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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Commercial Arbitration
Bill 2011
A BILL FOR
An Act relating to the conduct of commercial arbitrations; to amend the
Commercial
Arbitration and Industrial Referral Agreements Act 1986; and for
other purposes.
Contents
Part 1A—Preliminary
1AShort
title
1BCommencement
1CParamount object of
Act
Part 1—General provisions
1Scope of
application
2Definitions and rules of interpretation
2AInternational
origin and general principles
3Receipt of written communications
4Waiver of right to
object
5Extent of court intervention
6Court for certain
functions of arbitration assistance and supervision
Part 2—Arbitration agreement
7Definition and form
of arbitration agreement
8Arbitration agreement and substantive claim before
court
9Arbitration agreement and interim measures by
court
Part 3—Composition of arbitral
tribunal
10Number of arbitrators
11Appointment of
arbitrators
12Grounds for challenge
13Challenge procedure
14Failure or
impossibility to act
15Appointment of substitute arbitrator
Part 4—Jurisdiction of arbitral
tribunal
16Competence of arbitral tribunal to rule on its
jurisdiction
Part 4A—Interim measures
Division 1—Interim
measures
17Power of arbitral tribunal to order interim
measures
17AConditions for granting interim
measures
Division 2—Preliminary
orders
Division 3—Provisions applicable to interim
measures
17DModification, suspension,
termination
17EProvision of security
17FDisclosure
17GCosts and
damages
Division 4—Recognition and enforcement of
interim measures
17HRecognition and enforcement
17IGrounds
for refusing recognition or enforcement
Division 5—Court-ordered interim
measures
17JCourt-ordered interim
measures
Part 5—Conduct of arbitral
proceedings
18Equal treatment of parties
19Determination of
rules of procedure
20Place of arbitration
21Commencement of arbitral
proceedings
22Language
23Statements of claim and defence
24Hearings and
written proceedings
24ARepresentation
24BGeneral duties of
parties
25Default of party
26Expert appointed by arbitral
tribunal
27Court assistance in taking evidence
27AParties may
obtain subpoenas
27BRefusal or failure to attend before arbitral
tribunal or to produce document
27CConsolidation of arbitral proceedings
27DPower of
arbitrator to act as mediator, conciliator or other non-arbitral
intermediary
27EDisclosure of confidential information
27FCircumstances in
which confidential information may be disclosed
27GArbitral tribunal may allow
disclosure of confidential information in certain circumstances
27HCourt may
prohibit disclosure of confidential information in certain
circumstances
27ICourt may allow disclosure of confidential
information in certain circumstances
27JDetermination of preliminary point of law by
Court
Part 6—Making of award and termination of
proceedings
28Rules applicable to substance of dispute
29Decision-making by
panel of arbitrators
30Settlement
31Form and contents of award
32Termination of
proceedings
33Correction and interpretation of award; additional
award
33ASpecific performance
33BCosts
33CApplication of Legal Profession
Acts
33DCosts of abortive arbitration
33EInterest up to
making of award
33FInterest on debt under award
Part 7—Recourse against award
34Application for
setting aside as exclusive recourse against arbitral award
34AAppeals against
awards
Part 8—Recognition and enforcement of
awards
35Recognition and enforcement
36Grounds for
refusing recognition or enforcement
Part 9—Miscellaneous
37Death of
party
38Interpleader
39Immunity
40Act to bind Crown
41Court
rules
42Regulations
Schedule 1—Related amendments and
transitional provisions
Part 1—Preliminary
1Amendment
provisions
Part 2—Amendment of
Commercial Arbitration and Industrial Referral Agreements
Act 1986
2Amendment of long title
3Amendment of
section 1—Short title
4Repeal of sections 3 to 56
5Redesignation of section 57
6Amendment,
redesignation and relocation of Schedule 1 clauses 1 and 2
7Repeal of
Part and Schedule headings
Part 3—Savings,
transitional and other provisions
8Savings and
transitional provisions
9Other
provisions
The Parliament of South Australia enacts as
follows:
Note—
Many sections of this Act are substantially the same as the provisions of
the UNCITRAL Model Law on International Commercial Arbitration (as adopted by
the United Nations Commission on International Trade Law on
21 June 1985 with amendments as adopted by that Commission
in 2006).Some changes have been made to those provisions of the Act based
on the UNCITRAL Model Law to amend or supplement the provisions in their
application to domestic arbitrations in South Australia or to accommodate modern
drafting styles and conventions (for example, provisions are drafted in gender
neutral terms and archaisms are replaced with modern alternatives). Notes draw
attention to substantive changes. The original numbering of the "articles" of
the UNCITRAL Model Law has been retained but converted to references to
"sections" and articles containing more than one sentence have been re-formatted
into subsections. There are a number of additional provisions to those based on
the UNCITRAL Model Law.
This Act may be cited as the Commercial Arbitration Act
2011.
This Act will come into operation on a day to be fixed by
proclamation.
(1) The paramount object of this Act is
to facilitate the fair and final resolution of commercial disputes by impartial
arbitral tribunals without unnecessary delay or expense.
(2) This Act aims to achieve its
paramount object by—
(a) enabling parties to agree about
how their commercial disputes are to be resolved (subject to
subsection (3) and
such safeguards as are necessary in the public interest); and
(b) providing arbitration procedures
that enable commercial disputes to be resolved in a cost effective manner,
informally and quickly.
(3) This Act must be interpreted, and the
functions of an arbitral tribunal must be exercised, so that (as far as
practicable) the paramount object of this Act is achieved.
(4)
Subsection (3) does not affect the
application of section 22 of the Acts
Interpretation Act 1915 for the purposes of interpreting this
Act.
(1) This Act applies to domestic commercial
arbitrations.
Note—
The International Arbitration Act 1974 of the Commonwealth covers
international commercial arbitrations and the enforcement of foreign arbitral
awards.
(2) The provisions of this Act, except
sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration
is in South Australia.
(3) An arbitration is
domestic if—
(a) the parties to an arbitration
agreement have, at the time of the conclusion of that agreement, their places of
business in Australia; and
(b) the parties have (whether in the
arbitration agreement or in any other document in writing) agreed that any
dispute that has arisen or may arise between them is to be settled by
arbitration; and
(c) it is not an arbitration to which
the Model Law (as given effect by the International Arbitration Act 1974
of the Commonwealth) applies.
(4) For the purposes of
subsection (3)—
(a) if a party has more than 1 place of
business, the place of business is that which has the closest relationship to
the arbitration agreement; and
(b) if a party does not have a place of
business, reference is to be made to the party's habitual residence.
(5) This Act does not affect any other Act
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) Subject to
subsection (5), this
Act applies to arbitrations provided for in any other Act as if—
(a) the other Act were an arbitration
agreement; and
(b) the arbitration were pursuant to an
arbitration agreement; and
(c) the parties to the dispute which,
by virtue of the other Act, is referred to arbitration were the parties to the
arbitration agreement,
except in so far as the other Act otherwise indicates or
requires.
Model Law note—
The term "commercial" should be given a wide interpretation so as to cover
matters arising from all relationships of a commercial nature, whether
contractual or not. Relationships of a commercial nature include, but are not
limited to, the following transactions: any trade transaction for the supply or
exchange of goods or services; distribution agreement; commercial representation
or agency; factoring; leasing; construction of works; consulting; engineering;
licensing; investment; financing; banking; insurance; exploitation agreement or
concession; joint venture and other forms of industrial or business
co-operation; carriage of goods or passengers by air, sea, rail or
road.
Note—
This section differs from the Model Law to the extent necessary to apply
Art 1 as incorporated in this Act to domestic commercial arbitrations.
Section 40 contains provisions that also relate to the application of this
Act.
2—Definitions
and rules of interpretation
arbitral tribunal means a sole arbitrator or a panel of
arbitrators;
arbitration means any domestic commercial arbitration whether
or not administered by a permanent arbitral institution;
arbitration agreement—see
section 7;
confidential information, in relation to arbitral
proceedings, means information that relates to the arbitral proceedings or to an
award made in those proceedings and includes the following:
(a) the
statement of claim, statement of defence and all other pleadings, submissions,
statements or other information supplied to the arbitral tribunal by a
party;
(b) any
information supplied by a party to another party in compliance with a direction
of the arbitral tribunal;
(c) any
evidence (whether documentary or otherwise) supplied to the arbitral
tribunal;
(d) any
notes made by the arbitral tribunal of oral evidence or submissions given before
the arbitral tribunal;
(e) any
transcript of oral evidence or submissions given before the arbitral
tribunal;
(f) any
rulings of the arbitral tribunal;
(g) any
award of the arbitral tribunal;
Court means, subject to
section 6(2), the Supreme
Court;
disclose, in relation to confidential information, includes
publishing or communicating or otherwise supplying the confidential
information;
domestic commercial arbitration—see
section 1;
exercise a function includes perform a duty;
function includes a power, authority or duty;
interim measure—see
section 17;
Model Law means the UNCITRAL Model Law on International
Commercial Arbitration (as adopted by the United Nations Commission on
International Trade Law on 21 June 1985, and as amended by the United Nations
Commission on International Trade Law on 7 July 2006);
party means a party to an arbitration agreement and
includes—
(a) any person claiming
through or under a party to the arbitration agreement; and
(b) in any case where an
arbitration does not involve all of the parties to the arbitration agreement,
those parties to the arbitration agreement who are parties to the
arbitration.
