International Commercial Arbitration Act
CHAPTER 234 OF THE REVISED STATUTES, 1989
An Act to Implement the Convention
on the Recognition and Enforcement of
Foreign Arbitral Awards and to
Adopt the Model Law on
International Commercial Arbitration
1 This Act may be cited as the International Commercial ArbitrationAct. R.S., c. 234, s. 1.
2 (1) In this Act,
(a) "Convention" means the Convention on the Recognition andEnforcement of Foreign Arbitral Awards, adopted by the UnitedNations Conference on International Commercial Arbitration inNew York on the tenth day of June, 1958, as set out in ScheduleA;
(b) "International Law" means the Model Law On InternationalCommercial Arbitration, adopted by the United NationsCommission on International Trade Law on the twenty-first day ofJune, 1985, as set out in Schedule B.
(2) Words and expressions used in this Act have the same meaning asthe corresponding words and expressions in the Convention and theInternational Law, as the case may be. R.S., c. 234, s. 2.
FOREIGN ARBITRAL AWARDS
Application in Province
3 (1) Subject to this Act, the Convention applies in the Province.
Application of Convention
(2) The Convention applies to arbitral awards and arbitrationagreements whether made before or after the tenth day of August, 1986,but applies only in respect of differences arising out of commercial legalrelationships, whether contractual or not. R.S., c. 234, s. 3.
Application to Court
4 For the purpose of seeking recognition of an arbitral awardpursuant to the Convention, application shall be made to the TrialDivision of the Supreme Court. R.S., c. 234, s. 4.
INTERNATIONAL COMMERCIAL ARBITRATION
Application in Province
5 (1) Subject to this Act, the International Law applies in theProvince.
Application of International Law
(2) The International Law applies to international commercialarbitration agreements and awards, whether made before or after thetenth day of August, 1986. R.S., c. 234, s. 5.
Encouragement of settlement
6 For the purpose of encouraging settlement of a dispute, an arbitraltribunal may, with the agreement of the parties, employ mediation,conciliation or other procedures at any time during the arbitrationproceedings and, with the agreement of the parties, the members of thearbitral tribunal are not disqualified from resuming their roles asarbitrators by reason of the mediation, conciliation or other procedure. R.S., c. 234, s. 6.
Where arbitrator replaced
7 (1) Unless the parties otherwise agree, if an arbitrator is replacedor removed in accordance with the International Law, any hearing heldprior to the replacement or removal shall be repeated.
(2) With respect to Article 15 of the International Law, the parties mayremove an arbitrator at any time prior to the final award, regardless ofhow the arbitrator was appointed. R.S., c. 234, s. 7.
Failure to make designation
8 Notwithstanding Article 28(2) of the International Law, if theparties fail to make a designation pursuant to Article 28(1) of theInternational Law, the arbitral tribunal shall apply the rules of law itconsiders to be appropriate given all the circumstances respecting thedispute. R.S., c. 234, s. 8.
Power of Court
9 (1) The Trial Division of the Supreme Court, upon applicationof the parties to two or more arbitration proceedings, may order
(a) the arbitration proceedings to be consolidated, on terms itconsiders just;
(b) the arbitration proceedings to be heard at the same time, orone immediately after another;
(c) any of the arbitration proceedings to be stayed until after thedetermination of any other of them.
Appointment of arbitral tribunal
(2) Where the Court orders arbitration proceedings to be consolidatedpursuant to clause (a) of subsection (1) and all the parties to theconsolidated arbitration proceedings are in agreement as to the choice ofthe arbitral tribunal for that arbitration proceeding, the arbitral tribunalshall be appointed by the Court, but if all the parties cannot agree, theCourt may appoint the arbitral tribunal for that arbitration proceeding.
(3) Nothing in this Section shall be construed as preventing the partiesto two or more arbitration proceedings from agreeing to consolidate thosearbitration proceedings and taking such steps as are necessary to effectthat consolidation. R.S., c. 234, s. 9.
