Arbitration (Foreign Arbitral Awards) Act 2009


Published: 2010-05-20

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
SUPPLEMENT PART I

OFFICIAL GAZETTE
THE BAHAMAS
PUBLISHED BY AUTHORITY

NASSAU 31st December, 2009 No. 52 (A)

ARBITRATION (FOREIGN ARBITRAL AWARDS)
ACT,2009

Arrangement of Sections

SeetioD
I. Short tide and commencernent. ............................................................................ .2
2. lnterpretation .......................................................................................................... 2
3. Proving adherence to Convention .......................................................................... 3
4. Effect of awanls ..................................................................................................... 3
S. Evidence to enforce award ..................................................................................... 3
6. Refusal to enfon:e .................................................................................................. 3
7. Power to adjourn proc:cedings ................................................................................ 4
8. Savin&-........... ,.. ......................................................................................................................... 4
9. R.epeal .................................................................................................................... s

SCHEDULE 6
CONVENTION ON THE RECOONmON AND ENFORCEMENT OF FOREIGN
ARBITRALAWARDS 6

No. 43 of2009

ARBJT~ TION (FOREIGN ARBITRAL AWARDS)
ACT, 2009

AN ACT TO GIVE EFFECT IN THE BAHAMAS TO THE
NEW YORK CONVENTION ON THE RECOGNITION AND

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS.

[Date of Assent-31st December, 2009]

Enacted by the Parliament of The Bahamas.

1. Short title and commencement.

(1) This Act may be cited as the Arbitration (Foreign Arbitral Awards) Act,
2009.

(2) This Act shall come into operation on such day as the Minister may, by
Notice published in the Gazette, appoint.

2. Interpretation.

(l) InthisAct-
(a) "arbitration agnement" means an agreement in writing to submit

to arbitration present or future disputes,
(b) "couvention award" means an award made pursuant to an

arbitration agreement in a state other than The Bahamas that is a
party to the New York Convention;

(c) "Minister" means the Attorney-General and Minister of Legal
Affairs;

(d) "New York Convention" means the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards adopted
by the United Nations Conference on International Commercial
Arbitration on lOth June, 1958 and set out in the Schedule;

2

(e) "state that is party to the New York Coaveatioa''. in the case of a
federal state who$e constituent political subdivisions have
legislative jurisdiction with respect to commercial arbitrations,
includes a constituent political subdivision thereof that has given
effect to the Convention by legislative or other action.

(2) For the purposes of paragraph (a) of subsection (1), the expression
"qneaaeat ia wrid•• includes 111 agreement contained in an exchanse
of letters, facsimile or other meiJlS of communication which provide a
record of the agreement.

3. Proving adherence to Convention.

A certificate purporting to be issued under the hand of the Minister responsible
for Foreign Affairs to the effect that a state specified in the certificate is a party
to the New York Convention is conclusive proof in any proceedings that the state
is a party to the convention on the date of the certifrcate.

4. Effect of awaniL

( 1) Subject to this Act, a convention award is enforceable in The Bahamas
either by action or in the same manner as the award of an arbitrator is
enforceable by section 88 of the Arbitration Act, 2009.

(2) A convention award that would be enforceable under this Act is binding
for all purposes on the persons between whom it was made; and it may be
relied upon by any of those persons by way of defence, set-off or
otherwise in any legal proceeclinp in The Bahamas.

(l) A reference in this Act to enforcing a convention award shall be construed
as including references to relying on that award~

5. Evidence to enforce award.

The party seeking to enforce a convention award must produce-
(a) the duly authenticated original award or a duly certified copy of it;
(b) the original arbitration agreement or a duly celtified copy of it; and
(c) a translation of the award or agreement certified by an off"teial or

sworn translator or by a diplomatic or consular agent, if the award
or agreement is in a lanpage other than English.

8. Refusal to enforce.

(1) Enforcement of a convention award may not be refused except in the
circumstances set out in this section.

