 Inglaterra Arbitration Act 1996 1996 Chapter 23
An Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. [17th June 1996] B E IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
P ART I A RBITRATION PURSUANT TO AN ARBITRATION AGREEMENT Introductory
1. The provisions of this Part are founded on the following principles, and shall be construed accordingly- (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part.
Scope of application of provisions.
2. - (1) The provisions of this
Part apply where the seat of the arbitration is in England and
Wales or Northern Ireland. (2) The following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined- (a) sections 9 to 11 (stay of legal proceedings, &c.), and (b) section 66 (enforcement of arbitral awards).
(3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined- (a) section 43 (securing the attendance of witnesses), and (b) section 44 (court powers exercisable in support of arbitral proceedings); but the court may refuse to exercise any such power
if, in the opinion of the court, the fact that the seat of the
arbitration is outside England and Wales or Northern Ireland, or
that when designated or determined the seat is likely to be outside
England and Wales or Northern Ireland, makes it inappropriate to
do so. (4) The court may exercise a power conferred by any provision of this Part not mentioned in subsection (2) or (3) for the purpose of supporting the arbitral process where- (a) no seat of the arbitration has been designated or determined, and (b) by reason of a connection with England and Wales or Northern Ireland the court is satisfied that it is appropriate to do so.
(5) Section 7 (separability of arbitration agreement)
and section 8 (death of a party) apply where the law applicable
to the arbitration agreement is the law of England and Wales or
Northern Ireland even if the seat of the arbitration is outside
England and Wales or Northern Ireland or has not been designated
or determined. (a) by the parties to the arbitration agreement, or (b) by any arbitral or other institution or person vested by the parties with powers in that regard, or (c) by the arbitral tribunal if so authorised by the parties, or determined, in the absence of any such designation,
having regard to the parties' agreement and all the relevant circumstances. Mandatory and non-mandatory provisions.
4. - (1) The mandatory provisions
of this Part are listed in Schedule 1 and have effect notwithstanding
any agreement to the contrary. (2) The other provisions of this Part (the "non-mandatory
provisions") allow the parties to make their own arrangements
by agreement but provide rules which apply in the absence of such
agreement. (3) The parties may make such arrangements by agreeing
to the application of institutional rules or providing any other
means by which a matter may be decided. (4) It is immaterial whether or not the law applicable
to the parties' agreement is the law of England and Wales or, as
the case may be, Northern Ireland. (5) The choice of a law other than the law of England
and Wales or Northern Ireland as the applicable law in respect
of a matter provided for by a non-mandatory provision of this Part
is equivalent to an agreement making provision about that matter. Agreements to be in writing.
5. - (1) The provisions of this
Part apply only where the arbitration agreement is in writing,
and any other agreement between the parties as to any matter is
effective for the purposes of this Part only if in writing. (2) There is an agreement in writing- (a) if the agreement is made in writing (whether or not it is signed by the parties), (b) if the agreement is made by exchange of communications in writing, or (c) if the agreement is evidenced in writing.
(3) Where parties agree otherwise than in writing
by reference to terms which are in writing, they make an agreement
in writing. (4) An agreement is evidenced in writing if an agreement
made otherwise than in writing is recorded by one of the parties,
or by a third party, with the authority of the parties to the agreement. (5) An exchange of written submissions in arbitral
or legal proceedings in which the existence of an agreement otherwise
than in writing is alleged by one party against another party and
not denied by the other party in his response constitutes as between
those parties an agreement in writing to the effect alleged. (6) References in this Part to anything being written
or in writing include its being recorded by any means.
Definition of arbitration agreement.
6. - (1) In this Part an "arbitration
agreement" means an agreement to submit to arbitration present
or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form
of arbitration clause or to a document containing an arbitration
clause constitutes an arbitration agreement if the reference is
such as to make that clause part of the agreement. Separability of arbitration agreement.
7. Unless otherwise agreed by the
parties, an arbitration agreement which forms or was intended to
form part of another agreement (whether or not in writing) shall
not be regarded as invalid, non-existent or ineffective because
that other agreement is invalid, or did not come into existence
or has become ineffective, and it shall for that purpose be treated
as a distinct agreement. Whether agreement discharged by death of a party.
