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Arbitration Amendment Act 1938

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

ARBITRATION AMENDMENT ACT 1938

1938/6 (NZ) – 1 January 1939

1 Short title

2 Interpretation

3 Submission not to be discharged by death of party

4 [Repealed]

5 Power of Court where arbitrator is removed or appointment of arbitrator is revoked

6 Appointment of three arbitrators

7 Provisions relating to umpires

8 Arbitrators and umpires to use due dispatch

9 [Spent]

10 Additional powers of Court

11 Statement of case by arbitrator or umpire

12 Entry of judgment in terms of award

13 Interest on awards

14 Provision as to costs

15 Taxation of arbitrator’s or umpire’s fees

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

17 [Spent]

18 Limitation of time for commencing arbitration proceedings

19-21 [Repealed]

SCHEDULE

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To amend the Arbitration Act 1908

1 Short title

This is the Arbitration Amendment Act 1938, and shall be read together with and deemed part of the Arbitration Act 1908 (the principal Act).

2 Interpretation

References in this Act and in the principal Act to an award shall be deemed to include references to an interim award.

3 Submission not to be discharged by death of party

(1) A submission shall not be discharged by the death of any party to it, either as respects the deceased or any other party, but shall in such an event be enforceable by or against the personal representative 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.

4 [Repealed by 2004/270]

5 Power of Court where arbitrator is removed or appointment of arbitrator is revoked

(1) Where an arbitrator (not being a sole arbitrator) or 2 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 submission, appoint a person or persons to act as arbitrator or arbitrators or umpire in place of the person or persons so removed.

(2) Where the appointment of an arbitrator or arbitrators or umpire is revoked by leave of the Court, or 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 submission, either –

(a) Appoint a person to act as sole arbitrator in place of the person or persons removed; or

(b) Order that the submission shall cease to have effect with respect to the dispute referred.

(3) A person appointed 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 under the terms of the submission.

(4) Where it is provided (whether by means of a provision in the submission or otherwise) that an award under a submission shall be a condition precedent to the bringing of an action with respect to any matter to which the submission applies, the Court, if it orders (whether under this section or under any other enactment) that the submission 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.

6 Appointment of three arbitrators

(1) Where a submission provides that the reference shall be to 3 arbitrators, one to be appointed by each party and the third to be appointed by the 2 appointed by the parties, the submission shall have effect as if it provided for the appointment of an umpire, and not for the appointment of a third arbitrator, by the 2 arbitrators appointed by the parties.

(2) Where a submission provides that the reference shall be to 3 arbitrators to be appointed otherwise than as mentioned in the subsection (1), the award of any 2 of the arbitrators shall be binding.

7 Provisions relating to umpires

(1) [Spent]

(2) [Spent]

(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 submission, order that the umpire shall enter on the reference in lieu of the arbitrators and as if he were a sole arbitrator.

8 Arbitrators and umpires to use due dispatch

(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 this section shall not be entitled to receive any remuneration in respect of his services.

(3) Subject to section 11 (2) of the principal Act and to anything to the contrary in the submission, an arbitrator or umpire shall have power to make an award at any time.

(4) For the purposes of this section the expression "proceeding with a reference" includes, in a case where 2 arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire.

9 [Spent]

10 Additional powers of Court

(1) (a) The Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of any of the matters set out in the Schedule as it has for the purpose of and in relation to an action or matter in the Court.
(b) Nothing in paragraph (a) 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 aforesaid.

(2) Where relief by way of interpleader is granted and it appears to the Court that the claims in question are matters to which a submission to which the claimants are parties applies, the Court may direct the issue between the claimants to be determined under the submission.

(3) 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.

11 Statement of case by arbitrator or umpire

(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) An 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 directed by the Court to be stated, notwithstanding that proceedings under the reference are still pending.

(3) A decision of the Court under this section shall be deemed to be a judgment of the Court but no appeal shall lie from the decision of the Court on any case stated under subsection (1) (a) without the leave of the Court or of the Court of Appeal.

12 Entry of judgment in terms of award

Where leave is given under section 13 of the principal Act to enforce an award in the same manner as a judgment or order, judgment may be entered in terms of the award.

13 Interest on awards

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.

14 Provision as to costs

(1) (a) Any provision in a submission to the effect that the parties or any party to it shall in any event pay the whole or any part of the costs of the reference or award shall be void; and the principal Act shall in the case of a submission containing any such provision have effect as if that provision were not contained in it.

(b) Nothing herein shall invalidate such a provision when it is part of an agreement to submit to arbitration a dispute which has arisen before the making of such agreement.

(2) If no provision is made by an award with respect to the costs of the reference, any party to the reference may within 14 days of the publication of the award, or such further time as the Court may direct, apply to the arbitrator for an order directing by and to whom such costs shall be paid, and thereupon the arbitrator shall, after hearing any party who may desire to be heard, amend his award by adding to it such directions with respect to the payment of the costs of the reference.

15 Taxation of arbitrator’s or umpire’s fees

(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 shall be taxed by the taxing officer 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 purposes 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.

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

(1) Where 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 after a dispute has arisen any party applies, on the ground that the arbitrator so named or designated is not or may not be impartial, for leave to revoke the submission 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 capable of impartiality.

(2) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred and a dispute which so arises involves the question whether any such party has been guilty of fraud, the Court shall, so far as may be necessary to enable that 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 any submission made thereunder.

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

17 [Spent]

18 Limitation of time for commencing arbitration proceedings

(1)–(5) [Spent]

(6) Where 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 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 expires, may, on such terms, if any, as the justice of the case may require, but without prejudice to the foregoing provisions of this section, extend the time for such period.

19–21 [Repealed by 2004/270]

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SCHEDULE

Section 10

MATTERS IN RESPECT OF WHICH THE COURT MAY MAKE ORDERS

(1) Security for costs.

(2) Discovery of documents and interrogatories.

(3) The giving of evidence by affidavit.

(4) 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.

(5) The preservation, interim custody, or sale of any goods which are the subject-matter of the reference.

(6) Securing the amount in dispute in the reference.

(7) 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.

(8) Interim injunctions or the appointment of a receiver.