Note—
The definitions of arbitration agreement, confidential
information, disclose, domestic commercial
arbitration, exercise, function,
interim measure, Model Law, party and
Court are not included in the Model Law.
(2) If a provision of this Act, except
section 28,
leaves the parties free to determine a certain issue, such freedom includes the
right of the parties to authorise a third party, including an institution, to
make that determination.
(3) If a provision of this Act refers to
the fact that the parties have agreed or that they may agree or in any other way
refers to an agreement of the parties, such agreement includes any arbitration
rules referred to in that agreement.
(4) If a provision of this Act, other than
sections 25(1)(a) and
32(2)(a), refers to a claim, it also
applies to a counter-claim, and if it refers to a defence, it also applies to a
defence to such counter-claim.
(5) Notes (other than the Model Law note to
section 1) included in this Act do not form
part of this Act.
Note—
This subsection is not included in the Model Law.
2A—International
origin and general principles
(1) Subject to
section 1C, in the
interpretation of this Act, regard is to be had to the need to promote so far as
practicable uniformity between the application of this Act to domestic
commercial arbitrations and the application of the provisions of the Model Law
(as given effect by the International Arbitration Act 1974 of the
Commonwealth) to international commercial arbitrations and the observance of
good faith.
(3) Without limiting
subsection (1), in
interpreting this Act, reference may be made to the documents relating to the
Model Law of—
(a) the United Nations Commission on
International Trade Law; and
(b) its working groups for the
preparation of the Model Law.
Note—
This section differs from the Model Law. Art 2A(1) has been changed as a
consequence of the application of the Act to domestic (instead of international)
commercial arbitrations. Art 2A(2) is omitted because it is covered by the
provision referred to in
section 1C(4).
Subsection (3)
reflects as far as is relevant in South Australia section 17 of the
International Arbitration Act 1974 of the Commonwealth.
3—Receipt
of written communications
(1) Unless otherwise agreed by the
parties—
(a) any written communication is taken
to be received if—
(i) it is delivered to the
addressee personally; or
(ii) it is delivered at the
addressee's place of business, habitual residence or mailing address;
or
(iii) if none of these can be
found after making a reasonable inquiry, it is delivered to the addressee's
last-known place of business, habitual residence or mailing address by
registered letter or any other means which provides a record of the attempt to
deliver it; and
(b) the communication is taken to have
been received on the day it is so delivered.
(2) The provisions of this section do not
apply to communications in court proceedings.
A party who knows that any provision of this Act from which the parties may
derogate or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating the party's
objection to such non-compliance without undue delay or, if a time limit is
provided for stating the party's objection, within such period of time, is taken
to have waived the party's right to object.
5—Extent
of court intervention
In matters governed by this Act, no court must intervene except where so
provided by this Act.
6—Court
for certain functions of arbitration assistance and
supervision
(1) The functions referred to in sections
11(3) and (4), 13(4), 14(2), 16(9), 17H-17J, 19(6), 27-27B, 27H-27J, 33D, 34 and
34A are, subject to
subsection (2), to be performed by the
Supreme Court.
(a) an arbitration agreement provides
that the District Court or Magistrates Court is to have jurisdiction under this
Act; or
(b) the parties to an arbitration
agreement have agreed in writing that the District Court or Magistrates Court is
to have jurisdiction under this Act and that agreement is in force,
the functions are to be performed, in relation to that agreement, by the
District Court or Magistrates Court, as the case requires.
Note—
This section differs from the Model Law to the extent that it relates to
functions conferred on the Court with respect to domestic commercial
arbitrations that are not referred to in the Model Law.
7—Definition
and form of arbitration agreement
(1) An arbitration agreement
is an agreement by the parties to submit to arbitration all or certain disputes
which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not.
(2) An arbitration agreement may be in the
form of an arbitration clause in a contract or in the form of a separate
agreement.
(3) The arbitration agreement must be in
writing.
(4) An arbitration agreement is in writing
if its content is recorded in any form, whether or not the arbitration agreement
or contract has been concluded orally, by conduct, or by other means.
(5) The requirement that an arbitration
agreement be in writing is met by an electronic communication if the information
contained in it is accessible so as to be useable for subsequent
reference.
data message means information generated, sent, received or
stored by electronic, magnetic, optical or similar means, including, but not
limited to, electronic data interchange (EDI), email, telegram, telex or
telecopy;
electronic communication means any communication that the
parties make by means of data messages.
(7) Furthermore, an arbitration agreement
is in writing if it is contained in an exchange of statements of claim and
defence in which the existence of an agreement is alleged by 1 party and not
denied by the other.
(8) The reference in a contract to any
document containing an arbitration clause constitutes an arbitration agreement
in writing, provided that the reference is such as to make that clause part of
the contract.
Note—
This section is substantially the same as Option 1 set out in Art 7 of the
Model Law.
8—Arbitration
agreement and substantive claim before court
(1) A court before which an action is
brought in a matter which is the subject of an arbitration agreement must, if a
party so requests not later than when submitting the party's first statement 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) If 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.
9—Arbitration
agreement and interim measures by court
It is not incompatible with an arbitration agreement for a party to
request, before or during arbitral proceedings, from a court an interim measure
of protection and for a court to grant the measure.
Part 3—Composition
of arbitral tribunal
(1) The parties are free to determine the
number of arbitrators.
(2) Failing such determination, the number
of arbitrators is to be 1.
Note—
Subsection (2) differs from Art 10(2) of the Model Law, which provides for
3 arbitrators if the parties do not determine the number of
arbitrators.
(2) The parties are free to agree on a
procedure of appointing the arbitrator or arbitrators, subject to the provisions
of
subsections (4) and
(5).
(a) in an arbitration with 3
arbitrators and 2 parties, each party is to appoint 1 arbitrator, and the 2
arbitrators so appointed are to appoint the third arbitrator; if a party fails
to appoint the arbitrator within 30 days of receipt of a request to do so from
the other party, or if the 2 arbitrators fail to agree on the third arbitrator
within 30 days of their appointment, the appointment is to be made, on the
request of a party, by the Court; and
(b) in an arbitration with a sole
arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator
is to be appointed, on the request of a party, by the Court; and
(c) in an arbitration with 2, 4 or
more arbitrators or with 3 arbitrators and more than 2 parties the
appointment is to be made, at the request of a party, by the Court.
(4) If, under an appointment procedure
agreed on by the parties—
(a) a party fails to act as required
under the procedure; or
(b) the parties, or 2 or more
arbitrators, are unable to reach an agreement expected of them under the
procedure; or
(c) a third party, including an
institution, fails to perform any function entrusted to it under the
procedure,
any party may request the Court to take the necessary measure, unless the
agreement on the appointment procedure provides other means for securing the
appointment.
(5) A decision within the limits of the
Court's authority on a matter entrusted by
subsection (3) or
(4) to the Court is
final.
(6) The Court, in appointing an
arbitrator, is to 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.
Note—
Art 11(1) of the Model Law (which provides that no person is precluded by
nationality from acting as an arbitrator unless otherwise agreed by the parties)
has been omitted.
This section (other than
subsections (3)(c),
(5) and
(6)) is
substantially the same as Art 11 of the Model Law.
Subsection (3)(c)
is added to cover the contingency of the parties failing to agree on the
procedure to appoint arbitrators in certain circumstances not covered by the
Model Law as incorporated in this Act. It is based on clause 11(6) of Schedule 1
to the Arbitration Act 1996 (NZ).
Subsection (5) makes it clear
that, although a decision of the Court is generally final, review of a decision
of the Court that is not made within the limits of its powers and functions is
not precluded.
Subsection (6) does not include the
requirement in Art 11(5) of the Model Law that the Court take into account
the advisability of appointing an arbitrator of a nationality other than those
of the parties in appointing a sole or third arbitrator as this is not relevant
in the context of domestic commercial arbitrations.
