Draft
REPORT
OF
THE REVIEW COMMITTEE
OF
THE CHARTERED INSTITUTE OF ARBITRATORS – CARIBBEAN BRANCH
1
Kingston, 25 August 2009
THE COMMITTEE MEMBERS
CHAIRMAN:
Christopher P Malcolm
John Bassie
Eileen Boxhill
Sherene Golding-Campbell
Stephen Shelton
Maurice Stoppi
Lowel Morgan
2
TABLE OF CONTENTS
Page
Preamble...................................................................................................................
4
Summary
5
Committee Recommendations ................................
Introduction
6
Chapter I
Reasons for Change..................................................
7 - 13
Chapter II
Policy and Legislative Reform...................................
14 - 16
Chapter III
Design and Implementation....................................... 17 - 22
Annex 1
Terms of Reference...................................................
Annex 2
Arbitration Act, 1900.................................................. 26
Annex 3
WAR Contribution...................................................... 27 - 80
Annex 4
English Arbitration Act, 1996...................................... 81
Annex 5
UNCITRAL Model Law................................................. 82
Annex 6
UNCITRAL Guidance Notes.......................................... 83
Annex 7
Morgan Paper ............................................................ 84 - 129
Annex 8
Elements to be considered in Drafting Instructions....... 130 - 133
Annex 9
Proposed Time table ................................................... 134
23 - 25
Additional Annexes
-
Annex 2
-
Annex 4
-
Annex 5
-
Annex 6
3
PREAMBLE
This document constitutes the Report of the Review Committee of the Chartered Institute of Arbitrators
– Caribbean Branch concerning the possible Establishment of a New Framework for Regulation of
Arbitration in Jamaica in accordance with Committee’s terms of reference of 23 June 2009.1
The three main elements of the mandate appear to be:
1. Assessment of the current framework for arbitration in Jamaica;
2. Preparing a draft policy document and outline drafting instructions for the proposed new
framework for discussion and ultimate presentation to the relevant authorities;
3. Preparing draft legislation as well as rules for discussion and ultimate presentation to the
relevant authorities.
The Committee decided that the main focus of this work should be to distil relevant information and
then prepare a draft policy document as well as outline drafting instructions for a proposed new
framework. It will thereafter be involved in a workshop being hosted by the Mona Law Institute at the
Mona Visitors Lodge on February 18, 2009, which will consider how to implement a modern Jamaican
framework for arbitration.
In sum, this Report has been presented in the context of a progressive agenda that has been determined
by the Caribbean Branch. This agenda is intended to inform policy makers as well as technocrats who
are involved in efforts being made or to be made to reform the legislative and regulatory framework for
arbitration.
1
See Annex 1.
4
SUMMARY OF COMMITTEE RECOMENDATIONS
The Review Committee now recommends:
1.
A comprehensive overview and ultimate modernisation of the framework for arbitration of
Jamaica;
2. The specific steps which should now be taken are:
a. To critique the laws which now regulate the practice of arbitration, including by
reference to comparative analysis;
b. To determine how and in what specific ways the existing law may be improved;
c. To devise a well considered policy document as well as outline drafting instructions;
d. To secure the early and continuing involvement of critical policy makers as well as of
the Chief Parliamentary Counsel;
e. To caucus together with other interested persons at the earliest opportunity and to
then distil relevant information and thereafter devise an implementable plan of action
and support draft documents;
f.
To present policy and supporting draft documents to the relevant authorities;
g. To undertake such lobby activities as are appropriate in attempts to secure earliest
implementation of a comprehensive and workable new framework for arbitration in
Jamaica.
3. That any new law to be implemented should include adequate provisions for domestic as well
as international arbitration;
4. That the new law is to reflect intentional best practice;
5. That the UNCLITAL Model Law represents a good framework which could be adapted for
implementation;
6. That modernisation should also include adequate arrangements in support of training and
apprenticeship, institution building and for the supervision and control of arbitration.
5
INTRODUCTION
Jamaica is surrounded by the Caribbean Sea and ideally situated between North and South America. The
weather is good all year and the infrastructure which supports telecommunications and travel is of a
very high standard. The official language is English and the legal system is Common Law.
Jamaica now has two domestic universities providing degrees in law 2 and a number of other institutions
provide distance learning opportunities and degrees in law from recognised international universities.
Jamaica also hosts the Norman Manley Law School, which provides practitioner training in law.
The field of arbitration has been intricately inked to the field of law and programmes in Arbitration and
ADR are usually offered through Faculties of Law. Furthermore, the judicial system is relied upon and
provides significant support to the practice of arbitration.
Although global use of commercial arbitration, in particular, has expanded in recent years, little has
been done to enhance the Jamaican practice environment. Indeed, the most critical best practice
component – an enabling legislative and regulatory framework – has remained firmly rooted in 19th
Century thinking. This represents a lacuna in need of immediate attention.
The Committee has decided to get involved in a very tangible way and recognises that there is need for
action now. Delay means delaying benefits that could be derived, or perhaps risking no benefits at all.
Delay means the continuation of an undated framework and suboptimal performance in a field which
could have significant implications for capacity building, administration of justice and general economic
performance.
2
These are: University of the West Indies (UWI); and University of Technology (UTECH).
6
CHAPTER I
REASONS FOR CHANGE
1.
ECONOMIC BENEFITS
The development of a modern arbitration regime and support services could become the
catalyst for the development of specialized arbitration institutes. These could, in addition to
training in arbitration, offer programmes in English as well as in Common Law to Latin
Americans who function under Civil Law systems. The latter objective – training in English and
Common Law – could bear significant fruit given that the Common Law is the law of
international commerce and there is already a captive market of students who travel to the US
and England each year from Latin America to be schooled in English and the Common Law.
The economic value of foreign students is such that two or three years ago the Provost at
Oxford indicated that he prefers to accept foreign students – many of them Latin Americans –
over more qualified locals because they contributed more to the coffers. While Jamaica would
not be able to attract every student who would like to go to Oxford or Harvard, there is still a
significant population that can be attracted and with properly designed programmes – which
could be in collaboration with theses said institutions – a lot could be accomplished, which
would inure to the economic benefit of Jamaica. This effort would also provide another
excellent opportunity for the alignment of education strategies to economic development
through specific sector involvement.
Beyond the education frontier, the most significant and easiest to accomplish economic benefit
would flow from user and other fees related to the conduct of international as well as domestic
arbitration.
As indicated above, Jamaica is ideally placed as a matter of Geography and studies have shown
that Jamaica is among the most recognised international brands. Jamaicans have also
distinguished themselves in the field of International Law and Dispute Settlement, including
through the judiciary. One recalls, for example, that the current President of the War Crimes
Tribunal for the former Yugoslavia is Patrick Robinson, a son of the Jamaican soil, and others,
including Dr. Kenneth Rattray (deceased), Professor Steven Vacciannie and Maurice Stoppi –
esteemed member of this Review Committee – have attained international notoriety in the field
of dispute settlement. This can be leveraged in any attempt to position Jamaica as an
international arbitration centre. Thereafter, as has been the case in Singapore, Jamaica could
reap quantifiable and significant economic benefit from international arbitration.
7
In the case of Singapore, the practical as well as the intellectual or academic aspects of
arbitration have received ongoing policy and implementation support. Education is considered
critical and this component has been secured including through the National University of
Singapore (NUS) which now has one the best arbitration programmes in the World. It attracts
local as well as foreign students and the economic implication for NUS and the economy more
generally is significant.
Jamaica could become the Singapore of the Western Hemisphere. This is not fanciful thinking.
Indeed, studies have shown that there is a lacuna since there is no recognised major
international arbitration centre in Latin America or the Caribbean. This has meant that the most
international commercial arbitration involving the region go outside, including to London or
Paris.
In short, there is a market to be satisfied and money to be made. However, Jamaica cannot
benefit as an officious or innocent bystander. She must get involved and the first required step
is the modernisation of the arbitration regime. It must also be borne in mind that with
modernisation a basis would be established for Jamaica to reap possible cost savings from the
greater use of arbitration instead of judicial proceedings at the domestic level.
For many years, until 2002, Jamaica did not accede to the New York Convention and studies
have shown that this would have hindered any attempt to compete in the market. This obstacle
has now been removed and the time is ripe for further action. However, Jamaica cannot
procrastinate and must bear in mind that there are rumblings which suggest that other
Caribbean jurisdictions are making attempts to get into and corner the market.
2.
INTERNATIONAL TRENDS
The modernisation of arbitration regimes has been gathered significant pace in recent years.
Some jurisdictions, such as the England, have designed and implemented ‘home grown’
legislation.3 However, the vast majority of others have adopted, either wholesale or with minor
adjustments, the UNCITRAL Model Law. This UNCITRAL Model was specifically designed to assist
States in reforming and modernising their arbitral procedure so as to take into account the
particular features and needs of international commercial arbitration and it has been accepted
and implemented across divergent legal and economic systems.4
The implementation of modern arbitration regimes coincides with a more general trend in
favour of the settlement of commercial and other disputes by non-judicial mechanisms, such as
re-negotiation, good offices, mediation and conciliation. It also coincides with recognition that
arbitration is big business having the capacity to generate significant income for international
3
4
Annex 4.
See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html
8
arbitration centres while at the same time expanding the range of opportunities for local
professionals in the field of dispute settlement and support services.
Jamaica now has an opportunity to capitalize on emerging opportunities in the field of
arbitration. However, this requires modernisation of the arbitration regime. While the most
attractive opportunities relate to the practice of international commercial arbitration, a
programme of modernisation will also have positive implications for the settlement of domestic
disputes.
3.
CAPACITY BUILDING
It has been said, and this Committee accepts, that “the arbitrator is the sine qua non of the
arbitral process. The process cannot rise above the quality of the arbitrator.”5
Jamaica does not have a cadre of internationally recognised professionals in the field of
arbitration. Nevertheless, a small number of local arbitration practitioners have gained some
regional and even international notoriety. Still, Jamaica is not itself recognised for international
arbitration or even for having a credible framework for domestic arbitration and there is no
institutional arrangement, as such, which is responsible for the supervision and control of
arbitration practitioners.
Capacity building is intended to bridge the abovementioned gap at two basic levels – improve
human resources through training; provide opportunities for apprenticeship. A properly
designed capacity building programme will also create possibilities for a broader range of
required skill sets as well as establish professional relationships which enable optimal
participation in regional and international arbitration.
A. RANGE OF REQUIRED SKILLS
The range of skills and professional input required for arbitration increases with the
complexity of matters to be determined and can also be influenced by the content of the
enabling legislation.
The usual participants in arbitration are: (a) the Disputants; (b) their Representatives; (c)
their Witnesses; and (d) the Tribunal. With modernisation, it is anticipated that more
complex matters, including the settlement of international disputes, will be dealt with.
These will require the involvement of other participants, many of whom will have to possess
special skills.
These other participants will likely include: (a) a Secretary to the Tribunal, who will be a
trained arbitration practitioner will capacity to assist with research and writing; (b) Expert
5
Von Mehren, ‘Concluding Remarks’ in ICC (ed), The Status of the Arbitrator, 129.
9
witnesses, who could, for example, be trade and investment practitioners or cross-border
legal experts; (c) Bankers; (d) Accountants; (e) Local lawyers advising international
participants on local law; (f) Foreign lawyers advising on other jurisdictional issues; (g)
Administrative support – teleconferencing; audio and videography; printing; and (h)
Ancillary support. Furthermore, an arbitration centre will create its own demand and
require, among other areas, publicity and marketing support.
B. CSME, ICSID AND OTHER ARRANGEMENTS
The Revised Treaty of Chaguaramas under which the CSME has been established requires
the establishment of an arbitration panel and settlement of disputes by arbitration is a
preferred method. There is a similar requirement under the Treaty of Basseterre, which
established the OECS. Other institutional arrangements, including the ICSID, WTO, WIPO,
NAFTA and the proposed FTAA also include special provisions requiring the use of
arbitration.
