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26 1954

ARBITRATION ACT, 1954

PART II.

Arbitration Under Arbitration Agreements.

Authority of arbitrators and umpires to be irrevocable.

9. —The authority of the arbitrator or umpire appointed by or by virtue of an arbitration agreement shall, unless a contrary intention is expressed in the agreement, be irrevocable except by leave of the Court.

Death of party.

10. —(1) An arbitration agreement shall not be discharged by the death of any party thereto, either as respects the deceased or any other party, but shall in such an event be enforceable by or against the personal representatives of the deceased.

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

(3) Nothing in this section shall be taken to affect the operation of any enactment or rule of law by virtue of which any right of action is extinguished by the death of a person.

Provisions in case of bankruptcy.

11. —(1) In this section the word “assignee” means the Official Assignee in Bankruptcy and includes the assignee (if any) chosen by the creditors to act with the Official Assignee in Bankruptcy.

(2) Where an arbitration agreement forms part of a contract to which a bankrupt is a party, the agreement shall, if the assignee or trustee in bankruptcy does not disclaim the contract, be enforceable by or against him so far as it relates to any difference arising out of, or in connection with, such contract.

(3) Where—

(a) a person who has been adjudged bankrupt had, before the commencement of the bankruptcy, become a party to an arbitration agreement, and

(b) any matter to which the agreement applies requires to be determined in connection with or for the purposes of the bankruptcy proceedings, and

(c) the case is one to which subsection (2) of this section does not apply,

then, any other party to the agreement or the assignee or, with the consent of the committee of inspection, the trustee in bankruptcy may apply to the court having jurisdiction in the bankruptcy proceedings for an order directing that the matter in question shall be referred to arbitration in accordance with the agreement and that court may, if it is of opinion that having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly.

Power to stay proceedings where there is an arbitration agreement.

12. —(1) If any party to an arbitration agreement or any person claiming through or under him commences any proceedings in any court against any other party to the agreement or any person claiming through or under him in respect of any matter agreed to be referred, any party to such proceedings may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court, if it is satisfied that there is not sufficient reason why the matter should not be referred in accordance with the agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.

(2) Notwithstanding anything in this Part, if any party to a submission to arbitration made in pursuance of an agreement to which the Protocol of 1923 applies or any person claiming through or under him commences any legal proceedings in any court against any other party to the submission or any person claiming through or under him, in respect of any matter agreed to be referred, any party to those legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court, unless satisfied that the agreement or arbitration has become inoperative or cannot proceed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings.

Reference of interpleader issues to arbitration.

13. —Where relief by way of interpleader is granted and it appears to the Court that the claims in question are matters to which an arbitration agreement, to which the claimants are parties, applies, the Court may direct the issue between the claimants to be determined in accordance with the agreement.

Arbitrators and Umpires.

When reference is to be to a single arbitrator.

14. —Unless a contrary intention is expressed therein, every arbitration agreement shall, if no other mode of reference is provided, be deemed to include a provision that the reference shall be to a single arbitrator.

Power of parties in certain cases to supply vacancy.

15. —(1) Where—

(a) an arbitration agreement provides that the reference shall be to two arbitrators, one to be appointed by each party, and

(b) either of the appointed arbitrators refuses to act, or is incapable of acting, or dies,

then, unless the agreement expresses a contrary intention, the party, who appointed the arbitrator so refusing to act, becoming incapable of acting or dying, may appoint a new arbitrator in his place.

(2) (a) Where—

(i) an arbitration agreement provides that the reference shall be to two arbitrators, one to be appointed by each party, and

(ii) on such a reference one party fails to appoint an arbitrator, either originally or by way of substitution under subsection (1) of this section, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment,

then unless a contrary intention is expressed in the agreement, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent.

(b) The Court may set aside any appointment made under paragraph (a) of this subsection.

Umpires.

16. —(1) Unless a contrary intention is expressed therein, every arbitration agreement shall, where the reference is to two arbitrators, be deemed to include a provision that the two arbitrators shall appoint an umpire immediately after they are themselves appointed.

(2) Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to include a provision that if the arbitrators have delivered to any party to the arbitration agreement, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter upon the reference in lieu of the arbitrators, but nothing in this subsection shall be construed as preventing the umpire from sitting with the arbitrators and hearing the evidence.

(3) At any time after the appointment of an umpire, however appointed, the Court may, on the application of any party to the reference and notwithstanding anything to the contrary in the arbitration agreement, order that the umpire shall enter upon the reference in lieu of the arbitrators and as if he were a sole arbitrator.