10 (1) The functions referred to in Article 6 of the InternationalLaw shall be performed by the Trial Division of the Supreme Court.
(2) For the purposes of the International Law, a reference to "court"or "competent court", where in the context it means a court in theProvince, means the Trial Division of the Supreme Court except wherethe context otherwise requires. R.S., c. 234, s. 10.
Stay of proceedings
11 Where, pursuant to Article II (3) of the Convention or Article 8 ofthe International Law, a court refers the parties to arbitration, theproceedings of the court are stayed with respect to the matters to whichthe arbitration relates. R.S., c. 234, s. 11.
Act binds Crown
12 (1) This Act binds Her Majesty in right of the Province.
Enforcement of award against Crown
(2) An award recognized pursuant to this Act is enforceable againstHer Majesty in right of the Province in the same manner and to the sameextent as a judgment is enforceable against Her Majesty in right of theProvince. R.S., c. 234, s. 12.
13 (1) This Act shall be interpreted in good faith in accordance withthe ordinary meaning to be given to the terms of the Act in their contextand in the light of its objects and purposes.
(2) In applying subsection (1) to the International Law, recourse maybe had to
(a) the Report of the United Nations Commission onInternational Trade Law on the work of its 18th session (June 3 -21, 1985);
(b) the International Commercial Arbitration Commentary onDraft Text of a Model Law on International CommercialArbitration,
as published in the Royal Gazette. R.S., c. 234, s. 13.
Practice and procedure
14 (1) The judges of the Supreme Court or a majority of them maymake rules respecting the practice and procedure, including costs, injudicial proceedings pursuant to this Act.
Civil Procedure Rules
(2) Until rules are made pursuant to subsection (1), the Civil ProcedureRules, including rules as to costs, apply mutatis mutandis to judicialproceedings pursuant to this Act.
(3) Rules made pursuant to subsection (1) are rules as defined by theJudicature Act. R.S., c. 234, s. 14.
15 The Governor in Council may make such regulations as arenecessary or advisable to carry out the intent and purpose of this Act. R.S., c. 234, s. 15.
16 Rules made pursuant to Section 14 and the exercise by theGovernor in Council of the authority contained in Section 15 shall beregulations within the meaning of the Regulations Act. R.S., c. 234, s. 16.
CONVENTION ON THERECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS
1. This Convention shall apply to the recognition and enforcement of arbitralawards made in the territory of a State other than the State where the recognition andenforcement of such awards are sought, and arising out of differences between persons,whether physical or legal. It shall also apply to arbitral awards not considered asdomestic awards in the State where their recognition and enforcement are sought.
2. The term "arbitral awards" shall include not only awards made by arbitratorsappointed for each case but also those made by permanent arbitral bodies to which theparties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extensionunder article X hereof, any State may on the basis of reciprocity declare that it willapply the Convention to the recognition and enforcement of awards made only in theterritory of another Contracting State. It may also declare that it will apply theConvention only to differences arising out of legal relationships, whether contractual ornot, which are considered as commercial under the national law of the State making suchdeclaration.
1. Each Contracting State shall recognize an agreement in writing under which theparties undertake to submit to arbitration all or any differences which have arisen orwhich may arise between them in respect of a defined legal relationship, whethercontractual or not, concerning a subject-matter capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral clause in a contract oran arbitration agreement, signed by the parties or contained in an exchange of letters ortelegrams.
3. The court of a Contracting State, when seized of an action in a matter in respectof which the parties have made an agreement within the meaning of this article, shall,at the request of one of the parties, refer the parties to arbitration, unless it finds that thesaid agreement is null and void, inoperative or incapable of being performed.
Each Contracting State shall recognize arbitral awards as binding and enforce them inaccordance with the rules of procedure of the territory where the award is relied upon,under the conditions laid down in the following articles. There shall not be imposedsubstantially more onerous conditions or higher fees or charges on the recognition orenforcement of arbitral awards to which this Convention applies than are imposed on therecognition or enforcement of domestic arbitral awards.
