Bill 26 — First Session, 21St Legislature, 35 Elizabeth Ii the Legislative Assembly of Alberta Bill 26 International Commercial Arbitration Act the Attorney General (Legislature 21, Session 1)

L21 S1 3212

Alberta — Bills

1986 BILL 26 First Session, 21st Legislature, 35 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 26 INTERNATIONAL COMMERCIAL ARBITRATION ACT THE ATTORNEY GENERAL First Reading Second Reading Committee of the Whole Third Reading Royal Assent

Bill 26 BILL 26 1986 INTERNATIONAL COMMERCIAL ARBITRATION ACT (Assented to , 1986) Table of Contents

Interpretation 1

Part 1 Foreign Arbitral Awards Application of Convention 2 Application to court 3

Part 2 Intemational Commercial Arbitration Application of Intemational Law 4 Conciliation and other proceedings 5 Removal of arbitrator 6 Rules applicable to substance of dispute 7 Consolidation of proceedings 8 Court 9

Part 3 General Stay of proceedings 10 Crown bound 11 Aids in

interpretation 12 Coming into force 13 Schedules HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Interpretation 1(1) In this Act, (a) "Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on Intemational Commercial Arbitration in New York on June 10, 1958, as set out in

Schedule 1; (b) "Intemational Law" means the Model Law on Intemational Commercial Arbitration adopted by the United Nations Com mission on Intemational Trade Law on June 21, 1985, as set out in

Schedule 2. 1

(2) Words and expressions used in this Act have the same meaning as the cortesponding words and expressions in the Convention or the Intemational Law, as the case may be. Application of Convention Application to court PARTI FOREIGN ARBITRAL AWARDS 2(1) Subject to this Act, the Convention applies in the Province.

(2) The Convention applies to arbitral awards and arbitration agree ments whether made before or after the coming into force of this Part, but applies only in respect of differences arising out of com mercial legal relationships, whether contractual or not. 3 For the purpose of seeking recognition of an arbitral award pur suant to the Convention, application shaU be made to the Court of Queen's Bench.

PART 2 INTERNATIONAL COMMERCIAL ARBITRATION Application of International Law Conciliation and other proceedings 4(1) Subject to this Act, the Intemational Law applies in the Prov ince.

(2) The Intemational Law applies to intemational commercial arbi tration agreements and awards, whether made before or after the coming into force of this Part. 5 For the purpose of encouraging settlement of a dispute, an arbitral tribunal may, with the agreement of the parties, employ mediation, conciliation or other procedures at any time during the arbitration proceedings and, with the agreement of the parties, the members of the arbitral tribunal are not disqualified from resuming their roles as arbitrators by reason of the mediation, conciliation or other proce dure.

Removal of arbitrator Rules applicable to substance of dispute Consolidation of proceedings 6(1) Unless the parties otherwise agree, if an arbitrator is replaced or removed in accordance with the Intemational Law, any hearing held prior to the replacement or removal shall be repeated.

(2) With respect to

article 15 of the Intemational Law, the parties may remove an arbitrator at any time prior to the final award, re gardless of how the arbitrator was appointed. 7 Notwithstanding

article 28(2) of the International Law, if the par ties fail to make a designation pursuant to

article 28(1) of the Inter national Law, the arbitral tribunal shall apply the mles of law it considers to be appropriate given all the circumstances respecting the dispute. 8(1) The Court of Queen's Bench, on application of the parties to 2 or more arbitration proceedings, may order (

a) the arbitration proceedings to be consolidated, on terms it considers just.

Court (

b) the arbitration proceedings to be heard at the same time, or one immediately after another, or (

c) any of the arbitration proceedings to be stayed until after the determination of any other of them.

(2) Where the Court orders arbitration proceedings to be consoli dated pursuant to subsection (l)(

a) and all the parties to the consol idated arbitration proceedings are in agreement as to the choice of the arbitral tribunal for that arbitration proceeding, the arbitral tri bunal shall be appointed by the Court, but if all the parties cannot agree, the Court may appoint the arbitral tribunal for that arbitration proceeding.

