Commercial Arbitration Act 2010 (NSW)

Commercial Arbitration Act 2010 No 61 An Act relating to the conduct of commercial arbitrations; to repeal the Commercial Arbitration Act 1984; and for other purposes. Part 1A Preliminary Note— Sections of this Act that contain a reference to the "Model Law" in the heading are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law. Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in New South Wales or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the "articles" of the UNCITRAL Model Law has been retained but converted to references to "sections" and articles containing more than one sentence have been re-formatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law. 1A Name of Act This Act is the Commercial Arbitration Act 2010. 1B Commencement This Act commences on a day or days to be appointed by proclamation. 1C Paramount object of Act (1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense. (2) This Act aims to achieve its paramount object by: (a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest), and (b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly. (3) This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved. (4) Subsection (3) does not affect the application of section 33 of the Interpretation Act 1987 for the purposes of interpreting this Act. Part 1 General provisions 1 Scope of application (cf Model Law Art 1) (1) This Act applies to domestic commercial arbitrations. Note— The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards. (2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in New South Wales. (3) An arbitration is domestic if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia, and (b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration, and (c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies. (4) For the purposes of subsection (3): (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement, and (b) if a party does not have a place of business, reference is to be made to the party's habitual residence. (5) This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act. (6) Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if: (a) the other Act were an arbitration agreement, and (b) the arbitration were pursuant to an arbitration agreement, and (c) the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement, except in so far as the other Act otherwise indicates or requires. Model Law note— The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road. Note— This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 contains provisions that also relate to the application of this Act. 2 Definitions and rules of interpretation (cf Model Law Art 2) (1) In this Act: arbitral tribunal means a sole arbitrator or a panel of arbitrators. arbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution. arbitration agreement—see section 7. confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following: (a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party, (b) any information supplied by a party to another party in compliance with a direction of the arbitral tribunal, (c) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal, (d) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal, (e) any transcript of oral evidence or submissions given before the arbitral tribunal, (f) any rulings of the arbitral tribunal, (g) any award of the arbitral tribunal. disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information. domestic commercial arbitration—see section 1. exercise a function includes perform a duty. function includes a power, authority or duty. interim measure—see section 17. Model Law means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006). party means a party to an arbitration agreement and includes: (a) any person claiming through or under a party to the arbitration agreement, and (b) in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration. the Court means, subject to section 6 (2), the Supreme Court. Note— The definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, function, interim measure, Model Law, party and the Court are not included in the Model Law. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such 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, such agreement includes any arbitration rules referred to in that agreement. (4) Where a provision of this Act, other than sections 25 (1) (a) and 32 (2) (a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim. (5) Notes (other than the Model Law note to section 1) included in this Act do not form part of this Act. Note— This provision is not included in the Model Law. 2A International origin and general principles (cf Model Law Art 2A) (1) Subject to section 1C, in the interpretation of this Act, regard is to be had to the need to promote so far as practicable uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) to international commercial arbitrations and the observance of good faith. (2) Note— This section differs from the Model Law. Art 2A (1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A (2) is omitted because it is covered by the provision referred to in section 1C (4). Subsections (3) and (4) reflect section 17 of the International Arbitration Act 1974 of the Commonwealth. (3) Without limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of: (a) the United Nations Commission on International Trade Law, and (b) its working groups for the preparation of the Model Law. (4) Subsection (3) does not affect the application of section 34 (Use of extrinsic material in the interpretation of Acts and statutory rules) of the Interpretation Act 1987 for the purposes of interpreting this Act. 3 Receipt of written communications (cf Model Law Art 3) (1) Unless otherwise agreed by the parties: (a) any written communication is taken to be received if: (i) it is delivered to the addressee personally, or (ii) it is delivered at the addressee's place of business, habitual residence or mailing address, or (iii) if none of these can be found after making a reasonable inquiry, it is delivered to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it, and (b) the communication is taken to have been received on the day it is so delivered. (2) The provisions of this section do not apply to communications in court proceedings. 4 Waiver of right to object (cf Model Law Art 4) A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party's objection to such non-compliance without undue delay or, if a time-limit is provided for stating the party's objection, within such period of time, is taken to have waived the party's right to object. 