1. To obtain the recognition and enforcement mentioned in the preceding article,the party applying for recognition and enforcement shall, at the time of the application,supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in article II or a duly certified copythereof.
2. If the said award or agreement is not made in an official language of the countryin which the award is relied upon, the party applying for recognition and enforcementof the award shall produce a translation of these documents into such language. Thetranslation shall be certified by an official or sworn translator or by a diplomatic orconsular agent.
1. Recognition and enforcement of the award may be refused, at the request of theparty against whom it is invoked, only if that party furnishes to the competent authoritywhere the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the lawapplicable to them, under some incapacity, or the said agreement is not validunder the law to which the parties have subjected it or, failing any indicationthereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper noticeof the appointment of the arbitrator or of the arbitration proceedings or wasotherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not fallingwithin the terms of the submission to arbitration, or it contains decisions onmatters beyond the scope of the submission to arbitration, provided that, if thedecisions on matters submitted to arbitration can be separated from those not sosubmitted, that part of the award which contains decisions on matters submittedto arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was notin accordance with the agreement of the parties, or, failing such agreement, wasnot in accordance with the law of the country where the arbitration took place;or
(e) The award has not yet become binding on the parties, or has been setaside or suspended by a competent authority of the country in which, or underthe law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if thecompetent authority in the country where recognition and enforcement is sought findsthat:
(a) The subject-matter of the difference is not capable of settlement byarbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to thepublic policy of that country.
If an application for the setting aside or suspension of the award has been made to acompetent authority referred to in article V(1)(e), the authority before which the awardis sought to be relied upon may, if it considers it proper, adjourn the decision on theenforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
1. The provisions of the present Convention shall not affect the validity ofmultilateral or bilateral agreements concerning the recognition and enforcement ofarbitral awards entered into by the Contracting States nor deprive any interested partyof any right he may have to avail himself of an arbitral award in the manner and to theextent allowed by the law or the treaties of the country where such award is sought tobe relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Conventionon the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect betweenContracting States on their becoming bound and to the extent that they become bound,by this Convention.
1. This Convention shall be open until 31 December 1958 for signature on behalfof any Member of the United Nations and also on behalf of any other State which is orhereafter becomes a member of any specialized agency of the United Nations, or whichis or hereafter becomes a party to the Statute of the International Court of Justice, or anyother State to which an invitation has been addressed by the General Assembly of theUnited Nations.
2. This Convention shall be ratified and the instruments of ratification shall bedeposited with the Secretary-General of the United Nations.
1. This Convention shall be open for accession to all States referred to in articleVIII.
2. Accession shall be effected by the deposit of an instrument of accession with theSecretary-General of the United Nations.
1. Any State may, at the time of signature, ratification or accession, declare thatthis Convention shall extend to all or any of the territories for the international relationsof which it is responsible. Such a declaration shall take effect when the Conventionenters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressedto the Secretary-General of the United Nations and shall take effect as from the ninetiethday after the day of receipt by the Secretary-General of the United Nations of thisnotification, or as from the date of entry into force of the Convention for the Stateconcerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at thetime of signature, ratification or accession, each State concerned shall consider thepossibility of taking the necessary steps in order to extend the application of thisConvention to such territories, subject, where necessary for constitutional reasons, tothe consent of the Governments of such territories.
In the case of a federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within thelegislative jurisdiction of the federal authority, the obligations of the federalGovernment shall to this extent be the same as those of Contracting States whichare not federal States;
(b) With respect to those articles of this Convention that come within thelegislative jurisdiction of constituent states or provinces which are not, under theconstitutional system of the federation, bound to take legislative action, thefederal Government shall bring such articles with a favourable recommendationto the notice of the appropriate authorities of constituent states or provinces atthe earliest possible moment;
(c) A federal State Party to this Convention shall, at the request of any otherContracting State transmitted through the Secretary-General of the UnitedNations, supply a statement of the law and practice of the federation and itsconstituent units in regard to any particular provision of this Convention,showing the extent to which effect has been given to that provision by legislativeor other action.