(3) Nothing in this

section shaU be construed as preventing the par ties to 2 or more arbitration proceedings from agreeing to consolidate those arbitration proceedings and to take such steps as are necessary to effect that consolidation. 9(1) The functions referted to in

article 6 of the Intemational Law shall be performed by the Court of Queen's Bench.

(2) For the purposes of the Intemational Law, a reference to "court" or "competent court", where in the context it means a court in the Province, means the Court of Queen's Bench. Stay of proceedings

PART 3 GENERAL 10 Where, pursuant to

article 11(3) of the Convention or

article 8 of the Intemational Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates. Crown bound 11 This Act binds the Crown. Aids in

interpretation Coming into force 12(1) This Act shall be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the Act in their context and in the light of its objects and purposes.

(2) In applying subsection (1) to the Intemational Law, recourse may be had to (

a) the Report of the United Nations Commission on Intema tional Trade Law on the Work of its Eighteenth Session (June 3-21, 1985), and (

b) the Intemational Commercial Arbitration Analytical Com mentary on Draft Text of a Model Law on Intemational Com mercial Arbitration, which shall be published in The Alberta Gazette. 13 This Act comes into force on Proclamation.

SCHEDULE 1 CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

Article I 1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether phys ical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforce ment are sought. 2.

The term "arbitral awards" shall include not only awards made by arbitrators appointed for each case but also those made by per manent arbitral bodies to which the parties have submitted. 3. When signing, ratifying or acceding to this Convention, or noti fying extension under

article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recogni tion and enforcement of awards made only in the territory of another Contracting State. It may also declare that it vrill apply the Conven tion only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.

Article II 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, conceming a subject matter capable of settlement by arbitration. 2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3.

The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shaU, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

Article III Each Contracting State shaU recognize arbitral awards as binding and enforce them in accordance with the mles of procedure of the terri tory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

Article IV 1. To obtain the recognition and enforcement mentioned in the pre ceding article, the party applying for recognition and enforcement shaU, at the time of the application, supply:

a) The duly authenticated original award or a duly certified copy thereof;

b) The original agreement referted to in

article II or a duly certified copy thereof. 2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shaU produce a trans lation of these documents into such language. The translation shall be certified by an official or swom translator or by a diplomatic or consular agent.

Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party fiimishes to the competent authority where the recognition and en forcement is sought, proof that:

a) The parties to the agreement referred to in

article II were, under the law applicable to them, under some incapacity, or the said agree ment is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the countn, where the award was made; or

b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration pro ceedings or was otherwise unable to present his case; or

c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it con tains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to ar bitration may be recognized and enforced; or

d) The composition of the arbitral authority or the arbitral proce dure was not in accordance with the agreement of the parties, or. failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award ma\ also be refused if the competent authority in the countn, where recognition and enforcement is sought finds that:

a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

b) The recognition or enforcement of the award would be contrary to the public policy of that country.

Article VI If an application for the setting aside or suspension of the award has been made to a competent authority referted to in

article V(l)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjoum the decision on the enforcement of the award and may also, on the application of the party claiming enforce ment of the award, order the other party to give suitable security.

Article VII 1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements conceming the recog nition and enforcement of arbitral awards entered into by the Con tracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. 2.

The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shaU cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.

Article VIII 1. This Convention shall be open until 31 December 1958 for sig nature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the Intemational Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations. 2. This Convention shall be ratified and the instmments of ratifi cation shall be deposited with the Secretary-General of the United Nations.

Article IX 1. This Convention shall be open for accession to all States referted to in

article VIII. 2. Accession shall be effected by the deposit of an instmment of accession with the Secretary-General of the United Nations.

Article X 1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the terri tories for the intemational relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concemed.

