Arbitration (Foreign Arbitral Awards)

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Arbitration (Foreign Arbitral Awards)
L.R.O.

LAWS OF TRINIDAD AND TOBAGO

Act
35 of 1996

Current Authorised Pages
Pages Authorised

(inclusive) by L.R.O.
1–12 ..

ARBITRATION (FOREIGN ARBITRAL AWARDS) ACT

CHAPTER 5:30

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Note on Subsidiary Legislation
This Chapter contains no subsidiary legislation.

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CHAPTER 5:30

ARBITRATION (FOREIGN ARBITRAL
AWARDS) ACT

ARRANGEMENT OF SECTIONS

SECTION

1. Short title.
2. Interpretation.
3. Proving adherence to Convention.
4. Effect of awards.
5. Evidence to enforce award.
6. Refusal to enforce.
7. Power to adjourn proceedings.
8. Saving.

SCHEDULE.

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CHAPTER 5:30

ARBITRATION (FOREIGN ARBITRAL AWARDS) ACT

An Act to give effect in Trinidad and Tobago to the New York
Convention on the recognition and enforcement of
Foreign Arbitral Awards.

[19TH NOVEMBER 1996]

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

2. (1) In this Act—
“arbitration agreement” means an agreement in writing of the kind

referred to in paragraph 1 of Article II of the New York
Convention;

“convention award” means an award made pursuant to an
arbitration agreement in a State other than Trinidad and
Tobago that is a party to the New York Convention;

“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 10th June, 1958 and set out in the Schedule;

“State that is a party to the New York Convention”, in the case
of a federal State whose 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) The expression “agreement in writing” used in the
definition of “arbitration agreement” includes an arbitral clause in
a contract or an arbitration agreement signed by the parties
contained in an exchange of letters, telegrams or telex messages.

3. A certificate purporting to be issued under the hand of
the Minister to whom responsibility for foreign affairs is assigned

35 of 1996.

Commencement.

Short title.

Interpretation.

Schedule.

Proving
adherence to
Convention.

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to the effect that a State specified in the certificate is or was at a
time specified a party to the New York Convention is conclusive
proof in any proceedings that the State is, or was at a time
specified, a party to the convention.

4. (1) Subject to this Act, a convention award is enforceable
in Trinidad and Tobago either by action or in the same manner as
the award of an arbitrator is enforceable by section 20 of the
Arbitration Act.

(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 proceedings in
Trinidad and Tobago.

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

5. The party seeking to enforce a convention award shall
produce to the Court—

(a) the duly authenticated original award or a duly
certified copy of it;

(b) the original arbitration agreement or a duly
certified copy of it; and

(c) a translation of the award or agreement certified
by an official or sworn translator or by a
diplomatic or consular agent, if the award or
agreement is in a language other than English.

6. (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—

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

Effect of
awards.

Ch. 5:01.

Evidence to
enforce award.

Refusal to
enforce.

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(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 subsection (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 authority, or
the arbitral procedure, was not in accordance with
the agreement of the parties or, failing that, with
the law of the State where the arbitration took
place; or

(f) that the award has not yet become binding on the
parties, or has been set aside or suspended by a
competent 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—

(a) the award is in respect of a matter that is not
capable of settlement by arbitration; or

(b) 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. (1) When an application for the setting aside or suspension
of a convention award has been made to a competent authority of

Power to
adjourn
proceedings.

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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. Nothing in this Act affects the right of a person to the
enforcement of an award otherwise than under this Act.

Saving.

SCHEDULE

CONVENTION OF THE RECOGNITION AND
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

ARTICLE I

1. This Convention shall apply to the recognition and enforcement of
arbitral awards made in the territory of a State other than the State where the
recognition 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 arbitral
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 Contracting State. It may also
declare that it will apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial
under the national law of the State making such declaration.

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ARTICLE II

1. Each Contracting State shall recognise an agreement in writing 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 writing” shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.

3. The Court of a Contracting State, when seised of an action in a matter
in respect of 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 the said agreement is null and void, inoperative or incapable
of being performed.

ARTICLE III

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 of enforcement of arbitral awards to which this
Convention applies than are imposed on the recognition or enforcement of
domestic arbitral awards.

ARTICLE IV

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
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

1. Recognition and enforcement of the award may be refused, at the

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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,
proof that:

(a) the parties to the agreement referred to in Article II 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;

(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 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

(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 country 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 to a
competent authority referred to in Article V(1)(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

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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.

ARTICLE VIII

1. This Convention shall be open until 31st 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 agency 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.

ARTICLE IX

1. 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

1. Any State may, at the time of signature, ratification or accession, declare
that this Convention shall extend to all or any of the territories 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-General 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 possibility of taking the necessary steps in order to extend the
application of this Convention to which territories, subject, where necessary for
constitutional reasons, to the consent of the Governments of such territories.

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ARTICLE XI

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 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;

(b) 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;

(c) 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 the law
and practice of the federation and its constituent units in regard
to any particular provisions of this Convention, showing the
extent to which effect has been given to that provision by
legislative or other action.

ARTICLE XII

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.

ARTICLE XIII

1. Any Contracting State may denounce this Convention by a 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 concerned one year after the date of the receipt of
the notification by the Secretary-General.

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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) 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 with Article XII;
(e) denunciations and notifications in accordance with Article XIII.

ARTICLE XVI

1. This Convention, of which the Chinese, English, French, Russian and
Spanish texts 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 VIII.

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