The modernisation of the regime for arbitration, including a well designed capacity building
programme, will enable Jamaica to derive greater benefit from these arrangements at two
basic levels. First, Jamaica will be better able to attract disputants to Jamaica with
consequential benefit for local practitioners and the economy more generally. Second, with
modernisation and greater involvement in the arena the profile of local practitioners will be
raised and it will become easier for them to serve international panels. This second benefit
will have positive implications for the first. It should also be clear that increased profile and
involvement will enhance the possibility of critical involvement in the establishment of
international standards for arbitration and for international commerce more generally.
C. RESOURCES
The modernisation of the arbitration regime will make Jamaica more attractive to
international arbitration institutions, such as AAA, LCIA, and ICC as well as to international
donor agencies that are interested in funding justice improvement and related projects.
These institutions – AAA, LCIA and ICC – seek to broaden their reach on an ongoing basis
and can be persuaded to establish satellite arrangements in Jamaica at their own expense
with consequential benefits for economy.
D. TRAINING AND APPRENTICESHIP
Jamaica is not now recognised for an established cadre of highly trained arbitration
practitioners. As the jurisdiction develops in this area, there will be consequential need for
highly skilled professionals whose competence will have to extend beyond the taking of
evidence and the rendering of a decision.
10
Assuming that development will include participation in the settlement of international
commercial transactions, including trade and investment disputes, practitioners will then be
required to demonstrate sound understanding of: (a) globalisation and international
standardisation; (b) the nature and practice of foreign investment; (c) the nuances of
bilateral, regional and international arrangements; (d) options of dispute settlement; and (e)
elements of comparative international arbitration – awareness of the laws, rules and
practice of both domestic and international arbitration. This will require specialized training,
which could be developed in collaboration with and offered through local institutions of
higher learning.
Given that best practice in arbitration, like practice at the bar and sitting as a Judge, is
experiential, a programme of apprenticeship should also be encouraged. This will enhance
the capacity of young practitioners and will play a vital support role in any attempt to
establish Jamaica as a credible international arbitration centre.
4.
INSTITUTION BUILDING AND MARKET OPPORTUNITIES
Institution building must be a critical component of any attempt to modernise the regime for
arbitration in Jamaica. There are cost implications and these must be properly considered.
Thereafter, every effort must be made to ensure that scarce financial resources are not wasted.
While there is no recognised arbitration institution, as such, the building blocks have already
been laid by the Dispute Resolution Foundation of Jamaica as well as the Chartered Institute of
Arbitrators – Caribbean Branch. These can be assisted with direct as well as indirect government
support as they seek to establish a credible institutional mechanism for the management and
control of arbitration.
The Review Committee is also aware of attempts now being made by the PSOJ to source funds
and thereafter establish an arbitration centre. While this effort is commendable, their objective
cannot be realised without competent practitioners. Accordingly, their attempt at institution
building must also include a credible training and apprenticeship component. Furthermore, it
must be recalled that “arbitration can only be as good as its arbitrators.”6
Notwithstanding any perceived or other limitations in the PSOJ strategy, their approach
supports the view of the Review Committee that there is a market opportunity in the area of
institution building. This must, however, be supported by modernisation more generally that
includes a significant capacity building component.
5.
ESTABLISHING AND MAINTAINING PROFESSIONAL STANDARDS
6
See K-H Bockstigel ‘The Internationalisation of International Arbitration: Looking Ahead to the Next Ten Years’ in
M Hunter, A Marriott and VV Veeder (eds) The Internationalisation of International Arbitration: The LCIA
Conference (Graham & Trotman London 1995) 77.
11
At present there is no specific qualification or other requirement for arbitration practitioners.
This is cause for concern given that an arbitrator could on any given day be required to
determine a matter with significant implications for the national economy and the parties
involved in circumstances where they might have agreed that there is no right of appeal.
Furthermore, the arbitrator could be an unattached person who has no regulatory body to
which he or she is accountable and no clearly established ethical standard to guide his or her
conduct.
Modernisation of the arbitration regime could now establish regulations requiring: (a) specific
qualification of arbitrators; (b) implementation of a professional designation as well as ethical
standards for practitioners; (c) a regulatory mechanism for supervision and control; and (d) a
specific complaint procedure.
The Review Committee recognises that there are persons who have been involved in the
practice of arbitration over a long period and any new arrangement should include a
grandfathering for their benefit. It is also recognised, however, that many of these persons may
have limited, if any experience, in the field of international trade and commerce and any
grandfathering exercise will have to bear this in mind.
Against this background and given also that the skills set for international arbitration could differ
in material respects from those required for domestic arbitration, it could become necessary to
implement a framework which includes: (a) Domestic Arbitrators, who would not be able to
function as panellists in international arbitration matters; and (b) International Arbitrators, who
satisfy specific requirements and are able to function as domestic as well as international
panellists. To ensure that all persons have an equal opportunity to participate at both levels
support will be given to appropriate training and accreditation programmes.
In any event, the regulatory body will be required to implement a programme of continuing
education to ensure the maintenance of best practice.
7.
CONVERGENCE AND HARMONISATION IN CARICOM
Full implementation of the CSME will require the harmonisation of laws and convergence of
regulatory regimes. At present, the framework for arbitration in CARICOM is uneven. However,
the basic instruments that govern arbitration within the Commonwealth Caribbean are similar.
In the early 1990s, the CARICOM Law Institute Centre (CLIC) had embarked on an ambitious
programme that was intended to harmonise the law for arbitration throughout the region.
While draft legislation was completed for domestic as well as international arbitration, the effort
faltered. In recent times, the Drafting Unit of CARICOM has been involved an attempt to
produce a model law for the region.
12
It is unlikely that the CARICOM process will bear immediate fruit and, in any event, their model
might not suit the best interest of Jamaica. Furthermore, given what should be a real effort to
get onboard early and also in an attempt to demonstrate leadership in the field, the time is ripe
for Jamaica to enact a new law and establish a modern arbitration regime which could then
become the model for CARICOM.
13
CHAPTER II
POLICY AND LEGLISLATVE REFORM
1.
INTRODUCTION
The legal framework which now exists cannot support expansion of or optimal benefit from
arbitration in Jamaica. It therefore requires urgent policy and legislative review and any such
attempt must properly involve a broad cross-section of interested parties.
2.
POLICY CONSIDERATIONS
The proposed policy justification for reform has already been established in Chapter I – Reasons
for Change.
Other considerations would include: (a) cost; (b) benefit to be derived; (c) human resources; (d)
CARICOM leadership; and (e) International Profile. These issues have also been discussed in
Chapter I.
The Review Committee recognises that ultimately it is for the political directorate to take the
necessary steps that are required to implement a new and improved regime for arbitration. On
front, the signs are positive since the Minister of Justice and Attorney General has indicated
publicly that she now intends to support the establishment of modern regime for arbitration.
3.
CONCEPTUAL FRAMEWORK FOR LEGISLATION
The Review Committee is of the opinion that modernisation must be based on a conceptual
framework which includes best practice arrangements for both domestic and international
arbitration. The new framework should also include appropriate arrangements for: (a) ongoing
review and corrective adjustment; (b) supervision and control; and (d) ensuring the growth and
development of Jamaica as an international arbitration centre.
4.
DETAILS OF THE COMMITTEE’S PROPOSAL
The Review Committee is of the opinion that the new framework must include framework
principles that are derived from international best practice that have been adapted to local
circumstances. However, the Committee recognise that time is now of the essence and believe
that while initial model selection and implementation is critical it is even more important to
ensure that the new framework includes a sufficient mechanism for ongoing review and
corrective adjustment that will be able to secure and maintain Jamaica as a preferred
destination for international arbitration.
14
A.
FRAMEWORK PRINCIPLES
The Review Committee is of the opinion that the new law should be part of an overall
reform effort that is intended to improve the conduct of dispute settlement in the
commercial arena. It must:
1. Secure confidence in the arrangements introduced for settlement of
disputes;
2. Assure the maintenance of able and suitably qualified practitioners.
Suitability must be subject to periodic review and annual certification;
3. Require certification which will enable arbitrators to practice as: domestic
arbitrators; and international & domestic arbitrators;
4. Clarify specific or additional requirements that must be met by persons who
are able to practice as international arbitrators and these requirements
must be included in the primary law or regulations;
5. Include a process of ‘grandfathering’ which within a pre-determined period
enable special categories to operate as arbitrators without meeting the
strict qualification requirements of the new law;
6. Assure best practice, efficient and timely conduct of proceedings;
7. Assure maintenance of institutional mechanisms at the highest level
possible;
8. Assure critical court support;
9. Secure proper arrangements for continuing education and discipline of
practitioners;
10. Include an appropriate mechanism for marketing and publicity.
These components will be preserved under specific provisions of the primary law and
supporting regulations.
B.
CONSULTATION AND TRANSPARENCY
The Review Committee would recommend that policy-makers consult with interested
parties in an open, transparent and systematic way. Where necessary public forums
should be held and use of innovative technologies, including the internet, must be
encouraged. Furthermore, where corrective measures are to be introduced the active
involvement of interested parties must be included.
15
The Committee would also recommend that institutions be required to publish their
activities as well as a List of certified arbitrators on a pre-determined basis.
C.
ONGOING REVIEW AND CORRECTIVE ADJUSTMENT
The Review Committee would recommend that the proposed new framework includes
an in-built mechanism to secure ongoing review. This process must include capacity to
track international developments and their implications for Jamaica. In addition, the
new framework must include a mechanism whereby adjustments can made on an
ongoing basis without the need for Parliamentary involvement on each occasion that
change is required.
5.
POSSIBLE OBSTACLES AND MITIGATING RESPONSES
There are those who benefit from and could find innumerable reasons for retention of the
current system. These persons include legal practitioners who can now rely on the current
framework to pursue unnecessary court actions, which ultimately militate against the just,
equitable, timely and most cost-effective settlement of commercial disputes.
The mitigating responses must include: pre-implementation negotiation and public discourse;
rigorous research and best practice drafting; ensuring that the law when implemented assures
the highest possible standard; quality assurance and practitioner vigilance.
16
CHAPTER III
DESIGN AND IMPLEMENTATION
1.
INTRODUCTION
The design and implementation of a new arbitration law and institutional mechanism must
consider the current framework7 and changes that are required to make it more effective. It
must be recognised that arbitration will or at least could involve both domestic and
international matters and any model selected should be adequate for both types of matters.
2.
MODEL SELECTION
In selecting a model for implementation, the legislature must determine whether to enact
separate laws for domestic and international arbitration or consolidated legislation. They must
also determine whether to separate the primary law(s) from the relevant regulations.
While domestic factors will be paramount, the model selection process should involve
comparative study. In this latter regard, the UNCITRAL Model Law as well as the English
Arbitration Act of 1996 would be recommended for special consideration.
A. ENGLISH ARBITRATION ACT, 1996
The English Arbitration Act was implemented on January 31, 2007 and it applies to
arbitration proceedings commenced on or after that date. It is to be construed in
accordance with three principles:
1. The object of arbitration is considered to be obtaining a fair resolution of disputes
by an impartial tribunal without unnecessary delay or expense;
2. The parties should be free to agree how their disputes are to be resolved, subject
only to such safeguards as are necessary in the public interest;
3. The court should not intervene in arbitrations unless their intervention is expressly
contemplated and in the manner provided for under the Act.
The Act includes mandatory as well as well as non-mandatory provisions. It is possible to
contract out of non-mandatory aspects and the parties may, for example, agree a foreign
7
Annex 3.
17
law to govern procedural aspects of the arbitration. However, they are unable to contract
out of mandatory aspects, such as the power of the court to stay legal proceedings brought
in breach of an arbitration agreement, which guard against exclusion of what would be
considered contrary to the public interest.
