Arbitration Act


2008 Revised Edition

CAP. 7.04





ARBITRATION ACT

Arbitration Act CAP. 7.04 Arrangement of Sections





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ARBITRATION ACT

Arrangement of Sections
Section
1 Short title................................................................................................................ 5
2 Interpretation.......................................................................................................... 5
3 Authority................................................................................................................ 5
4 Death of a party...................................................................................................... 5
5 Staying court proceedings where there is submission to arbitration...................... 6
ARBITRATORS AND UMPIRES 6
6 When reference is to a single arbitrator ................................................................. 6
7 Power of parties to supply vacancy ....................................................................... 6
8 Umpires.................................................................................................................. 7
9 Agreements for three arbitrators ............................................................................ 7
10 Power of court to appoint arbitrator, etc. ............................................................... 8

CONDUCT OF PROCEEDINGS, WITNESSES, ETC. 8
11 Conduct of proceedings, witnesses, etc. ................................................................ 8

PROVISIONS AS TO AWARDS 10
12 Time for making award........................................................................................ 10
13 Interim awards ..................................................................................................... 10
14 Specific performance ........................................................................................... 10
15 Awards to be final................................................................................................ 10
16 Power to correct slips........................................................................................... 11
COSTS, FEES AND INTEREST 11
17 Costs .................................................................................................................... 11
18 Arbitrator's fee ..................................................................................................... 11
19 Interest on awards ................................................................................................ 12

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SPECIAL CASES, REMISSION AND SETTING ASIDE OF
AWARDS, ETC. 12
20 Statement of case..................................................................................................12
21 Power to remit ......................................................................................................12
22 Court relief for misconduct ..................................................................................13
23 Court relief for partiality and in fraud ..................................................................13
24 Court powers where arbitrator removed or authority revoked .............................14

ENFORCEMENT OF AWARD 15
25 Enforcement of Award .........................................................................................15

MISCELLANEOUS 15
26 Extension of time for arbitration ..........................................................................15
27 Terms as to costs, etc............................................................................................15
28 Crown to be bound ...............................................................................................15
29 Statutory arbitrations ............................................................................................16


ENDNOTES 17

Arbitration Act CAP. 7.04 Section 1





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ARBITRATION ACT

AN ACT TO MAKE PROVISION WITH RESPECT TO ARBITRATION
AND CONNECTED MATTERS.1

Commencement [1st February 1992]2

1 Short title
This Act may be cited as the Arbitration Act.

2 Interpretation
In this Act, unless the context otherwise requires, the expression “arbitration
agreement” means a written agreement to submit present or future differences to
arbitration, whether an arbitrator is named therein or not.

3 Authority
The authority of an arbitrator or umpire of arbitrators appointed by or by virtue of an
arbitration irrevocable agreement shall, unless a contrary intention is expressed in
the agreement, be irrevocable except by leave of the High Court.

4 Death of a party
(1) An arbitration agreement shall not be discharged by the death of any party

thereto, either as respects the deceased or any other party, but shall in such an
event be enforceable by or against the personal representative of the deceased.

(2) The authority of an arbitrator shall not be revoked by the death of any party
by whom he was appointed.

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(3) Nothing in this section shall be taken to affect the operation of any enactment
or rule of law by virtue of which any right of action is extinguished by the
death of a person.

5 Staying court proceedings where there is submission to arbitration
(1) If any party to an arbitration agreement, or any person claiming through or

under him, commences any legal proceedings to any court against any other
party to the arbitration agreement, or any person claiming through or under
him, in respect of any matter agreed to be referred, any party to those legal
proceedings may at any time after appearance, and before delivering any
pleadings or taking any other steps in the proceedings, apply to that court to
stay the proceedings.

(2) Where an application is made to a court under subsection (1), the court, if
satisfied that —
(a) there is no sufficient reason why the matter should not be referred in

accordance with the agreement; and
(b) the applicant was, at the time when the proceedings were commenced,

and still remains, ready and willing to do all things necessary to the
proper conduct of the arbitration,

may make an order staying the proceedings.

(3) Where —
(a) relief by way of interpleader is granted; and
(b) it appears to the High Court that the claims in question are matters to

which an arbitration agreement, to which the claimants are parties,
applies,

the High Court may direct the issue between the claimants to be determined in
accordance with the agreement.