(1) When a person is approached in
connection with the person's possible appointment as an arbitrator, the person
must disclose any circumstances likely to give rise to justifiable doubts as to
the person's impartiality or independence.
(2) An arbitrator, from the time of the
arbitrator's appointment and throughout the arbitral proceedings, must without
delay disclose any circumstances of the kind referred to in
subsection (1) to the
parties unless they have already been informed of them by the
arbitrator.
(3) An arbitrator may be challenged only
if circumstances exist that give rise to justifiable doubts as to the
arbitrator's impartiality or independence, or if the arbitrator does not possess
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.
(5) For the purposes of
subsection (1), there are justifiable
doubts as to the impartiality or independence of a person approached in
connection with a possible appointment as arbitrator only if there is a real
danger of bias on the part of the person in conducting the
arbitration.
(6) For the purposes of
subsection (3), there are justifiable
doubts as to the impartiality or independence of an arbitrator only if there is
a real danger of bias on the part of the arbitrator in conducting the
arbitration.
Note—
This section (other than
subsections (5) and
(6)) is substantially the
same as Art 12 of the Model Law.
Subsections (5) and
(6) provide that the test
for whether there are justifiable doubts as to the impartiality or independence
of a person or arbitrator is whether there is a real danger of bias.
(1) The parties are free to agree on a
procedure for challenging an arbitrator, subject to
subsection (4).
(2) Failing such agreement, a party who
intends to challenge an arbitrator must, within 15 days after becoming aware of
the constitution of the arbitral tribunal or after becoming aware of any
circumstance referred to in section 12(3), send a written statement of the
reasons for the challenge to the arbitral tribunal.
(3) Unless the challenged arbitrator
withdraws from office or the other party agrees to the challenge, the arbitral
tribunal must decide on the challenge.
(4) If a challenge under any procedure
agreed on by the parties or under the procedure of
subsections (2) and
(3) is not
successful, the challenging party may request, within 30 days after having
received notice of the decision rejecting the challenge, the Court to decide on
the challenge.
(5) A decision of the Court under
subsection (4) that is within the
limits of the authority of the Court is final.
(6) While a request under
subsection (4) is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award.
Note—
Section 13 (other than
subsection (5)) is substantially the
same as Art 13 of the Model Law.
Subsection (5) makes it clear that,
although a decision of the Court is generally final, review of a decision of the
Court that is not made within the limits of its powers and functions is not
precluded.
14—Failure
or impossibility to act
(1) If an arbitrator becomes in law or in
fact unable to perform the arbitrator's functions or for other reasons fails to
act without undue delay, the arbitrator's mandate terminates if the arbitrator
withdraws from office or if the parties agree on the termination.
(2) Otherwise, if a controversy remains
concerning any of these grounds, any party may request the Court to decide on
the termination of the mandate.
(3) A decision of the Court under
subsection (2) that is within the
limits of the authority of the Court is final.
(4) If, under this section or
section 13(3), an arbitrator withdraws
from office or a party agrees to the termination of the mandate of an
arbitrator, this does not imply acceptance of the validity of any ground
referred to in this section or
section 12(3).
Note—
Section 14 (other than
subsection (3)) is substantially the
same as Art 14 of the Model Law.
Subsection (3) makes it clear that,
although a decision of the Court is generally final, review of a decision of the
Court that is not made within the limits of its powers and functions is not
precluded.
15—Appointment
of substitute arbitrator
If the mandate of an arbitrator terminates under
section 13 or
14 or because of
the arbitrator's withdrawal from office for any other reason or because of the
revocation of the arbitrator's mandate by agreement of the parties or in any
other case of termination of the arbitrator's mandate, a substitute arbitrator
must be appointed according to the rules that were applicable to the appointment
of the arbitrator being replaced.
Part 4—Jurisdiction
of arbitral tribunal
16—Competence
of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its
own jurisdiction, including any objections with respect to the existence or
validity of the arbitration agreement.
(2) For that purpose, an arbitration
clause which forms part of a contract is to be treated as an agreement
independent of the other terms of the contract.
(3) A decision by the arbitral tribunal
that the contract is null and void does not of itself entail the invalidity of
the arbitration clause.
Note—
The Model Law provides that such a decision does not "ipso jure" entail the
invalidity of the arbitration clause.
(4) A plea that the arbitral tribunal does
not have jurisdiction must be raised not later than the submission of the
statement of defence.
(5) A party is not precluded from raising
such a plea by the fact that the party has appointed, or participated in the
appointment of, an arbitrator.
(6) A plea that the arbitral tribunal is
exceeding the scope of its authority must be raised as soon as the matter
alleged to be beyond the scope of its authority is raised during the arbitral
proceedings.
(7) The arbitral tribunal may, in the case
of a plea referred to in
subsection (4) or
(6), admit a later plea if
it considers the delay justified.
(8) The arbitral tribunal may rule on a
plea referred to in
subsection (4) or
(6) either
as a preliminary question or in an award on the merits.
(9) If the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party may request, within 30
days after having received notice of that ruling, the Court to decide the
matter.
(10) A decision of the Court under
subsection (9) that is within the
limits of the authority of the Court is final.
(11) While a request under
subsection (9) is pending, the arbitral
tribunal may continue the arbitral proceedings and make an award.
Note—
Section 16 (other than
subsection (10)) is substantially the
same as Art 16 of the Model Law.
Subsection (10) makes it clear that,
although a decision of the Court is generally final, review of a decision of the
Court that is not made within the limits of its powers and functions is not
precluded.
17—Power
of arbitral tribunal to order interim measures
(1) Unless otherwise agreed by the
parties, the arbitral tribunal may, at the request of a party, grant interim
measures.
(2) An interim
measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which
the dispute is finally decided, the arbitral tribunal orders a party
to—
(a) maintain or restore the
status quo pending determination of the dispute; or
(b) take action that would
prevent, or refrain from taking action that is likely to cause, current or
imminent harm or prejudice to the arbitral process itself; or
(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.
(3) Without limiting
subsection (2), the arbitral
tribunal may make orders with respect to any of the following:
(b) discovery of documents and
interrogatories;
(c) giving of evidence by
affidavit;
(d) the inspection of any
property which is or forms part of the subject matter of the dispute;
(e) the taking of photographs
of any property which is or forms part of the subject matter of the
dispute;
(f) samples to be taken from,
or any observation to be made of or experiment conducted on, any property which
is or forms part of the subject-matter of the dispute;
(g) dividing, recording and
strictly enforcing the time allocated for a hearing between the parties (a
stop clock arbitration).
Note—
Subsection (1) and
(2)
are substantially the same as Art 17 of the Model Law. There is no equivalent
subsection (3) in the Model
Law.
17A—Conditions
for granting interim measures
(1) The party requesting an
interim measure under
section 17(2)(a),
(b) or
(c) must satisfy
the arbitral tribunal that—
(a) harm not adequately
reparable by an award of damages is likely to result if the measure is not
ordered, and that harm substantially outweighs the harm that is likely to result
to the party against whom the measure is directed if the measure is granted;
and
(b) there is a reasonable
possibility that the requesting party will succeed on the merits of the
claim.
(2) The determination on the
possibility referred to in
subsection (1)(b) does not
affect the discretion of the arbitral tribunal in making any subsequent
determination.
(3) With regard to a request for
an interim measure under
section 17(2)(d), the
requirements in
subsections (1)(a) and
(b) and
subsection (2)
apply only to the extent the arbitral tribunal considers appropriate.
Note—
Art 17B of the Model Law, which provides for ex parte requests for interim
measures together with applications for preliminary orders directing parties not
to frustrate the interim measures, has been omitted.
Note—
Art 17C of the Model Law, which contains safeguards for the party against
whom a preliminary order is directed under Art 17B, is omitted as a
consequence of the omission of Art 17B.
Division 3—Provisions
applicable to interim measures
17D—Modification,
suspension, termination
The arbitral tribunal may modify, suspend or terminate an interim measure
it has granted, on application of any party or, in exceptional circumstances and
on prior notice to the parties, on the arbitral tribunal's own
initiative.
Note—
This section is substantially the same as Art 17D of the Model Law but
contains no reference to preliminary orders as a consequence of this Act not
including an equivalent of Arts 17B and 17C of the Model Law.
(1) The arbitral tribunal may
require the party requesting an interim measure to provide appropriate security
in connection with the measure.
Note—
Subsection (1) is the same as Art 17E(1) of the Model Law. Art 17E(2) is
omitted as a consequence of this Act not including equivalents to Arts 17B
and 17C of the Model Law.