8. - (1) Unless otherwise agreed
by the parties, an arbitration agreement is not discharged by the
death of a party and may be enforced by or against the personal
representatives of that party. (2) Subsection (1) does not affect the operation
of any enactment or rule of law by virtue of which a substantive
right or obligation is extinguished by death. Stay of legal proceedings.
9. - (1) A party to an arbitration
agreement against whom legal proceedings are brought (whether by
way of claim or counterclaim) in respect of a matter which under
the agreement is to be referred to arbitration may (upon notice
to the other parties to the proceedings) apply to the court in
which the proceedings have been brought to stay the proceedings
so far as they concern that matter. (2) An application may be made notwithstanding that
the matter is to be referred to arbitration only after the exhaustion
of other dispute resolution procedures. (3) An application may not be made by a person before
taking the appropriate procedural step (if any) to acknowledge
the legal proceedings against him or after he has taken any step
in those proceedings to answer the substantive claim. (4) On an application under this section the court
shall grant a stay unless satisfied that the arbitration agreement
is null and void, inoperative, or incapable of being performed. (5) If the court refuses to stay the legal proceedings,
any provision that an award is a condition precedent to the bringing
of legal proceedings in respect of any matter is of no effect in
relation to those proceedings. Reference of interpleader issue to arbitration.
10. - (1) Where in legal proceedings
relief by way of interpleader is granted and any issue between
the claimants is one in respect of which there is an arbitration
agreement between them, the court granting the relief shall direct
that the issue be determined in accordance with the agreement unless
the circumstances are such that proceedings brought by a claimant
in respect of the matter would not be stayed. (2) Where subsection (1) applies but the court does
not direct that the issue be determined in accordance with the
arbitration agreement, any provision that an award is a condition
precedent to the bringing of legal proceedings in respect of any
matter shall not affect the determination of that issue by the
court. Retention of security where Admiralty proceedings stayed.
11. - (1) Where Admiralty proceedings are stayed on the ground that the dispute in question should be submitted to arbitration, the court granting the stay may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest- (a) order that the property arrested be retained as security for the satisfaction of any award given in the arbitration in respect of that dispute, or (b) order that the stay of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award.
(2) Subject to any provision made by rules of court
and to any necessary modifications, the same law and practice shall
apply in relation to property retained in pursuance of an order
as would apply if it were held for the purposes of proceedings
in the court making the order. Commencement of arbitral proceedings
Power of court to extend time for beginning arbitral proceedings, &c.
12. - (1) Where an arbitration agreement to refer future disputes to arbitration provides that a claim shall be barred, or the claimant's right extinguished, unless the claimant takes within a time fixed by the agreement some step- (a) to begin arbitral proceedings, or (b) to begin other dispute resolution procedures which must be exhausted before arbitral proceedings can be begun, the court may by order extend the time for taking that step.
(2) Any party to the arbitration agreement may apply
for such an order (upon notice to the other parties), but only
after a claim has arisen and after exhausting any available arbitral
process for obtaining an extension of time. (3) The court shall make an order only if satisfied- (a) that the circumstances are such as were outside the reasonable contemplation of the parties when they agreed the provision in question, and that it would be just to extend the time, or (b) that the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question.
(4) The court may extend the time for such period
and on such terms as it thinks fit, and may do so whether or not
the time previously fixed (by agreement or by a previous order)
has expired. (5) An order under this section does not affect the
operation of the Limitation Acts (see section 13). (6) The leave of the court is required for any appeal
from a decision of the court under this section. Application of Limitation Acts.