5 Extent of court intervention (cf Model Law Art 5) In matters governed by this Act, no court must intervene except where so provided by this Act. 6 Court for certain functions of arbitration assistance and supervision (cf Model Law Art 6) (1) The functions referred to in sections 11 (3) and (4), 13 (4), 14 (2), 16 (9), 17H–17J, 19 (6), 27–27B, 27H–27J, 33D, 34 and 34A are, subject to subsection (2), to be performed by the Supreme Court. (2) If: (a) an arbitration agreement provides that the District Court or Local Court is to have jurisdiction under this Act, or (b) the parties to an arbitration agreement have agreed in writing that the District Court or Local Court is to have jurisdiction under this Act and that agreement is in force, the functions are to be performed, in relation to that agreement, by the District Court or Local Court, as the case requires. Note— This section differs from the Model Law to the extent that it relates to functions conferred on the Court with respect to domestic commercial arbitrations that are not referred to in the Model Law. Part 2 Arbitration agreement 7 Definition and form of arbitration agreement (cf Model Law Art 7) (1) An arbitration agreement is 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. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) The arbitration agreement must be in writing. (4) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (5) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference. (6) In this section: data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. electronic communication means any communication that the parties make by means of data messages. (7) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (8) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. Note— This section is substantially the same as Option 1 set out in Art 7 of the Model Law. 8 Arbitration agreement and substantive claim before court (cf Model Law Art 8) (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court. 9 Arbitration agreement and interim measures by court (cf Model Law Art 9) It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant the measure. Part 3 Composition of arbitral tribunal 10 Number of arbitrators (cf Model Law Art 10) (1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators is to be one. Note— Subsection (2) differs from Art 10 (2) of the Model Law, which provides for 3 arbitrators if the parties do not determine the number of arbitrators. 11 Appointment of arbitrators (cf Model Law Art 11) (1) Note— Art 11 (1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted. (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (4) and (5). (3) Failing such agreement: (a) in an arbitration with 3 arbitrators and 2 parties, each party is to appoint one arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court, and (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court, and (c) in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court. (4) Where, under an appointment procedure agreed on by the parties: (a) a party fails to act as required under the procedure, or (b) the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure, or (c) a third party, including an institution, fails to perform any function entrusted to it under the procedure, any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (5) A decision within the limits of the Court's authority on a matter entrusted by subsection (3) or (4) to the Court is final. (6) The Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. Note— This section (other than subsections (3) (c), (5) and (6)) is substantially the same as Art 11 of the Model Law. Subsection (3) (c) is added to cover the contingency of the parties failing to agree on the procedure to appoint arbitrators in certain circumstances not covered by the Model Law as incorporated in this Act. It is based on clause 11 (6) of Schedule 1 to the Arbitration Act 1996 (NZ). Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. Subsection (6) does not include the requirement in Art 11 (5) of the Model Law that the Court take into account the advisability of appointing an arbitrator of a nationality other than those of the parties in appointing a sole or third arbitrator as this is not relevant in the context of domestic commercial arbitrations. 12 Grounds for challenge (cf Model Law Art 12) (1) When a person is approached in connection with the person's possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person's impartiality or independence. (2) An arbitrator, from the time of the arbitrator's appointment and throughout the arbitral proceedings, must without delay disclose any circumstances of the kind referred to in subsection (1) to the parties unless they have already been informed of them by the arbitrator. (3) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence, or if the arbitrator does not possess qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by the party, or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made. (5) For the purposes of subsection (1), there are justifiable doubts as to the impartiality or independence of a person approached in connection with a possible appointment as arbitrator only if there is a real danger of bias on the part of the person in conducting the arbitration. (6) For the purposes of subsection (3), there are justifiable doubts as to the impartiality or independence of an arbitrator only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration. Note— This section (other than subsections (5) and (6)) is substantially the same as Art 12 of the Model Law. Subsections (5) and (6) provide that the test for whether there are justifiable doubts as to the impartiality or independence of a person or arbitrator is whether there is a real danger of bias. 13 Challenge procedure (cf Model Law Art 13) (1) The parties are free to agree on a procedure for challenging an arbitrator, subject to subsection (4). (2) Failing such agreement, a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in section 12 (3), send a written statement of the reasons for the challenge to the arbitral tribunal. (3) Unless the challenged arbitrator withdraws from office or the other party agrees to the challenge, the arbitral tribunal must decide on the challenge. (4) If a challenge under any procedure agreed on by the parties or under the procedure of subsections (2) and (3) is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the Court to decide on the challenge. (5) A decision of the Court under subsection (4) that is within the limits of the authority of the Court is final. (6) While a request under subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award. Note— Section 13 (other than subsection (5)) is substantially the same as Art 13 of the Model Law. Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. 