Loi sur l'arbitrage commercial international, 2007-45, Barbade

PART I

Preliminary

(

I •

of Act.

(

nature, whether contractual or not and relationshipfO of a commercial nature include the following transactions:

(i)

any trade transaction for the supply or exchange of goods or services;

(ii)

distribution agreement;

(iii) commercial representation or agency;

(iv)

factoring;

(v)

leasing;

(vi)

construction of works;

(vii) consulting;

(viii) engineering;

(ix)

licensing;

(x)

investment;

(xi)

financing;

(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

(

(i) parties to an arbitration agreement have, at the time of the conclusion of the agreement, their places of business in different States;

(A)

the place of arbitration if determined in, or pursuant to, the arbitration agreement;

(B)

any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or

(iii) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

(b) nothing in this Act shall affect the right of any person to seek recognition and enforcement of an award under the Arbitration

(Foreign Arbitral Awards) Act.

f.

internationally recognized centre for international commercial arbitration.

(i)

where it is delivered to an addressee personally;

(n)

where it is delivered at the place of business, habitual residence or mailing address of the addressee; or

(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

right to object.

intervention.

HIgh Court to perform

functions

of arbitration assistance and supervision.

PART II

Arbitration Agreement

arbitration agreement.

(i) an arbitration clause in a contract; or

(ii) a separate agreement; and

(b)

shall be in writing.

(2)

An agreement is in writing where it is contained in

(a)

a document signed by the parties;

r..

(b)

an exchange of letters, telex, telegrams or other means of telecommunications which provide a record of the agreement; or

(c)

an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.

claim

is the subject of an arbitration agreement shall where a party so requests,

before

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 b}y 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

agreement.

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.

(6)

The High Court, in appointing an arbitrator, shall

(a)

have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator; and

(b)

in the case of a sole or third arbitrator take into account the advisability of appointing an arbitrator of a nationality other than those of the parties.

Grounds for 15. (1) Where a person is approached in connection with the

challenge.

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.

INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45

(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

(a)

the constitution of the arbitral tribunal; or

(b)

any circumstance referred to in section 15(3),

send a written statement of the reasons for the challenge to the tribunal.

(3)

Unless the arbitrator who has been challenged withdraws from office or the other party agrees to the challenge of the arbitrator, the tribunal shall decide on the challenge.

(4)

Where a challenge under any procedure agreed upon by the parties or under the procedure of subsections (2) and (3) is not successful, the challenging party may, within 30 days after having received notice of the decision rejecting the challenge, request the Court of Appeal to decide on the challenge; and that decision is not subject to an appeal.

(5)

While a request made pursuant to subsection (4) is pending, the tribunal, including the chatJenged arbitrator, may continue the arbitral proceedings and make an award.

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.

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.

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.

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

arbitration agreement and, for that purpose, an arbitration clause which

forms part of a contract shall be treated as an agreement independent of jurisdiction. the other terms ofthe contract.

(2)

A decision by the tribunal that the contract is null and void shall not entail ipso jure the invalidity ofthe arbitration clause.

(3)

A plea that the tribunal does not have jurisdiction shall be raised not later than the submission ofthe statement of defence.

(4)

A party is not precluded from raising a plea referred to in subsection (3) by the fact that the party has appointed or participated in the appointment of an arbitrator.

(5)

A plea that the tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(6)

The tribunal may, in either case, admit a later plea if it considers the delay justified.

14 INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45

(5)

or (6) either as a preliminary question or in an award on the merits of the case.

(8)

Ifthe tribunal rules as a preliminary question that it has jurisdiction, any party may, within 30 days after having received notice of that ruling, request the Court of Appeal to decide the matter, which decision is not subject to an appeal.

(9)

While a request made pursuant to subsection (8) is pending, the tribunal may continue the arbitral proceedings and make an award.

Power of 20. (1) Unless the parties otherwise agree, an arbitral tribunal may,

arbitral

at the request of a party, grant interim measures.

tribunal to

grant

interim

(2) For the purpose of this Act "interim measure" means, in relation

measures.

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

(a)

maintain or restore the status quo pending the determination of the dispute;

(b)

take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the process;

(c)

provide a means of preserving assets out of which a subsequent award may be satisfied; or

(d)

preserve evidence that may be relevant and material to the resolution of the dispute.

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.

(a)

the request for the interim measure;

(b)

the application for the preliminary order;

(c)

the preliminary order, if any; and

(d)

all other communications, including an indication of the content of any oral communication, between any party and the tribunal in relation thereto.

(2)

The tribunal shall, at the time it gives notice pursuant to subsection (1), give to any party against whom a preliminary order is directed, an opportunity to present the case of the party at the earliest practicable time.

(3)

The tribunal shall decide promptly on any objection to the preliminary order.

(4)

A preliminary order shall expire after 20 days from the date on which it was issued by the tribunal.

(5)

Notwithstanding subsection (4), the tribunal may issue an interim measure adopting or modifying the preliminary order after the party against whom the preliminary order is directed has been given notice and an opportunity to present the case of the party.

(6)

A preliminary order shall be binding on the parties but shall not be subject to enforcement by a court.

(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

damages.

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 or^der 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

interim

enforced upon application to the court.

measures.