13. - (1) The Limitation Acts apply
to arbitral proceedings as they apply to legal proceedings. (2) The court may order that in computing the time prescribed by the Limitation Acts for the commencement of proceedings (including arbitral proceedings) in respect of a dispute which was the subject matter- (a) of an award which the court orders to be set aside or declares to be of no effect, or (b) of the affected part of an award which the court orders to be set aside in part, or declares to be in part of no effect, the period between the commencement of the arbitration
and the date of the order referred to in paragraph (a) or (b) shall
be excluded. (3) In determining for the purposes of the Limitation
Acts when a cause of action accrued, any provision that an award
is a condition precedent to the bringing of legal proceedings in
respect of a matter to which an arbitration agreement applies shall
be disregarded. (4) In this Part "the Limitation Acts" means- (a) in England and Wales, the Limitation Act 1980, the Foreign Limitation Periods Act 1984 and any other enactment (whenever passed) relating to the limitation of actions; (b) in Northern Ireland, the Limitation (Northern Ireland) Order 1989, the Foreign Limitation Periods (Northern Ireland) Order 1985 and any other enactment (whenever passed) relating to the limitation of actions.
Commencement of arbitral proceedings.
14. - (1) The parties are free
to agree when arbitral proceedings are to be regarded as commenced
for the purposes of this Part and for the purposes of the Limitation
Acts. (2) If there is no such agreement the following provisions
apply. (3) Where the arbitrator is named or designated in
the arbitration agreement, arbitral proceedings are commenced in
respect of a matter when one party serves on the other party or
parties a notice in writing requiring him or them to submit that
matter to the person so named or designated. (4) Where the arbitrator or arbitrators are to be
appointed by the parties, arbitral proceedings are commenced in
respect of a matter when one party serves on the other party or
parties notice in writing requiring him or them to appoint an arbitrator
or to agree to the appointment of an arbitrator in respect of that
matter. (5) Where the arbitrator or arbitrators are to be
appointed by a person other than a party to the proceedings, arbitral
proceedings are commenced in respect of a matter when one party
gives notice in writing to that person requesting him to make the
appointment in respect of that matter.
15. - (1) The parties are free
to agree on the number of arbitrators to form the tribunal and
whether there is to be a chairman or umpire. (2) Unless otherwise agreed by the parties, an agreement
that the number of arbitrators shall be two or any other even number
shall be understood as requiring the appointment of an additional
arbitrator as chairman of the tribunal. (3) If there is no agreement as to the number of
arbitrators, the tribunal shall consist of a sole arbitrator. Procedure for appointment of arbitrators.
16. - (1) The parties are free
to agree on the procedure for appointing the arbitrator or arbitrators,
including the procedure for appointing any chairman or umpire. (2) If or to the extent that there is no such agreement,
the following provisions apply. (3) If the tribunal is to consist of a sole arbitrator,
the parties shall jointly appoint the arbitrator not later than
28 days after service of a request in writing by either party to
do so. (4) If the tribunal is to consist of two arbitrators,
each party shall appoint one arbitrator not later than 14 days
after service of a request in writing by either party to do so. (5) If the tribunal is to consist of three arbitrators- (a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so, and (b) the two so appointed shall forthwith appoint a third arbitrator as the chairman of the tribunal.
(6) If the tribunal is to consist of two arbitrators and an umpire- (a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so, and (b) the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.
(7) In any other case (in particular, if there are
more than two parties) section 18 applies as in the case of a failure
of the agreed appointment procedure. Power in case of default to appoint sole arbitrator.
17. - (1) Unless the parties otherwise
agree, where each of two parties to an arbitration agreement is
to appoint an arbitrator and one party ("the party in default")
refuses to do so, or fails to do so within the time specified,
the other party, having duly appointed his arbitrator, may give
notice in writing to the party in default that he proposes to appoint
his arbitrator to act as sole arbitrator. (2) If the party in default does not within 7 clear days of that notice being given- (a) make the required appointment, and (b) notify the other party that he has done so, the other party may appoint his arbitrator as sole
arbitrator whose award shall be binding on both parties as if he
had been so appointed by agreement. (3) Where a sole arbitrator has been appointed under
subsection (2), the party in default may (upon notice to the appointing
party) apply to the court which may set aside the appointment. (4) The leave of the court is required for any appeal
from a decision of the court under this section. Failure of appointment procedure.