The Act treats the arbitration agreement as distinct from any more substantive agreement
of which it forms or was intended to form a part. Accordingly, it can still be effective even if
that substantive agreement is invalid, did not come into existence, or has become
ineffective.
The Act contemplates the possibility of a chairman being appointed who is then vested with
such powers as the partied may agree. In absence of agreement, the chairman will become
involved in the proceedings and any award then made shall be by majority. However, if
there is neither unanimity nor a majority then the chairman will decide.
Instead of a chairman, the parties may prefer to have an umpire who only becomes involved
in the decision-making when the other arbitrators fail to agree. Where there is such failure,
the umpire then steps in to make the award as though he were the sole arbitrator.
The Act also deals with: immunity of arbitrators and arbitral institutions as well of their
servants or agents unless they have acted in bad faith or have failed to act at all; how the
substantive jurisdiction of the arbitrator is to be determined; general duties of the tribunal
and the parties; procedure to be applied and the scope of party autonomy in this regard;
possibility and scope of court intervention; challenges to an award; and powers of the
tribunal. These provisions, while they may have incorporated best practice as it has evolved
over time, are generic in nature.
By way of innovation or departure from traditional practice, the Act now allows the tribunal
to determine a dispute either in accordance with the law chosen by the parties or “in
accordance with such other considerations as are agreed by them or determined by the
tribunal”. This new approach, which contradicts traditional practice requiring that, subject
to minor exceptions, arbitrators must apply the law, enables the making of an award by
reference to general equitable principles.
It has been said that the 1996 Act represents a significant advance in arbitration law. It is
considered to have been responsible for putting more power in the hands of parties, while
at the same time imposing obligations on them as well as on the tribunal to ensure that the
process is efficient and cost-effective.
Notwithstanding the advances made, there are several prominent UK based arbitrators and
academics in the field who contend that England would have been served by the UNCITRAL
18
Model Law instead of the 1996 Act in its current form. These persons include Professors
Julian Lew and Loukas Mistelis, both of whom are practitioner/academics.8
A new Jamaican Arbitration law based on the English Act of 1996 could find favour, if only
because it would have been influenced by legislation that has been crafted under the
Common Law Tradition. Furthermore, there is now a body of relevant and available English
case law which would be considered highly persuasive by the Jamaican courts. Nevertheless,
the current challenge must be to design and implement a best fit law which has all the
necessary ingredients to support the development of Jamaica as a credible centre for
international as well as domestic arbitration. Thus, the easy English option should never be
implemented simply because there is a body of case law that can easily be referred when
interpretation and application of the new law is in issue.
It must also be recalled that arbitration is intended to avoid the process of national courts as
much as possible and there is a growing trend to underscore and in practice assure that
arbitrations should not simply mimic or reflect court proceedings. And insofar as the
judiciary is concerned, the time must by now be ripe (if not already the case) for policy
makers to repose required confidence in the judiciary and for them to then accept that they
have sufficient capacity to interpret and apply law, by reference to accepted standards,
without need for unadulterated umbilical support from English or other courts.
B. UNCITRAL MODEL LAW
The UNCITRAL Model Law (Model Law) was adopted in 1985 and amended in 2006. It has
since been implemented in a number of jurisdictions and administrative regimes across
divergent legal traditions and economic systems.
The Model Law deals with all stages of the arbitral process, including: the arbitration
agreement, the composition and jurisdiction of the arbitral tribunal, the extent of court
intervention, recognition and enforcement of the award. It is considered to have reflected
worldwide consensus on key aspects of international arbitration practice and has been
adapted for domestic as well as international arbitration.
The Model Law was designed to deal with, but is not limited, to international arbitration.
Indeed, the more general intention was to encourage the harmonisation of arbitration
practice across jurisdictions in relation to commercial matters through the instrumentality
of common or harmonised legislation.
8
Julian Lew is considered to be among the top three arbitrators in the World and is a leading academic in the field.
Loukas Mistelis is also a prominent practitioner and Head of the School of International Arbitration, Centre for
Commercial Law Studies, Queen Mary University of London.
19
Notwithstanding the ‘intended international’ scope, the Model Law has been adapted for
both domestic and international arbitration: in common law jurisdictions, such as India;
civilian jurisdictions, such as Germany; and socialist jurisdictions, such as Russia. Its use in
Germany is of particular significance since their system relies more on arbitration for
settlement of commercial disputes than any other developed country. Germany is also
considered as being more progressive in her approach to arbitration than most other
countries.
The Model Law does not delimit which disputes are arbitrable. Indeed, it specifically
provides that it is not intended to affect other laws which preclude certain disputes being
submitted to arbitration.9 Accordingly, when implementing the Model Law legislators are
completely free to determine which disputes are arbitrable and which are not. This may be
done by express exclusion in the law itself or could result from the conferral of jurisdiction,
in relation to excluded matters, on specialised tribunals or national courts.
The selection and appointment of arbitrators, including the number of arbitrators, is subject
to the will or autonomy of the parties. However national laws may be adapted to secure
quality or qualification control. While this intervention will have negative implications for
free choice, it must be given serious consideration as: parties are typically guided in their
choice by what is held out as available; and if the interest of the economy more generally as
well as the establishment of a credible international arbitration centre is being considered
then quality or qualification control would be a critical distinguishing and marketing
component.
The provisions of the Model Law are not set in stone and it is anticipated in its
implementation necessary adaptations will be made to suit the particular needs of the
jurisdiction. In India, for example, their adaptation has been implemented as an Arbitration
and Conciliation Act while in Germany their adaptation includes ongoing deliberate efforts
to distinguish the practice of arbitration from court proceedings.
The Model Law has been supplemented by ‘Notes on Organising Arbitral Proceedings’ which
were finalised between 28 May and 14 June 1996.10 While these notes have been prepared
with international arbitrations in mind, they also provide invaluable best practice guidance
for the organisation and conduct of domestic arbitrations.
C. ENTIRELY HOME GROWN
While this represents a romantic option, which could conceivable best suit domestic
conditions, its design and implementation would involve an expensive and time-consuming
process which Jamaica cannot afford. Furthermore, the human and financial resources that
9
Art 1 (5).
Annex 6.
10
20
would be required to craft this option are simply not available locally. In any event, both the
UNCITRAL Model Law and the English Act are sufficiently well designed and either can be
tailored, if necessary, to satisfy local requirements.
D. BEST FIT
In a word, it must now be emphasised that while arbitration has over time relied on support
from the judiciary it is itself quazi-judicial in nature and party autonomy is considered
paramount. It is clear that arbitration is intended to stand on its own and relevant laws
wherever found and however archaic support this contention. It follows then that a
progressive approach to arbitration law and institutional reform, especially where
international arbitration is also being considered, should not be constrained by the
availability of relevant case law. It must also be recalled that the vast majority of domestic
as well as international arbitration awards and proceedings do not involve the courts in any
shape or form.
Lowel Morgan has in an unpublished paper11 argued that the English Arbitration Act is suited
for Jamaica than the Model Law. He there details aspects of both and includes an abridged
comparison.
The Committee found the information included in Morgan’s paper to be quite helpful but
cannot agree with his conclusion that the Model Law is limited to international arbitration.
In fact, the implementation record will show that the Model Law has formed the basis for
new legislation in more than fifty countries12 and has in most instances been adapted for
both domestic and international arbitration.
While it may be argued that the English tradition has served Jamaica well and that
adaptation of their legislation could be more compatible with time honoured legislative
practice, in this instance it must be recognised that England is on a limb which is
inconsistent with a global and what could be considered more progressive trend. In this
vein, it must also be recognised that maximum benefits will be reaped not from domestic
arbitration but instead from international arbitration.
With the economy foremost in mind having especial regard always for the best interest of
justice, the Committee has now determined that adaptation of the Model Law is better able
to secure the require modernisation which will support the establishment of a credible
arbitration centre. It has also been determined that effective quality and regulatory control
11
12
Annex 7.
See http://www.uncitral.org/uncitral/en/about/origin.html
21
of practice and practitioners must be introduced in order to secure best results and also as a
distinguishing basis when compared other jurisdictions in the market.
Confidence has to be reposed in the judiciary and practitioners; however, this has to be
supported by a regime which encourages and indeed requires that arbitrators have
minimum qualification and are required to be involved in continuing education. It will also
become necessary to over time revisit the court system and its approach to commercial
matters more generally. In this latter regard, the system that has been recently adopted in
the British Virgin Islands is to be commended.
3.
ONGOING REVIEW AND CORRECTIVE ADJUSTMENT
Whichever model is selected or crafted, the legislature should ensure that it includes
appropriate provisions for ongoing review and necessary corrective adjustment on a timely
basis.
In practice, ongoing review and corrective adjustment might be best secured under an
arrangement which separates the primary law from applicable regulations. These regulations
will then include provisions dealing, for example, with: minimum qualification and certification;
continuing education; ethical conduct and discipline; procedural matters; as well as institutional
design and maintenance.
22
ANNEX 1
TERMS OF REFERENCE GIVEN BY THE CHARTERED INSTITUTE OF ARBITRATORS – CARIBBEAN BRANCH ON 23rd DAY OF JUNE 2009
The statutory basis for arbitration in Jamaica is the Arbitration Act 1900. The Act is outdated and it has
been determined that there is need for urgent legislative reform as well as improvements in the
institutional mechanisms available for domestic and international arbitration. It also appears that there
is need for improvements across the Caribbean region more generally.
Against this background, the Chartered Institute of Arbitrators - Caribbean Branch have now determined
that they will take such steps as are available to:
1.
Chart a possible new framework for arbitration in Jamaica which could thereafter be
applied across the Commonwealth Caribbean;
2.
Examine and thereafter propose a policy document which will be made available to the
relevant authorities;
3.
Prepare outline drafting instructions and related documents to support the
establishment of a proposed new framework for arbitration in Jamaica;
4.
Prepare draft legislation and arbitration rules for possible implementation;
5.
Make the outline drafting instructions, draft legislation and rules available to the
relevant authorities;
6.
Devise a lobby and related programme that is intended to secure the implementation of
a new and more appropriate arbitration regime for Jamaica;
7.
Undertake such collaborative and other efforts as are required to ensure that persons
are adequately informed about and prepared for the best use of arbitration;
8.
Devise a basis which will enable enhanced regional cooperation in the field of
arbitration as well as support the implementation of new and more conducive
arbitration frameworks where required within the Commonwealth Caribbean.
23
While the establishment of an optimal arbitration framework is being considered, the ultimate
objectives of the measures being undertaken include:
1.
Establishing a proposed new framework that will be able to assist the securing of social,
cultural and economic development;
2.
Improving the framework for settlement of disputes more generally;
3.
Improving international competiveness;
4.
Assisting with the development of Jamaica and the Caribbean more generally as a
preferred destination for investment and the settlement of international disputes;
5.
Establishing new frontiers for professional development in the field of economic
development and dispute settlement;
6.
Promoting and protecting the economic and social well-being of all.
A Review Committee has now been established by the Caribbean Branch and is required to:
1.
Assess the current framework for arbitration in Jamaica;
2.
Assess how this framework can be best adjusted/reformed in order to better serve the
interest of disputants and the economy more generally;
3.
Assess how to secure and maintain best practice in arbitration as well as ensure
cohesion with other aspects of the framework for settlement of disputes, including the
court system;
4.
Assess how arbitration can best be positioned to serve as the preferred mechanism for
settlement of commercial disputes and as a basis for development as an international
arbitration centre;
5.
Seek to determine the resources and future action that could be required to implement
the necessary policy and related activities;
24
6.
Seek to determine what measures need to be specifically considered for
implementation having regard to any attempts, if any, that are now being made at the
CARICOM level to harmonise policy and implementation in the field of arbitration;
7.
Determine how arbitration can best be positioned to ensure maximum benefit within
the CSME as well as influence a broader regional agenda;
8.
Prepare a draft policy document and outline drafting instructions for the proposed new
framework for discussion and ultimate presentation to the relevant authorities;
9.