(1) The arbitral tribunal may
require any party promptly to disclose any material change in the circumstances
on the basis of which the measure was requested or granted.
Note—
Subsection (1) is the same as Art 17F(1) of the Model Law. Art 17F(2) is
omitted as a consequence of this Act not including equivalents to Arts 17B
and 17C of the Model Law.
(1) The party requesting an
interim measure is liable for any costs and damages caused by the measure to any
party if the arbitral tribunal later determines that, in the circumstances, the
measure should not have been granted.
(2) The arbitral tribunal may
award such costs and damages at any point during the proceedings.
Note—
This section is substantially the same as Art 17G of the Model Law but the
reference to applications for preliminary orders is omitted as a consequence of
this Act not including equivalents to Arts 17B and 17C of the Model
Law.
Division 4—Recognition
and enforcement of interim measures
17H—Recognition
and enforcement
(1) An interim measure issued by
an arbitral tribunal under the law of this State is to be recognised as binding
and, unless otherwise provided by the arbitral tribunal, enforced on application
to the Court, subject to the provisions of
section 17I.
(2) An interim measure issued by
an arbitral tribunal under the law of another State or Territory is to be
recognised as binding in this State and, unless otherwise provided by the
arbitral tribunal, enforced on application to the Court, irrespective of the
State or Territory in which it was issued, subject to the provisions of
section 17I.
(3) The party who is seeking or
has obtained recognition or enforcement of an interim measure must promptly
inform the Court of any termination, suspension or modification of that interim
measure.
(4) The Court may, if it considers
it proper, order the requesting party to provide appropriate security if the
arbitral tribunal has not already made a determination with respect to security
or if such a decision is necessary to protect the rights of third
parties.
Note—
This section differs from Art 17H of the Model Law to the extent necessary
to apply Art 17H as incorporated in this Act in the context of domestic
commercial arbitrations.
17I—Grounds
for refusing recognition or enforcement
(1) Recognition or enforcement of
an interim measure may be refused only—
(a) at the request of the
party against whom it is invoked if the Court is satisfied that—
(i) such a refusal is
warranted on the grounds set out in
section 36(1)(a)(i),
(ii),
(iii) or
(iv); or
(ii) the arbitral
tribunal's decision with respect to the provision of security in connection with
the interim measure issued by the arbitral tribunal has not been complied with;
or
(iii) the interim
measure has been terminated or suspended by the arbitral tribunal or, if so
empowered, by the court of the State or Territory in which the arbitration takes
place or under the law of which that interim measure was granted; or
(i) the interim measure
is incompatible with the powers conferred on the Court unless the Court decides
to reformulate the interim measure to the extent necessary to adapt it to its
own powers and procedures for the purposes of enforcing that interim measure and
without modifying its substance; or
(ii) any of the grounds
set out in
section 36(1)(b)(i) or
(ii) apply to the recognition and
enforcement of the interim measure.
(2) Any determination made by the
Court on any ground in
subsection (1) is effective
only for the purposes of the application to recognise and enforce the interim
measure.
(3) The Court must not, in making
a determination with respect to the recognition or enforcement sought, undertake
a review of the substance of the interim measure.
Note—
This section is substantially the same as Art 17I of the Model Law but has
been modified to the extent necessary to apply Art 17I as incorporated in this
Act in the context of domestic commercial arbitrations.
Division 5—Court-ordered
interim measures
17J—Court-ordered
interim measures
(1) The Court has the same power
of issuing an interim measure in relation to arbitration proceedings as it has
in relation to proceedings in courts.
(2) The Court is to exercise the
power in accordance with its own procedures taking into account the specific
features of a domestic commercial arbitration.
Note—
This section is substantially the same as Art 17J of the Model Law but has
been modified to the extent necessary to apply Art 17J as incorporated in this
Act in the context of domestic commercial arbitrations.
Part 5—Conduct
of arbitral proceedings
The parties must be treated with equality and each party must be given a
reasonable opportunity of presenting the party's case.
Note—
This section differs from the Model Law to the extent that it requires a
party to be given a "reasonable", instead of "full", opportunity of presenting
the party's case.
19—Determination
of rules of procedure
(1) Subject to the provisions of this Act,
the parties are free to agree on the procedure to be followed by the arbitral
tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral
tribunal may, subject to the provisions of this Act, conduct the arbitration in
such manner as it considers appropriate.
(3) The power conferred on the arbitral
tribunal includes the power to determine the admissibility, relevance,
materiality and weight of any evidence.
(4) The power conferred on the tribunal
also includes the power to make orders or give directions for the examination of
a party or witness on oath or affirmation.
(5) For the purposes of the exercise of
the power referred to in
subsection (4), the arbitral tribunal
may administer any necessary oath or take any necessary affirmation.
(6) An order made or direction given by an
arbitral tribunal in the course of arbitral proceedings is, by leave of the
Court, enforceable in the same manner as if it were an order of the Court and,
if leave is so given, judgment may be entered in terms of the order or
direction.
Note—
This section (other than
subsection (4)-
(6)) is substantially the
same as Art 19 of the Model Law.
subsection (4)-
(6) elaborate on the powers
conferred on arbitral tribunals.
(1) The parties are free to agree on the
place of arbitration.
(2) Failing such agreement, the place of
arbitration is to be determined by the arbitral tribunal having regard to the
circumstances of the case, including the convenience of the parties.
(3) Despite
subsection (1), the
arbitral tribunal may, unless otherwise agreed by the parties, meet at any place
(whether or not in South Australia) it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for
inspection of goods, other property or documents.
21—Commencement
of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect
of a particular dispute commence on the date on which a request for that dispute
to be referred to arbitration is received by the respondent.
(1) The parties are free to agree on the
language or languages to be used in the arbitral proceedings.
(2) Failing agreement as referred to in
subsection (1), the arbitral tribunal
is to determine the language or languages to be used in the
proceedings.
(3) This agreement or determination,
unless otherwise specified in the agreement or determination, is to apply to any
written statement by a party, any hearing and any award, decision or other
communication by the arbitral tribunal.
(4) The arbitral tribunal may order that
any documentary evidence is to be accompanied by a translation into the language
or languages agreed on by the parties or determined by the arbitral
tribunal.
23—Statements
of claim and defence
(1) Subject to any contrary agreement of
the parties or a direction of the arbitral tribunal, within the period of time
agreed by the parties or determined by the arbitral tribunal, the claimant must
state the facts supporting his or her claim, the points at issue and the relief
or remedy sought, and the respondent must state the respondent's defence in
respect of these particulars, unless the parties have otherwise agreed as to the
required elements of such 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 otherwise agreed by the
parties, either party may amend or supplement the party's claim or defence
during the course of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow such amendment having regard to the delay in
making it.
(4)
Subsection (1) does not require a
statement by a claimant or respondent to be in a particular form.
Note—
This section (other than
subsections (1) and
(4)) is substantially the
same as Art 23 of the Model Law.
Subsection (1) has effect subject to
any contrary agreement of the parties or direction of the arbitral tribunal.
Subsection (4) makes it clear that it
is not necessary to use a particular form of statement of claim or
defence.
24—Hearings
and written proceedings
(1) Subject to any contrary agreement by
the parties, the arbitral tribunal is to decide whether to hold oral hearings
for the presentation of evidence or for oral argument, or whether the
proceedings are to be conducted on the basis of documents and other
materials.
(2) However, unless the parties have
agreed that no hearings are to be held, the arbitral tribunal must hold such
hearings at an appropriate stage of the proceedings, if so requested by a
party.
(3) The parties must be given sufficient
advance notice of any hearing and of any meeting of the arbitral tribunal for
the purposes of inspection of goods, other property or documents.
(4) All statements, documents or other
information supplied to the arbitral tribunal by 1 party must be communicated to
the other party.
(5) Also, any expert report or evidentiary
document on which the arbitral tribunal may rely in making its decision must be
communicated to the parties.
(1) The parties may appear or act in
person, or may be represented by another person of their choice, in any oral
hearings under
section 24.
(2) A person who is not admitted to
practise as a legal practitioner in South Australia does not commit an offence
under or breach the provisions of the Legal
Practitioners Act 1981 or any other Act merely by representing a
party in arbitral proceedings in this State.
Note—
There is no equivalent of this section in the Model Law.
(1) The parties must do all things
necessary for the proper and expeditious conduct of the arbitral
proceedings.
(2) Without limitation, the parties
must—
(a) comply without undue delay with
any order or direction of the arbitral tribunal with respect to any procedural,
evidentiary or other matter; and
(b) take without undue delay any
necessary steps to obtain a decision (if required) of the Court with respect to
any function conferred on the Court under
section 6.