1. This Convention shall come into force on the ninetieth day following the date ofdeposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of thethird instrument of ratification or accession, this Convention shall enter into force on theninetieth day after deposit by such State of its instrument of ratification or accession.
1. Any Contracting State may denounce this Convention by a written notificationto the Secretary-General of the United Nations. Denunciation shall take effect one yearafter the date of receipt of the notification by the Secretary-General.
2. Any State which has made a declaration or notification under article X may, atany time thereafter, by notification to the Secretary-General of the United Nations,declare that this Convention shall cease to extend to the territory concerned one yearafter the date of the receipt of the notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in respect ofwhich recognition or enforcement proceedings have been instituted before thedenunciation takes effect.
A Contracting State shall not be entitled to avail itself of the present Convention againstother Contracting States except to the extent that it is itself bound to apply theConvention.
The Secretary-General of the United Nations shall notify the States contemplated inarticle VIII of the following:
(a) Signatures and ratifications in accordance with article VIII;
(b) Accessions in accordance with article IX;
(c) Declarations and notifications under articles I, X and XI;
(d) The date upon which this Convention enters into force in accordance witharticle XII;
(e) Denunciations and notifications in accordance with article XIII.
1. This Convention, of which the Chinese, English, French, Russian and Spanishtexts shall be equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy ofthis Convention to the States contemplated in article VIII.
R.S., c. 234, Sch. A.
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
(As adopted by the United Nations Commission on International Trade Law on 21 June 1985)
CHAPTER I. GENERAL PROVISIONS
Article 1. Scope of application
(1) This Law applies to international commercial arbitration, subject to anyagreement in force between this State and any other State or States.
(2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if theplace of arbitration is in the territory of this State.
(3) An arbitration is international if:
(a) the parties to an arbitration agreement have, at the time of the conclusionof that agreement, their places of business in different States; or
(b) one of the following places is situated outside the State in which theparties have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitrationagreement;
(ii) any place where a substantial part of the obligations of the commercialrelationship is to be performed or the place with which the subject-matter of thedispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitrationagreement relates to more than one country.
(4) For the purposes of paragraph (3) of this article:
(a) if a party has more than one place of business, the place of business isthat which has the closest relationship to the arbitration agreement;
(b) if a party does not have a place of business, reference is to be made tohis habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which certaindisputes may not be submitted to arbitration or may be submitted to arbitration onlyaccording to provisions other than those of this Law.
Article 2. Definitions and rules of interpretation
For the purposes of this Law:
(a) "arbitration" means any arbitration whether or not administered by apermanent arbitral institution;
(b) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators;
(c) "court" means a body or organ of the judicial system of a State;
(d) where a provision of this Law, except article 28, leaves the parties freeto determine a certain issue, such freedom includes the right of the parties toauthorize a third party, including an institution, to make that determination;
(e) where a provision of this Law refers to the fact that the parties haveagreed or that they may agree or in any other way refers to an agreement of theparties such agreement includes any arbitration rules referred to in thatagreement;
(f) where a provision of this Law, other than in articles 25(a) and 32(2)(a),refers to a claim, it also applies to a counter-claim, and where it refers to adefence, it also applies to a defence to such counter-claim.
Article 3. Receipt of written communications
(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have been received if it isdelivered to the addressee personally or if it is delivered at his place of business,habitual residence or mailing address; if none of these can be found after makinga reasonable inquiry, a written communication is deemed to have been receivedif it is sent to the addressees last-known place of business, habitual residence ormailing address by registered letter or any other means which provides a recordof the attempt to deliver it;
(b) the communication is deemed to have been received on the day it is sodelivered.
(2) The provisions of this article do not apply to communications in courtproceedings.
Article 4. Waiver of right to object
A party who knows that any provision of this Law from which the parties may derogateor any requirement under the arbitration agreement has not been complied with and yetproceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shallbe deemed to have waived his right to object.
Article 5. Extent of court intervention
In matters governed by this Law, no court shall intervene except where so provided inthis Law.