(2)

A party who seeks or has obtained recognition or enforcement of an interim measure shall promptly inform the court of any termination, suspension or modification of that interim measure.

(3)

Where recognition or enforcement is sought, the court may, where it considers it appropriate, order the requesting party to provide appropriate security if the tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

Grounds for 29. (1) Recognition or enforcement of an interim measure under

refusing

section 28 may be refused only

recognition

or enforce

ment of

(a) at the request of the party against whom it is invoked where the

interim

measures. court is satisfied that

(i)

the refusal is warranted on the grounds set forth in paragraph (a)(i), (ii), (iii), (iv) or (v) of section 49(1);

(ii)

the decision of the arbitral tribunal with respect to the provision of security in connection with the interim measure issued by the tribunal has not been complied with; or

(iii) the interim measure has been terminated or suspended by

(

INTERNATIONAL COMMERCIAL ARBITRATION ACf, 2007 -45

(b) where the court finds that

(i)

the interim measure is incompatible with the powers conferred upon the court unless the court decides to reformulate the interim measure to the extend necessary to adapt the measure to its own powers and procedures for the purpose of enforcing the interim measure and without modifying the substance of the measure; or

(ii)

any of the grounds set forth in paragraph (b)(i) or (ii) of section 49(1), apply to the recognition and enforcement of the interim measure.

(2)

Any determination made by the court on any ground referred to in subsection (1) shall be effective only for the purpose of the application to recognize and enforce the interim measure.

(3)

The court in which recognition or enforcement is sought shall not, in making a determination pursuant to subsection (1) undertake a review of the substance of the interim measure.

30. (1) A court shall have the same power of issuing an interim Court

ordered

measure in relation to arbitral proceedings, irrespective of whether the

interim

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.

of parties.

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

(2)

Where the parties fail to agree on the procedure referred to in subsection (1), the tribunal may, subject to the provisions of this Act, conduct the arbitration in the manner it considers appropriate.

(3)

The power conferred upon the tribunal in subsection (2) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Place of 33. (1) Parties are free to agree on the place of arbitration.

arbitration.

(2)

Where the parties fail to agree on the place of arbitration, the place shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3)

Notwithstanding subsections (1) and (2), the tribunal may, unless the parties otherwise agree, meet at any place it considers appropriate for

(a)

consultation among its members;

(b)

the hearing of witnesses, experts or the parties; or

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

arbitral .. .

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.

(3) The agreement or detennination with respect to the language or languages to be used, unless otherwise specified therein, shall apply to any

(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.

of claim

by an arbitral tribunal, a claimant shall state

and

defence.

(a)

the facts supporting the claim of the claimant;

(b)

the points at issue; and

(c)

the relief or remedy sought,

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.

(2)

The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(3)

Unless the parties otherwise agree, either party may amend or supplement the claim or defence of the party during the course of the arbitral proceedings, unless the tribunal considers it inappropriate to allow the amendment having regard to the delay in making it.

37. (1) Subject to anycontraryagreement bythe parties, an arbitral Hearings

and written

tribunal shall decide whether to hold oral hearings for the presentation of

proceedings.

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

(2)

Unless the parties have agreed that no hearings shall be held, the tribunal shall hold hearings at an appropriate stage of the proceedings, if so requested by a party.

(3)

The parties shall be given sufficient advance notice of any hearing and of any meeting ofthe tribunal for the purpose of inspection of goods, other property or documents.

(4)

All statements, documents or other information supplied to the tribunal by one party shall be communicated to the other party.

(5)

Any expert report or evidentiary document on which the tribunal may rely in making its decision shall be communicated to the parties.

Default of 38. Unless the parties otherwise agree, where, without showing a party.

sufficient cause

(a)

a claimant fails to communicate a statement of claim in accordance with section 36(1), the arbitral tribunal shall tenninate the proceedings;

(b)

a respondent fails to communicate a statement of defence in accordance with section 36( 1), the tribunal shall continue the proceedings without treating the failure in itself as an admission of the allegations ofthe claimant;

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

assistance

tribunal may request from a competent court of Barbados assistance in

in taking

taking evidence. evidence.

(2) The court may execute the request within its competence and according to its rules on taking evidence.

PART VII

Making of Award and Termination of Proceedings

41. (1) An arbitral tribunal shall decide the dispute in accordance Rules

applicable

with such rules of law as are chosen by the parties as applicable to the

to substance

substance of the dispute. of dispute.

(2)

Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring. to the substantive law of that State and not to its conflict of laws rules.

(3)

Where the parties fail to make a designation, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

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.

::a!rs.

(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.

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

(4)

The award shall

(a)

state its date and the place of arbitration as detennined in accordance with section 33(1) or (2); and

_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}

':!r:Je^::Ofl

Act, commercial arbitration and matters related thereto, be deemed to have

Cap.

370^A. contravened the Legal Profession Act.

(2) ForthepUIpOse of this section, international commercial arbitration does not include court proceedings.

(

INTERNATIONAL COMMERCIAL ARBITRATION ACT, 2007 -45

1. The Minister may make Rules for giving effect to this Act.

2. (1) Unless the parties agree otherwise, this Act shall

(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