18. - (1) The parties are free
to agree what is to happen in the event of a failure of the procedure
for the appointment of the arbitral tribunal. (2) If or to the extent that there is no such agreement
any party to the arbitration agreement may (upon notice to the
other parties) apply to the court to exercise its powers under
this section. (3) Those powers are- (a) to give directions as to the making of any necessary appointments; (b) to direct that the tribunal shall be constituted by such appointments (or any one or more of them) as have been made; (c) to revoke any appointments already made; (d) to make any necessary appointments itself.
(4) An appointment made by the court under this section
has effect as if made with the agreement of the parties. (5) The leave of the court is required for any appeal
from a decision of the court under this section. Court to have regard to agreed qualifications.
19. In deciding whether to exercise,
and in considering how to exercise, any of its powers under section
16 (procedure for appointment of arbitrators) or section 18 (failure
of appointment procedure), the court shall have due regard to any
agreement of the parties as to the qualifications required of the
arbitrators. Chairman.
20. - (1) Where the parties have
agreed that there is to be a chairman, they are free to agree what
the functions of the chairman are to be in relation to the making
of decisions, orders and awards. (2) If or to the extent that there is no such agreement,
the following provisions apply. (3) Decisions, orders and awards shall be made by
all or a majority of the arbitrators (including the chairman). (4) The view of the chairman shall prevail in relation
to a decision, order or award in respect of which there is neither
unanimity nor a majority under subsection (3). Umpire.
21. - (1) Where the parties have agreed that there is to be an umpire, they are free to agree what the functions of the umpire are to be, and in particular- (a) whether he is to attend the proceedings, and (b) when he is to replace the other arbitrators as the tribunal with power to make decisions, orders and awards.
(2) If or to the extent that there is no such agreement,
the following provisions apply. (3) The umpire shall attend the proceedings and be
supplied with the same documents and other materials as are supplied
to the other arbitrators. (4) Decisions, orders and awards shall be made by
the other arbitrators unless and until they cannot agree on a matter
relating to the arbitration. (5) If the arbitrators cannot agree but fail to give
notice of that fact, or if any of them fails to join in the giving
of notice, any party to the arbitral proceedings may (upon notice
to the other parties and to the tribunal) apply to the court which
may order that the umpire shall replace the other arbitrators as
the tribunal with power to make decisions, orders and awards as
if he were sole arbitrator. (6) The leave of the court is required for any appeal
from a decision of the court under this section. Decision-making where no chairman or umpire.
22. - (1) Where the parties agree
that there shall be two or more arbitrators with no chairman or
umpire, the parties are free to agree how the tribunal is to make
decisions, orders and awards. (2) If there is no such agreement, decisions, orders
and awards shall be made by all or a majority of the arbitrators. Revocation of arbitrator's authority.
23. - (1) The parties are free
to agree in what circumstances the authority of an arbitrator may
be revoked. (2) If or to the extent that there is no such agreement
the following provisions apply. (3) The authority of an arbitrator may not be revoked except- (a) by the parties acting jointly, or (b) by an arbitral or other institution or person vested by the parties with powers in that regard.
(4) Revocation of the authority of an arbitrator
by the parties acting jointly must be agreed in writing unless
the parties also agree (whether or not in writing) to terminate
the arbitration agreement. (5) Nothing in this section affects the power of the court- (a) to revoke an appointment under section 18 (powers exercisable in case of failure of appointment procedure), or (b) to remove an arbitrator on the grounds specified in section 24.
Power of court to remove arbitrator.
24. - (1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds- (a) that circumstances exist that give rise to justifiable doubts as to his impartiality; (b) that he does not possess the qualifications required by the arbitration agreement; (c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so; (d) that he has refused or failed- (i) properly to conduct the proceedings, or (ii) to use all reasonable despatch in conducting the proceedings or making an award, and that substantial injustice has been or will be caused to the applicant.