Article 6. Court or other authority for certain functions of arbitration assistance andsupervision
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall beperformed by ... [Each State enacting this model law specifies the court, courts or,where referred to therein, other authority competent to perform these functions.]
CHAPTER II. ARBITRATION AGREEMENT
Article 7. Definition and form of arbitration agreement
(1) "Arbitration agreement" is an agreement by the parties to submit to arbitrationall or certain disputes which have arisen or which may arise between them in respect ofa defined legal relationship, whether contractual or not. An arbitration agreement maybe in the form of an arbitration clause in a contract or in the form of a separateagreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if itis contained in a document signed by the parties or in an exchange of letters, telex,telegrams or other means of telecommunication which provide a record of theagreement, or in an exchange of statements of claim and defence in which the existenceof an agreement is alleged by one party and not denied by another. The reference in acontract to a document containing an arbitration clause constitutes an arbitrationagreement provided that the contract is in writing and the reference is such as to makethat clause part of the contract.
Article 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 anarbitration agreement shall, if a party so requests not later than when submitting his firststatement on the substance of the dispute, refer the parties to arbitration unless it findsthat the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been brought,arbitral proceedings may nevertheless be commenced or continued, and an award maybe made, while the issue is pending before the court.
Article 9. Arbitration agreement and interim measures by court
It is not incompatible with an arbitration agreement for a party to request, before orduring arbitral proceedings, from a court an interim measure of protection and for acourt to grant such measure.
CHAPTER III. COMPOSITION OFARBITRAL TRIBUNAL
Article 10. Number of arbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
Article 11. Appointment of arbitrators
(1) No person shall be precluded by reason of his nationality from acting as anarbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator orarbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint onearbitrator, and the two arbitrators thus appointed shall appoint the thirdarbitrator; if a party fails to appoint the arbitrator within thirty days of receiptof a request to do so from the other party, or if the two arbitrators fail to agreeon the third arbitrator within thirty days of their appointment, the appointmentshall be made, upon request of a party, by the court or other authority specifiedin article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agreeon the arbitrator, he shall be appointed, upon request of a party, by the court orother authority specified in article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under such procedure, or
(b) the parties, or two arbitrators, are unable to reach an agreement expectedof them under such procedure, or
(c) a third party, including an institution, fails to perform any functionentrusted to it under such procedure,
any party may request the court or other authority specified in article 6 to take thenecessary measure, unless the agreement on the appointment procedure provides othermeans for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to thecourt or other authority specified in article 6 shall be subject to no appeal. The court orother authority, in appointing an arbitrator, shall have due regard to any qualificationsrequired of the arbitrator by the agreement of the parties and to such considerations asare likely to secure the appointment of an independent and impartial arbitrator and, inthe case of a sole or third arbitrator, shall take into account as well the advisability ofappointing an arbitrator of a nationality other than those of the parties.
Article 12. Grounds for challenge
(1) When a person is approached in connection with his possible appointment as anarbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts asto his impartiality or independence. An arbitrator, from the time of his appointment andthroughout the arbitral proceedings, shall without delay disclose any such circumstancesto the parties unless they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise tojustifiable doubts as to his impartiality or independence, or if he does not possessqualifications agreed to by the parties. A party may challenge an arbitrator appointedby him, or in whose appointment he has participated, only for reasons of which hebecomes aware after the appointment has been made.
Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an arbitrator, subjectto the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator shall,within fifteen days after becoming aware of the constitution of the arbitral tribunal orafter becoming aware of any circumstance referred to in article 12(2), send a writtenstatement of the reasons for the challenge to the arbitral tribunal. Unless the challengedarbitrator withdraws from his office or the other party agrees to the challenge, thearbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under theprocedure of paragraph (2) of this article is not successful, the challenging party mayrequest, within thirty days after having received notice of the decision rejecting thechallenge, the court or other authority specified in article 6 to decide on the challenge,which decision shall be subject to no appeal; while such a request is pending, the arbitraltribunal, including the challenged arbitrator, may continue the arbitral proceedings andmake an award.