Prepare draft legislation and rules for discussion and ultimate presentation to the
relevant authorities.
The Review Committee should be able to present a report and proposals for draft legislation to the
Steering Committee of the Caribbean Branch in August 2009. This report will then be considered and
amendments made where necessary before presentation to the relevant authorities in September 2009.
The following persons have now been appointed to serve as the Review Committee:







Christopher Malcolm (Chair)
Stephen Shelton
Maurice Stoppi
Eileen Boxhill
Lowel Morgan
John Bassie
Sherene Golding-Campbell
Dated this 23rd day of June 2009
Chartered Institute of Arbitrators – Caribbean Branch
Per:
John Bassie
Chairman
25
ANNEX 2
ARBITRATION ACT, 1900
For Text of Act see
http://www.moj.gov.jm/laws/statutes/The%20Arbitration%20Act.pdf
Or
Additional Annexes
26
ANNEX 3
WAR CONTRIBUTION
The information included below will, subject to final edit, appear as the Jamaica chapter in a soon to
be published completely new edition of the World Arbitration Reporter. The authors are Dr.
Christopher Malcolm and Mr. Lowel Morgan.
This contribution has been made available with kind permission for purposes of this
Workshop/Seminar and must not be cited or otherwise referred before publication and thereafter any
reference to or citation must be accordance with accepted standards.
World Arbitration Reporter
Country Report - Jamaica
I. Introduction
A. Current status of the law on arbitration
1. Short history
The settlement of disputes without the process of national courts has long been a feature of
the Jamaican society. This reflects a throwback to the African ancestry of the majority as well
as the impact of colonialism.13
The Maroon communities, which were started by runaway slaves of African birth or descent,
still retain a community based system for settlement of disputes which involves the
intervention of neutral umpires or a Community Council.
13
Jamaica was first colonised by the Spanish from 1494-1655 and subsequently by the British from 1655-1962.
27
In the Maroon setting, formal arbitration, relying on established national laws and procedural
norms, some of which would have gained international notoriety, is not practiced.
Nevertheless, the Maroon system includes a mechanism for disputants to present their case
to a Tribunal, howsoever called, who will then make a binding determination on the merits.
At the national level, colonialism had introduced aspects of the legal system, including
specific mechanisms for settlement of disputes, which obtained in Britain. These
mechanisms now include formal arbitration under the Jamaican Arbitration Act of 1900,
which was modelled on the English Arbitration Act of 1889.
Since its enactment, the Jamaican Arbitration Act has been in force without any significant
amendment.14 It is limited in scope and domestic arbitration has had to rely on a number of
international rules, such as the ICC Rules and the UNCITRAL Rules.
Notwithstanding its limitations, a significant number of awards have been made under the
Arbitration Act and each is treated as a judgement of the court.15 This contrasts with awards
made without reference to the Act which are not so considered and have to be enforced, if
not voluntarily complied with, by common law suits for breach of contract.
2. Law in force and future projects
The Arbitration Act applies to arbitration under any law passed before or after its
commencement, except where it is inconsistent with the law regulating the arbitration or
with any rules or procedure authorized or recognized by that law.16
The Act is outdated and the Ministry of Justice has indicated an intention to reform the
existing framework. It is anticipated that any new arrangement will also include specific
provisions for international arbitration.
The Arbitration Act had minor revisions in 1969 and again in 1973 but has not been updated since.
See Arbitration Act, s 13.
16 Ibid, s 24.
14
15
28
3. Distinction between national and international arbitration
The Arbitration Act regulates domestic arbitration and does not now include any specific
provisions for international arbitration.
Arbitration in Jamaica is primarily concerned with domestic construction disputes and the
jurisdiction is not yet recognised for international arbitration.
In practice, domestic arbitration is considered to include cases where the parties are
Jamaican and where the contract giving rise to the dispute is located in Jamaica. Whereas
international arbitration is considered to include cases where there is no connection to
Jamaica other than the fact that it is held in Jamaican territory.17
B. Practice of arbitration
1. Frequency of arbitration as opposed to litigation
There are no available records which would enable an objective or any real assessment of the
frequency of arbitration as opposed to litigation. It appears, however, that litigation is now
much more commonly relied upon for settlement of commercial and other disputes.
2. Leading arbitration institutions
The Dispute Resolution Foundation of Jamaica (DRFJ) was established in 1994 with the
encouragement of the use of mediation as it main objective. It has since grown in stature and
now includes arbitration in its menu of possible options for the settlement of disputes.
The DRFJ has established a panel of arbitrators but has not yet become a recognised
arbitration institution.
In addition, the Chartered Institute of Arbitrators has now established a Caribbean Branch
in Jamaica. Like the DRFJ it has not yet cemented its place and cannot now rank as a leading
arbitration institution.
17
See MJ Stoppi Commercial Arbitration in the Caribbean: A Practical Guide (UWI Press Kingston 2001) 107.
29
Nevertheless, the Caribbean Branch has already commenced work on an ambitious reformoriented lobby agenda. This is intended to provide guidance for policy intervention as well as
implementation support for legislative and other reform efforts.
II. Jurisdiction of the arbitration tribunal
A. Arbitration agreement
1. Arbitration clause and submission agreement
An arbitration clause or agreement: evidences the consent of the parties to submit their
dispute to arbitration; establishes the jurisdiction and authority of the tribunal over that of
the courts; is the basic source of power for the arbitrators; establishes an obligation for the
parties to arbitrate.18
The Jamaican Arbitration Act speaks to a submission, which is a written agreement to
submit present and future differences to arbitration that may or may not name an
arbitrator.19 This submission is generally more simply referred to as an “arbitration
agreement”.
Unless a contrary intention is express therein, a submission is irrevocable, except by leave of
the Court or a Judge, and shall have the same effect in all respects as if it had been made by
an order of Court.20
2. Essential content of the arbitration agreement
The Arbitration Act does not require that an arbitration agreement or submission contain
See JDM Lew, LA Mistelis & SM Kroll Comparative International Commercial Arbitration (KLI The Hague 2003) 100.
See Arbitration Act, s 2.
20 Ibid, s 3.
18
19
30
any special or essential provisions. However, an arbitration agreement is ordinarily subject to
the normal rules which govern the interpretation of contracts.
At a minimum, the agreement or submission must therefore provide a sufficient basis for a
tribunal to find that the parties intended and specifically agreed to submit their dispute to
arbitration.
3. Form of the arbitration agreement
There is no special formal requirement for an arbitration agreement per se. However, a
submission, which is commonly referred to as the arbitration agreement, must be in
writing.21
4. Incorporation of an arbitration clause contained in general terms and conditions
The Arbitration Act does not provide for the incorporation of an arbitration clause
contained in general terms and conditions of any contract.
However, relevant common law principles and rules of interpretation could be relied upon
to determine whether incorporation is permissible in a particular case.
5. Law applicable to the interpretation of arbitration clauses
Where the parties have specifically determined that their agreement is to be regulated by a
specific law then it shall apply to the interpretation of the arbitration clause or submission.
Otherwise, the arbitration shall be regulated by the Arbitration Act and the more general
laws of Jamaica.22
6. Binding effect of an arbitration clause on third parties
21
22
See Arbitration Act, s 2.
Ibid, s 24.
31
The Arbitration Act presumes that arbitration is a mechanism for resolving disputes between
two parties. This conclusion is supported by several provisions under the Act, including
section 7, which refers to two arbitrators where one is to be appointed by each party.
While this presumption does not represent the nature of commercial arrangements, which
usually involve a host of interconnected parties joined by a chain or network of separate
contracts, the arbitrator has not been conferred with specific jurisdiction to determine
multiparty disputes.
Furthermore, there is no provision under the Act which specifically enables the joinder of
third party guarantors, assignees or other persons who do not have privity under the
arbitration agreement.
The parties can themselves agree to involve third parties in their arbitration. However, in the
absence of specific third party agreement to this end, difficulties could arise concerning: the
scope of the agreement to arbitrate; the constitution of the arbitral tribunal; the jurisdiction
of the arbitrator to hear the dispute; and enforcement of the award.
In any event, an award that has been improperly procured may be set aside by the Court. 23
Accordingly, if it is made in favour or against a party who had no right or obligation under
the arbitration agreement by an arbitrator who did not have express jurisdiction so to do the
award could be successfully challenged.
While this conclusion comports with general principles of law, there is no reported Jamaican
case law that has dealt with: consolidation of two or more running arbitration proceedings;
admissibility of third party participation without being a Claimant or Respondent; and the
prerequisites and effects of such participation if it were to be permitted.
7. Termination of an arbitration agreement by a party
23
Ibid, s 12 (2).
32
Termination can be effected by: effluxion of time, where the parties specifically agree to end
to their agreement to arbitrate on a particular date; satisfaction of a condition subsequent,
which results in termination on the occurrence of a particular event; performance; and
breach.
While breach could result in failure or refusal to participate under a submission, it does not
necessarily bring the agreement to an end as the aggrieved party may be able to rely on the
terms of the agreement and then secure a reference to arbitration under an order of the
court.
B. Arbitrability
1. Subjective Arbitrability
1.1
State/state enterprises
The Arbitration Act applies to arbitration where the Attorney-General on behalf of
the Crown or Government of Jamaica is a party. 24 However, it does not empower
the Court or a Judge to order any proceedings where Her Majesty or the AttorneyGeneral on behalf of the Crown or Government of Jamaica is a party without
consent of the Attorney-General.25
The substantive effect of section 23 is that no arbitration agreement should be
concluded with the State or even with state enterprises without consent of the
Attorney-General. With consent, there is no prohibition, as such, against arbitration
involving the State or state enterprises.
1.2
Legal entities/Artificial persons
Subject to general limitations, an artificial person or legal entity has such capacity to
24
25
Ibid, s 23.
Ibid.
33
conclude arbitration agreements as is permitted under its articles of incorporation.
Accordingly, when dealing with an artificial person the other party must examine its
incorporation documents and thereafter determine whether it is properly authorised
to enter a contemplated agreement to arbitrate.
1.3
Natural persons
The law limits the capacity of mentally disordered and drunken persons as well as
minors to enter contracts. Such persons are generally permitted to enter into contract
for necessaries but are otherwise considered not to have the capacity to contract.
An arbitration agreement would not be considered a contract for necessaries.
Therefore each party must satisfy him or herself that the other is not incapacitated as
a result of mental disorder, drunkenness or minority.
Once general capacity to contract has been established, a natural person can enter
any agreement to arbitrate unless it is otherwise objectionable under established law
or for public policy considerations.
2. Objective Arbitrability
Arbitration cannot extend to criminal proceedings involving the Crown. This prohibition
applies to references under order of the court26 as well as to references by consent of the
parties.27
As is the case with contracts more generally, an agreement to arbitrate is subject to other
relevant rules of law governing capacity as well as public policy considerations.
26
27
Ibid, s 14 (1).
Ibid, s 15.
34
Accordingly, arbitration cannot properly extend to disputes where the underlying contract is
for an illegal purpose or otherwise contrary to public policy.
C. Decision on the arbitral tribunal’s jurisdiction (“competence-competence”)
The Arbitration Act does not make any direct reference to the question of jurisdiction. This
contrasts, for example, with section 30 of the English Arbitration Act of 1996, which
provides that the tribunal may rule on its own substantive jurisdiction unless the parties
otherwise agree.
Therefore, unless the parties specifically agree, the arbitrator does not have legal capacity to
determine his or her own jurisdiction.
If a dispute arises as to jurisdiction, which the parties cannot determine by consent, the
proper forum for resolution is the court in an action for breach of contract. Subject to rules
of court and if the circumstances merit, the Court may then refer any question arising (other
than a criminal proceeding by the crown) to arbitration.28
Furthermore, the arbitrator may at any stage of the proceedings under a reference, and shall
if so directed by the Court or a Judge, state in the form of special case for the opinion of the
Court any question of law arising in the course of the reference.29
The abovementioned section 20 of the Arbitration Act enables the arbitrator to seek the
intervention of the court where the question of jurisdiction or other substantive legal issues
has to be determined.