(2) If there is an arbitral or other institution
or person vested by the parties with power to remove an arbitrator,
the court shall not exercise its power of removal unless satisfied
that the applicant has first exhausted any available recourse to
that institution or person. (3) The arbitral tribunal may continue the arbitral
proceedings and make an award while an application to the court
under this section is pending. (4) Where the court removes an arbitrator, it may
make such order as it thinks fit with respect to his entitlement
(if any) to fees or expenses, or the repayment of any fees or expenses
already paid. (5) The arbitrator concerned is entitled to appear
and be heard by the court before it makes any order under this
section. (6) The leave of the court is required for any appeal
from a decision of the court under this section. Resignation of arbitrator.
25. - (1) The parties are free to agree with an arbitrator as to the consequences of his resignation as regards- (a) his entitlement (if any) to fees or expenses, and (b) any liability thereby incurred by him.
(2) If or to the extent that there is no such agreement
the following provisions apply. (3) An arbitrator who resigns his appointment may (upon notice to the parties) apply to the court- (a) to grant him relief from any liability thereby incurred by him, and (b) to make such order as it thinks fit with respect to his entitlement (if any) to fees or expenses or the repayment of any fees or expenses already paid.
(4) If the court is satisfied that in all the circumstances
it was reasonable for the arbitrator to resign, it may grant such
relief as is mentioned in subsection (3)(a) on such terms as it
thinks fit. (5) The leave of the court is required for any appeal
from a decision of the court under this section. Death of arbitrator or person appointing him.
26. - (1) The authority of an arbitrator
is personal and ceases on his death. (2) Unless otherwise agreed by the parties, the death
of the person by whom an arbitrator was appointed does not revoke
the arbitrator's authority. Filling of vacancy, &c.
27. - (1) Where an arbitrator ceases to hold office, the parties are free to agree- (a) whether and if so how the vacancy is to be filled, (b) whether and if so to what extent the previous proceedings should stand, and (c) what effect (if any) his ceasing to hold office has on any appointment made by him (alone or jointly).
(2) If or to the extent that there is no such agreement,
the following provisions apply. (3) The provisions of sections 16 (procedure for
appointment of arbitrators) and 18 (failure of appointment procedure)
apply in relation to the filling of the vacancy as in relation
to an original appointment. (4) The tribunal (when reconstituted) shall determine
whether and if so to what extent the previous proceedings should
stand. (5) His ceasing to hold office does not affect any
appointment by him (alone or jointly) of another arbitrator, in
particular any appointment of a chairman or umpire. Joint and several liability of parties to arbitrators for fees and expenses.
28. - (1) The parties are jointly
and severally liable to pay to the arbitrators such reasonable
fees and expenses (if any) as are appropriate in the circumstances. (2) Any party may apply to the court (upon notice
to the other parties and to the arbitrators) which may order that
the amount of the arbitrators' fees and expenses shall be considered
and adjusted by such means and upon such terms as it may direct. (3) If the application is made after any amount has
been paid to the arbitrators by way of fees or expenses, the court
may order the repayment of such amount (if any) as is shown to
be excessive, but shall not do so unless it is shown that it is
reasonable in the circumstances to order repayment. (4) The above provisions have effect subject to any
order of the court under section 24(4) or 25(3)(b) (order as to
entitlement to fees or expenses in case of removal or resignation
of arbitrator). (5) Nothing in this section affects any liability
of a party to any other party to pay all or any of the costs of
the arbitration (see sections 59 to 65) or any contractual right
of an arbitrator to payment of his fees and expenses. (6) In this section references to arbitrators include
an arbitrator who has ceased to act and an umpire who has not replaced
the other arbitrators. Immunity of arbitrator.
29. - (1) An arbitrator is not
liable for anything done or omitted in the discharge or purported
discharge of his functions as arbitrator unless the act or omission
is shown to have been in bad faith. (2) Subsection (1) applies to an employee or agent
of an arbitrator as it applies to the arbitrator himself. (3) This section does not affect any liability incurred
by an arbitrator by reason of his resigning (but see section 25).
Competence of tribunal to rule on its own jurisdiction.
30. - (1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to- (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.
(2) Any such ruling may be challenged by any available
arbitral process of appeal or review or in accordance with the
provisions of this Part. Objection to substantive jurisdiction of tribunal.
