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ARBITRATION AND CONCILIATION ACT.

ARRANGEMENT OF SECTIONS

   Section

PART I
PRELIMINARY.

   1.   Application.

   2.   Interpretation.

PART II
ARBITRATION.

   3.   Form of arbitration agreement.

   4.   Waiver of right to object.

   5.   Stay of legal proceedings.

   6.   Interim measures by the court.

   7.   Death of a party.

   8.   Receipt of written communications.

   9.   Extent of court intervention.

   10.   Determination of number of arbitrators.

   11.   Appointment of arbitrators.

   12.   Grounds for challenge.

   13.   Challenge procedure.

   14.   Failure or impossibility to act.

   15.   Termination of mandate and substitution of arbitrator.

   16.   Competence of arbitral tribunal to rule on its jurisdiction.

   17.   Power of arbitral tribunal.

   18.   Equal treatment of parties.

   19.   Determination of rules of procedure.

   20.   Place of arbitration.

   21.   Commencement of arbitral proceedings.

   22.   Language.

   23.   Statements of claim and defence.

   24.   Hearing and written submissions.

   25.   Default of a party.

   26.   Experts.

   27.   Court assistance in taking evidence.

   28.   Rules applicable to substance of dispute.

   29.   Decision making by panel of arbitrators.

   30.   Settlement.

   31.   Form and contents of arbitral award.

   32.   Termination of arbitral proceedings.

   33.   Correction and interpretation of arbitral award; additional award.

   34.   Application for setting aside arbitral award.

   35.   Recognition and enforcement of award.

   36.   Enforcement.

   37.   Bankruptcy.

   38.   Questions of law arising in domestic arbitration.

PART III
ENFORCEMENT OF NEW YORK CONVENTION AWARDS.

   39.   Definition.

   40.   Power of judicial authority to refer parties to arbitration.

   41.   When foreign award binding.

   42.   Conditions for enforcement of New York Convention awards.

   43.   Enforcement.

   44.   Saving.

PART IV
ENFORCEMENT OF ICSID CONVENTION AWARDS.

   45.   Definition.

   46.   Registration.

   47.   Enforcement.

PART V
CONCILIATION.

   48.   Application and scope.

   49.   Commencement of conciliation proceedings.

   50.   Number of conciliators.

   51.   Appointment of conciliators.

   52.   Submission of statements to conciliator.

   53.   Role of conciliator.

   54.   Communication between conciliator and parties.

   55.   Disclosure of information.

   56.   Cooperation of parties with conciliator.

   57.   Suggestions by parties for settlement of dispute.

   58.   Settlement agreement.

   59.   Status and effect of settlement agreement.

   60.   Confidentiality.

   61.   Termination of conciliation proceedings.

   62.   Resort to arbitral or judicial proceedings.

   63.   Costs.

   64.   Deposits.

   65.   Role of conciliator in other proceedings.

   66.   Admissibility of evidence in other proceedings.

PART VI
THE CENTRE FOR ARBITRATION AND DISPUTE RESOLUTION.

   67.   The Centre for Arbitration and Dispute Resolution.

   68.   Functions of the centre.

   69.   Governing body of the Centre for Arbitration and Dispute Resolution.

   70.   Secretariat of the centre.

   70A.   Funds of the Centre.

   70B.   Borrowing powers.

   70C.   Investment by the Centre.

   70D.   Remuneration.

   70E.   Centre to be self-accounting.

   70F.   Financial year.

   70G.   Estimates of the Centre.

   70H.   Accounts and audit.

   70I.   Minister to lay Auditor General's report before Parliament.

   70J.   Annual report.

   70K.   Minister to lay Centre's annual report before Parliament.

   70L.   Contracts.

   70M.   Fees.

PART VII
MISCELLANEOUS.

   71.   Rules.

   72.   Forms.

   73.   Government to be bound.

   74.   Saving.

 

      First Schedule   The Arbitration Rules.

      Second Schedule   Forms.

 

CHAPTER 4
ARBITRATION AND CONCILIATION ACT.