D. Enforcement of an arbitration agreement within or by court proceedings
28
29
Ibid, s 14 (1).
Ibid s 20.
35
Where court proceedings are commenced without regard for a valid agreement requiring
submission to arbitration, the aggrieved party may at any time after appearance, and before
delivering any pleadings or taking any other steps in the proceedings, apply to the court for a
stay of proceedings.30
If the Court or a Judge is then satisfied that there is no sufficient reason why the matter
should not be referred on accordance with the submission, and that the applicant was, at the
time when the proceedings were commenced, and still remains, ready willing and able to do
all things necessary to the proper conduct of the arbitration, he or she may make an order
staying the court proceedings.31
The Jamaican courts have adopted the principle that where the parties have so agreed they
should be compelled to carry out their agreement to arbitrate. Accordingly, an application to
stay proceedings will be refused in only exceptional cases.
In American Home Assurance Company and Eight Others v. Edward Shoucair t/a S.N. Shoucair32 the
Court of Appeal had to consider a summons that had been filed to stay arbitration
proceedings while civil proceedings were on-going between the parties. The summons had
been dismissed by the Supreme Court.
In dismissing the appeal, Carey, J.A., then acting President of the Court of Appeal, relying
on the English decision of Lloyd v Wright,33 said:
It is, I think, important to note from this case that the matter in dispute must be the
same in the arbitration proceedings as it is in the action. And as well it should be
noted, that the defendant is at liberty to invoke the provisions of the Arbitration Act
which allow for the action to be stayed. If this is so, then I do not accept that the
mere filing of the action renders the arbitration proceedings at an end.
Ibid, s 5.
Ibid.
32 (1993) 30 J.L.R. 12.
33 [1983] 2 All E.R. 970.
30
31
36
In Douglas Wright t/a Douglas Wright Associates v The Bank of Nova Scotia Jamaica Limited34 an
application was made for an order setting aside judgment and granting a stay of further
proceedings in the action on the ground that both parties had agreed to refer their dispute to
arbitration. The judge relied on the learned authors of Mustill and Boyd on Commercial
Arbitration (2nd edn) page 472 and said:
The circumstances which accompany an act may be looked at to see whether the act
amounts to an election to give up the right to stay. Thus, an application to the Court
which might otherwise amount to a step in the proceedings is deprived of this
characteristic if the applicant makes it clear- by stating that his application is without
prejudice to a subsequent request for stay or in simultaneously taking out a summons
to stay- that he intends to insist on a reference to arbitration.
The judge then determined that by issuing a summons to set aside the judgment and
applying for a stay of proceedings in one document on the same day that execution was
levied, the applicant had acted promptly and did not take any step such as to preclude it
from seeking a stay of proceedings. Therefore, there was no sufficient reason why the matter
should not be referred to arbitration.
In Bentley Estates Limited v. Castle Construction Limited and A. L. Richards (t/a A.L. Richards and
Associates)35 the appellant had brought an action against the respondent contractors alleging
breach of contract and in the alternative negligence. A clause in the contract provided for
disputes to be referred to arbitration.
The trial Judge granted a stay of proceedings and there was an appeal.
The Court of Appeal held that the alleged breach was within the ambit of the arbitration
clause. Accordingly, the onus was on the appellant who had failed to show that there was
sufficient reason why the dispute should not have been referred to arbitration.
34
35
(1994) 31 J.L.R. 350.
(1992) 29 J.L.R. 480.
37
The approach of the Jamaican Courts has demonstrated that they are prepared to enforce
valid arbitration agreements and compel resort to arbitration where this has been agreed by
the parties.
III. The arbitration tribunal
A. Number and qualification of arbitrators
1. Sole arbitrator or arbitral tribunal with several arbitrators
The Arbitration Act provides that reference shall be to a single arbitration unless the parties
otherwise agree.36
Where there is reference to two arbitrators, they may appoint an umpire at any time within
the period during which they have power to make an award.37 However, the umpire is not a
third arbitrator but is instead a person appointed to hand down a decision if no consensus
can be reached by the two arbitrators.38
The umpire has the same powers, duties and responsibilities as a sole arbitrator and usually
sits with the arbitrators during the hearings. Nevertheless, the full authority of the umpire
does not come into existence until the arbitrators give him or her written notice that they
cannot reach an agreement.39
2. Qualification of the arbitrators
The Arbitration Act does not require that persons who offer to provide arbitration services
Ibid, s 4 (a).
Ibid, s 4 (b).
38 See Stoppi Commercial Arbitration (n 5) 37-38, citing A Walton Russell on the Law of Arbitration (18th edn Stevens and Sons
London 1970) 201-202.
39 Ibid.
36
37
38
should possess any specific qualification.
In practice, most persons who offer or are called upon to serve as arbitrators or umpires are
qualified attorneys-at-law.
3. Status of arbitrators
Unless the parties agree otherwise, the arbitrators or umpire acting under a submission have
power to: administer oaths or take the affirmation of parties and witnesses; state a special
case for the opinion of the Court; correct clerical slips in an award.40
The arbitrator or umpire is not beholden to any party and is required to act as an
independent. Furthermore, he or she is subject to the jurisdiction of the Court and may be
removed for misconduct.41
B. Appointment of arbitrators
Subject to the provisions of Arbitration Act and the terms of the agreement to arbitrate, the
arbitrators are usually appointed by: the parties; or the institution administering the
arbitration; or the court.
1. Extent of party autonomy to establish appointment procedure
The parties have the capacity to and may establish a specific or default appointment
procedure in their agreement to arbitrate.
Where the parties agree a particular appointment procedure, their rights and wishes must be
respected unless there is conflict with provisions of the Arbitration Act or other relevant
law.
40
41
See Arbitration Act, s 8.
Ibid, s 12 (1).
39
In the case of a privately appointed sole arbitrator, the parties normally exchange lists of
suggested arbitrators until there is mutual agreement.
It is customary for the arbitration agreement to provide that if the parties are unable or
unwilling to agree an arbitrator then one may be nominated by a recognised body or person,
such as the President of the Jamaica Bar Association.
2. Procedure in absence of an agreement by the parties – Default appointing authority
In the absence of agreement by the parties, an arbitrator may be appointed by reference to
any default procedure that has been established under the agreement to arbitrate. Otherwise,
a party may serve the others with a written notice to appoint an arbitrator and if an
appointment is not then made within seven clear days of the notice, the Court or a Judge
may, on application by the person who gave the notice, appoint an arbitrator.42
The Court appointed arbitrator shall have the like powers to act in the reference, and make
an award as if he or she had been appointed by consent of the parties.43
3. Effect of the refusal of one party to co-operate in the constitution of the arbitral tribunal
If any party refuses to co-operate in the constitution of the arbitral tribunal the default
procedure established under section 6 (a) of the Arbitration Act can also be triggered. The
appointee will then be clothed with the sanction of the Court and his or her authority is
irrevocable except by leave of the Court.44
4. Circumstances and valid reasons for an arbitrator to resign
An arbitrator should not accept an appointment to adjudicate on any issue where his or her
Ibid, s 6 (a).
Ibid.
44 See Stoppi Commercial Arbitration (n 5) 37.
42
43
40
appointment could be challenged at any stage of the proceedings on the grounds of partiality
or interest or where there is any other factor that could undermine his or her capacity to be
fair.
Having been appointed, an arbitrator should resign if the circumstances indicate that any
award made could be successfully challenged for the reasons set out above.
An arbitrator should also resign if: unable to proceed with reasonable dispatch; unwilling to
hear evidence that is being properly presented; he or she develops an improper relationship
with any party or a party representative; or accepts and improper gift from any party or their
representatives.45
C. Challenge and replacement of arbitrators
1. Grounds, procedure and deadlines for challenging an arbitrator
Where an arbitrator is guilty of misconduct, the Court may remove him or her.46 Besides this
generic provision, the Arbitration Act does not include any other provision which could be
considered when dealing with challenge or removal of an arbitrator. Nor does the Act
include any specific procedure or deadlines for challenge.
The Act does establish, however, that a Court appointed arbitrator becomes an officer of the
Court. As such, the Court may of its own motion or on application enquire into his or her
conduct and may then apply sanctions against him or her, including removal, if the
circumstances merit.47
In practice, an arbitrator may be challenged and could be removed at any time before, during
or after an appointment where there is evidence of: interest; misconduct; bribery; failure to
Ibid.
Ibid s 12 (1).
47 Ibid, s 16 (1).
45
46
41
be impartial or honest.48
2. Procedure for appointing a new arbitrator
If an appointed arbitrator is incapable as a result of a successful challenge, unless the
submission specifically prevents this happening, the parties are liberty to agree and then
appoint another arbitrator.49
Where the parties cannot agree, if the submission permits, any party may serve on the others
a notice to appoint, which if not complied with within seven days will enable him or her to
apply to the Court which will then be able to sanction the appointment of a new arbitrator.50
IV. The arbitration procedure
A. General principles
1. Extent of party autonomy to determine the arbitral procedure
Arbitration may commence by references under court orders.51 However, they usually arise
under written agreements to submit present or future disputes to arbitration.
The parties have the capacity to determine the scope of their submission. However, if they
do not express a contrary intention then they are bound by the statutory provisions
contained in section 4 of the Arbitration Act.52
Subject to the parameters of national laws, the doctrine of fundamental freedom of contract
See Stoppi Commercial Arbitration (n 5) 37.
See Arbitration Act, s 6.
50 Ibid.
51Ibid, ss 14 & 15
52 Ibid, s 4.
48
49
42
prevails. Accordingly, the parties have general autonomy to determine the rules to be applied
as well as the procedure to be adopted in their arbitration.
2. Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
The Arbitration Act does not establish any procedural principles or mandatory rules to be
applied by the tribunal. However, at the preliminary stage, the arbitrator will seek to:
determine questions related to the jurisdiction of the tribunal; fix timelines for the delivery of
points of claim and responses; provide guidelines concerning list of documents and their
discovery; agree figures and facts where possible; determine the number of witness,
including experts, that will be allowed to participate in the proceedings.
The overriding objective is to ensure that the proceedings are fair and equitable.
Furthermore, the arbitrator will be guided by the now established principle that justice
should not only be done but should manifestly appear to have been done.53
Thus, directions should, as far as possible, be issued on the basis on consensus. If this is not
possible, then they should be based on logic and after having given the parties every possible
opportunity to present their conflicting views.
In cases of extreme difficulty or where the circumstances suggest that this approach would
assist the overriding objective, the arbitrator should seek the opinion of the Court on a case
stated.
Where the hearing is concerned, each party must have: due notice of place and time;
reasonable opportunity to be present during the hearing with advisors and witnesses;
reasonable opportunity to present evidence and arguments in support of case; reasonable
opportunity for cross-examination of witnesses and to present a rebuttal.
3. Oral hearing or proceeding on basis of written documents
53
See R v Sussex Justices, Ex parte McCarty [1924] 1 KB 256.
43
The Arbitration Act does not prescribe any requirement for oral or written documents.
However, the proceeding may include oral as well as written evidence and conduct will be
influenced by: the circumstances of the case; agreement of the parties; and control of the
arbitrator.
4. Power of the tribunal (in particular the chairman) to issue procedural orders
The Arbitration Act does not confer any special power on the tribunal to issue procedural
orders. However, in taking control of the proceedings the arbitrator give such directions,
including procedural orders, as are necessary to ensure the fair and equitable conduct of the
proceedings.
5. Distinction of matters of substance and matters of procedure
The Arbitration Act does not establish or include a distinction between matters of substance
and matters of procedure.
In practice, substantive matters are considered to be technical matters relating to the
organisation and conduct of the proceedings while substantive matters influence the
outcome of the case.