31. - (1) An objection that the
arbitral tribunal lacks substantive jurisdiction at the outset
of the proceedings must be raised by a party not later than the
time he takes the first step in the proceedings to contest the
merits of any matter in relation to which he challenges the tribunal's
jurisdiction. (2) Any objection during the course of the arbitral
proceedings that the arbitral tribunal is exceeding its substantive
jurisdiction must be made as soon as possible after the matter
alleged to be beyond its jurisdiction is raised. (3) The arbitral tribunal may admit an objection
later than the time specified in subsection (1) or (2) if it considers
the delay justified. (4) Where an objection is duly taken to the tribunal's substantive jurisdiction and the tribunal has power to rule on its own jurisdiction, it may- (a) rule on the matter in an award as to jurisdiction, or (b) deal with the objection in its award on the merits. If the parties agree which of these courses the tribunal should take, the tribunal shall proceed accordingly.
(5) The tribunal may in any case, and shall if the
parties so agree, stay proceedings whilst an application is made
to the court under section 32 (determination of preliminary point
of jurisdiction). Determination of preliminary point of jurisdiction.
32. - (1) The court may, on the
application of a party to arbitral proceedings (upon notice to
the other parties), determine any question as to the substantive
jurisdiction of the tribunal. (2) An application under this section shall not be considered unless- (a) it is made with the agreement in writing of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied- (i) that the determination of the question is likely to produce substantial savings in costs, (ii) that the application was made without delay, and (iii) that there is good reason why the matter should be decided by the court.
(3) An application under this section, unless made
with the agreement of all the other parties to the proceedings,
shall state the grounds on which it is said that the matter should
be decided by the court. (4) Unless otherwise agreed by the parties, the arbitral
tribunal may continue the arbitral proceedings and make an award
while an application to the court under this section is pending. (5) Unless the court gives leave, no appeal lies
from a decision of the court whether the conditions specified in
subsection (2) are met. (6) The decision of the court on the question of
jurisdiction shall be treated as a judgment of the court for the
purposes of an appeal. The arbitral proceedings
General duty of the tribunal.
33. - (1) The tribunal shall- (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
(2) The tribunal shall comply with that general duty
in conducting the arbitral proceedings, in its decisions on matters
of procedure and evidence and in the exercise of all other powers
conferred on it. Procedural and evidential matters.
34. - (1) It shall be for the tribunal
to decide all procedural and evidential matters, subject to the
right of the parties to agree any matter. (2) Procedural and evidential matters include- (a) when and where any part of the proceedings is to be held; (b) the language or languages to be used in the proceedings and whether translations of any relevant documents are to be supplied; (c) whether any and if so what form of written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended; (d) whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage; (e) whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done; (f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented; (g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law; (h) whether and to what extent there should be oral or written evidence or submissions.
(3) The tribunal may fix the time within which any
directions given by it are to be complied with, and may if it thinks
fit extend the time so fixed (whether or not it has expired). Consolidation of proceedings and concurrent hearings.
35. - (1) The parties are free to agree- (a) that the arbitral proceedings shall be consolidated with other arbitral proceedings, or (b) that concurrent hearings shall be held, on such terms as may be agreed. (2) Unless the parties agree to confer such power
on the tribunal, the tribunal has no power to order consolidation
of proceedings or concurrent hearings. Legal or other representation.
36. Unless otherwise agreed by
the parties, a party to arbitral proceedings may be represented
in the proceedings by a lawyer or other person chosen by him. Power to appoint experts, legal advisers or assessors.
37. - (1) Unless otherwise agreed by the parties- (a) the tribunal may- (i) appoint experts or legal advisers to report to it and the parties, or (ii) appoint assessors to assist it on technical matters, and may allow any such expert, legal adviser or assessor to attend the proceedings; and (b) the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person.
(2) The fees and expenses of an expert, legal adviser
or assessor appointed by the tribunal for which the arbitrators
are liable are expenses of the arbitrators for the purposes of
this Part. General powers exercisable by the tribunal.