(3) A party must not wilfully do or cause
to be done any act to delay or prevent an award being made.
Note—
There is no equivalent of this section in the Model Law.
(1) Unless otherwise agreed by the
parties, if, without showing sufficient cause—
(a) the claimant fails to communicate
the claimant's statement of claim in accordance with
section 23(1)—the arbitral
tribunal may terminate the proceedings; or
(b) the respondent fails to
communicate the respondent's statement of defence in accordance with
section 23(1)—the arbitral
tribunal may continue the proceedings without treating such failure in itself as
an admission of the claimant's allegations; or
(c) any party fails to appear at a
hearing or to produce documentary evidence—the arbitral tribunal may
continue the proceedings and make the award on the evidence before it.
(2) Unless otherwise agreed by the
parties, if a party fails to do any other thing necessary for the proper and
expeditious conduct of the arbitration the arbitral tribunal—
(a) if satisfied that there has been
inordinate and inexcusable delay on the part of the claimant in pursuing the
claim—may make an award dismissing the claim or may give directions (with
or without conditions) for the speedy determination of the claim; or
(b) if without sufficient cause a
party fails to comply with any order or direction of the arbitral
tribunal—may make an order requiring the party to comply with the terms of
the earlier order or direction within the period specified by the arbitral
tribunal (a peremptory order).
(3) If a party fails to comply with a
peremptory order, the arbitral tribunal may do any of the following:
(a) direct that the party in default
is not to be entitled to rely on any allegation or material which was the
subject matter of the peremptory order;
(b) draw such adverse inferences from
the failure to comply as the circumstances justify;
(c) proceed to an award on the basis
of any materials that have been properly provided to the arbitral
tribunal;
(d) without limiting
section 33B(4), in making an award
give any direction or order that it thinks fit as to the payment of the costs of
the arbitration incurred in consequence of the non-compliance.
Note—
Subsection (1) is substantially the
same as Art 25 of the Model Law. There are no equivalents to the other
provisions of the section in the Model Law.
26—Expert
appointed by arbitral tribunal
(1) Unless otherwise agreed by the
parties, the arbitral tribunal—
(a) may appoint 1 or more experts to
report to it on specific issues to be determined by the arbitral tribunal;
and
(b) may require a party to give the
expert any relevant information or to produce, or to provide access to, any
relevant documents, goods or other property for the expert's
inspection.
(2) Unless otherwise agreed by the
parties, if a party so requests or if the arbitral tribunal considers it
necessary, the expert must, after delivery of the expert's written or oral
report, participate in a hearing where the parties have the opportunity to put
questions to the expert and present expert witnesses in order to testify on the
points at issue.
27—Court
assistance in taking evidence
(1) The arbitral tribunal or a party with
the approval of the arbitral tribunal may request from the Court assistance in
taking evidence.
(2) The Court may execute the request
within its competence and subject to and in accordance with rules of
court.
Note—
This section is substantially the same as Art 27 of the Model Law but the
reference to rules of court has been amended for consistency with
section 27A and
27B and a request for assistance
may only be made to the Court, not any competent court.
27A—Parties
may obtain subpoenas
(1) The Court may, on the application of
any party, and subject to and in accordance with rules of court, issue a
subpoena requiring a person—
(a) to attend for examination before
the arbitral tribunal; or
(b) to produce to the arbitral
tribunal the documents specified in the subpoena; or
(c) to do both of those
things.
(2) A party may only make an application
to the Court under
subsection (1) with the permission of
the arbitral tribunal.
(3) A person must not be compelled under
any subpoena issued in accordance with
subsection (1) to answer any question
or produce any document that the person could not be compelled to answer or
produce in a proceeding before the Court.
Note—
There is no equivalent to this section in the Model Law.
27B—Refusal
or failure to attend before arbitral tribunal or to produce
document
(1) For the purposes of this section, a
person is a person in default in relation to proceedings before an
arbitral tribunal under an arbitration agreement if the person—
(a) refuses or fails to attend before
the arbitral tribunal for examination when required under a subpoena or by the
arbitral tribunal to do so; or
(b) refuses or fails to produce a
document that the person is required under a subpoena or by the arbitral
tribunal to produce; or
(c) when appearing as a witness
before the arbitral tribunal—
(i) refuses or fails to take an
oath or to make an affirmation or affidavit when required by the arbitral
tribunal to do so; or
(ii) refuses or fails to answer
a question that the witness is required by the arbitral tribunal to answer;
or
(d) refuses or fails to do any other
thing which the arbitral tribunal may require.
(2) Unless otherwise agreed by the
parties, the Court may, on the application of a party or the arbitral tribunal,
order a person in default to do any or all of the following:
(a) attend the Court to be examined
as a witness;
(b) produce the relevant document to
the Court;
(3) A party may only make an application
to the Court under
subsection (2) with the permission of
the arbitral tribunal.
(4) The Court must not make an order
under
subsection (2) in relation to a person
who is not a party to the arbitral proceedings unless—
(a) before the order is made, the
person is given an opportunity to make representations to the Court;
and
(b) the Court is satisfied that it is
reasonable in all the circumstances to make the order.
(5) A person must not be compelled under
an order made under
subsection (2) to answer any question
or produce any document which the person could not be compelled to answer or
produce in a proceeding before the Court.
(6) If the Court makes an order under
subsection (2), it may in addition
make orders for the transmission to the arbitral tribunal of any of the
following:
(a) a record of any evidence given
under the order;
(b) any document produced under the
order or a copy of any such document;
(c) particulars of any thing done
under the order.
(7) Any evidence, document or thing
transmitted under
subsection (6) is taken to have been
given, produced or done (as the case requires) in the course of the arbitral
proceedings.
Note—
There is no equivalent of this section in the Model Law.
27C—Consolidation
of arbitral proceedings
(1) Unless otherwise agreed by the
parties, a party to arbitral proceedings may apply to the arbitral tribunal for
an order under this section in relation to those proceedings and other arbitral
proceedings (whether before that tribunal or another tribunal or other
tribunals) on the ground that—
(a) a common question of law or fact
arises in all those proceedings; or
(b) the rights to relief claimed in
all those proceedings are in respect of, or arise out of, the same transaction
or series of transactions; or
(c) for some other reason specified
in the application, it is desirable that an order be made under this
section.
(2) In this section, 2 or more arbitral
proceedings that are the subject of an application under
subsection (1) are
called the related proceedings.
(3) The following orders may be made
under this section in relation to the related proceedings:
(a) that the proceedings be
consolidated on terms specified in the order;
(b) that the proceedings be heard at
the same time or in a sequence specified in the order;
(c) that any of the proceedings be
stayed pending the determination of any of the other proceedings.
(4) If all the related proceedings are
being conducted by the same tribunal, the tribunal may make any order under this
section that it thinks fit in relation to those proceedings and, if an order is
made, the proceedings must be dealt with in accordance with the order.
(5) If 2 or more arbitral tribunals are
conducting the related proceedings—
(a) the tribunal that received the
application must communicate the substance of the application to the other
tribunals concerned; and
(b) the tribunals must, as soon as
practicable, deliberate jointly on the application.
(6) If the tribunals agree, after
deliberation on the application, that a particular order under this section
should be made in relation to the related proceedings—
(a) the tribunals are to jointly make
the order; and
(b) the related proceedings are to be
dealt with in accordance with the order; and
(c) if the order is that the related
proceedings be consolidated—the arbitrator or arbitrators for the purposes
of the consolidated proceedings are to be appointed, in accordance with
sections 10
and
11, from
the members of the tribunals.
(7) If the tribunals are unable to make
an order under
subsection (6), the related
proceedings are to proceed as if no application has been made under
subregulation (1).
(8) Before making an order under this
section, the arbitral tribunal or tribunals concerned must take into account
whether any party would or might suffer substantial hardship if the order were
made.
(9) This section does not prevent the
parties to related proceedings from agreeing to consolidate them and taking such
steps as are necessary to effect that consolidation.
Note—
There is no equivalent to this section in the Model Law.
27D—Power
of arbitrator to act as mediator, conciliator or other non-arbitral
intermediary
(1) An arbitrator may act as a mediator
in proceedings relating to a dispute between the parties to an arbitration
agreement (mediation proceedings) if—
(a) the arbitration agreement
provides for the arbitrator to act as mediator in mediation proceedings (whether
before or after proceeding to arbitration, and whether or not continuing with
the arbitration); or
(b) each party has consented in
writing to the arbitrator so acting.