ARBITRATORS AND UMPIRES

6 When reference is to a single arbitrator
Unless a contrary intention is expressed therein, every arbitration agreement shall, if
no other mode of reference is provided, be deemed to include a provision that the
reference shall be to a single arbitrator.

7 Power of parties to supply vacancy
(1) Where an arbitration agreement provides that the reference shall be to 2

arbitrators, one to be appointed by each party, then, unless a contrary intention
is expressed therein —

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(a) if either of the appointed arbitrators refuses to act, or is incapable of
acting, or dies, the party who appointed him may appoint a new
arbitrator in his place;

(b) if, on such a reference, one party fails to appoint an arbitrator, either
originally, or by way of substitution as aforesaid, for 30 clear days after
the other party, having appointed his arbitrator, has served the party
making default with notice to make the appointment, the party who has
appointed an arbitrator may appoint that arbitrator to act as sole
arbitrator in the reference and his award shall be binding on both parties
as if he had been appointed by consent.

(2) The High Court may set aside any appointment made in pursuance of this
section.

8 Umpires
(1) Unless a contrary intention is expressed therein, every arbitration agreement

shall, where the reference is to 2 arbitrators, be deemed to include a provision
that the 2 arbitrators shall appoint an umpire immediately after they are
themselves appointed.

(2) Unless a contrary intention is expressed therein, every arbitration agreement
shall, where such a provision is applicable to the reference, be deemed to
include a provision that if the arbitrators have delivered to any party to the
arbitration agreement, or to the umpire, a notice in writing stating that they
cannot agree, the umpire may forthwith enter on the reference in lieu of the
arbitrators.

(3) At any time after the appointment of an umpire, however appointed, the High
Court may, on the application of any party to the reference and
notwithstanding anything to the contrary in the arbitration agreement, order
that the umpire shall enter upon the reference in lieu of the arbitrators and as
if he were a sole arbitrator.

9 Agreements for three arbitrators
(1) Where an arbitration agreement provides that the reference shall be to three

arbitrators, one to be appointed by each party and the third to be appointed by
the two appointed by the parties, the agreement shall have effect as if it
provided for the appointment of an umpire, and not for the appointment of a
third arbitrator, by the two arbitrators appointed by the parties.

(2) Where an arbitration agreement provides that the reference shall be to three
arbitrators to be appointed otherwise than as mentioned in subsection (1), the
award of any two of the arbitrators shall be binding.

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10 Power of court to appoint arbitrator, etc.
In any of the following cases —

(a) where an arbitration agreement provides that the reference shall be to a
single arbitrator, and all the parties do not, after differences have arisen,
concur in the appointment of an arbitrator;

(b) if an appointed arbitrator refuses or dies, and the arbitration agreement
does not show that it was intended that the vacancy should not be
supplied and the parties do not supply the vacancy;

(c) where the parties or two arbitrators are at liberty to appoint an umpire
or third arbitrator and do not appoint him, or where two arbitrators are
required to appoint an umpire and do not appoint him;

(d) where an appointed umpire or third arbitrator refuses to act, or is
incapable of acting, or dies, and the arbitration agreement does not
show that it was intended that the vacancy should not be supplied, and
the parties or arbitrators do not supply the vacancy,

any party may serve the other parties or the arbitrators, as the case may be, with a
written notice to appoint or, as the case may be, concur in appointing, an arbitrator,
umpire or third arbitrator, and if the appointment is not made within thirty clear days
after the service of the notice, the High Court may, on application by the party who
gave the notice, appoint an arbitrator, umpire or third arbitrator who shall have the
like powers to act in the reference and make an award as if he had been appointed by
consent of all parties.

CONDUCT OF PROCEEDINGS, WITNESSES, ETC.

11 Conduct of proceedings, witnesses, etc.
(1) Unless a contrary intention is expressed therein, every arbitration agreement

shall, where such a provision is applicable to the reference, be deemed to
contain a provision that the parties to the reference, and all persons claiming
through them respectively, shall, subject to any legal objection —
(a) submit to be examined by the arbitrator or umpire, on oath or

affirmation, in relation to the matters in dispute;
(b) produce before the arbitrator or umpire all documents within their

possession or power respectively which may be required or called for;
and

(c) do all other things which during the proceedings on the reference the
arbitrator or umpire may require.