Commencement: 19 May, 2000.

   An Act to amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards, to define the law relating to conciliation of disputes and to make other provision relating to the foregoing.

 

PART I
PRELIMINARY.

 

1.   Application.

   Except as otherwise provided in any particular case, the provisions of this Act shall apply to domestic arbitration and international arbitration.

 

2.   Interpretation.

   (1) In this Act, unless the context otherwise requires—

   (a)   "appointing authority" means an institution, body or person appointed by the Minister to perform the functions of appointing arbitrators and conciliators;

   (b)   "arbitration" means any arbitration whether or not administered by a domestic or international institution where there is an arbitration agreement;

   (c)   "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not;

   (d)   "arbitral award" means any award of an arbitral tribunal and includes an interim arbitral award;

   (e)   "arbitral tribunal" means a sole arbitrator or a panel of arbitrators, and includes an umpire;

   (f)   "court" means the High Court;

   (g)   "ICSID Convention award" has the meaning assigned to it in section 45;

   (h)   "New York Convention award" has the meaning assigned to it in section 39;

   (i)   "party" means a party to an arbitration agreement and includes a person claiming through or under a party;

   (j)   "umpire" means a third arbitrator appointed by two arbitrators appointed by the parties.

   (2) Where a provision of this Act, except section 30, leaves the parties free to determine a certain issue, that freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.

   (3) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, that agreement includes any arbitration rules referred to in that agreement.

   (4) Where a provision of this Act, other than sections 25 and 32(2)(a), refers to a claim, it also applies to a counterclaim, and where it refers to a defence it also applies to a defence to a counterclaim.

 

PART II
ARBITRATION.

 

3.   Form of arbitration agreement.

   (1) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

   (2) An arbitration agreement shall be in writing.

   (3) An arbitration agreement is in writing if it is contained in—

   (a)   a document signed by the parties; or

   (b)   an exchange of letters, a telex, a telegram or other means of telecommunication which provides a record of the agreement.

   (4) The reference in a contract to a document containing an arbitration clause shall constitute an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

 

4.   Waiver of right to object.

   A party who knows of any provision of this Act from which the parties may derogate or of any requirement under the arbitration agreement which has not been complied with and yet proceeds with the arbitration without stating his or her objection to the noncompliance without undue delay or, if a time limit is prescribed, within that period of time, shall be deemed to have waived the right to object.

 

5.   Stay of legal proceedings.

   (1) A judge or magistrate before whom proceedings are being brought in a matter which is the subject of an arbitration agreement shall, if a party so applies after the filing of a statement of defence and both parties having been given a hearing, refer the matter back to the arbitration unless he or she finds—

   (a)   that the arbitration agreement is null and void, inoperative or incapable of being performed; or

   (b)   that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.

   (2) Notwithstanding that an application has been brought under subsection (1) and the matter is pending before the court, arbitral proceedings may be commenced or continued and an arbitral award may be made.

 

6.   Interim measures by the court.

   (1) A party to an arbitration agreement may apply to the court, before or during arbitral proceedings, for an interim measure of protection, and the court may grant that measure.

   (2) Where a party applies to the court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

 

7.   Death of a party.

   (1) An arbitration agreement is not discharged by the death of any party to the agreement, either as respects the deceased or any other party, but in that event the agreement is enforceable by or against the personal representative of the deceased.

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

   (3) Nothing in this section affects the operation of any law by virtue of which any right of action is extinguished by the death of a person.

 

8.   Receipt of written communications.

   (1) Unless otherwise agreed by the parties—

   (a)   any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; and

   (b)   the communication is deemed to have been received on the day it is so delivered.

   (2) If none of the places referred to in subsection (1)(a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered mail or by any other means which provides a record of the attempt to deliver it.

   (3) This section does not apply to written communications in respect of court proceedings.

 

9.   Extent of court intervention.

   Except as provided in this Act, no court shall intervene in matters governed by this Act.

 

10.   Determination of number of arbitrators.

   (1) The parties are free to determine the number of arbitrators.