38. - (1) The parties are free
to agree on the powers exercisable by the arbitral tribunal for
the purposes of and in relation to the proceedings. (2) Unless otherwise agreed by the parties the tribunal
has the following powers. (3) The tribunal may order a claimant to provide
security for the costs of the arbitration. (a) an individual ordinarily resident outside the United Kingdom, or (b) a corporation or association incorporated or formed under the law of a country outside the United Kingdom, or whose central management and control is exercised outside the United Kingdom.
(4) The tribunal may give directions in relation to any property which is the subject of the proceedings or as to which any question arises in the proceedings, and which is owned by or is in the possession of a party to the proceedings- (a) for the inspection, photographing, preservation, custody or detention of the property by the tribunal, an expert or a party, or (b) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property.
(5) The tribunal may direct that a party or witness
shall be examined on oath or affirmation, and may for that purpose
administer any necessary oath or take any necessary affirmation. (6) The tribunal may give directions to a party for
the preservation for the purposes of the proceedings of any evidence
in his custody or control. Power to make provisional awards.
39. - (1) The parties are free
to agree that the tribunal shall have power to order on a provisional
basis any relief which it would have power to grant in a final
award. (2) This includes, for instance, making- (a) a provisional order for the payment of money or the disposition of property as between the parties, or (b) an order to make an interim payment on account of the costs of the arbitration.
(3) Any such order shall be subject to the tribunal's
final adjudication; and the tribunal's final award, on the merits
or as to costs, shall take account of any such order. (4) Unless the parties agree to confer such power
on the tribunal, the tribunal has no such power. General duty of parties.
40. - (1) The parties shall do
all things necessary for the proper and expeditious conduct of
the arbitral proceedings. (2) This includes- (a) complying without delay with any determination of the tribunal as to procedural or evidential matters, or with any order or directions of the tribunal, and (b) where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law (see sections 32 and 45).
Powers of tribunal in case of party's default.
41. - (1) The parties are free
to agree on the powers of the tribunal in case of a party's failure
to do something necessary for the proper and expeditious conduct
of the arbitration. (2) Unless otherwise agreed by the parties, the following
provisions apply. (3) If the tribunal is satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing his claim and that the delay- (a) gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a fair resolution of the issues in that claim, or (b) has caused, or is likely to cause, serious prejudice to the respondent, the tribunal may make an award dismissing the claim. (4) If without showing sufficient cause a party- (a) fails to attend or be represented at an oral hearing of which due notice was given, or (b) where matters are to be dealt with in writing, fails after due notice to submit written evidence or make written submissions, the tribunal may continue the proceedings in the
absence of that party or, as the case may be, without any written
evidence or submissions on his behalf, and may make an award on
the basis of the evidence before it. (5) If without showing sufficient cause a party fails
to comply with any order or directions of the tribunal, the tribunal
may make a peremptory order to the same effect, prescribing such
time for compliance with it as the tribunal considers appropriate. (6) If a claimant fails to comply with a peremptory
order of the tribunal to provide security for costs, the tribunal
may make an award dismissing his claim. (7) If a party fails to comply with any other kind of peremptory order, then, without prejudice to section 42 (enforcement by court of tribunal's peremptory orders), the tribunal may do any of the following- (a) direct that the party in default shall not be entitled to rely upon any allegation or material which was the subject matter of the order; (b) draw such adverse inferences from the act of non-compliance as the circumstances justify; (c) proceed to an award on the basis of such materials as have been properly provided to it; (d) make such order as it thinks fit as to the payment of costs of the arbitration incurred in consequence of the non-compliance.
Enforcement of peremptory orders of tribunal.
42. - (1) Unless otherwise agreed
by the parties, the court may make an order requiring a party to
comply with a peremptory order made by the tribunal. (2) An application for an order under this section may be made- (a) by the tribunal (upon notice to the parties), (b) by a party to the arbitral proceedings with the permission of the tribunal (and upon notice to the other parties), or (c) where the parties have agreed that the powers of the court under this section shall be available.