(2) An arbitrator acting as a
mediator—
(a) may communicate with the parties
collectively or separately; and
(b) must treat information obtained
by the arbitrator from a party with whom he or she communicates separately as
confidential, unless that party otherwise agrees or unless the provisions of the
arbitration agreement relating to mediation proceedings otherwise
provide.
(3) Mediation proceedings in relation to
a dispute terminate if—
(a) the parties to the dispute agree
to terminate the proceedings; or
(b) any party to the dispute
withdraws consent to the arbitrator acting as mediator in the proceedings;
or
(c) the arbitrator terminates the
proceedings.
(4) An arbitrator who has acted as
mediator in mediation proceedings that are terminated may not conduct subsequent
arbitration proceedings in relation to the dispute without the written consent
of all the parties to the arbitration given on or after the termination of the
mediation proceedings.
(5) If the parties consent under
subsection (4), no objection may be
taken to the conduct of subsequent arbitration proceedings by the arbitrator
solely on the ground that he or she has acted previously as a mediator in
accordance with this section.
(6) If the parties do not consent under
subsection (4), the arbitrator's
mandate is taken to have been terminated under
section 14 and a substitute arbitrator
is to be appointed in accordance with
section 15.
(7) If confidential information is
obtained from a party during mediation proceedings as referred to in
subsection (2)(b) and the
mediation proceedings terminate, the arbitrator must, before conducting
subsequent arbitration proceedings in relation to the dispute, disclose to all
other parties to the arbitration proceedings so much of the information as the
arbitrator considers material to the arbitration proceedings.
(8) In this section, a reference to a
mediator includes a reference to a conciliator or other
non-arbitral intermediary between parties.
Note—
There is no equivalent of this section in the Model Law.
27E—Disclosure
of confidential information
(1) The provisions of this section apply
in arbitral proceedings unless otherwise agreed by the parties.
(2) The parties must not disclose
confidential information in relation to the arbitral proceedings
unless—
(a) the disclosure is allowed under
section 27F; or
(b) the disclosure is allowed under
an order made under
section 27G and no order is in force under
section 27H prohibiting that disclosure;
or
(c) the disclosure is allowed under
an order made under
section 27I.
(3) An arbitral tribunal must not
disclose confidential information in relation to the arbitral proceedings
unless—
(a) the disclosure is allowed under
section 27F; or
(b) the disclosure is allowed under
an order made under
section 27G and no order is in force under
section 27H prohibiting that disclosure;
or
(c) the disclosure is allowed under
an order made under
section 27I.
Note—
There is no equivalent to this section in the Model Law.
27F—Circumstances
in which confidential information may be disclosed
(1) This section sets out the
circumstances in which confidential information in relation to arbitral
proceedings may be disclosed by—
(2) The information may be disclosed with
the consent of all the parties to the arbitral proceedings.
(3) The information may be disclosed to a
professional or other adviser of any of the parties.
(4) The information may be disclosed if
it is necessary to ensure that a party has a reasonable opportunity to present
the party's case and the disclosure is no more than reasonable for that
purpose.
(5) The information may be disclosed if
it is necessary for the establishment or protection of a party's legal rights in
relation to a third party and the disclosure is no more than reasonable for that
purpose.
(6) The information may be disclosed if
it is necessary for the purpose of enforcing an arbitral award and the
disclosure is no more than reasonable for that purpose.
(7) The information may be disclosed if
it is necessary for the purposes of this Act and the disclosure is no more than
reasonable for that purpose.
(8) The information may be disclosed if
the disclosure is in accordance with an order made or a subpoena issued by a
court.
(9) The information may be disclosed if
the disclosure is authorised or required by a relevant law or required by a
competent regulatory body, and the person making the disclosure gives written
details of the disclosure (including an explanation of the reasons for the
disclosure) to—
(a) if the person is a
party—the other parties and the arbitral tribunal; and
(b) if the arbitral tribunal is
making the disclosure—all the parties.
relevant law means:
(a) a law of this
State (other than this Act); and
(b) a law of the
Commonwealth; and
(c) a law of another
State or Territory.
Note—
There is no equivalent to this section in the Model Law.
27G—Arbitral
tribunal may allow disclosure of confidential information in certain
circumstances
(1) An arbitral tribunal may make an
order allowing a party to arbitral proceedings to disclose confidential
information in relation to the proceedings in circumstances other than those
mentioned in
section 27F.
(2) An order under
subsection (1) may
only be made at the request of 1 of the parties and after giving each of
the parties the opportunity to be heard.
Note—
There is no equivalent to this section in the Model Law.
27H—Court
may prohibit disclosure of confidential information in certain
circumstances
(1) The Court may make an order
prohibiting a party from disclosing confidential information in relation to the
arbitral proceedings if the Court is satisfied, in the circumstances of the
particular case, that—
(a) the public interest in preserving the confidentiality of arbitral
proceedings is not outweighed by other considerations that render it desirable
in the public interest for the confidential information to be disclosed;
and
(b) the disclosure is more than is reasonable for that purpose.
(2) An order under
subsection (1) may
only be made on the application of a party to the arbitral proceedings and after
giving each of the parties to the arbitral proceedings the opportunity to be
heard.
(3) A party may only apply for an order
under
subsection (1) if the arbitral
tribunal has made an order under
section 27G(1) allowing disclosure of
the information.
(4) The Court may order that the
confidential information not be disclosed pending the outcome of the application
under
subsection (2).
(5) An order of the Court under this
section that is made within the limits of the authority of the Court is
final.
Note—
There is no equivalent to this section in the Model Law.
27I—Court
may allow disclosure of confidential information in certain
circumstances
(1) The Court may make an order allowing
a party to disclose confidential information in relation to the arbitral
proceedings in circumstances other than those mentioned in
section 27F if the Court is
satisfied, in the circumstances of the particular case, that—
(a) the public interest in preserving
the confidentiality of arbitral proceedings is outweighed by other
considerations that render it desirable in the public interest for the
confidential information to be disclosed; and
(b) the disclosure is no more than is
reasonable for that purpose.
(2) An order under
subsection (1) may
only be made on the application of a person who is or was a party to the
arbitral proceedings and after giving each person who is or was a party to the
arbitral proceedings the opportunity to be heard.
(3) A party to arbitral proceedings may
only apply for an order under
subsection (1) if—
(a) the mandate of the arbitral
tribunal has been terminated under
section 32; or
(b) a request by the party to the
arbitral tribunal to make an order under
section 27G has been refused.
(4) An order of the Court under this
section that is made within the limits of the authority of the Court is
final.
Note—
There is no equivalent to this section in the Model Law.
27J—Determination
of preliminary point of law by Court
(1) Unless otherwise agreed by the
parties, on an application to the Court made by any of the parties to an
arbitration agreement the Court has jurisdiction to determine any question of
law arising in the course of the arbitration.
(2) An application under this section may
be made by a party only with the consent of—
(a) an arbitrator who has entered on
the reference; or
and with the leave of the Court.
Note—
There is no equivalent to this section in the Model Law.
Part 6—Making
of award and termination of proceedings
28—Rules
applicable to substance of dispute
(1) The arbitral tribunal must decide the
dispute in accordance with such rules of law as are chosen by the parties as
applicable to the substance of the dispute.
(2) Any designation of the law or legal
system of a given State or Territory must be construed, unless otherwise
expressed, as directly referring to the substantive law of that State or
Territory and not to its conflict of laws rules.
(3) Failing any designation by the
parties, the arbitral tribunal must apply the law determined by the conflict of
laws rules which it considers applicable.
(4) The arbitral tribunal must decide the
dispute, if the parties so agree, in accordance with such other considerations
as are agreed to by the parties.
(5) In all cases, the arbitral tribunal
must decide in accordance with the terms of the contract and must take into
account the usages of the trade applicable to the transaction.
Note—
This section (other than
subsection (4)) is substantially the
same as Art 28 of the Model Law.
29—Decision-making
by panel of arbitrators
(1) In arbitral proceedings with more than
1 arbitrator, any decision of the arbitral tribunal must be made, unless
otherwise agreed by the parties, by a majority of all its members.
(2) However, questions of procedure may be
decided by a presiding arbitrator, if so authorised by the parties or all
members of the arbitral tribunal.
(1) If, during arbitral proceedings, the
parties settle the dispute, the arbitral tribunal must terminate the proceedings
and, if requested by the parties and not objected to by the arbitral tribunal,
record the settlement in the form of an arbitral award on agreed
terms.
(2) An award on agreed terms is to be made
in accordance with
section 31 and must state that it is an
award.
(3) Such an award has the same status and
effect as any other award on the merits of the case.
(1) The award must be made in writing and
must be signed by the arbitrator or arbitrators.