(2) Unless a contrary intention is expressed therein, every arbitration agreement
shall, where such a provision is applicable to the reference, be deemed to

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contain a provision that the witnesses on the reference shall, if the arbitrator
or umpire thinks fit, be examined on oath or affirmation.

(3) An arbitrator or umpire shall, unless a contrary intention is expressed in the
arbitration agreement, have power to administer oaths to, or take the
affirmations of, the parties to and witnesses on a reference under the
agreement.

(4) Any party to a reference under an arbitration agreement may issue out a writ
of subpoena ad testificandum ( to testify as a witness) or a writ of subpoena
duces tecum (to produce documents}, but no person shall be compelled under
any such writ to produce any document which he could not be compelled to
produce on the trial of an action, and the High Court may order that a writ of
subpoena ad testificandum or of subpoena duces tecum shall issue to compel
the attendance before an arbitrator or umpire of a witness wherever he may be
within Tuvalu.

(5) The High Court may also order that a writ of habeas corpus ad testificandum
(to produce a prisoner to testify as a witness) shall issue to bring up a prisoner
for examination before an arbitrator or umpire.

(6) The High Court shall have, for the purpose of and in relation to a reference,
the same power of making orders in respect of —
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) the giving of evidence by affidavit;
(d) examination on oath of any witness before an officer of the High Court

or any other person, and the issue of a commission or request for the
examination of a witness out of the jurisdiction;

(e) the preservation, interim custody or sale of any goods which are the
subject matter of the reference;

(f) securing the amount in dispute in the reference;
(g) the detention, preservation or inspection of any property or thing which

is the subject of the reference or as to which any question may arise
therein, and authorising for any of those purposes any persons to enter
upon or into any land or building in the possession of any party to the
reference, or authorising any samples to be taken or any observation to
be made or experiment to be tried which may be necessary or expedient
for the purpose of obtaining full information or evidence; and

(h) interim injunctions or the appointment of a receiver,

as it has for the purpose of and in relation to an action or matter in the High
Court.

(7) Nothing in subsection (6) shall be taken to prejudice any power which may be
vested in an arbitrator or umpire of making orders with respect to any of the
matters mentioned in that subsection.

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PROVISIONS AS TO AWARDS

12 Time for making award
(1) Subject to section 21(2) and anything to the contrary in the arbitration

agreement, an arbitrator or umpire shall have power to make an award at any
time.

(2) The time, if any, limited for making an award, whether under this Act or
otherwise, may from time to time be enlarged by order of the High Court,
whether that time has expired or not.

(3) The High Court may, on the application of any party to a reference, remove
an arbitrator or umpire who fails to use all reasonable dispatch in entering on
and proceeding with the reference and making an award, and the High Court
may order that an arbitrator or umpire who is removed by the High Court
under this subsection shall not be entitled to receive any remuneration in
respect of his services.

(4) For the purposes of subsection (3), the expression “proceeding with a
reference” includes, in a case where two arbitrators are unable to agree, giving
notice of that fact to the parties and to the umpire.

13 Interim awards
Unless a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that the arbitrator or umpire may, if he thinks fit, make an interim award,
and any reference in this Act to an award includes a reference to an interim award.

14 Specific performance
Unless a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that the arbitrator or umpire shall have the same power as the High Court
to order specific performance of any contract other than a contract relating to land or
any interest in land.

15 Awards to be final
Unless a contrary intention is expressed therein, every arbitration agreement shall,
where such a provision is applicable to the reference, be deemed to contain a
provision that subject to sections 20, 21, and 22 the award to be made by the
arbitrator or umpire shall be final and binding on the parties and the persons
claiming under them respectively.

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16 Power to correct slips
Unless a contrary intention is expressed in the arbitration agreement, the arbitrator
or umpire shall have power to correct in an award any clerical mistake or error
arising from any accidental slip or omission.

COSTS, FEES AND INTEREST

17 Costs
(1) Unless a contrary intention is expressed therein, every arbitration agreement

shall be deemed to include a provision that the costs of the reference and
award shall be in the discretion of the arbitrator or umpire, who may —
(a) direct to and by whom and in what manner those costs or any part

thereof shall be paid;
(b) tax or settle the amount of costs to be so paid or any part thereof; and
(c) award costs to be paid as between solicitor and client.