(3) The court shall not act unless it is satisfied
that the applicant has exhausted any available arbitral process
in respect of failure to comply with the tribunal's order. (4) No order shall be made under this section unless
the court is satisfied that the person to whom the tribunal's order
was directed has failed to comply with it within the time prescribed
in the order or, if no time was prescribed, within a reasonable
time. (5) The leave of the court is required for any appeal
from a decision of the court under this section. Securing the attendance of witnesses.
43. - (1) A party to arbitral proceedings
may use the same court procedures as are available in relation
to legal proceedings to secure the attendance before the tribunal
of a witness in order to give oral testimony or to produce documents
or other material evidence. (2) This may only be done with the permission of
the tribunal or the agreement of the other parties. (3) The court procedures may only be used if- (a) the witness is in the United Kingdom, and (b) the arbitral proceedings are being conducted in England and Wales or, as the case may be, Northern Ireland.
(4) A person shall not be compelled by virtue of
this section to produce any document or other material evidence
which he could not be compelled to produce in legal proceedings. Court powers exercisable in support of arbitral proceedings
44. - (1) Unless otherwise agreed
by the parties, the court has for the purposes of and in relation
to arbitral proceedings the same power of making orders about the
matters listed below as it has for the purposes of and in relation
to legal proceedings. (2) Those matters are- (a) the taking of the evidence of witnesses; (b) the preservation of evidence; (c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings- (i) for the inspection, photographing, preservation, custody or detention of the property, or (ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property; and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration; (d) the sale of any goods the subject of the proceedings; (e) the granting of an interim injunction or the appointment of a receiver.
(3) If the case is one of urgency, the court may,
on the application of a party or proposed party to the arbitral
proceedings, make such orders as it thinks necessary for the purpose
of preserving evidence or assets. (4) If the case is not one of urgency, the court
shall act only on the application of a party to the arbitral proceedings
(upon notice to the other parties and to the tribunal) made with
the permission of the tribunal or the agreement in writing of the
other parties. (5) In any case the court shall act only if or to
the extent that the arbitral tribunal, and any arbitral or other
institution or person vested by the parties with power in that
regard, has no power or is unable for the time being to act effectively. (6) If the court so orders, an order made by it under
this section shall cease to have effect in whole or in part on
the order of the tribunal or of any such arbitral or other institution
or person having power to act in relation to the subject-matter
of the order. (7) The leave of the court is required for any appeal
from a decision of the court under this section. Determination of preliminary point of law
45. - (1) Unless otherwise agreed
by the parties, the court may on the application of a party to
arbitral proceedings (upon notice to the other parties) determine
any question of law arising in the course of the proceedings which
the court is satisfied substantially affects the rights of one
or more of the parties. (2) An application under this section shall not be considered unless- (a) it is made with the agreement of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied- (i) that the determination of the question is likely to produce substantial savings in costs, and (ii) that the application was made without delay.
(3) The application shall identify the question of
law to be determined and, unless made with the agreement of all
the other parties to the proceedings, shall state the grounds on
which it is said that the question should be decided by the court. (4) Unless otherwise agreed by the parties, the arbitral
tribunal may continue the arbitral proceedings and make an award
while an application to the court under this section is pending. (5) Unless the court gives leave, no appeal lies
from a decision of the court whether the conditions specified in
subsection (2) are met. (6) The decision of the court on the question of
law shall be treated as a judgment of the court for the purposes
of an appeal.
Rules applicable to substance of dispute
46. - (1) The arbitral tribunal shall decide the dispute- (a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or (b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal.
(2) For this purpose the choice of the laws of a
country shall be understood to refer to the substantive laws of
that country and not its conflict of laws rules. (3) If or to the extent that there is no such choice
or agreement, the tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable. Awards on different issues, &c.
47. - (1) Unless otherwise agreed
by the parties, the tribunal may make more than one award at different
times on different aspects of the matters to be determined. (2) The tribunal may, in particular, make an award relating- (a) to an issue affecting the whole claim, or (b) to a part only of the claims or cross-claims submitted to it for decision. (3) If the tribunal does so, it shall specify in its award the issue, or the claim or part of a claim, which is the subject matter of the award.
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