(2) Enforcement of a convention award may be refused if the person against
whom it is invoked proves-

3

(a) that a party to the arbitration agreement is under some incapacity
under the law applicable to that party;

(b) that the arbitration agreement was not valid under the law to which
the parties subjected it or, failing any indication thereon, under the
law of the state where the award was made;

(c) that he was not given proper notice of the appointment of the
arbitrator or of the arbitration proceedings or was otherwise unable
to present his case;

(d) subject to subset:tion (4), that the award deals with a difference 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;

(e) that the composition of the arbitral tribunal or the arbitral
procedure, was not in accordance with the agreement of the parties
or, failing such agreement, with the law of the state where the
arbitration took place; or

(t) that the award has not yet become binding on the parties, or has
been set aside or suspended by a eompetent authority in the state in
which, or under the law of which, the award was made.

(3) Enforcement of a convention award may also be refused if the award is in
respect of a matter that is not capable of settlement by arbitration or if it
would be contrary to public policy to enforce the award.

( 4) A convention award that contains decisions on matters not submitted to
arbitration may be enforced to the extent that it contains decisions on
matters submitted to arbitration that can be separated from those on
matters not so submitted.

7. Power to adjourn proceedings.

(I) When an application for the setting aside or suspension of a convention
award has been made to a competent authority of the state in which. or
under the law of which, the award was made, the court before which
enforcement of the award is sought may, if it thinks fit, adjourn the
proceedings.

(2) The court hearing an application described in subsection (1) may on the
application of the party seeking to enforce the award, order the other party
to give security.

8. Saving

Nothing in this Act affects any right to enforce or rely on an award made under
the Arbitration Act, 2009 or otherwise.

4

9. RepeaL

The Arbitration Clauses (Protocol) Act (Ch. 181) and the Arbitration (Foreign
Awards) Act (Ch. 182) are hereby repealed.

5

SCHEDULE

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF
FOREIGN ARBITRALAWARDS

ARTICLE I

I. This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory ef a state other than the state where the
recosnition and enforcement 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 as domestic awards in the state where
their recognition and enforcement are sought

2. The term "arbitral awards.. shall include not only awards made by
arbitrators appointed for each case but also those made by permanent
arbitraJ bodies to which the parties have submitted.

3. When signing. ratifying or acceding to this Convention, or notifying
extension under Article X hereof, any state may on the basis of reciprocity_
declare that it will apply the Convention to the recognition and
enforcement of awards made only in the territory of another Contraeting
State. It may also declare that it will apply the Convention only to
differences arising out of legal relationships, whether contractual or ~
which are considered as commercial under the national law of the state
making such declaration.

ARTICLED

t. Each Contracting State shall recognise an agreement in writina under
which the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.

2. The term "agreement in writina" shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in
an exchange of letters or telearams.

3. The court of a Contracting State, when seized of an action in a matter in
respect of which the parties have made an agreement within the meaning
of this article, shal~ at the request of one of the parties, refer the parties to
arbitration. unless it finds that the said agreement is null and void,
inoperative or incapable of being perfonned.

6

ARTICLE m
Each Contracting State shall recognise arbitral awards as binding and enforce
them in accordance 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 imposed substantially more onerous conditions or higher fees or
charges on the recognition or enforcement of arbitral awards to which this
Convention applies than are imposed on the recognition or enforcement of
domestic arbitral awards.

ARTICLE IV

I. 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 11 or a duly certified

copy thereof.

2 If the said award or agreement is not made in an official language of the
country in which the award is relied upon, the party applying for
recognition and enforcement of the award shall produce a translation of
these documents into such language. The translation shall be certified by
an official or sworn translator or by a diplomatic or consular agent

ARTICLE V

l. Recognition and enforcement of the award may be refused, at the request
of the party against whom it is invoked, only if that party furnishes to the
competent authority where the recognition and enforcement is sought,
proofthat-
(a) the parties to the agreement referred to in Article 11 were, under the

law applicable to them, under some incapacity or the said
agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon. 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
notice of the appointment of the arbitrator or of the arbitration
proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling
within the tenns of the submission to arbitration, or it contains
decisions on matters beyond the scope of the submission to

7

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 recognized and enforced; or

(d) the composition of the arbitral authority 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 country
where the arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the countJy in
which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if
the competent authority in the country where recognition and enforcement
is sought finds that -
(a) the subject matter of the difference is not capable of settlement by

arbitration under the law of that country: or
(b) the recognition or enforcement of the award would be contrary to

the public policy of that country.

ARTICLE VI

If an application for the setting aside or suspension of the award has been made
to a competent authority referred to in Article V (l)(e), the authority before
which the award is sought to be relied upon may, if it considers it proper,
adjourn the decision on the enforcement 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.

