so.
(5) In all cases, the trIbunal shall decide in accordance with the terms of the contract and take into account the usages of the trade applicable to the transaction.
24 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Decision 42. (1) In arbitral proceedings with more than one arbitrator, any making by decision of the arbitral tribunal shall be made, unless the parties otherwise agree, by a majority of all its members.
(2) Notwithstanding subsection (1), questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the tribunal.
dispute, the arbitral tribunal shall terminate the proceedings and, where | ||||
---|---|---|---|---|
requested by the parties and not objected to by the tribunal, record the | ||||
settlement in the form of an arbitral award on agreed terms. | ||||
(2) | An award on agreed terms shall | |||
(a) | be made in accordance with section 44; | |||
(b) | state that it is an award; and | |||
(c) | have the same status and effect as any other award on the merits | |||
of the case. | ||||
Fonn and | 44. (1) | An award shall be | ||
contents of | ||||
award. | (a) | made in writing; and | ||
(b) | signed by the arbitrator or arbitrators. | |||
(2) | Inarbitral proceedings with more than one arbitrator, the signatures |
of the majority of all members of the arbitral tribunal shall suffice, where the reason for any omitted signature is sted.
(3) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be'given or the award is an award on agreed terms under section 43.
. INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
_0
(b) be deemed to have been made at that place.
(5) After the award is made, a copy of the award signed by the arbitrators in accordance with subsection (1) shall be delivered to each party
.
45. (1) Arbitral proceedings are tenninated by the final award or Termination by an order of an arbitral tribunal in accordance with subsection (2). of proceed
(2) The tribunal shall issue an order for the termination of the arbitral proceedings where
the tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
(3) Subject to sections 46 and 47(5), the mandate of the tribunal tenninates with the tennination of the arbitral proceedings.
( 46. (1) Unless another period of time has been agreed upon by Correction parties, within 30 days of receipt of an award, a party may and
interpretation
(a) with notice to the other party, request the arbitral tribunal to and
correct in the award any errors in computation, any clerical or
typographical errors or any other errors of a similar nature;
26 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(b) if the parties so agree, by and with notice to the other party, request the tribunal to give an interpretation of a specific point or part of the award.
Recourse Against Award
Application 47. (1) Recourse to a court against an arbitral award may be made for setting only by an application for setting aside in accordance with subsections (2), .'
aside as
(3) and (4).
exclusive recourse against arbitral award.
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(2) An arbitral award may be set aside by the Court of Appeal only where:
(a) the party who makes the application to set aside the award furnishes proof that
.
the law of Barbados;
(iii) the party who makes the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the case of the party;
(b) the court finds that
(
,
28 IN TERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
Recognition and Enforcement of Awards
48. (1) An arbitral award, irrespective of the country in which it ::orcement was made, shall be recognized as binding and, upon application in writing to of awards. the competent court, shall, subject tothis section and section 49, be enforced.
(2) A party who relies on an award or applies for its enforcement shall supply
(a) the duly authenticated original award or a duly certified copy thereof;
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
49. (1) Recognition or enforcement of an arbitral award, Grounds for
irrespective of the country in which it was made, may be refused only
or
(a) at the request of the party against whom it is invoked, where that enforcement
party furnishes to the competent court where recognition or of awards. enforcement is sought proof that
(iii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the case of the party;
30 INT ERNAT IONAL COMMERCIAL ARBITRAT ION ACT, 2007 -45
(3) Where an application for setting aside or suspension of an award has been made to a court of the country in which, or under the law ofwhich, the award was made, the court before which recognition or enforcement is sought may, if it considers it appropriate, adjourn its decision and, on the application of the party who claims recognition or enforcement of the award, order the other party to provide appropriate security.
Miscellaneous
Non-50. (1) Notwithstanding anything to the contrary in the Legal application
Profession Act, a person who is entitled to practise law under the law of a State other than Barbados shall not, by reason of participation in international
Act, commercial arbitration and matters related thereto, be deemed to have
Cap.
370A. contravened the Legal Profession Act.
(2) ForthepUIpOse of this section, international commercial arbitration does not include court proceedings.
(
INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45
(a) not affect any arbitral proceedings that commenced before the commencement of this Act;
(b) apply to any arbitral proceedings commenced after the commencement of this Act under any agreement made before the commencement;
(2) Section 34 shall apply for the purpose of determining the date on which arbitral proceedings commence.
53. This Act binds the Crown.
54. This Act comes into operation on a day to be fixed by Proclamation.
l
..
Rules. Saving for
pending
Act binds
ment.