6. Persons able to represent a party in arbitration proceedings
The Arbitration Act does not delimit a category or persons who are able to represent a party
in arbitration proceedings. However, the usual party representatives are qualified attorneysat-law.
B. Place of arbitration
1. Determination of the place of arbitration in absence of an agreement by the parties
44
The Arbitration Act does not include any specific requirement concerning how the place or
seat of arbitration is to be determined.
Nevertheless, this may be determined by: agreement of the parties; any arbitral or other
institution or person vested with power granted by the parties to determine the seat; the
arbitral tribunal, if so authorised by the parties or where general provisions in the agreement
of the parties and all the relevant circumstances enable them so to do.
A determination by the tribunal without the unequivocal and express intention of the parties
could be subject to challenge. In exercising this option, the tribunal must therefore ensure
that the circumstances justify the selection.
2. Importance and legal effect of place (seat) of the arbitration
The place of the arbitration is its judicial seat. It has significant implications for the
applicable law as well as the jurisdiction of the tribunal more generally, especially where the
parties have not made an express choice of law for any aspect of their arbitration.
C. Submissions, deadlines and default
1. Contents and form of submissions
The Arbitration Act does not include any provisions as to the content and form of
submissions.
However, the terms of reference and general approach of the tribunal will usually establish
whether written or oral submissions will be accepted. The tribunal might also then establish
the required scope of submissions.
Over time, written submissions, as directed by the tribunal, have become more common and
45
this practice is followed almost exclusively in voluminous and complex matters.
2. Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance
The Arbitration Act does not establish any deadlines for submissions. Nor does it grant any
specific power to an arbitrator to impose deadlines or sanctions for non-compliance with an
established deadline.
However, the arbitrator will at the outset seek to establish deadlines and possible sanctions
for non-compliance which are mutually agreed by the parties. The arbitrator might also issue
peremptory orders which are not consensual concerning deadlines and sanctions to be
applied where there is default.
The usual sanction often renders a defaulting party liable for extra costs incurred or further
actions to be taken as a result of non-compliance.
3. Statutory requirements as to notifications during an arbitration
The Arbitration Act does not include any statutory requirement for notifications as to
deadlines or impending sanctions for non-compliance with established deadlines.
4. Effect of the insolvency of a party
The Arbitration Act does not include any provision concerning insolvency of a party.
Where, however, a provisional or absolute order in bankruptcy is made against a party to
arbitration he or she could be found guilty of a criminal offence if he or she does not deliver
up to the trustee or as directed all books, documents, papers and writings, in his or her
custody or under his or her control, which relate to his or her property or affairs.54
54
See Bankruptcy Act, s 177 (c).
46
While this provision does not establish a modus operandi, as such, in these circumstances, the
best approach would be to seek the direction of the Court. It could then order a stay or
permit continuation of the arbitration.
Where the insolvent party is a company and a winding up order has been made or
provisional liquidator appointed, no action or proceeding shall be continued or commenced
against the company except by leave of the Court and subject to such terms as the Court
may impose.55
While this provision does not speak directly to arbitration, in these circumstances, the best
approach would be to seek the direction of the Court. It could then order a stay or permit
continuation of the arbitration.
D. Facts and evidence: general
The evidence of parties and of witnesses shall be given under oath or affirmation.56
1. Burden of proof
Jamaica is a common law jurisdiction and legal proceedings are adversarial in nature. Under
this system of law, he or she who alleges must prove. Accordingly, the burden of proof in
relation to any issue rests with the party who raises it.
2. Standard of proof
Arbitration is founded on a contract between or among parties. As such, it is considered to
be a civil proceeding where the required standard of proof is on a balance of probabilities.
55
56
See Companies Act, s 229.
Ibid, s 4 (f) & (g).
47
3. Power of the tribunal to determine the admissibility and weight of the evidence
The Arbitration Act specifically provides that where a reference has been made under order
of the Court or a Judge, the arbitrator is deemed an officer of the Court and subject to any
special direction of the Court or Judge he or she has authority to conduct the reference in
such manner as may be prescribed by rules of court.57
Whereas a submission does not specifically confer officer of the Court status on an
arbitrator, where there has been a submission he or she is nevertheless still considered to be
bound by rules of evidence which apply in the courts of law.58
The general principles concerning the approach to evidence are included in the Supreme
Court of Jamaica Civil Procedure Rules 2002 (CPR). These rules are buttressed by common
law interpretations and other guidance that may be found in relevant case law.
The rules enable the arbitrator to give appropriate directions as to: the issues on which
evidence is required; the nature of the evidence that is required; and the way in which
evidence is to be placed before the arbitrator.59
Furthermore, the arbitrator may use his or her power to exclude evidence that would
otherwise be admissible60 and may also limit cross-examination.61
Insofar as weight is concerned, the arbitrator will have to determine this issue on a case by
case basis and his or her own subjective assessment is critical.
The question of admissibility has important implications, including that an arbitrator who
Ibid, s 16 (1).
See Stoppi Commercial Arbitration (n 5) 92.
59 See Arbitration Act, s 29 (1).
60 Ibid, s 29 (2).
61 Ibid, s 29 (3).
57
58
48
wrongfully admits evidence, which goes to the root of the question to be submitted, is guilty
of misconduct and the award will be set aside.62
E. Witnesses
1. Ability of a person to act as a witness
The Arbitration does not limit the category of persons who may give evidence. However, the
rules evidence, including rules related to capacity, which apply in national courts, are
observed.
The basic rule is that a witness must be competent and compellable. Accordingly, a child of
tender years or a person of unsound mind could, for example, be considered incompetent to
act as a witness.
The preferred option is to rely on witnesses who avail themselves without compulsion of
law. However, the Court or a Judge may order a writ of subpoena ad testificandum or of
subpoena duces tecum to compel the attendance of a witness whenever he or she may be in
Jamaica.63
Furthermore, the Court or a Judge may also order a writ of habeas corpus ad testificandum to
bring up a prisoner for examination as a witness.64
An order compelling the attendance of a witness which is made by the Court or a Judge will
include such terms as to costs, or otherwise, as the Court or Judge making the order thinks
just.65
See Stoppi Commercial Arbitration (n 5) 93, citing IN Duncan Hudson’s Building and Engineering Contracts (Sweet &
Maxwell London 1978) 235.
63 Arbitration Act, s 19 (1).
64 Ibid, s 19 (2).
65 Ibid, s 21.
62
49
In practice, an ordinary witness is required to deal with and present relevant facts that are
within his or her personal knowledge or experience. Expert witnesses may opine on the facts
presented based on their professional or technical experience.
Each witness must be prepared to be cross-examined on the facts or opinions that he or she
presents. And any witness who wilfully or corruptly gives false evidence shall be guilty of
perjury, as if the evidence had been given in open Court, and may be dealt with, prosecuted
and punished accordingly.66
2. Preparation of witnesses and limits thereof
The Arbitration Act does not deal with whether or the extent to which a witness may be
prepared by the party relying on him or her. Nevertheless, the usual practice involves careful
assessment of potential witnesses by party representatives as well as assistance with how they
should present their evidence and thereafter deal with cross-examination.
3. Admissibility of written witness statements
The Arbitration Act does not require the admission of written witness statements. However,
these are usually relied upon to assist the progress of the arbitration.
The intention to admit is usually settled at a preliminary stage of the proceedings and
relevant statements are then agreed and exchanged. Furthermore, it is then made clear that
authors of witness statements must be prepared to be cross-examined on their content at the
appropriate time.
4. Entitlement of a party to have a hearing or cross-examination of witnesses
The ultimate objective when dealing with evidence is to ensure that fairness and equality is
maintained.
66
Ibid, s 22.
50
Each party is therefore entitled and standard practice ensures that he or she is able to crossexamine the witnesses of other parties. A party may also present rebutting evidence in
support of his or her case as well as oral or documentary arguments.
F. Documents
1. Form and kind of documents to be presented to the arbitral tribunal
Subject to any legal objection, the parties shall, in relation to the matters in dispute, produce
before all books, deeds, papers, accounts, writings and documents within their possession or
power which may be required or called for, and do all things which the arbitrator or umpire
may require.67
2. Requirement to produce certain documents and consequences of a failure to do so
Any party to a submission may sue out a writ of subpoena ad testificandum or a writ of
subpoena duces tecum in an attempt to have relevant documents available for arbitration.
However, no person shall be compelled under any writ to produce any document which he
or she could not be compelled to produce on the trial of an action.68
Where there has been a reference, the arbitrator is deemed an officer of the Court and is
authorised to conduct the proceedings in such manner as may be prescribed by rules of
court, subject to the direction of the Court or a Judge.69
The relevant rules of court permit applications for the production or discovery of relevant
documents in a prescribed manner. The arbitrator may then exercise any power that could
have been exercised at a case management conference and may grant the production order
Ibid, s 4 (e).
Ibid, s 9.
69 Ibid, s 16 (1).
67
68
51
sought on specified terms.70
Failure or refusal to comply with a production order made by an arbitrator under a reference
or by the Court or a Judge on application by any party to a submission would be considered
a contempt of Court for which defaulting party could be imprisoned.
3. Protection of the confidentiality of documents
The Arbitration Act does not include any special protection for documents that could be
considered confidential.
If a production order is sought through the Court only those documents protected by legal
privilege, such as correspondence between a party and his or her legal representative, are
guaranteed protection from disclosure.
The parties may themselves agree that certain documents will not be disclosed. Furthermore,
each application to the Court will be assessed on its own merits and the production order
will be ordinarily limited by the question of relevance.
A fulsome Court order should also include other terms, such as sanctions to be applied
where there is default, as are necessary to secure non-disclosure to uninterested third parties.
G. Experts
1. Appointment and presentation of experts by the party or the arbitral tribunal
Subject to rules of evidence concerning in particular questions of relevance and competence,
each party is allowed to appoint and present expert evidence in support of his or her case.
Nevertheless, the parties may agree to share and present evidence of the same experts and
70
Supreme Court of Jamaica Civil Procedure Rules 2002, Part 11.
52
the arbitrator may limit the number of experts.
In appropriate circumstances where there is an established need for expert assistance, the
tribunal could of its own motion under a submission, unless the parties object to this course
of action, appoint and allow the presentation of expert witnesses.
Where there is objection or in cases where there has been a Court reference, the tribunal
may seek an order of the Court or a Judge which permits the appointment of expert
witnesses and also determines the scope and manner in which their evidence is to be
presented.
2. Admissibility and role of expert witnesses
The main function of an expert witness is to assist the arbitrator in arriving at a just
conclusion rather than to serve the best interest of the party who employs him or her.
Accordingly, an astute arbitrator should guard against the slanting of evidence or opinion in
favour of one party or another.
Where expert reports or opinions are used by the several parties, the arbitrator will at the
preliminary stage usually encourage agreement of facts and figures in order to reduce the
scope of matters in dispute during the hearing.
3. Influence of the parties upon the selection of questions to be submitted to the expert
The arbitrator is required to maintain control of the proceedings and should only permit
expert evidence that assists a just and equitable determination of the issues in dispute.
Accordingly, while party autonomy is to be respected, no party is permitted to influence the
selection of questions to be determined by an expert which have no relevance to the
proceedings.
4. Independence and impartiality of the expert and the right to reject a proposed/appointed
expert
53
An expert may be appointed by any party and his or her appointment cannot be rejected
unless the agreement to arbitrate requires a mutually acceptable appointment or is otherwise
an affront to arbitral process.
Nevertheless, where it is clear that the expert lacks capacity to be independent or impartial
then his or her evidence could be easily undermined and if accepted could from the basis of
a challenge to the award.
5. Oral examination of an expert in a hearing
Every witness, including experts, shall, subject to any legal objection, submit to be examined
on oath or affirmation.71 Such evidence may be oral, documentary or real.72
H. Interim measures of protection
1. Kind of interim measures which the tribunal may order
The tribunal performs a quazi-judicial function and is required to make an award which is
fair, binding and capable of enforcement.
