Commercial Arbitration Act 2012 (WA)

Western Australia Commercial Arbitration Act 2012 Western Australia Commercial Arbitration Act 2012 Contents Part 1A — Preliminary 1A. Short title 2 1B. Commencement 2 1C. Paramount object of Act 2 1D. Explanation of origin and structure of Act 3 1E. Act to bind Crown 3 Part 1 — General provisions 1. Scope of application (cf. Model Law Art 1) 4 2. Definitions and rules of interpretation (cf. Model Law Art 2) 5 2A. International origin and general principles (cf. Model Law Art 2A) 7 3. Receipt of written communications (cf. Model Law Art 3) 8 4. Waiver of right to object (cf. Model Law Art 4) 9 5. Extent of court intervention (cf. Model Law Art 5) 9 6. Court for certain functions of arbitration assistance and supervision (cf. Model Law Art 6) 9 Part 2 — Arbitration agreement 7. Definition and form of arbitration agreement (cf. Model Law Art 7) 11 8. Arbitration agreement and substantive claim before court (cf. Model Law Art 8) 12 9. Arbitration agreement and interim measures by court (cf. Model Law Art 9) 12 Part 3 — Composition of arbitral tribunal 10. Number of arbitrators (cf. Model Law Art 10) 13 11. Appointment of arbitrators (cf. Model Law Art 11) 13 12. Grounds for challenge (cf. Model Law Art 12) 15 13. Challenge procedure (cf. Model Law Art 13) 16 14. Failure or impossibility to act (cf. Model Law Art 14) 16 15. Appointment of substitute arbitrator (cf. Model Law Art 15) 17 Part 4 — Jurisdiction of arbitral tribunal 16. Competence of arbitral tribunal to rule on its jurisdiction (cf. Model Law Art 16) 18 Part 4A — Interim measures Division 1 — Interim measures 17. Power of arbitral tribunal to order interim measures (cf. Model Law Art 17) 20 17A. Conditions for granting interim measures (cf. Model Law Art 17A) 21 Division 2 — Preliminary orders 17B. (Not used) 21 17C. (Not used) 22 Division 3 — Provisions applicable to interim measures 17D. Modification, suspension, termination (cf. Model Law Art 17D) 22 17E. Provision of security (cf. Model Law Art 17E) 22 17F. Disclosure (cf. Model Law Art 17F) 22 17G. Costs and damages (cf. Model Law Art 17G) 23 Division 4 — Recognition and enforcement of interim measures 17H. Recognition and enforcement (cf. Model Law Art 17H) 23 17I. Grounds for refusing recognition or enforcement (cf. Model Law Art 17I) 24 Division 5 — Court‑ordered interim measures 17J. Court‑ordered interim measures (cf. Model Law Art 17J) 25 Part 5 — Conduct of arbitral proceedings 18. Equal treatment of parties (cf. Model Law Art 18) 26 19. Determination of rules of procedure (cf. Model Law Art 19) 26 20. Place of arbitration (cf. Model Law Art 20) 27 21. Commencement of arbitral proceedings (cf. Model Law Art 21) 27 22. Language (cf. Model Law Art 22) 27 23. Statements of claim and defence (cf. Model Law Art 23) 28 24. Hearings and written proceedings (cf. Model Law Art 24) 29 24A. Representation 29 24B. General duties of parties 30 25. Default of a party (cf. Model Law Art 25) 30 26. Expert appointed by arbitral tribunal (cf. Model Law Art 26) 32 27. Court assistance in taking evidence (cf. Model Law Art 27) 32 27A. Parties may obtain subpoenas 32 27B. Refusal or failure to attend before arbitral tribunal or to produce document 33 27C. Consolidation of arbitral proceedings 35 27D. Power of arbitrator to act as mediator, conciliator or other non‑arbitral intermediary 37 27E. Disclosure of confidential information 38 27F. Circumstances in which confidential information may be disclosed 39 27G. Arbitral tribunal may allow disclosure of confidential information in certain circumstances 40 27H. The Court may prohibit disclosure of confidential information in certain circumstances 41 27I. The Court may allow disclosure of confidential information in certain circumstances 42 27J. Determination of preliminary point of law by the Court 42 Part 6 — Making of award and termination of proceedings 28. Rules applicable to substance of dispute (cf. Model Law Art 28) 44 29. Decision‑making by panel of arbitrators (cf. Model Law Art 29) 44 30. Settlement (cf. Model Law Art 30) 45 31. Form and contents of award (cf. Model Law Art 31) 45 32. Termination of proceedings (cf. Model Law Art 32) 45 33. Correction and interpretation of award; additional award (cf. Model Law Art 33) 46 33A. Specific performance 47 33B. Costs 47 33C. Application of Legal Profession Uniform Law (WA) 49 33D. Costs of abortive arbitration 49 33E. Interest up to making of award 49 33F. Interest on debt under award 50 Part 7 — Recourse against award 34. Application for setting aside as exclusive recourse against arbitral award (cf. Model Law Art 34) 52 34A. Appeals against awards 53 Part 8 — Recognition and enforcement of awards 35. Recognition and enforcement (cf. Model Law Art 35) 56 36. Grounds for refusing recognition or enforcement (cf. Model Law Art 36) 56 Part 9 — Miscellaneous 37. Death of party 58 38. Interpleader 58 39. Immunity 58 40. Court rules 59 41. Regulations 59 Part 10 — Transitional 42. Transitional regulations 61 43. Savings and transitional provisions 62 Part 11 — Repeal and amendments Division 1 — Repeal 44. Commercial Arbitration Act 1985 repealed 63 Division 2 — Amendments 45. Acts amended 63 Notes Compilation table 67 Uncommenced provisions table 67 Defined terms Western Australia Commercial Arbitration Act 2012 An Act relating to the conduct of commercial arbitrations, to repeal the Commercial Arbitration Act 1985 and for other purposes. The Parliament of Western Australia enacts as follows: Part 1A — Preliminary 1A. Short title This is the Commercial Arbitration Act 2012. 1B. Commencement This Act comes into operation as follows — (a) sections 1A and 1B — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 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 the Interpretation Act 1984 section 18 for the purposes of interpreting this Act. 1D. Explanation of origin and structure of Act (1) 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. (2) 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 Western Australia or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). (3) Notes draw attention to substantive changes. (4) 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. (5) This section does not affect the interpretation or application of this Act. 1E. Act to bind Crown This Act binds the State and, so far as the legislative power of the State permits, the Crown in all its other capacities. Note for this section: There is no equivalent to this section in the Model Law. Part 1 — General provisions 1. Scope of application (cf. Model Law Art 1) (1) This Act applies to domestic commercial arbitrations. Note for this subsection: 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 Western Australia. (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 (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 for this section: 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 for this section: This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. 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 has the meaning given in 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 has the meaning given in section 1(3); exercise a function includes perform a duty; interim measure has the meaning given in section 17(2); 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 for this subsection: The definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, interim measure, Model Law, party and the Court are not included in the Model Law. (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 for this subsection: 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 (Commonwealth)) to international commercial arbitrations and the observance of good faith. (2) ………. (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 the Interpretation Act 1984 section 19 for the purposes of interpreting this Act. Note for this section: 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. 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 to 17J, 19(6), 27 to 27B, 27H to 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 the Magistrates 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 the Magistrates 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 the Magistrates Court, as the case requires. Note for this section: 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 for this section: 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 for this section: 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 for this subsection: 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 for this section: 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 for this section: 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 for this section: 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 for this section: 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 for this subsection: 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 for this section: 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 o