   (2) If the parties fail to determine the number of arbitrators under subsection (1), there shall be one arbitrator.

 

11.   Appointment of arbitrators.

   (1) No person shall be precluded by reason of that person's nationality from acting as an arbitrator, unless otherwise agreed by the parties.

   (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators and if there is no agreement—

   (a)   in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator;

   (b)   in an arbitration with one arbitrator, the parties shall agree on the person to be appointed.

   (3) Where—

   (a)   in the case of three arbitrators, a party fails to appoint the arbitrator within 30 days after receipt of a request to do so from the other party or if the two arbitrators fail to agree on the third arbitrator within 30 days after their appointment; or

   (b)   in the case of one arbitrator, the parties fail to agree on the arbitrator,

the appointment shall be made, upon application of a party, by the appointing authority.

   (4) Where, under a procedure agreed upon by the parties for the appointment of an arbitrator or arbitrators—

   (a)   a party fails to act as required under that procedure;

   (b)   the parties or two arbitrators fail to reach the agreement expected of them under that procedure; or

   (c)   a third party, including an institution, fails to perform any function entrusted to it under that procedure,

any party may apply to the appointing authority to take the necessary measures, unless the agreement otherwise provides, for securing compliance with the procedure agreed upon by the parties.

   (5) A decision of the appointing authority in respect of a matter under subsection (3) or (4) shall be final and not be subject to appeal.

   (6) The appointing authority in appointing an arbitrator shall have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.

 

12.   Grounds for challenge.

   (1) When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.

   (2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his or her impartiality and independence, or if he or she does not possess qualifications agreed to by the parties.

   (3) A party may challenge an arbitrator appointed by him or her, or in whose appointment that party has participated, only for reasons of which he or she becomes aware after the appointment.

 

13.   Challenge procedure.

   (1) In this section, the parties are free to agree on a procedure for challenging an arbitrator.

   (2) If there is no agreement under subsection (1), a party who intends to challenge an arbitrator shall, within 15 days after becoming aware of the composition of the appointing authority or after becoming aware of any circumstances referred to in section 12(2) send a written statement of the reasons for the challenge to the appointing authority; and unless the arbitrator who is being challenged withdraws from his or her office or the other party agrees to the challenge, the appointing authority shall decide on the challenge within a period of 30 days from receipt of a written statement.

 

14.   Failure or impossibility to act.

   (1) The mandate of an arbitrator shall terminate if—

   (a)   he or she, according to the parties, is unable to perform the functions of his or her office or for any reason fails to act without undue delay;

   (b)   he or she withdraws from his or her office; or

   (c)   he or she dies.

   (2) If there is any dispute concerning any of the grounds referred to in subsection (1)(a), a party may apply to the centre to decide on the termination of the mandate.

   (3) A decision of the centre under subsection (2) shall be final and shall not be subject to appeal.

 

15.   Termination of mandate and substitution of arbitrator.

   (1) Where the mandate of an arbitrator is terminated under section 13 or 14, a substitute arbitrator shall be appointed in accordance with the procedure that was applicable to the appointment of the arbitrator being replaced.

   (2) Unless agreed by the parties—

   (a)   where a sole arbitrator or the presiding arbitrator is replaced, any hearing previously held shall be held afresh; and

   (b)   where an arbitrator, other than a sole arbitrator or a presiding arbitrator, is replaced, any hearings previously held may be held afresh at the discretion of the arbitral tribunal.

   (3) Unless agreed by the parties, an order or ruling of the arbitral tribunal made before the replacement of an arbitrator under this section shall not be invalidated solely because there has been a change in the composition of the arbitral tribunal.

 

16.   Competence of arbitral tribunal to rule on its jurisdiction.

   (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose—

   (a)   an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

   (b)   a decision by the arbitral tribunal that the contract is null and void shall not itself invalidate the arbitration clause.

   (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; but a party is not precluded from raising such a plea because he or she has appointed or participated in the appointment of an arbitrator.

   (3) A plea th

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