2. At any time thereafter any such extension shall be made by no tification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concemed, whichever is the later. 3.

With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concemed shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such terri tories, subject, where necessary for constitutional reasons, to the con sent of the Governments of such territories.

Article XI In the case of a federal or non-unitary State, the following provisions shall apply:

a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Govemment shall to this extent be the same as those of Contracting States which are not federal States;

b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Govemment shall bring such arti cles with a favourable recommendation to the notice of the appro priate authorities of constituent states or provinces at the earliest possible moment;

c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-Gen eral of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.

Article XII 1. This Convention shaU come into force on the ninetieth day fol lowing the date of deposit of the third instmment of ratification or accession. 2. For each State ratifying or acceding to this Convention after the deposit of the third instmment of ratification or accession, this Con vention shall enter into force on the ninetieth day after deposit by such State of its instmment of ratification or accession.

Article XIII 1. Any Contracting State may denounce this Convention by a writ ten notification to the Secretary-General of the United Nations. Den unciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

2. Any State which has made a declaration or notification under

article X may, at any time thereafter, by notification to the Secretary- General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General. 3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect.

Article XIV A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.

Article XV The Secretary-General of the United Nations shall notify the States contemplated in

article VIII of the following:

a) Signatures and ratifications in accordance with

article VIII;

b) Accessions in accordance vrith

article IX;

c) Declarations and notifications under articles I, X and XI;

d) The date upon which this Convention enters into force in accord ance with

article XII;

e) Denunciations and notifications in accordance with

article XIII.

Article XVI 1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in

article VIII.

SCHEDULE 2 UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (As adopted by the United Nations Commission on International Trade Law on 21 June 1985)

CHAPTER I. GENERAL PROVISIONS

Article 1. Scope of application

(1) This Law applies to intemational commercial arbitration, subject to any agreement in force between this State and any other State or States.

(2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory of this State.

(3) An arbitration is intemational if: (

a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in dif ferent States; or (

b) one of the following places is situated outside the State in which the parties have their places of business: (

i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (

c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.

(4) For the purposes of paragraph (3) of this article: (

a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitra tion agreement; (

b) if a party does not have a place of business, reference is to be made to his habitual residence.

(5) This Law shall not affect any other law of this State 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 Law.

Article 2.

Definitions and rules of

interpretation For the purposes of this Law: (a) "arbitration" means any arbitration whether or not admin istered by a permanent arbitral institution;

(b) "arbitral tribunal" means a sole arbitrator or a panel of ar bitrators; (c) "court" means a body or organ of the judicial system of a State; (

d) where a provision of this Law, except

article 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination; (

e) where a provision of this Law 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 arbitra tion mles referted to in that agreement; (

f) where a provision of this Law, other than in articles 25(

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.

Article 3. 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; if none of these 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 res idence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; (

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

(2) The provisions of this

article do not apply to communications in court proceedings.

Article 4. Waiver of right to object A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agree ment has not been complied with and yet proceeds with the arbitra tion without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such pe riod of time, shall be deemed to have waived his right to object.

Article 5. Extent of court intervention In matters govemed by this Law, no court shall intervene except where so provided in this Law.

Article 6. Court or other authority for certain functions of arbitration assistance and supervision The functions referted to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed by (Each state enacting this model law specifies the court, courts or, where referted to therein, other authority competent to perform these functions.) 10

CHAPTER II. ARBITRATION AGREEMENT

Article 7. Definition and form of arbitration agreement (1) "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. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agree ment.

(2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommun ication which provide a record of the agreement, or 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 another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his 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 per formed.

(2) Where an action referted to in paragraph (1) of this

article 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.

Article 9. Arbitration agreement and interim measures by court It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an in terim measure of protection and for a court to grant such measure.

CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL

Article 10. Number of arbitrators

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

(2) Failing such determination, the number of arbitrators shall be three.