(2) Any costs directed by an award to be paid shall, unless the award otherwise
directs, be taxable in the High Court.

(3) Any provision in an arbitration agreement to the effect that the parties or any
party thereto shall in any event pay their or his own costs of the reference or
award or any part thereof shall be void and this Act shall, in the case of an
arbitration agreement containing any such provision, have effect as if that
provision were not contained therein.

(4) Nothing in subsection (3) shall invalidate a provision referred to therein when
it is a part of an agreement to submit to arbitration a dispute which has arisen
before the making of that agreement.

(5) If no provision is made by an award with respect to the costs of the reference,
any party to the reference may, within 14 days of the publication of the award
or such further time as the High Court may direct, apply to the arbitrator for
an order directing by and to whom those costs shall be paid, and thereupon the
arbitrator shall, after hearing any party who may desire to be heard, amend his
award by adding thereto such directions as he may think proper with respect
to the payment of the costs of the reference.

18 Arbitrator's fee
(1) If in any case an arbitrator or umpire refuses to deliver his award except on

payment of the fees demanded by him, the High Court may, on an application
for the purpose, order that —
(a) the arbitrator or umpire shall deliver the award to the applicant on

payment into court by the applicant of the fees demanded;
(b) the fees demanded shall be taxed by the taxing officer;

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(c) out of the money paid into court there shall be paid out to the arbitrator
or umpire by way of fees such sum as may be found reasonable on
taxation, and the balance of the money, if any, shall be paid out to the
applicant.

(2) An application for the purposes of this section may be made by any party to
the reference unless the fees demanded have been fixed by a written
agreement between him and the arbitrator or umpire.

(3) A taxation of fees under this section may be reviewed in the same manner as a
taxation of costs.

(4) The arbitrator or umpire shall be entitled to appear and be heard on any
taxation or review of taxation under this section.

19 Interest on awards
A sum directed to be paid by an award shall, unless the award otherwise directs,
carry interest as from the date of the award and at the same rate as a judgment debt.

SPECIAL CASES, REMISSION AND SETTING ASIDE OF
AWARDS, ETC.

20 Statement of case
(1) An arbitrator or umpire may, and shall if so directed by the High Court,

state —
(a) any question of law arising in the course of the reference; or
(b) an award or any part of an award,

in the form of a special case for the decision of the High Court.

(2) A special case with respect to an interim award or with respect to a question
of law arising in the course of a reference may be stated, or may be directed
by the High Court to be stated, notwithstanding that proceedings under the
reference are still pending.

(3) No appeal shall lie from the decision of the High Court on any case stated
under paragraph (a) of subsection (1) without the leave of the High Court or
of the Court of Appeal.

21 Power to remit
(1) In all cases of reference to award arbitration the High Court may from time to

time remit the matters referred, or any part of them, to the reconsideration of
the arbitrator or umpire.

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(2) Where an award is remitted, the arbitrator or umpire shall, unless the order
otherwise directs, make his award within three months after the date of the
order.

22 Court relief for misconduct
(1) Where an arbitrator or umpire has misconducted himself or the proceedings,

the High Court may remove him.

(2) Where an arbitrator or umpire has misconducted himself or the proceedings,
or an arbitration or award has been improperly procured, the High Court may
set the award aside.

(3) Where an application is made to set aside an award, the High Court may order
that any money made payable by the award shall be brought into court or
otherwise secured pending the determination of the application.

23 Court relief for partiality and in fraud
(1) Where —

(a) an agreement between any parties provides that disputes which may
arise in the future between them shall be referred to an arbitrator named
or designated in the agreement; and

(b) after a dispute has arisen any party applies, on the ground that the
arbitrator so named or designated is not or may not be impartial, for
leave to revoke the authority of the arbitrator or for an injunction to
restrain any other party or the arbitrator from proceeding with the
arbitration,

it shall not be a ground for refusing the application that the said party at the
time when he made the agreement knew, or ought to have known, that the
arbitrator, by reason of his relation towards any other party to the agreement
or of his connection with the subject referred, might not be capable of
impartiality.