Agreements for reference to three arbitrators.

17. —(1) Where an arbitration agreement provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the two appointed by the parties, the agreement shall have effect as if it provided for the appointment of an umpire, and not for the appointment of a third arbitrator, by the two arbitrators appointed by the parties.

(2) Where an arbitration agreement provides that the reference shall be to three arbitrators to be appointed otherwise than as is mentioned in subsection (1) of this section, the award of any two of the arbitrators shall be binding.

Power of Court in certain cases to appoint an arbitrator or umpire.

18. —In any of the following cases—

(a) where—

(i) an arbitration agreement provides that the reference shall be to a single arbitrator, and

(ii) all the parties do not, after differences have arisen, concur in the appointment of an arbitrator;

(b) if—

(i) an appointed arbitrator refuses to act, or is incapable of acting or dies, and

(ii) the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and

(iii) the parties do not supply the vacancy;

(c) where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him;

(d) where two arbitrators are required to appoint an umpire and do not appoint him;

(e) where—

(i) an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and

(ii) the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and

(iii) the parties or arbitrators do not supply the vacancy,

the following provisions shall have effect—

(1) any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint or, as the case may be, concur in appointing an arbitrator, umpire or third arbitrator,

(2) if the appointment is not made within seven clear days after the service of the notice, the Court may, on the application of the party who gave the notice, appoint an arbitrator, umpire or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.

Witnesses, Security for Costs, Discovery of Documents, etc.

Powers of arbitrators and umpires as to witnesses.

19. —(1) Unless a contrary intention is expressed therein every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrator or umpire, on oath or affirmation, in relation to the matters in dispute and shall, subject to any legal objection, produce before the arbitrator or umpire all documents (other than documents the production of which could not be compelled on the trial of an action) within their possession or power respectively which may be required or called for, and do all such other things which during the proceedings on the reference the arbitrator or umpire may require.

(2) Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the witnesses on the reference shall, if the arbitrator or umpire thinks fit, be examined on oath or affirmation.

(3) An arbitrator or umpire shall, unless a contrary intention is expressed in an arbitration agreement, have power to administer oaths to, or take the affirmations of, the parties to and witnesses on a reference under the agreement.

Powers of parties to a reference to compel attendance of witnesses.

20. —Any party to a reference under an arbitration agreement may sue out an order in the nature of a writ of subpoena ad testificandum or of a writ of subpoena duces tecum, but no person shall be compelled under any such order to produce any document which he could not be compelled to produce on the trial of an action.

Power of Court to compel attendance of prisoner as a witness.

21. —The Court may order that an order in the nature of a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before an arbitrator or umpire.

Orders by Court in relation to security for costs discovery of documents etc.

22. —(1) The Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of—

(a) security for costs;

(b) discovery and inspection of documents and interrogatories;

(c) the giving of evidence by affidavit;

(d) examination on oath of any witness before an officer of the Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction;

(e) the preservation, interim custody or sale of any goods which are the subject matter of the reference;

(f) securing the amount in dispute in the reference;

(g) the detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein, and authorising for any of the purposes aforesaid any persons to enter upon or into any land or building in the possession of any party to the reference, or authorising any samples to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence; and

(h) interim injunctions or the appointment of a receiver,

as it has for the purpose of and in relation to an action or matter in the Court.

(2) Nothing in subsection (1) of this section shall be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters mentioned in the said subsection.

Provisions as to Awards.

Time for making an award.

23. —(1) Subject to subsection (2) of section 36 of this Act and anything to the contrary in the arbitration agreement, an arbitrator or umpire shall have power to make an award at any time.

(2) The time, if any, limited for making an award, whether under this Act or otherwise, may from time to time be enlarged by order of the Court or by agreement in writing of the parties, whether that time has expired or not.

Removal of arbitrator or umpire on failure to use due dispatch.

24. —(1) The Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award.

(2) An arbitrator or umpire who is removed by the Court under subsection (1) of this section shall not be entitled to receive any remuneration in respect of his services.

(3) For the purposes of this section the expression “proceeding with a reference” includes, in a case where two arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire.

Interim awards.

25. —Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire may, if he thinks fit, make an interim award.

Specific performance.

26. —Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire shall have the same power as the Court to order specific performance of any contract other than a contract relating to land or any interest in land.

Awards to be final.

27. —Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the award to be made by the arbitrator or umpire shall be final and binding on the parties and the persons claiming under them respectively.

Power to correct slips.