Article 14. Failure or impossibility to act
(1) If an arbitrator becomes de jure or de facto unable to perform his functions orfor other reasons fails to act without undue delay, his mandate terminates if hewithdraws from his office or if the parties agree on the termination. Otherwise, if acontroversy remains concerning any of these grounds, any party may request the courtor other authority specified in article 6 to decide on the termination of the mandate,which decision shall be subject to no appeal.
(2) If, under this article or article 13(2), an arbitrator withdraws from his office ora party agrees to the termination of the mandate of an arbitrator, this does not implyacceptance of the validity of any ground referred to in this article or article 12(2).
Article 15. Appointment of substitute arbitrator
Where the mandate of an arbitrator terminates under article 13 or 14 or because of hiswithdrawal from office for any other reason or because of the revocation of his mandateby agreement of the parties or in any other case of termination of his mandate, asubstitute arbitrator shall be appointed according to the rules that were applicable to theappointment of the arbitrator being replaced.
CHAPTER IV. JURISDICTION OFARBITRAL TRIBUNAL
Article 16. Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including any objectionswith respect to the existence or validity of the arbitration agreement. For that purpose,an arbitration clause which forms part of a contract shall be treated as an agreementindependent of the other terms of the contract. A decision by the arbitral tribunal thatthe contract is null and void shall not entail ipso jure the invalidity of the arbitrationclause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not laterthan the submission of the statement of defence. A party is not precluded from raisingsuch a plea by the fact that he has appointed, or participated in the appointment of, anarbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shallbe raised as soon as the matter alleged to be beyond the scope of its authority is raisedduring the arbitral proceedings. The arbitral tribunal may, in either case, admit a laterplea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this articleeither as a preliminary question or in an award on the merits. If the arbitral tribunalrules as a preliminary question that it has jurisdiction, any party may request, withinthirty days after having received notice of that ruling, the court specified in article 6 todecide the matter, which decision shall be subject to no appeal; while such a request ispending, the arbitral tribunal may continue the arbitral proceedings and make an award.
Article 17. Power of arbitral tribunal to order interim measures
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of aparty, order any party to take such interim measure of protection as the arbitral tribunalmay consider necessary in respect of the subject-matter of the dispute. The arbitraltribunal may require any party to provide appropriate security in connection with suchmeasure.
CHAPTER V. CONDUCT OF ARBITRALPROCEEDINGS
Article 18. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a full opportunityof presenting his case.
Article 19. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on theprocedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of thisLaw, conduct the arbitration in such manner as it considers appropriate. The powerconferred upon the arbitral tribunal includes the power to determine the admissibility,relevance, materiality and weight of any evidence.
Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such agreement,the place of arbitration shall be determined by the arbitral tribunal having regard to thecircumstances of the case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitraltribunal may, unless otherwise agreed by the parties, meet at any place it considersappropriate for consultation among its members, for hearing witnesses, experts or theparties, or for inspection of goods, other property or documents.
Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particulardispute commence on the date on which a request for that dispute to be referred toarbitration is received by the respondent.
Article 22. Language
(1) The parties are free to agree on the language or languages to be used in thearbitral proceedings. Failing such agreement, the arbitral tribunal shall determine thelanguage or languages to be used in the proceedings. This agreement or determination,unless otherwise specified therein, shall apply to any written statement by a party, anyhearing and any award, decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall beaccompanied by a translation into the language or languages agreed upon by the partiesor determined by the arbitral tribunal.
Article 23. Statements of claim and defence
(1) Within the period of time agreed by the parties or determined by the arbitraltribunal, the claimant shall state the facts supporting his claim, the points at issue andthe relief or remedy sought, and the respondent shall state his defence in respect of theseparticulars, unless the parties have otherwise agreed as to the required elements of suchstatements. The parties may submit with their statements all documents they considerto be relevant or may add a reference to the documents or other evidence they willsubmit.
