- ARRANGEMENT OF SECTIONS
- PART I PRELIMINARY
- PART II ARBITRATION AGREEMENT
- PART III STAY OF LEGAL PROCEEDINGS
- PART IV COMMENCEMENT OF ARBITRATION PROCEEDINGS
- PART V ARBITRAL TRIBUNAL
- PART VI JURISDICTION OF ARBITRAL TRIBUNAL
- PART VII ARBITRAL PROCEEDINGS
- General duties of arbitral tribunal
- Determination of rules of procedure
- Statements of claim and defence
- Hearings and written proceedings
- Consolidation of proceedings and concurrent hearings
- Power to appoint experts
- General powers exercisable by arbitral tribunal
- Powers of arbitral tribunal in case of party's default
- Witnesses may be summoned by subpoena
- Court's powers exercisable in support of arbitration proceedings
- PART VIII AWARD
- Law applicable to substance of dispute
- Awards made on different issues
- Remedies
- Interest
- Extension of time for making award
- Award by consent
- Form and contents of award
- Costs of arbitration
- Fees of arbitrator
- Power to withhold award in case of non-payment
- Court may charge property with payment of solicitor's costs in arbitration
- Correction or interpretation of award and additional award
- Effect of award
- PART IX POWERS OF COURT IN RELATION TO AWARD
- PART X GENERAL
- Notice and other requirements in connection with legal proceedings
- Powers of Registrar
- Rules of Court
- Proceedings to be heard otherwise than in open court
- Restrictions on reporting of proceedings heard otherwise than in open court
- Application to references under statutory powers
- Immunity of arbitral institutions
- Service of notices
- Reckoning periods of time
- Appointment of mediator
- Power of arbitrator to act as mediator
- Government to be bound
- Transitional provisions
- Enabling power
- Repeal
No. S 34
CONSTITUTION OF BRUNEI DARUSSALAM (Order under Article 83(3)1 ARBITRATION ORDER/ 2009 ARRANGEMENT OF SECTIONS Section PART I PRELIMINARY L Short title/ commencement and long title. PART II ARBITRATION AGREEMENT PART III STAY OF LEGAL PROCEEDINGS PART IV COMMENCEMENT OF ARBITRATION PROCEEDINGS
403 PART V ARBITRAL TRIBUNAL PART VI JURISDICTION OF ARBITRAL TRIBUNAL
21. Separability of arbitration clause and competence of arbitral tribunal to rule on its own jurisdiction.
PART VII ARBITRAL PROCEEDINGS PART IX POWERS OF COURT IN RELATION TO AWARD PART X GENERAL CONSTITUTION OF BRUNEI DARUSSALAM (Order under Article 83(3))
ARBITRATION ORDER, 2009
In the exercise of the power conferred by Article 83(3) of the Constitution of
Brunei Darussalam, His Majesty the Sultan and Yang Di-Pertuan hereby makes
the following Order
PART I PRELIMINARY
Short title, commencement and long title.
1. (1) This Order may be cited as the Arbitration Order, 2009 and shall commence on a day to be appointed by the Attorney General, with the approval of His Majesty the Sultan and Yang Di-Pertuan, by notification in the Gazette.
(2) The long title of this Order is "An Order to provide for arbitration in civil matters and for matters relating thereto".
Interpretation.
2. (11 In this Order, unless the context otherwise requires
"appointing authority" means the appointing authority designated under sections 13(8) or (9);
"arbitral tribunal" means a sole arbitrator, a panel of arbitrators or an arbitral institution;
"arbitration agreement" has the meaning given to it by section 4(1);
"award" means a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award/ but excludes any order or direction made under section 28;
"Courtll means the High Court;
"court"/ for the purposes of sections 6, 7, 8, IIp}, 56 and means the High Court/ an Intermediate Court, a Court of a Magistrate or any other court in which the proceedings referred to in those sections are instituted or heard;
"party" means a party to an arbitration agreement or, in any case where an arbitration does not involve all of the parties to the arbitration agreementI means a party to the arbitration;
"place of the arbitration" means the juridical seat of the arbitration designated by
fa) the parties to the arbitration agreement;
fb) any arbitral or other institution or person authorised by the parties for that purpose; or
fe) the arbitral tribunal as authorised by the parties,
or determined, in the absence of any such designation, having regard to the arbitration agreement and all the relevant circumstances;
"Registrar of the Supreme Court" has the same meaning as in section 2 of the Supreme Court Act (Chapter 5);
"Rules of Court" means the Rules of Court made by the Chief Justice under this Order. 3. This Order shall apply to any arbitration where the place of arbitration is Brunei Darussalam and where Part II of the International Arbitration Order, 2009 does not apply to that arbitration.