Article 11. Appointment of arbitrators

(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. 11

(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement, (

a) in an arbitration with three arbitrators, each party shall ap point one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitra tor within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appoint ment shall be made, upon request of a party, by the court or other authority specified in

article 6; (

b) in an arbitration with a sole arbitrator, if the parties are un able to agree on the arbitrator, he shall be appointed, upon re quest of a party, by the court or other authority specified in

article 6.

(4) Where, under an appointment procedure agreed upon by the parties, (

a) a party fails to act as required under such procedure, or (

b) the parties, or two arbitrators, are unable to reach an agree ment expected of them under such procedure, or (

c) a third party, including an institution, fails to perform any function entmsted to it under such procedure, any party may request the court or other authority specified in

article 6 to take the necessary measure, unless the agreement on the appoint ment procedure provides other means for securing the appointment.

(5) A decision on a matter entmsted by paragraph (3) or (4) of this

article to the court or other authority specified in

article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall 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 im partial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.

Article 12. Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or inde pendence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been in formed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose 12

appointment he has participated, only for reasons of which he be comes aware after the appointment has been made.

Article 13. Challenge procedure

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an ar bitrator shall, within fifteen days after becoming aware of the consti tution of the arbitral tribunal or after becoming aware of any circum stance referted to in

article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the chal lenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this

article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in

article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pend ing, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

Article 14. Failure or impossibility to act

(1) If an arbitrator becomes dejure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains con ceming any of these grounds, any party may request the court or other authority specified in

article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal.

(2) If, under this

article or

article 13(2), an arbitrator withdraws from his 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 referted to in this

article or

article 12(2).

Article 15. Appointment of substitute arbitrator Where the mandate of an arbitrator terminates under

article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the mles that were appli cable to the appointment of the arbitrator being replaced.

CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL

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

(1) The arbitral tribunal may mle on its own jurisdiction, including any objections with respect to the existence or validity of the arbitra tion agreement. For that purpose, an arbitration clause which forms 13

part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the inva lidity of 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. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may mle on a plea referted to in paragraph (2) of this

article either as a preliminary question or in an award on the merits. If the arbitral tribunal mles as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that mling, the court specified in

article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

Article 17. Power of arbitral tribunal to order interim measures Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in re spect of the subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.

CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS

Article 18. Equal treatment of parties The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.

Article 19. Determination of rules of procedure

(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power confemed upon the arbitral tri bunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Article 20. Place of arbitration

(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, in cluding the convenience of the parties. 14

(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspec tion of goods, other property or documents.

Article 21. Commencement of arbitral proceedings Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

Article 22. Language

(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.

(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

Article 23. Statements of claim and defence

(1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shaU state his defence in respect of these particulars, un less the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.

Article 24. Hearings and written proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presenta tion of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of in spection of goods, other property or documents.

(3) All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other 15

party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communi cated to the parties.

Article 25. Default of a party Unless otherwise agreed by the parties, if, v^dthout showing sufficient cause, (

a) the claimant fails to communicate his statement of claim in accordance with

article 23(1), the arbitral tribunal shall terminate the proceedings; (

b) the respondent fails to communicate his statement of defence in accordance with

article 23(1), the arbitral tribunal shall con tinue the proceedings without treating such failure in itself as an admission of the claimant's allegations; (

c) any party fails to appear at a hearing or to produce documen tary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.

Article 26. Expert appointed by arbitral tribunal

(1) Unless otherwise agreed by the parties, the arbitral tribunal (

a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; (

b) may require a party to give the expert any relevant informa tion or to produce, or to provide access to, any relevant docu ments, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

Article 27. Court assistance in taking evidence The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its mles on taking evidence.

CHAPTER VI. MAKING OF AWARD AND TERMINATION OF PROCEEDINGS

Article 28. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such mles of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be constmed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws mles. 16

(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws mles which it con siders applicable.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

Article 29. Decision making by panel of arbitrators In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.