(2) Unless otherwise agreed by the parties, either party may amend or supplementhis claim or defence during the course of the arbitral proceedings, unless the arbitraltribunal considers it inappropriate to allow such amendment having regard to the delayin making it.
Article 24. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decidewhether to hold oral hearings for the presentation of evidence or for oral argument, orwhether the proceedings shall be conducted on the basis of documents and othermaterials. However, unless the parties have agreed that no hearings shall be held, thearbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, ifso requested by a party.
(2) The parties shall be given sufficient advance notice of any hearing and of anymeeting of the arbitral tribunal for the purposes of inspection of goods, other propertyor documents.
(3) All statements, documents or other information supplied to the arbitral tribunalby one party shall be communicated to the other party. Also any expert report orevidentiary document on which the arbitral tribunal may rely in making its decision shallbe communicated to the parties.
Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordancewith article 23(1), the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence inaccordance with article 23(1), the arbitral tribunal shall continue the proceedingswithout treating such failure in itself as an admission of the claimantsallegations;
(c) any party fails to appear at a hearing or to produce documentaryevidence, the arbitral tribunal may continue the proceedings and make the awardon the evidence before it.
Article 26. Expert appointed by arbitral tribunal
(1) Unless otherwise agreed by the parties, the arbitral tribunal
(a) may appoint one or more experts to report to it on specific issues to bedetermined by the arbitral tribunal;
(b) may require a party to give the expert any relevant information or toproduce, or to provide access to, any relevant documents, goods or otherproperty for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitraltribunal considers it necessary, the expert shall, after delivery of his written or oralreport, participate in a hearing where the parties have the opportunity to put questionsto him and to present expert witnesses in order to testify on the points at issue.
Article 27. Court assistance in taking evidence
The arbitral tribunal or a party with the approval of the arbitral tribunal may requestfrom a competent court of this State assistance in taking evidence. The court mayexecute the request within its competence and according to its rules on taking evidence.
CHAPTER VI. MAKING OF AWARD ANDTERMINATION OF PROCEEDINGS
Article 28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in accordance with such rules of lawas are chosen by the parties as applicable to the substance of the dispute. Anydesignation of the law or legal system of a given State shall be construed, unlessotherwise expressed, as directly referring to the substantive law of that State and not toits conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the lawdetermined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeuronly if the parties have expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of thecontract and shall take into account the usages of the trade applicable to the transaction.
Article 29. Decision making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the arbitraltribunal shall be made, unless otherwise agreed by the parties, by a majority of all itsmembers. However, questions of procedure may be decided by a presiding arbitrator,if so authorized by the parties or all members of the arbitral tribunal.
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunalshall terminate the proceedings and, if requested by the parties and not objected to bythe arbitral tribunal, record the settlement in the form of an arbitral award on agreedterms.
(2) An award on agreed terms shall be made in accordance with the provisions ofarticle 31 and shall state that it is an award. Such an award has the same status andeffect as any other award on the merits of the case.
Article 31. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitrator orarbitrators. In arbitral proceedings with more than one arbitrator, the signatures of themajority of all members of the arbitral tribunal shall suffice, provided that the reasonfor any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties haveagreed that no reasons are to be given or the award is an award on agreed terms underarticle 30.
(3) The award shall state its date and the place of arbitration as determined inaccordance with article 20(1). The award shall be deemed to have been made at thatplace.
(4) After the award is made, a copy signed by the arbitrators in accordance withparagraph (1) of this article shall be delivered to each party.
Article 32. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an order of thearbitral tribunal in accordance with paragraph (2) of this article.
(2) The arbitral tribunal shall issue an order for the termination of the arbitralproceedings when
(a) the claimant withdraws his claim, unless the respondent objects theretoand the arbitral tribunal recognizes a legitimate interest on his part in obtaininga final settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation of the proceedings has forany other reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of thearbitral proceedings, subject to the provisions of articles 33 and 34(4).