Although the Arbitration Act does not establish that interim measures that may be ordered
by the tribunal, such measures may become necessary during the proceedings and will be
justified as having been necessary in the interest of justice.
Such measures may include: an injunction to stop building works; an injunction to restrain
the depletion of monies in a bank account; an order requiring a party to deliver up
prescribed assets or documents to a third party on specified conditions.
71
72
See Arbitration Act, s 4 (f).
See Stoppi Commercial Arbitration (n 5) 92. Real evidence is considered to include a site or samples of material.
54
2. Limits of the tribunal’s powers to order interim measures
The Arbitration Act does not delimit the capacity of the tribunal to order interim measures.
Where such measures are contemplated, however, the tribunal should not overreach the
authority included in the terms of reference or which could reasonably be justified as having
been required to ensure a fair and equitable conduct of the proceedings.
Furthermore, where the tribunal has been appointed under a Court reference, the Court or a
Judge could specifically direct the extent to which the tribunal may order interim measures.
3. Orders to provide security for the costs of the proceeding
The Arbitration Act does not include any specific provision concerning security for costs.
However, section 4 (i) enables the arbitrator or umpire to direct how the costs of the
reference is to be paid.
Where security for costs is ordered, the arbitrator or umpire will seek to justify it under
section 4 (i).
4. Attachment of assets by an order of the tribunal
The Arbitration Act does not include any provision which enables the tribunal to make an
order for the attachment of assets. Assistance, in this regard, may be sought from the Court
and is the preferred option.
I. Assistance by the courts
The courts can and should provide assistance to the arbitral process in appropriate
circumstances.73
1. Extent of court assistance in the gathering of evidence
73
See Channel Tunnel Group v Balfour Beatty Ltd. [1983] AC 334, 336.
55
The Court may order a writ of subpoena ad testificandum or of subpoena duces tecum to compel
the attendance of any person before an arbitrator.74 The Court may as well order a writ of
habeas corpus and ad testificandum to bring up a prisoner for examination.75
By these devices, the Court is able to provide significant assistance to the arbitral process in
the gathering of evidence.
2. Assistance for enforcing the attachment of assets
Every attachment or other device that is available to a successful litigant in attempts to
enforce a judgement can by leave of the Court be relied upon in attempts to enforce an
arbitration award.76
An award for money may be enforced through the Court by: an order seizure and sale of
goods; a charging order; an order for attachment of debts; the appointment of a receiver;
Judgement Summons; an order for sale of land.77
The Civil Procedure Rules also include more general provisions concerning the enforcement of
judgments, which would apply to arbitration awards where enforcement is being sought
through the court.78
If an enforcement order is not complied with, the Court is empowered to commit the
offending party to prison or to make an order for confiscation of assets for failure to
comply.79
See Arbitration Act, s 19 (1).
Ibid, s 19 (2).
76 Ibid, s 13.
77 See Supreme Court of Jamaica Civil Procedure Rules 2002, r 45 (2).
78 Ibid, Parts 45-52.
79 Ibid, Part 53.
74
75
56
3. Other examples of possible assistance
The arbitrator or umpire may at stage of proceedings under a reference, if so directed by the
Court or a Judge, state in the form of a special case for the opinion of the Court any
question of law arising in the course of the reference.80
Furthermore, the Court may and in appropriate circumstances, on the application of a party
who at any stage after entering appearance and before delivering pleadings or taking any
other steps, stay judicial proceedings and require settlement in accordance with their
arbitration agreement.81
This function is often relied upon and has been the subject of several decisions in the
Supreme Court as well as in the Court of Appeal.
The court also has power to and will in appropriate circumstances: appoint an arbitrator or
umpire;82 set aside the appointment of an arbitrator or umpire;83 enlarge the time for making
an award;84 remit matter for reconsideration by the arbitrators or umpire;85 remove an
arbitrator;86 set aside an award;87 grant leave to permit the enforcement of an award.88
4. Power of state courts to intervene during the proceedings concerning the procedural law
applied by the arbitral tribunal
Where there has been a reference, the Court or a Judge may at any stage of the proceedings
give specific directions to the arbitrator and may on a case stated opine on any question of
law that arises.89
See Arbitration Act, s 20.
Ibid, s 5.
82 See Arbitration Act, s 6.
83 Ibid, s 7.
84 Ibid, s 10.
85 Ibid, s 11.
86 Ibid, s 12 (1).
87 Ibid, s 12 (2).
88 Ibid, s 13.
89 Ibid, s 20.
80
81
57
More generally, in cases of extreme difficulty for the arbitrator or upon application by either
side, the Court may determine points of law, including in relation to the procedural law to be
applied by the tribunal.90
In these cases, the arbitrator may apply to the Court for leave to submit the question to be
determined or the Court could on the request of any party order that a special case be stated
for their opinion.
Access to the Court and their intervention must, in all cases, be carefully managed as the
parties may use this device to unnecessarily and unfairly delay the arbitration.
V. The award
A. Types of award
1. Interim award
The arbitrator is authorised to make an interim award, unless this is expressly precluded by
the submission91 or is inconsistent with the authority granted under a reference.92
2. Partial award
The arbitrator is authorised to make a partial award, unless this is expressly precluded by the
submission93 or is inconsistent with the authority granted under a reference.94
3. Final award
See Stoppi Commercial Arbitration (n 5) 76.
Ibid, s 8 (b).
92 Ibid, s 16 (1).
93 Ibid.
94 Ibid, s 16 (1).
90
91
58
The arbitrator is authorised to make a final award, which is binding on the parties and the
persons claiming under them.95
4. Default award
The Arbitration Act does not include any provision that specifically enables an arbitrator to
make a default award. However, the capacity to proceed ex parte and thereafter render an
award in default is considered to be an automatic right which is necessary to protect a willing
party against a reluctant or non-appearing party.96
This authority is only to be exercised in exceptional cases. Furthermore, adequate written
and explicit notice must be give to the recalcitrant party and the proceeding should be
justified on the basis that it was required in the interest of justice and furtherance of the
arbitral process.97
5. Award on agreed terms
The parties may of their own volition or with assistance from the arbitrator agree terms of
an interim, partial or final award at a preliminary or other stage of the proceedings. The
arbitrator will then document the agreement and enter same as a consent order or award on
agreed terms.
B. Deliberations and agreement on the award
1. Time limits for making the award
The award is to be made within three months after entering on a reference or after a party to
Ibid, s 4 (h).
See Stoppi Commercial Arbitration (n 5) 71.
97 Ibid.
95
96
59
the submission has by notice in writing called on the arbitrator to act.98
However, time may be enlarged in writing signed by the arbitrators. In this case, the award
shall be made available on or before the day when the enlarged period expires.99
If the arbitrators allow their time or extended time to expire without making an award, or
indicate by notice in writing that they cannot agree, the umpire may forthwith enter on the
reference in lieu of the arbitrators.100
The umpire shall then make an award within one month after the original or extended time
for the award has expired or within such other period as has been enlarged in writing signed
by him or her.101
The time for making an award may also be enlarged from time to time by order of the Court
or a Judge, whether same has expired or not.102
2. Procedure for the decision of the arbitrators
The Arbitration Act does not prescribe a decision-making process that should be adhered to
by the arbitrators and there is no judicial guidance, as such, in this area. However, the parties
are free to determine the form and other procedural considerations that should be followed.
Nevertheless, the arbitrators or umpire shall make the award within three months of the
reference or within such other enlarged time as shall be notified to the parties in writing.103
Furthermore, the process adopted should result in an award that is: relevant and complete;
Ibid, s 4 (c).
Ibid.
100 See Arbitration Act, s 4 (d).
101 Ibid, s 4 (e).
102 Ibid, s 10.
103 Ibid, s 4 (d).
98
99
60
incapable of ambiguity; final and binding; capable of enforcement in the same manner as a
judgment or order of the court; duly signed and witnessed.
3. Admissibility of dissenting opinions
The Arbitration Act does not deal with dissenting opinions and there is no judicial guidance
in this area.
4. Signature by the arbitrators and potential failure of one arbitrator to sign
While this is not required under the Arbitration Act, the award is usually signed by the
arbitrator or umpire in the presence of a witness.
Failure to sign will not incur any specific sanction. However, where there is a challenge an
unsigned award, which has not been verified by a witness, could be subjected to additional
scrutiny.
C. Form of the award and deposition
1. Form and minimum contents of an award
The award shall be in writing.104
2. Requirement to give reasons in the award
The Arbitration Act does not require that reasons be given in the award. However, this may
be specifically required in the agreement to arbitrate or under the terms of reference that is
agreed to by the arbitrator.
104
Ibid, s 4 (c).
61
3. Necessity to specify place and time where and when the award was made
The Arbitration Act does not require that the arbitrator must specify the time or place where
the award was made. However, this could become important where, for example,
enforcement is being sought under the New York Convention in another jurisdiction and
the practice is encouraged.
4. Other requirements
Once an award has been made, the arbitrator may not re-open or recall it except of the
correction of clerical mistakes or errors arising from accidental slips or omissions.105 He or
she will, however, remain in possession of the hearing bundles, drawings and other items of
evidence, witness statements, personal notes, and transcripts of evidence.
The normal procedure thereafter is for the arbitrator to index and file away his or her notes
and correspondence for a minimum of six years. He or she will also then fix a time period
within which the parties may collect their submissions.
D. Applicable substantive law
1. Party autonomy to choose the applicable substantive law or rules of law
The parties have the autonomy to agree the applicable substantive law and if their choice
may avoid the application of Arbitration Act.106
2. Decisions according to equity or as amiable compositeur
The Arbitration Act does not permit nor does it preclude decisions according to equity or as
105
106
Ibid, s 8 (1) (c).
Ibid, s 24.
62
amiable compositeur. Accordingly, the parties may require the arbitrators or umpire to
determine their dispute under these principles or subject their arbitration to rules which
permit this latitude.
3. Application of lex mercatoria, general principles etc.
The Arbitration Act does not permit nor does it preclude the application of lex mercatoria or
general principles. Accordingly, the parties may require the arbitrators or umpire to
determine their dispute in this manner or subject their arbitration to rules which permit this
latitude.
4. Applicable substantive law absence a choice of law by the parties
Where there has been no express choice of law, the Arbitration Act will apply107 and a
determination will be made according to: any discernable intention of the parties that is not
contrary to public policy; evidence in the contract of any reasonable implication of law; most
convenient place of enforcement; the considered choice of the tribunal.
E. Settlement
1. Settlement by agreement of the parties with or without support of the arbitral tribunal
Arbitration involves proceedings between or among parties who have the autonomy to
themselves settle their dispute at any stage with or without support of the tribunal.
2. "Private settlement" and its impact on the arbitral procedure
Where there has been a private settlement, the tribunal could record the agreement of the
parties and enter same as a consent award. Otherwise, the proceeding should be treated as
having been discontinued by the parties.
107
Ibid.
63
3. Form and effect of a settlement
A settlement or award on agreed terms is no different in substance than one entered after
full consideration of the issues. It is more difficult, however, to challenge such an award on
the basis that it was improperly obtained.
F. Costs of the arbitration
1. General allocation of the costs of the proceedings
The costs of the reference and award shall be in the discretion of the arbitrators or umpire,
who may direct to and by whom and in what manner those costs or any part thereof shall be
paid.108
The arbitrators or umpire may also tax or settle the amount of costs to be paid or any part
thereof and may award costs as between solicitor and client.109
2. Deposits or advances for costs or fees
The Arbitration Act does not include any specific provision for fees, deposits or advances.
However, fees may be determined after the event on a discretionary basis and it is also
possible for the arbitrators or umpire to make a binding preliminary determination as to fees
and advances.110
In any event, the parties have autonomy to agree the question of fees, deposits or advances
with the arbitrators or umpire. Furthermore, they may agree to proceed under ad hoc or other
rules which include specific provisions for the determination of fees and advances.
Ibid, s 4 (i).