PART II ARBITRATION AGREEMENT
Arbitration agreement.
4. (1) In this Order, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them, whether contractual or not. fa) a document signed by the parties; or
Ib) an exchange of letters, telex, telefacsimile or other means of communication which provide a record of the agreement.
(4J Where in any artitral or legal proceedings, a party asserts the existence of an arbitration agreement in a pleading, statement of case or any other document in circumstances in which the assertion calls for a reply and the assertion is not denied, there shall be deemed to be an effective arbitration agreement as between the parties to the proceedings.
(5J A reference in a bill of lading to a charterparty or other document containing an arbitration clause shall constitute an arbitration agreement if the reference is such as to make that clause part of the bill of lading.
Arbitration agreement not to be discharged by death of party.
5. (1 J An arbitration agreement shall not be discharged by the death of any party to the agreement but shall continue to be enforceable by or against the personal representative of the deceased party. PART III STAY OF LEGAL PROCEEDINGS
Stay of legal proceedings.
6. (1) Where any party to an arbitration agreement institutes any proceedings in any court against any other party to the agreement in respect of any matter which is the subject of the agreement, any party to the agreement may, at any time after entering an appearance and before delivering any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings so far as they relate to that matter.
(2) The court to which an application has been made in accordance with subsection (1) may, if it is satisfied that make an order, upon such terms as it thinks fit, staying the proceedings so far as they relate to that matter. Court's powers on stay of proceedings.
7. (1) Where a court stays proceedings under section 6, the court may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest, order that Reference of interpleader issue to arbitration.
8. Where in proceedings before any court relief by way of interpleader is granted and any issue between the claimants is one in respect of which there is an arbitration agreement between them, the court granting the relief may direct the issue between the claimants to be determined in accordance with the agreement.
PART IV COMMENCEMENT OF ARBITRATION PROCEEDINGS
Commencement of arbitration proceedings.
9. Unless otherwise agreed by the parties, the arbitration proceedings in respect of a particular dispute shall commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
Powers of Court to extend time for beginning of arbitration proceedings.
10. (1) Where the terms of an arbitration agreement to refer future disputes to arbitration provide that a claim to which the arbitration agreement applies shall be barred unless within a time fixed by the agreement and a dispute to which the agreement applies has arisen, the Court may, if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused, extend the time for such period and on such terms as it thinks fit.
(2) An order of extension of time made by the Court under subsection (1)
{a} may be made only after any available arbitral process for obtaining an extension of time has been exhausted;
{b} may be made notwithstanding that the time so fixed has expired; and
fe) shall not affect the operation of sections 9 and 11 and any other written law relating to the limitation of actions.
Application of Chapter 14.
11. (1) The Limitation Act (Chapter 14) shall apply to arbitration proceedings as it applies to proceedings before any court and a reference in that Act to the commencement of any action shall be construed as a reference to the commencement of arbitration proceedings.
(2) The Court may order that in computing the time prescribed by the Limitation Act for the commencement of proceedings (including arbitration proceedings) in respect of a dispute which was the subject-matter of the period between the commencement of the arbitration and the date of the order referred to in paragraphs (a) or (b) shall be excluded.
(3) 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 the Limitation Act, 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.
PART V ARBITRAL TRIBUNAL
Number of arbitrators.
12. (1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, there shall be a single arbitrator.