Article 33. Correction and interpretation of award; additional award
(1) Within thirty days of receipt of the award, unless another period of time has beenagreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunalto correct in the award any errors in computation, any clerical or typographicalerrors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, mayrequest the arbitral tribunal to give an interpretation of a specific point or partof the award.
If the arbitral tribunal considers the request to be justified, it shall make the correctionor give the interpretation within thirty days of receipt of the request. The interpretationshall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph(1)(a) of this article on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party,may request, within thirty days of receipt of the award, the arbitral tribunal to make anadditional award as to claims presented in the arbitral proceedings but omitted from theaward. If the arbitral tribunal considers the request to be justified, it shall make theadditional award within sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within whichit shall make a correction, interpretation or an additional award under paragraph (1) or(3) of this article.
(5) The provisions of article 31 shall apply to a correction or interpretation of theaward or to an additional award.
CHAPTER VII. RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive recourse against arbitral award
(1) Recourse to a court against an arbitral award may be made only by an applicationfor setting aside in accordance with paragraphs (2) and (3) of this article.
(2) An arbitral award may be set aside by the court specified in article 6 only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7 was undersome incapacity; or the said agreement is not valid under the law to which theparties have subjected it or, failing any indication thereon, under the law of thisState; or
(ii) the party making the application was not given proper notice of theappointment of an arbitrator or of the arbitral proceedings or was otherwiseunable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling withinthe terms of the submission to arbitration, or contains decisions on mattersbeyond the scope of the submission to arbitration, provided that, if the decisionson 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 toarbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was notin accordance with the agreement of the parties, unless such agreement was inconflict with a provision of this Law from which the parties cannot derogate, or,failing such agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitrationunder 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 three months have elapsedfrom the date on which the party making that application had received the award or, ifa request had been made under article 33, from the date on which that request had beendisposed of by the arbitral tribunal.
(4) The court, when asked to set aside an award, may, where appropriate and sorequested by a party, suspend the setting aside proceedings for a period of timedetermined by it in order to give the arbitral tribunal an opportunity to resume thearbitral proceedings or to take such other action as in the arbitral tribunals opinion willeliminate the grounds for setting aside.
CHAPTER VIII. RECOGNITION ANDENFORCEMENT OF AWARDS
Article 35. Recognition and enforcement
(1) An arbitral award, irrespective of the country in which it was made, shall berecognized as binding and, upon application in writing to the competent court, shall beenforced subject to the provisions of this article and of article 36.
(2) The party relying on an award or applying for its enforcement shall supply theduly authenticated original award or a duly certified copy thereof, and the originalarbitration agreement referred to in article 7 or a duly certified copy thereof. If theaward or agreement is not made in an official language of this State, the party shallsupply a duly certified translation thereof into such language.
Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the country inwhich it was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that partyfurnishes to the competent court where recognition or enforcement is soughtproof that:
(i) a party to the arbitration agreement referred to in article 7 was undersome incapacity; or the said agreement is not valid under the law to which theparties have subjected it or, failing any indication thereon, under the law of thecountry where the award was made; or
(ii) the party against whom the award is invoked was not given proper noticeof the appointment of an arbitrator or of the arbitral proceedings or wasotherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling withinthe terms of the submission to arbitration, or it contains decisions on mattersbeyond the scope of the submission to arbitration, provided that, if the decisionson matters submitted to arbitration can be separated from those not so submitted,that part of the award which contains decisions on matters submitted toarbitration may be recognized and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was notin accordance with the agreement of the parties or, failing such agreement, wasnot in accordance with the law of the country where the arbitration took place;or
(v) the award has not yet become binding on the parties or has been set asideor suspended by a court of the country in which, or under the law of which, thataward was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitrationunder the law of this State; or
(ii) the recognition or enforcement of the award would be contrary to thepublic policy of this State.
(2) If an application for setting aside or suspension of an award has been made to acourt referred to in paragraph (1)(a)(v) of this article, the court where recognition orenforcement is sought 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, orderthe other party to provide appropriate security.
R.S., c. 234, Sch. B.