(2) In arbitral proceedings with more than
1 arbitrator, the signatures of the majority of all members of the arbitral
tribunal suffice, provided that the reason for any omitted signature is
stated.
(3) The award must state the reasons on
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 30.
(4) The award must state its date and the
place of arbitration as determined in accordance with
section 20.
(5) The award is taken to have been made
at the place stated in the award in accordance with
subsection (4).
(6) After the award is made, a copy signed
by the arbitrators in accordance with
subsection (1) must be delivered to
each party.
(1) The arbitral proceedings are
terminated by the final award or by an order of the arbitral tribunal in
accordance with
subsection (2).
(2) The arbitral tribunal is to issue an
order for the termination of the arbitral proceedings when—
(a) the claimant withdraws his or her
claim, unless the respondent objects and the arbitral tribunal recognises a
legitimate interest on the respondent's part in obtaining a final settlement of
the dispute; or
(b) the parties agree on the
termination of the proceedings; or
(c) the arbitral tribunal finds that
the continuation of the proceedings has for any other reason become unnecessary
or impossible; or
(d) the arbitral tribunal makes an
award under
section 25(2)(a) dismissing the
claim.
(3) The mandate of the arbitral tribunal
terminates with the termination of the arbitral proceedings, subject to
sections 33
and
34(4).
33—Correction
and interpretation of award; additional award
(1) Within 30 days of receipt of the
award, unless another period of time has been agreed on by the
parties—
(a) a party, with notice to the other
party, may request the arbitral tribunal to correct in the award any errors in
computation, any clerical or typographical errors or any errors of similar
nature; and
(b) if so agreed by the parties, a
party, with notice to the other party, may request the arbitral tribunal to give
an interpretation of a specific point or part of the award.
(2) If the arbitral tribunal considers a
request under
subsection (1) to be justified, it must
make the correction or give the interpretation within 30 days of receipt of
the request.
(3) The interpretation forms part of the
award.
(4) The arbitral tribunal may correct any
error of the type referred to in
subsection (1)(a) on its own
initiative within 30 days of the date of the award.
(5) Unless otherwise agreed by the
parties, a party, with notice to the other party, may request, within
30 days of receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral proceedings but omitted
from the award.
(6) If the arbitral tribunal considers the
request to be justified, it must make the additional award within
60 days.
(7) The arbitral tribunal may extend, if
necessary, the period of time within which it may make a correction,
interpretation or an additional award under
subsection (2) or
(5).
(8)
Section 31 applies to a correction or
interpretation of the award or to an additional award.
Unless otherwise agreed by the parties, the arbitrator has the power to
make an award ordering specific performance of any contract if the Court would
have power to order specific performance of that contract.
Note—
There is no equivalent to this section in the Model Law.
(1) Unless otherwise agreed by the
parties, the costs of an arbitration (including the fees and expenses of the
arbitrator or arbitrators) are to be in the discretion of the arbitral
tribunal.
(2) Unless otherwise agreed by the
parties, the arbitral tribunal may direct that the costs of an arbitration, or
of any part of the arbitral proceedings, are to be limited to a specified
amount.
(3) A direction under
subsection (2) may be
varied at any stage, but this must be done sufficiently in advance of the
incurring of costs to which it relates, or the taking of any steps in the
proceedings which may be affected by it, for the limit to be taken into
account.
(4) The arbitral tribunal may, in making
an award—
(a) direct to whom, by whom, and in
what manner, the whole or any part of the costs that it awards are to be paid;
and
(b) tax or settle the amount of costs
to be paid or any part of those costs; and
(c) award costs to be taxed or
settled as between party and party or as between legal practitioner and
client.
(5) Any costs of an arbitration (other
than the fees or expenses of an arbitrator) that are directed to be paid by an
award are, to the extent that they have not been taxed or settled by the
arbitral tribunal, to be assessed in the Court having jurisdiction under
section 34
to hear applications setting aside the award.
(6) If no provision is made by an award
with respect to the costs of the arbitration, a party may, within 14 days
after receiving the award, apply to the arbitral tribunal for directions as to
the payment of those costs.
(7) The arbitral tribunal must, after
hearing any party who wishes to be heard, amend the award by adding to it such
directions as the arbitral tribunal thinks proper with respect to the payment of
the costs of the arbitration.
Note—
There is no equivalent to this section in the Model Law.
33C—Application
of Legal Profession Acts
Note—
An Act of another jurisdiction regulating the assessment of legal costs may
apply to
section 33B(5) in that other
jurisdiction. However, in South Australia, the Legal
Practitioners Act 1981 does not regulate the assessment of such
costs.
33D—Costs
of abortive arbitration
(1) Unless otherwise agreed in writing by
the parties, if an arbitration is commenced but for any reason fails, the Court
may, on the application of a party or the arbitral tribunal made within
6 months after the failure of the arbitration, make such orders in relation
to the costs of the arbitration as it thinks just.
(2) For the purposes of this section, an
arbitration is taken to have failed if—
(a) a final award is not made by the
arbitral tribunal before the arbitration terminates; or
(b) an award made is wholly set aside
by the Court.
(3) If the failed arbitration is a
related proceeding (within the meaning of
section 27C), the Court may stay proceedings
on the application under
subsection (1) pending the
determination of the other arbitration proceedings to which the failed
arbitration is related.
Note—
There is no equivalent to this section in the Model Law.
33E—Interest
up to making of award
(1) Unless otherwise agreed by the
parties, if an arbitral tribunal makes an award for the payment of money
(whether on a claim for a liquidated or an unliquidated amount), the arbitral
tribunal may include in the sum for which the award is made interest, at such
reasonable rate as the arbitral tribunal determines—
(a) on the whole or any part of the
money; and
(b) for the whole or any part of the
period between the date on which the cause of action arose and the date on which
the award is made.
(a) authorise the awarding of
interest on interest awarded under this section; or
(b) apply in relation to any amount
on which interest is payable as of right whether because of an agreement or
otherwise; or
(c) affect the damages recoverable
for the dishonour of a bill of exchange.
Note—
There is no equivalent to this section in the Model Law.
33F—Interest
on debt under award
(a) an arbitral tribunal makes an
award for the payment of an amount of money; and
(b) under the award, the amount is to
be paid by a particular day (the due date),
unless otherwise agreed by the parties.
(2) The arbitral tribunal may direct that
interest, including compound interest, is payable if the amount is not paid on
or before the due date.
(3) The arbitral tribunal may set a
reasonable rate of interest.
(a) from the day immediately
following the due date; and
(b) on so much of the money as
remains unpaid.
(5) The direction is taken to form part
of the award.
Note—
There is no equivalent to this section in the Model Law.
34—Application
for setting aside as exclusive recourse against arbitral
award
(1) Recourse to the Court against an
arbitral award may be made only by an application for setting aside in
accordance with
subsections (2) and
(3) or by an appeal under
section 34A.
Note—
The Model Law does not provide for appeals as under
section 34A.
(2) An arbitral award may be set aside by
the Court only if—
(a) the party making the application
furnishes proof that—
(i) a party to the arbitration
agreement referred to in section 7 was under some incapacity, or the arbitration
agreement is not valid under the law to which the parties have subjected it or,
failing any indication in it, under the law of this State; or
(ii) the party making the
application was not given proper notice of the appointment of an arbitral
tribunal or of the arbitral proceedings or was otherwise unable to present the
party's case; or
(iii) the award deals with a
dispute 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, provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, only that part of the
award which contains decisions on matters not submitted to arbitration may be
set aside; or
(iv) the composition of the
arbitral tribunal or the arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in conflict with a provision
of this Act from which the parties cannot derogate, or, failing such agreement,
was not in accordance with this Act; or
(i) the subject matter of the
dispute is not capable of settlement by arbitration under the law of this State;
or
(ii) the award is in conflict
with the public policy of this State.
(3) An application for setting aside may
not be made after 3 months have elapsed from the date on which the party
making that application had received the award or, if a request had been made
under
section 33, from the date on which that
request had been disposed of by the arbitral tribunal.
(4) The Court, when asked to set aside an
award, may, if appropriate and so requested by a party, suspend the setting
aside of proceedings for a period of time determined by it in order to give the
arbitral tribunal an opportunity to resume the arbitral proceedings or to take
such other action as in the arbitral tribunal's opinion will eliminate the
grounds for setting aside.
(1) An appeal lies to the Court on a
question of law arising out of an award if—
(a) the parties agree, before the end
of the appeal period referred to in
subsection (6), that an appeal may be
made under this section; and
(2) An appeal under this section may be
brought by any of the parties to an arbitration agreement.