(2) Where —
(a) an agreement between any parties provides that disputes which may

arise in the future between them shall be referred to arbitration; and
(b) a dispute which so arises involves the question whether any such party

has been guilty of fraud,

the High Court shall, so far as may be necessary to enable that question to be
determined by the High Court, have power —

(i) to order that the agreement shall cease to have effect; and
(ii) to give leave to revoke the authority of any arbitrator or umpire

appointed by or by virtue of the agreement.

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(3) In any case where by virtue of this section the High Court has power —
(i) to order that an arbitration agreement shall cease to have effect;

or
(ii) to give leave to revoke the authority of an arbitrator or umpire,

the High Court may refuse to stay any action brought in breach
of the agreement.

24 Court powers where arbitrator removed or authority revoked
(1) Where an arbitrator (not being a sole arbitrator), or two or more arbitrators

(not being all the arbitrators), or an umpire who has not entered on the
reference is or are removed by the High Court, the High Court may, on the
application of any party to the arbitration agreement, appoint a person or
persons to act as arbitrator or arbitrators or umpire in place of the person or
persons so removed.

(2) Where the authority of an arbitrator or arbitrators or umpire is revoked by
leave of the High Court., or a sole arbitrator or all the arbitrators or an umpire
who has entered on the reference is or are removed by the High Court, the
High Court may, on the application of any party to the arbitration agreement,
either —
(a) appoint a person to act as sole arbitrator in place of the person or

persons removed; or
(b) order that the arbitration agreement shall cease to have effect with

respect to the dispute referred.

(3) A person appointed under this section by the High Court as an Arbitrator or
an umpire shall have the like power to act in the reference and to make an
award as if he had been appointed in accordance with the terms of the
arbitration agreement.

(4) Where it is provided (whether by means of a provision in the arbitration
agreement or otherwise) that an award under an arbitration agreement shall be
a condition precedent to the bringing of an action with respect to any matter to
which the agreement applies, the High Court, if it orders (whether under this
section or under any other enactment) that the agreement shall have ceased to
have effect as regards any particular dispute, further order that the provisions
making an award a condition precedent to the bringing of an action shall also
cease to have effect as regards that dispute.

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ENFORCEMENT OF AWARD

25 Enforcement of Award
An award on an arbitration agreement may, by leave of the High Court, be enforced
in the same manner as a judgment or order to the same effect, and where leave is so
given, judgment may be entered in terms of the award.

MISCELLANEOUS

26 Extension of time for arbitration
Where —

(a) the terms of an agreement to refer future disputes to arbitration provide
that any claims to which the agreement applies shall be barred
unless —
(i) notice to appoint an arbitrator is given;
(ii) an arbitrator is appointed; or
(iii) some other step to commence arbitration proceedings is taken

within a time fixed by the agreement; and
(b) a dispute arises to which the agreement applies,

the High Court, if it is of opinion that in the circumstances of the case undue
hardship would otherwise be caused, and notwithstanding that the time so
fixed has expired, may, on such terms, if any, as the justice of the case may
require, but without prejudice to the provisions of any enactment limiting the
time for the commencement of arbitration proceedings, extend the time for
such period as it thinks proper.

27 Terms as to costs, etc.
Any order made under this Act may be made on such terms as to costs or otherwise
as the authority making the order thinks just.

28 Crown to be bound
This Act applies to any arbitration to which the Crown is a party.

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29 Statutory arbitrations
(1) This Act, except the provisions thereof specified in subsection (2), shall apply

to every arbitration under any other Act as if the arbitration were pursuant to
an agreement and as if that other Act were an arbitration agreement, except in
so far as this Act is inconsistent with that other Act or with any rules or
procedure authorised or recognised thereby.

(2) The provisions referred to in subsection (1) are sections 4(1), 5(3), 17(3) and
(4), 23, 24, and 26.

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ENDNOTES


1 Act 11 of 1991
Note also that with regard to International Arbitrations, the Arbitration (International Investment

Disputes) Act 1966 (Application to Colonies Etc.) Order 1967 (S.I. 1967/159) extended the
provisions of the said Act to various territories. The Act implements a Convention signed at
Washington on 18th March 1975 on the settlement of investment disputes between States and
nationals of other States.

2 GN 10/1992