14 Failure or impossibility to act (cf Model Law Art 14) (1) If an arbitrator becomes in law or in fact unable to perform the arbitrator's functions or for other reasons fails to act without undue delay, the arbitrator's mandate terminates if the arbitrator withdraws from office or if the parties agree on the termination. (2) Otherwise, if a controversy remains concerning any of these grounds, any party may request the Court to decide on the termination of the mandate. (3) A decision of the Court under subsection (2) that is within the limits of the authority of the Court is final. (4) If, under this section or section 13 (3), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this section or section 12 (3). Note— Section 14 (other than subsection (3)) is substantially the same as Art 14 of the Model Law. Subsection (3) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. 15 Appointment of substitute arbitrator (cf Model Law Art 15) Where the mandate of an arbitrator terminates under section 13 or 14 or because of the arbitrator's withdrawal from office for any other reason or because of the revocation of the arbitrator's mandate by agreement of the parties or in any other case of termination of the arbitrator's mandate, a substitute arbitrator must be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Part 4 Jurisdiction of arbitral tribunal 16 Competence of arbitral tribunal to rule on its jurisdiction (cf Model Law Art 16) (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. (2) For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract. (3) A decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause. Note— The Model Law provides that such a decision does not "ipso jure" entail the invalidity of the arbitration clause. (4) A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence. (5) A party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator. (6) A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (7) The arbitral tribunal may, in the case of a plea referred to in subsection (4) or (6), admit a later plea if it considers the delay justified. (8) The arbitral tribunal may rule on a plea referred to in subsection (4) or (6) either as a preliminary question or in an award on the merits. (9) If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter. (10) A decision of the Court under subsection (9) that is within the limits of the authority of the Court is final. (11) While a request under subsection (9) is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. Note— Section 16 (other than subsection (10)) is substantially the same as Art 16 of the Model Law. Subsection (10) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. Part 4A Interim measures Division 1 Interim measures 17 Power of arbitral tribunal to order interim measures (cf Model Law Art 17) (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. (2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to: (a) maintain or restore the status quo pending determination of the dispute, or (b) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself, or (c) provide a means of preserving assets out of which a subsequent award may be satisfied, or (d) preserve evidence that may be relevant and material to the resolution of the dispute. (3) Without limiting subsection (2), the arbitral tribunal may make orders with respect to any of the following: (a) security for costs, (b) discovery of documents and interrogatories, (c) giving of evidence by affidavit, (d) the inspection of any property which is or forms part of the subject-matter of the dispute, (e) the taking of photographs of any property which is or forms part of the subject-matter of the dispute, (f) samples to be taken from, or any observation to be made of or experiment conducted on, any property which is or forms part of the subject-matter of the dispute, (g) dividing, recording and strictly enforcing the time allocated for a hearing between the parties (a stop clock arbitration). Note— Subsections (1) and (2) are substantially the same as Art 17 of the Model Law. There is no equivalent subsection (3) in the Model Law. 17A Conditions for granting interim measures (cf Model Law Art 17A) (1) The party requesting an interim measure under section 17 (2) (a), (b) or (c) must satisfy the arbitral tribunal that: (a) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted, and (b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim. (2) The determination on the possibility referred to in subsection (1) (b) does not affect the discretion of the arbitral tribunal in making any subsequent determination. (3) With regard to a request for an interim measure under section 17 (2) (d), the requirements in subsection (1) (a) and (b) and subsection (2) apply only to the extent the arbitral tribunal considers appropriate. Division 2 Preliminary orders 17B Note— Art 17B of the Model Law, which provides for ex parte requests for interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures, has been omitted. 17C Note— Art 17C of the Model Law, which contains safeguards for the party against whom a preliminary order is directed under Art 17B, is omitted as a consequence of the omission of Art 17B. Division 3 Provisions applicable to interim measures 17D Modification, suspension, termination (cf Model Law Art 17D) The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, on application of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal's own initiative. Note— This section is substantially the same as Art 17D of the Model Law but contains no reference to preliminary orders as a consequence of this Act not including an equivalent of Arts 17B and 17C of the Model Law. 17E Provision of security (cf Model Law Art 17E) (1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. (2) Note— Subsection (1) is the same as Art 17E (1) of the Model Law. Art 17E (2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law. 17F Disclosure (cf Model Law Art 17F) (1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted. (2) Note— Subsection (1) is the same as Art 17F (1) of the Model Law. Art 17F (2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law. 17G Costs and damages (cf Model Law Art 17G) (1) The party requesting an interim measure is liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances, the measure should not have been granted. (2) The arbitral tribunal may award such costs and damages at any point during the proceedings. Note— This section is substantially the same as Art 17G of the Model Law but the reference to applications for preliminary orders is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law. Division 4 Recognition and enforcement of interim measures 17H Recognition and enforcement (cf Model Law Art 17H) (1) An interim measure issued by an arbitral tribunal under the law of this State is to be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, subject to the provisions of section 17I. (2) An interim measure issued by an arbitral tribunal under the law of another State or Territory is to be recognised as bind