Article 30. Settlement

(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(2) An award on agreed terms shall be made in accordance with the provisions of

article 31 and shaU state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.

Article 31. Form and contents of award

(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbi tral tribunal shall suffice, provided that the reason for any omitted signature is stated.

(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under

article 30.

(3) The award shall state its date and the place of arbitration as determined in accordance with

article 20(1). The award shall be deemed to have been made at that place.

(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this

article shall be delivered to each party.

Article 32. Termination of proceedings

(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article. 17

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when (

a) the claimant withdraws his claim, unless the respondent ob jects thereto and the arbitral tribunal recognizes a legitimate in terest on his

part in obtaining a final settlement of the dispute; (

b) the parties agree on the termination of the proceedings; (

c) the arbitral tribunal finds that the continuation of the pro ceedings has for any other reason become unnecessary or impos sible.

(3) The mandate of the arbitral tribunal terminates with the termi nation of the arbitral proceedings, subject to the provisions of articles 33 and 34(4).

Article 33. Correction and

interpretation of award; additional award

(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties: (

a) a party, with notice to the other party, may request the arbi tral tribunal to correct in the award any ertors in computation, any clerical or typographical ertors or any ertors of similar nature; (

b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an

interpretation of a specific point or part of the award. If the arbitral tribunal considers the request to be justified, it shall make the correction or give the

interpretation within thirty days of receipt of the request. The

interpretation shall form part of the award.

(2) The arbitral tribunal may correct any error of the type referred to in paragraph (l)(

a) of this

article on its own initiative within thirty days of the date of the award.

(3) Unless othenvise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims pre sented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days.

(4) The arbitral tribunal may extend, if necessary, the period of time within which it shaU make a correction,

interpretation or an addi tional award under paragraph (1) or (3) of this article.

(5) The provisions of

article 31 shaU apply to a cortection or inter pretation of the award or to an additional award.

CHAPTER VII. RECOURSE AGAINST AWARD

Article 34. Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article. 18

(2) An arbitral award may be set aside by the court specified in

article 6 only if: (

a) the party making the application furnishes proof that: (

i) a party to the arbitration agreement referred to in

article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provi sion of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or (

b) the court finds that: (

i) the subject-matter of the dispute is not capable of settle ment by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under

article 33, from the date on which that request had been dis posed of by the arbitral tribunal.

(4) The court, when asked to set aside an award, may, where appro priate and so requested by a party, suspend the setting aside proceed ings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS

Article 35. Recognition and enforcement

(1) An arbitral award, irtespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this

article and of

article 36. 19

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referted to in

article 7 or a duly certified copy thereof. If the award or agreement is not made in an official language of this State, the party shall supply a duly certified translation thereof into such language.

Article 36. Grounds for refusing recognition or enforcement

(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only: (

a) at the request of the party against whom it is invoked, if that party fumishes to the competent court where recognition or en forcement is sought proof that: (

i) a party to the arbitration agreement referred to in

article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains de cisions on matters submitted to arbitration may be recog nized and enforced; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (

v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or (

b) if the court finds that: (

i) the subject-matter of the dispute is not capable of settle ment by arbitration under the law of this State; or (ii) the recognition or enforcement of the award would be contrary to the public policy of this State.

(2) If an application for setting aside or suspension of an award has been made to a court referted to in paragraph (l)(a)(

v) of this article, the court where recognition or enforcement is sought may, if it con siders it proper, adjoum its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security. 20 Title: 1986 (21st, 1st) Bill 26, International Commercial Arbitration Act

Document details

Collection	Alberta — Bills
Citation	L21 S1 3212
Type	bill
Volume / chapter	L21 S1 3212
Language	en
Format	json
Source	PROVINCIAL
Identifier	6774cd0b3451801177b3bbafe43ef9533a1c3ab0

Source file is stored in the law ingest library (json).