(3) The Court must not grant leave unless
it is satisfied—
(a) that the determination of the
question will substantially affect the rights of 1 or more of the parties;
and
(b) that the question is one which
the arbitral tribunal was asked to determine; and
(c) that, on the basis of the
findings of fact in the award—
(i) the decision of the tribunal
on the question is obviously wrong; or
(ii) the question is one of
general public importance and the decision of the tribunal is at least open to
serious doubt; and
(d) that, despite the agreement of
the parties to resolve the matter by arbitration, it is just and proper in all
the circumstances for the Court to determine the question.
(4) An application for leave to appeal
must identify the question of law to be determined and state the grounds on
which it is alleged that leave to appeal should be granted.
(5) The Court is to determine an
application for leave to appeal without a hearing unless it appears to the Court
that a hearing is required.
(6) An appeal may not be made under this
section after 3 months have elapsed from the date on which the party making the
appeal received the award or, if a request had been made under
section 33,
from the date on which that request had been disposed of by the arbitral
tribunal (in this section referred to as the appeal
period).
(7) On the determination of an appeal
under this section the Court may by order—
(c) remit the award, together with
the Court's opinion on the question of law which was the subject of the appeal,
to the arbitrator for reconsideration or, if a new arbitrator has been
appointed, to that arbitrator for consideration; or
(d) set aside the award in whole or
in part.
(8) The Court must not exercise its power
to set aside an award, in whole or in part, unless it is satisfied that it would
be inappropriate to remit the matters in question to the arbitral tribunal for
reconsideration.
(9) If the award is remitted under
subsection (7)(c) the arbitrator
must, unless the order otherwise directs, make the award within 3 months
after the date of the order.
(10) The Court may make any leave which
it grants under
subsection (3)(c) subject to the
applicant complying with any conditions it considers appropriate.
(11) If the award of an arbitrator is
varied on an appeal under this section, the award as varied has effect (except
for the purposes of this section) as if it were the award of the
arbitrator.
Note—
There is no equivalent to this section in the Model Law.
Part 8—Recognition
and enforcement of awards
35—Recognition
and enforcement
(1) An arbitral award, irrespective of the
State or Territory in which it was made, is to be recognised in this State as
binding and, on application in writing to the Court, is to be enforced subject
to the provisions of this section and
section 36.
(2) The party relying on an award or
applying for its enforcement must supply the original award or a copy of the
original award.
(3) If the award is not made in English,
the Court may request the party to supply a translation of it into
English.
Note—
So much of Art 35(2) of the Model Law as provides for the translation of an
award that is not in the official language of the enforcing State has been
modified.
36—Grounds
for refusing recognition or enforcement
(1) Recognition or enforcement of an
arbitral award, irrespective of the State or Territory in which it was made, may
be refused only—
(a) at the request of the party
against whom it is invoked, if that party furnishes to the Court proof
that—
(i) a party to the arbitration
agreement was under some incapacity, or the arbitration agreement is not valid
under the law to which the parties have subjected it or, failing any indication
in it, under the law of the State or Territory where the award was made;
or
(ii) 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 party's
case; or
(iii) the award deals with a
dispute 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
recognised and enforced; or
(iv) the composition of the
arbitral tribunal 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 State or Territory where the arbitration took place; or
(v) the award has not yet become
binding on the parties or has been set aside or suspended by a court of the
State or Territory in which, or under the law of which, that award was made;
or
(i) the subject-matter of the
dispute is not capable of settlement by arbitration under the law of this State;
or
(ii) the recognition or
enforcement of the award would be contrary to the public policy of this
State.
(2) If an application for setting aside or
suspension of an award has been made to a court referred to in
subsection (1)(a)(v), the
Court may, if it considers it proper, adjourn its decision and may also, on the
application of the party claiming recognition or enforcement of the award, order
the party to provide appropriate security.
(1) Unless otherwise agreed by the
parties, if a party to an arbitration agreement dies the agreement is not
discharged (either as respects the deceased or any other party) and the
authority of an arbitral tribunal is not revoked by the death but that agreement
is enforceable by or against the personal representative of the
deceased.
(2) Nothing in
subsection (1) affects
the operation of any enactment or rule of law by virtue of which a right of
action is extinguished by the death of a person.
Note—
There is no equivalent to this section in the Model Law.
If relief by way of interpleader is granted in any court and it appears to
that court that the claims in question are matters to which an arbitration
agreement (to which the claimants are parties) applies, the Court must, unless
it is satisfied that there is sufficient reason why the matters should not be
referred to arbitration in accordance with the agreement, make an order
directing the issue between the claimants to be determined in accordance with
the agreement.
Note—
There is no equivalent to this section in the Model Law.
(1) An arbitrator is not liable for
anything done or omitted to be done in good faith in his or her capacity as
arbitrator.
(2) An entity that appoints, or fails to
appoint, a person as arbitrator is not liable in relation to the appointment,
failure or refusal if done in good faith.
(3) In this section, a reference to an
arbitrator includes an arbitrator acting as a mediator,
conciliator or other non-arbitral intermediary under
section 27D.
Note—
There is no equivalent to this section in the Model Law.
This Act binds the Crown in right of South Australia and, in so far as the
legislative power of the Parliament of South Australia permits, the Crown in all
its other capacities.
Note—
There is no equivalent to this section in the Model Law.
(1) Rules of court may be made for
carrying the purposes of this Act into effect and, in particular, for or with
respect to the following:
(a) applications to a court under this
Act and the costs of such applications;
(b) the payment or bringing of money
into and out of a court in satisfaction of claims to which arbitration
agreements apply and the investment of that money;
(c) the examination of witnesses
before a court or before any other person and the issue of commissions or
requests for the examination of witnesses outside South Australia, for the
purposes of an arbitration;
(d) offers of compromise in relation
to claims to which arbitration agreements apply;
(e) any other matter or thing for or
with respect to which rules are by this Act authorised or required to be made by
a court.
(2)
Subsection (1) does not limit the
rule-making powers conferred on a court by any other Act.
Note—
There is no equivalent to this section in the Model Law.
The Governor may make regulations, not inconsistent with this Act, for or
with respect to any matter that by this Act is required or permitted to be
prescribed or that is necessary or convenient to be prescribed for carrying out
or giving effect to this Act.
Note—
There is no equivalent to this section in the Model Law.
Schedule 1—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Commercial Arbitration
and Industrial Referral Agreements Act 1986
Long title—delete "arbitration" and substitute:
resolution
3—Amendment
of section 1—Short title
Section 1—delete "Commercial Arbitration and"
Sections 3 to 56 (inclusive)—delete the sections
Section 57—redesignate the section as section 4
6—Amendment,
redesignation and relocation of Schedule 1 clauses 1 and
2
(1) Schedule 1—delete "Schedule" wherever occurring and substitute
in each case:
Act
(2) Schedule 1—delete "clause" wherever occurring and substitute in
each case:
section
(3) Schedule 1—delete "subclause" wherever occurring and substitute
in each case:
subsection
(4) Schedule 1, clause 1(2)—delete subclause (2)
(6) Schedule 1, clauses 1 and 2—redesignate the clauses (as amended
by this clause) as sections 2 and 3 respectively and relocate them so that they
follow section 1
7—Repeal
of Part and Schedule headings
Act—delete each Part heading and Schedule heading
Part 3—Savings, transitional and other
provisions
8—Savings
and transitional provisions
(1) Subject to
subclause (2)—
(a) this Act
applies to an arbitration agreement (whether made before or after the
commencement of this Act) and to an arbitration under such an agreement;
and
(b) a reference in
an arbitration agreement to the Commercial
Arbitration and Industrial Referral Agreements Act 1986, or a
provision of that Act, is to be construed as a reference to this Act or to the
corresponding provision (if any) of this Act.
(2) If an
arbitration was commenced before the commencement of this Act, the law governing
the arbitration and the arbitration agreement is to be that which would have
been applicable if this Act had not been enacted.
(3) For the
purposes of this clause, an arbitration is taken to have been commenced
if—
(a) a dispute to
which the relevant arbitration agreement applies has arisen; and
(b) the arbitral
tribunal has been properly constituted.
(1) The regulations
may contain provisions of a savings or transitional nature consequent on the
enactment of this Act.
(2) Any such
provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3) To the extent
to which any such provision takes effect from a date that is earlier than the
date of its publication in the Gazette, the provision does not operate so
as—
(a) to affect, in a
manner prejudicial to any person (other than the State or an authority of the
State), the rights of that person existing before the date of its publication;
or
(b) to impose
liabilities on any person (other than the State or an authority of the State) in
respect of anything done or omitted to be done before the date of its
publication.