ARTICLE VII

1. The provisions of the present Convention shall not affect the validity of
multilateral or bilateral agreements concerning the recognition and
enforcement of arbitral awards entered into by the Contracting States nor
deprive any interested party of any right he may have to avail himself of
an arbitral award in the manner and to the extent allowed by the law or the
treaties of the country where such award is sought to be relied upon.

2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva
Convention on the Execution of Foreign Arbitral Awards of 1927 shall
cease to have effect between Contracting States on their becoming bound
and to the extent that they become bound, by this Convention.

8

ARTICLEVIll

l. This Convention shall be open until 31 December 1958 for signature on
behalf of any Member of the United Nations and also on behalf of any
other state which is or hereafter becomes a member of any specialised
asency of the United Nations, or which is or hereafter becomes a party to
the Statute of the International Court of Justice, or any other state to which
an invitation has been addressed by the General Assembly of the United
Nations.

2. This Convention shall be ratified and the instrument of ratification shall
be deposited with the Secretary-General of the United Nations.

ARTICLIIX

t. This Convention shall be open for accession to all states referred to in
Article VIII.

2. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.

ARTICLE X

I. Any state may, at the time of signature, ratification or accession, declare
that this Convention shall extend to all or any of the tenitories for the
international relations of which it is responsible. Such a declaration shall
take effect when the Convention enters into force for the state concerned.

2. At any time thereafter any such extension shall be made by notification
addressed to the Secretary..Qeneral of the United Nations and shall take
effect as from the ninetieth day after the day of receipt by the Secretary-
General of the United Nations of this notification, or as from the date of
entry into force of the Convention for the state concerned, whichever is
the later.

3. With respect to those territories to which this Convention is not extended
at the time of signature, ratification or accession, each state concerned
shall consider the possibil~ of taking the necessary steps in order to
extend the application of this Convention to such territories, subject,
where necessary for constitutional reasons, to the consent of the
governments of such territories.

9

ARTICLE XI

In the case of a federal or non-unitary state, the following provisions shall
apply-

(a)

(b)

(c)

With respect to those articles of this Convention that come within
the legislative jurisdiction of the federal authority. the obligations of
the federal government shall to this extent be the same as those of
Contracting States which are not federal states;
With respect to those articles of this Convention that come within
the legislative jurisdiction of constituent states or provinces which
are not, under the constitutional system of the federation, bound to
take legislative action. the federal government shall bring such
articles with a favourable recommendation to the notice of the
appropriate authorities of constituent states or provinces at the
earliest possible moment;
A federal state party to this Convention shall, at the request of any
other Contracting State transmitted through the Secretary-General
of the United Nations, supply a statement of law and practice of the
federation and its constituent units in reganl to any particular
provision of this Convention, showing the extent to which effect
has been given to that provision by legislative or other action.

ARTICLEXU

1. This Convention shall come into force on the ninetieth day following the
date of deposit of the third instrument of ratification or accession.

2. For each state ratifying or acceding to this Convention after the deposit of
the third instrument of ratification or accession. this Convention shall
enter into force on the ninetieth day after deposit by such state of its
instrument of ratification or accession.

ARTICLI: XDI

1. Any Contracting State may denounce this Convention by written
notification to the Secretary-General of the United Nations. Denunciation
shall take effect one year after 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, at any time thereafter, by notification to the Secretary-General of the
United Nations, declare that this Convention shall cease to extend to the
territory concemed ono year after the date of the receipt of the notification
by the Secretary-General.

10

3. This Convention shall continue to be applicable to arbitral awards in
respect of which recognition or enforcement proceedings have been
instituted before the denunciation takes effect.

ARTICLE XIV

A Contracting State shall not be entitled to avail itself of the present Convention
against other Contracting States except to the extent that it is itself bound to
apply the Convention.

ARTICLE XV

The Secretary·General of the United Nations shall notify the states contemplated
in Article VIII of the following-

(a) Signature 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 with Article XII~
(e) Denunciations and notifications in accordance with Article XIII.

ARTICLE XVI

( l) This Convention, of which the Chinese. English, French, Russian and
Spanish tests 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 of this Convention to the states contemplated in Article VDI.

11