Appointment of arbitrators.
13. (I) Unless otherwise agreed by the parties, no person shall be precluded by reason of his nationality from acting as an arbitrator. raj in an arbitration with 3 arbitrators, each party shall appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator; or
{bJ in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, the arbitrator shall be appointed, upon the request of a party, by the appointing authority.
(4) Where subsection (3){aJ applies
raj if a party fails to appoint an arbitrator within 30 days of the receipt of the first request to do so from the other party; or
{bJ if the 2 parties fail to agree on the appointment of the third arbitrator within 30 days of the receipt of the first request by either party to do so,
the appointment shall be made, upon the request of a party, by the appointing authority.
(5) If, under an appointment procedure agreed upon by the parties raj a party fails to act as required under such procedure; {bJ the parties are unable to reach an agreement expected of them
under such procedure; or
fe} a third party, including an arbitral institution, fails to perform any function entrusted to it under such procedure,
any party may apply to the appointing authority to take the necessary action unless the agreement on the appointment procedure provides other means for securing the appointment.
161 Where a party makes a request or makes an application to the appointing authority ynder subsections (3), (4) or (5), the appointing authority shall, in appointing an arbitrator, have regard to the following
fa} the nature of the subject-matter of the arbitration;
fb} the availability of any arbitrator;
fe) the identities of the parties to the arbitration;
(dJ any suggestion made by any of the parties regarding the appointment of any arbitrator;
(eJ any qualifications required of the arbitrator by the arbitration agreement; and
(fJ such considerations as are likely to secure the appointment of an independent and impartial arbitrator. Grounds for challenge.
14. (1) Where any person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstance likely to give rise to justifiable doubts as to his impartiality or independence.
(2) An arbitrator shall, from the time of his appointment and throughout the arbitration proceedings, disclose without delay any such circumstance as is referred to in subsection (1) to the parties, unless they have already been so informed by him.
(3} Subject to subsection (4), an arbitrator may be challenged only if 15. (1) Subject to subsection (3), the parties may agree on a procedure for challenging an arbitrator. Failure or impossibility to act.
16. (1) A party may request the Court to remove an arbitrator
fa} who is physically or mentally incapable of conducting the proceedings or where there are justifiable doubts as to his capacity to do so; or
fb} who has refused or failed and where substantial injustice has been or will be caused to that party. Arbitrator ceasing to hold office.
17. (1) The authority of an arbitrator shall cease upon his death.
(2) An arbitrator shall cease to hold office if fa} he withdraws from office under section 15(3); fb} an order is made under section 15(4) for the termination of his
mandate or his removal;
fc) he is removed by the Court under section 16 or by an institution referred to in section 16(2); or
fd) the parties agree on the termination of his mandate.
(3) The withdrawal of an arbitrator or the termination of an arbitrator's mandate by the parties shall not imply acceptance of the validity of any ground referred to in sections 14(3) or 16(1).
Appointment of substitute arbitrator.
18. (1) Where an arbitrator ceases to hold office, the parties may agree
fa) whether and if so how the vacancy is to be filled;
fb) whether and if so to what extent the previous proceedings should stand; and
fc) what effect (if any) his ceasing to hold office has on any appointment made by him, whether alone or jointly. Decision by panel of arbitrators.
19. (1) In arbitration proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by all or a majority of all its members.
(2) Any question of procedure may be decided by a presiding arbitrator if so authorised by the parties or all members of the arbitral tribunaL
Liability of arbitrator.
20. An arbitrator shall not be liable for
fa) negligence in respect of anything done or omitted to be done in the capacity of the arbitrator; or
(b) any mistake of law, fact or procedure made in the course of arbitration proceedings or in the making of an arbitral award.
PART VI
JURISDICTION OF ARBITRAL TRIBUNAL
Separability of arbitration clause and competence of arbitral tribunal to rule on its own jurisdiction.
21. (1) The arbitral tribunal may rule on its own jurisdiction, including any objections to the existence or validity of the arbitration agreement. Application of Order.
Challenge procedure.