28. —Unless a contrary intention is expressed in the arbitration agreement, the arbitrator or umpire shall have power to correct in an award any clerical mistake or error arising from any accidental slip or omission.

Costs, Fees and Interest.

Costs of reference and award to be in the discretion of the arbitrator or umpire.

29. —(1) Unless a contrary intention is expressed therein, every arbitration agreement shall be deemed to include a provision that the costs of the reference and award shall be in the discretion of the arbitrator or umpire who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may, with the consent of the parties, tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client.

(2) Where an award directs any costs to be paid, then, unless the arbitrator or umpire, with the consent of the parties, taxes or settles the amount thereof—

(a) the costs shall be taxed and ascertained by a Taxing Master,

(b) the procedure to obtain taxation and the rules, regulations and scales of costs of the Court relative to taxation and to the review thereof shall apply to the costs to be so taxed and ascertained as if the award were a judgment or order of the Court.

Avoidance of certain provisions as to costs in arbitration agreements.

30. —(1) Any provision in an arbitration agreement to the effect that the parties or any party thereto shall in any event pay their or his own costs of the reference or award or any part thereof shall be void, and this Part shall, in the case of an arbitration agreement containing any such provision, have effect as if that provision were not contained therein.

(2) Nothing in subsection (1) of this section shall invalidate any such provision as is mentioned in that subsection when it is part of an agreement to submit to arbitration a dispute which has arisen before the making of that agreement.

Application to arbitrator or umpire to give directions as to costs where award contains no provision.

31. —If no provision is made by an award with respect to the costs of the reference, any party to the reference may, within fourteen days of the publication of the award or such further time as the Court may direct, apply to the arbitrator or umpire for an order directing by and to whom those costs shall be paid, and thereupon the arbitrator or umpire shall, after hearing any party who may desire to be heard, amend his award by adding thereto such directions as he may think proper with respect to the payment of the costs of the reference.

Application of section 3 of Legal Practitioners (Ireland) Act, 1876, to solicitors' costs in arbitrations.

32. —Section 3 of the Legal Practitioners (Ireland) Act, 1876, (which empowers a court before which any proceeding has been heard or is pending to charge property recovered or preserved in the proceeding with the payment of solicitors' costs) shall apply as if an arbitration were a proceeding in the Court, and the Court may make declarations and orders accordingly.

Taxation of arbitrator's or umpire's fee.

33. —(1) If in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application for the purpose, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and further that the fees demanded shall be taxed by a Taxing Master and that out of the money paid into Court there shall be paid out to the arbitrator or umpire by way of fees such sum as may be found reasonable on taxation and that the balance of the money, if any, shall be paid out to the applicant.

(2) An application for the purpose of this section may be made by any party to the reference unless the fees demanded have been fixed by a written agreement between him and the arbitrator or umpire.

(3) A taxation of fees under this section may be reviewed in the same manner as a taxation of costs.

(4) The arbitrator or umpire shall be entitled to appear and be heard on any taxation or review of taxation under this section.

Interest on awards.

34. —A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt.

Special Cases, Remission and Setting aside of Awards, Removal of Arbitrator or Umpire, and Relief where Arbitrator not impartial or Questions of Fraud involved.

Statement of case by arbitrator or umpire.

35. —(1) An arbitrator or umpire may, and shall if so directed by the Court, state—

(a) any question of law arising in the course of the reference, or

(b) any award or any part of an award,

in the form of a special case for the decision of the Court.

(2) A special case with respect to an interim award or with respect to a question of law arising in the course of a reference may be stated, or may be ordered by the Court to be stated, notwithstanding that proceedings under the reference are still pending.

Power of Court to remit award.

36. —(1) In all cases of reference to arbitration, the Court may from time to time remit the matters referred or any of them to the reconsideration of the arbitrator or umpire.

(2) Where an award is remitted, the arbitrator or umpire shall, unless the order otherwise directs, make his award within three months after the date of the order.

Power of Court to remove arbitrator or umpire on ground of misconduct.

37. —Where an arbitrator or umpire has misconducted himself or the proceedings, the Court may remove him.

Power of Court to set aside award on ground of misconduct.

38. —(1) Where—

(a) an arbitrator or umpire has misconducted himself or the proceedings, or

(b) an arbitration or award has been improperly procured, the Court may set the award aside.

(2) Where an application is made to set aside an award, the Court may order that any money made payable by the award shall be brought into Court or otherwise secured pending the determination of the application.

Power of Court to give relief where arbitrator is not impartial or dispute referred involves question of fraud.

39. —(1) Where—

(a) an agreement between any parties provides that disputes which may arise in the future between them shall be referred to an arbitrator named or designated in the agreement, and

(b) after a dispute has arisen any party, on the ground that the arbitrator so named or designated is not or may not be impartial, applies to the Court for leave to revoke the authority of the arbitrator or for an injunction to restrain any other party or the arbitrator from proceeding with the arbitration,

it shall not be a ground for refusing the application that the said party at the time when he made the agreement knew, or ought to have known, that the arbitrator, by reason of his relation towards any other party to the agreement or of his connection with the subject referred, might not be impartial.

(2) Where—

(a) an agreement between any parties provides that disputes which may arise in the future between them shall be referred to arbitration, and

(b) a dispute which so arises involves the question whether any party has been guilty of fraud,

the Court shall, so far as may be necessary to enable the question to be determined by the Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement.

(3) In any case where by virtue of this section the Court has power to order that any arbitration agreement shall cease to have effect or to give leave to revoke the authority of any arbitrator or umpire, the Court may refuse to stay any action brought in breach of the agreement.

Power of Court where arbitrator is removed or authority of arbitrator is revoked.

40. —(1) Where an arbitrator (not being a sole arbitrator) or two or more arbitrators (not being all the arbitrators) or an umpire who has not entered on the reference is or are removed by the Court, the Court may, on the application of any party to the arbitration agreement, appoint a person or persons to act as arbitrator or arbitrators or umpire in place of the person or persons so removed.

(2) Where—

(a) the authority of the arbitrator or arbitrators or umpire is revoked by leave of the Court, or

(b) a sole arbitrator or all the arbitrators or an umpire who has entered on the reference is or are removed by the Court,

the Court may, on the application of any party to the arbitration agreement, either—

(i) appoint a person to act as sole arbitrator in place of the person or persons removed, or

(ii) order that the arbitration agreement shall cease to have effect with respect to the dispute referred.

(3) A person appointed under this section by the Court as an arbitrator or umpire shall have the like power to act in the reference and to make an award as if he had been appointed in accordance with the terms of the arbitration agreement.

(4) Where it is provided (whether by means of a provision in an arbitration agreement or otherwise) that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders (whether under this section or any other enactment) that the agreement shall cease to have effect as regards any particular dispute, may further order that the provision making an award a condition precedent to the bringing of an action shall also cease to have effect as regards that dispute.

Enforcement of Award.

Enforcement of award.

41. —An award on an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the award.

Limitation of Time for Commencing Arbitration Proceedings.

Application of statutes of limitation to arbitration under arbitration agreements.

42. —The statutes of limitation shall apply to an arbitration under an arbitration agreement as they apply to actions in the Court.

Accrual for purposes of statutes of limitation of right of action in respect of matters required by arbitration agreement to be referred to arbitration, where agreement provides that arbitration shall be a condition precedent to commencement of action.

43. —Notwithstanding any term in an arbitration agreement to the effect that no cause of action shall accrue in respect of any matter required by the agreement to be referred until an award is made under the agreement, a cause of action shall, for the purposes of the statutes of limitation (whether in their application to arbitrations or to other proceedings), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement.

Power of Court to extend period of limitation where it sets aside award or orders arbitration to cease to have effect.

44. —Where the Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration should cease to have effect with respect to the dispute referred, the Court may further order that the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the statutes of limitation for the commencement of the proceedings (including arbitration) with respect to the dispute referred.

Power of Court to extend time for commencing arbitration proceedings, where agreement provides that claims are to be barred unless proceedings are commenced within a specified time.

45. —Where—

(a) the terms of an agreement to refer future disputes to arbitration provide that any claims to which the agreement applies shall be barred unless notice to appoint an arbitrator is given or an arbitrator is appointed or some other step to commence arbitration proceedings is taken within a time fixed by the agreement, and

(b) a dispute arises to which the agreement applies,

the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, but without prejudice to section 42 of this Act, extend the time for such period as it thinks proper.

Extension of section 496 of the Merchant Shipping Act, 1894.

46. —In subsection (3) of section 496 of the Merchant Shipping Act, 1894 (which requires a sum deposited with a wharfinger by an owner of goods to be repaid unless legal proceedings are instituted by the shipowner) the references to legal proceedings shall be construed as including references to arbitration.

Terms of Orders.

Terms of orders.

47. —(1) Any order made under this Part by a court may be made on such terms as to costs or otherwise as that court thinks just.

(2) Subsection (1) of this section shall not apply to an order made under subsection (2) of section 12 of this Act.