Ibid.
110
Ibid, s 4 (i).
108
109
64
3. Costs of the administration by an arbitration institution
The cost of the reference, which would include the cost of the administration, is in the
discretion of the arbitrator111 unless the parties agree otherwise or the arbitration is subject to
specific rules which provide how these are to be determined and paid for.
4. Arbitrators´ fees: law and practice, judicial control
Since implementation of the Fair Competition Act, service professionals, including
arbitrators, look to the market for guidance in determining their fees.
Where an appointment is made under a submission, the arbitrator is not subject to judicial
control, as such, in the determination of a fee. However, the agreement could be subject to
specific rules, such as ICC or LCIA, which prescribe how fees are to be determined.
If there is a breach of the fee agreement, then the Court could intervene. Furthermore, an
aggrieved party who did not at the outset specifically agree a fee or the basis on which it
should be determined could apply to the Court to have an ‘imposed’ fee examined for
unreasonableness and a ‘proper’ fee substituted.
In instances where the arbitration has been under a Court reference, the Court or Judge will
give specific directions to the arbitrator, which could include a direction as to the fee to be
charged.112 To this extent, judicial control of the arbitrator’s fees can be maintained.
5. Attorneys´ fees and the winning party´s claim for reimbursement
The general rule is that costs follow the event and are usually awarded to the party who
succeeds on the claim. And an award may be made as on such terms as to costs, or
111
112
Ibid, s 4 (i).
Ibid, s 16 (1).
65
otherwise, as the arbitrator thinks just.113
Accordingly, the quantum as well as any specific direction as to liability and manner of
payment is in the discretion of the arbitrator or umpire. He or she is also authorised to tax or
settle the amount and may award costs as between solicitor and client.114
6. Time and form of the decision on costs
The award shall be made in writing within three months of the reference or such other
enlarged time as shall be communicated in writing to the parties.115 A cost order will then be
made and failure in this regard could result in the award being remitted by the Court.116
G. Publication of the award
There are no specific provisions under the Arbitration Act requiring publication of awards
with or without consent of the parties or in any particular manner.
In practice an award is considered to have been published when the arbitrator signs the
document and it is witnessed. The arbitrator will then write to the parties advising that the
award has been published and invite collection against payment of fees.117
VI. Amendment and challenge of the award; liability of arbitrators
A. Amendment, correction or interpretation of the award
1. Motion to amend or correct an award
Ibid, s 21.
Ibid, 4 (i).
115
Ibid, s 4 (c).
116
See Stoppi Commercial Arbitration (n 5) 130.
117 Ibid, 131.
113
114
66
The arbitrators or umpire have power to correct in an award any clerical mistake or error
arising from any accidental slip or omission.118 And in all cases of reference to arbitration the
Court or a Judge may remit the matters referred for reconsideration by the arbitrators or
umpire.119
A motion to amend or correct an award is in the nature of a challenge which must disclose
valid reasons for the Court to exercise its discretionary power to remit the matter for
reconsideration. Where, however, the award is remitted, unless the order otherwise directs,
the arbitrators or umpire must make their amended award within three months after the date
of the order.120
2. Interpretation of the award by the tribunal
The Arbitration Act does not confer express authority on the tribunal to interpret their
award. However, this jurisdiction is exercisable in the normal course unless the parties agree
otherwise.
Furthermore, the tribunal may state an award as to the whole or part thereof in the form of a
special case for the opinion of the Court.121 By this method, the tribunal may secure and
thereafter provide a Court assisted interpretation of the award.
B. Appeal on the merits
1. Admissibility and procedure of an appeal on the merits
The Courts will consider an appeal on the merits in appropriate circumstances.
See Arbitration Act, s 8 (c).
Ibid, s 11 (1).
120 Ibid, s 11 (2).
121 Ibid, s 8 (b).
118
119
67
In San Souci Limited v. VRL Services Limited,122 the Court of Appeal had to consider an appeal
from an Order of Sykes J which had refused an application to set aside an Order of Reid J to
VRL Services Limited (VRLS) to enforce an arbitration award against Sans Souci limited
(SSL). Reid had also then refused a stay execution of the order until the final determination
of the claim brought by SSL to set aside the award.
The appeal was allowed on the merits, thus preventing enforcement of the award by VRLS.
This decision confirms that an award may be set aside where the circumstances merit and
that an application refused in the Supreme Court could be taken on appeal to the Court of
Appeal.
2. Possibility to exclude an appeal
The parties are free to agree as they will subject only to established legal prohibitions and the
dictates of public policy. They are not precluded from agreeing not to appeal and award and
as such may exclude this possibility when they agree to arbitrate.
C. Setting aside of the award
1. Reasons for setting aside an award
The Court may set an award aside where there has been misconduct by the arbitrator or
umpire or if it has been improperly procured.123
In Book Traders (Caribbean) Ltd. v. Jamaica General Insurance Company Ltd.,124 an award was
challenged on the basis that it was bad on the face and refusal to award interest at
commercial rates was erroneous in law.
SCCA No. 108 of 2004
See Arbitration Act, s 12 (2)
124 SCCA No: 128/2000, Judgement Book October-December 2002, Vol. 4.
122
123
68
The respondent contended that the appellant had demanded and accepted the payment of
the award including interest. Having heard the arguments, the trial judge dismissed the
appellant’s case on a preliminary point on the basis that they were ‘approbating and
reprobating.’
On appeal, the Court declined the invitation to interfere with the arbitrator’s findings and
confined their decision to whether the acceptance of payment by the appellant amounted to
a waiver. They concluded that the appellant was estopped by its conduct from challenging
the arbitrator’s award.
They Court of Appeal confirmed that an award under the Arbitration Act results from an
agreement by the parties to subject the resolution of their dispute to an arbitrator. They also
affirmed that the agreement to arbitrate require the parties to accept an award which has no
error on the face of it.
In National Transport Co-operative Society Ltd. v The Attorney General of Jamaica,125 the Court of
Appeal had to consider an appeal from the judgment of trial judge Brooks J. He had set
aside an award where there were apparent errors on the face of the record, including that the
arbitrators had failed to find that a Minister of Government had no power to grant exclusive
licences to transport operators.
The Court of Appeal relied on the English decisions of Harbour Assurance Company v. Kansa126
and Soleimany v. Soleimany127 and determined that they will not enforce an award with its
genesis in an illegal contract. Where illegality is established, the award will be set aside for
misconduct.
The Court found that arbitrators would have been in a similar position to a court of law
which would have been precluded by fundamental public policy from enforcing the instant
contract and awarding damages. This decision is now the subject of an appeal to the Judicial
Committee of the Privy Council.
SCCA No. 117/2004, Judgment delivered on June 8, 2008.
[1993] 3 All E.R. 897.
127 [1997] 3 All E.R. 847.
125
126
69
In Marley and Plant Limited v. Mutual Housing Services Limited,128 and application to set aside an
award was made in the Supreme Court on the basis that the arbitrator had not complied with
the terms of reference. It was further contended that the arbitrator had no power to award
interest and that there was an error on the face of the record.
The trial judge set aside the award on the basis that in accordance with the terms of
reference the arbitrator should have made specific findings in relation to the claims. There
was then an appeal to the Court of Appeal.
The Court of Appeal disagreed and stated that where parties have chosen to use arbitration
the jurisdiction of the Supreme Court to set aside award can only be exercised in well
defined circumstances, where the arbitrator has committed an error in law.
Furthermore, save for an award in a special case, an arbitrator need not give any reason for
the award. Findings of fact and law cannot therefore be challenged unless an error of law
appears on the face of the award which can only be detected if there is a speaking award.
2. Procedure and deadlines for challenging an award
The Arbitration Act does not include any procedure to be followed or deadlines to be met
where an award is being challenged.
However, an award on a submission is enforceable in the same manner as a judgment or
order of the Court. Accordingly, a proper challenge must conform to time and other
procedural requirements that are applicable in the Supreme Court.129 These may be found in
the Supreme Court of Jamaica Civil Procedure Rules 2002.
In any event, the parties can themselves agree specific procedure and deadlines under ad hoc
128
129
(1988) 25 JLR. 38.
See Arbitration Act, s 2 provides that Court means the Supreme Court.
70
rules or conduct their arbitration under other rules which include specific guidelines in these
areas.
3. Effect of a court decision which sets the award aside
The effects of a successful challenge differ depending on the grounds of the challenge, the
relevant law and the decision of the court that dealt with it.
Where a foreign award is concerned, a decision to set it aside, in whole or in part, would only
render it unenforceable in Jamaica .It could still be enforced where it was made and possibly
also in other jurisdictions.
The party who won the arbitration but loses the challenge is in an unenviable position.
If the award is set aside completely on the basis that the arbitration agreement was null and
void, further resort to arbitration would be wasted and while resort to litigation may be
possible such action would be subject to time-limits.
Where the award is set aside for procedural defects, including for lack of due process, the
arbitration agreement will usually, but not always, still be effective. Provided the claim is not
time-barred, the dispute could then be re-submitted to arbitration.
4. Appeal against the court´s decision to set aside or not set aside the award
An appeal against a decision of the Supreme Court to set aside or confirm an award can be
pursued in the Court of Appeal and beyond to Judicial Committee of the Privy Council.
5. Possibility of the parties to exclude, limit or expand actions for setting aside
71
Arbitration involves proceedings where the parties are free to establish their own procedural
and other rules unless these are contrary to established law or public policy. Accordingly,
they may agree to exclude, limit or expand the basis on which and award may be set aside.
Their agreement is enforceable by action for breach of contract. Therefore if an appeal
against an award is contrary to party established time or other limitations then the Court is
obliged to dismiss the application.
D. Liability of arbitrators
1. Duties and liabilities of arbitrators regarding the conduct of the proceedings
The arbitrator is required to conduct the proceedings in a manner which is fair and equitable.
The two basic rules to be followed in this regard are: (a) keeping control of the proceedings;
and (b) follow the law.
Upon appointment, the arbitrator takes charge and should make this fact know to the
parties. He or she will then settle questions concerning jurisdiction and interlocutory
procedures and will become familiar with the issues and documents to be considered.
Although arbitrators are usually chosen for their expertise, integrity and experience in a
particular field and are expected to rely on their talent, they must not use their own
judgement to contradict evidence presented or in substitution for evidence not presented.130
Where the arbitrator is guilty of misconduct he or she may be removed by the Court.131
Actionable misconduct could include failure or refusal to perform as intended under a
submission or a reference. And it has been clearly established that a submission appointment
can be revoked with leave of the court.132
See Fox v PG Wellfair [1981] 19 BLR 52.
See Arbitration Act, s 12 (2).
132 Ibid, s 3.
130
131
72
2. Possibility to restrict or exclude the arbitrators´ liability
The terms of reference under a submission or the arbitration agreement may contain express
exclusion or limitation of liability for certain acts or omissions of the arbitrator.
Where there is a Court reference, this may also include restrictions or exclusion of liability
for certain acts or omissions of the arbitrator.
VII. Enforcement of domestic awards
1. Requirement of a particular procedure to make an award enforceable
An award may be set aside where the arbitrator or umpire is guilty of misconduct or where it
has been improperly procured.133
Accordingly, the first rule of enforcement requires that the award must have been properly
procured and rendered by an arbitrator who did not misconduct him or herself.
The award shall be in writing134 and is usually signed and dated by the arbitrator in the
presence of a witness who also signs. It must also have been made within three months after
entering on the reference or within such other enlarged time as has been agreed.135
In the final analysis, the award must be capable of enforcement in the same manner as a
judgement or order of the Court.136
Ibid, s 12 (2).
Ibid, s 4 (c).
135 Ibid.
136 Ibid, s 13.
133
134
73
2. Details of such enforcement procedure
An application for leave to enforce an award, including in relation to a foreign award, is
made in the Supreme Court.137 The application must conform to the requirements of Civil
Procedure Rules, 2002.
Enforcement of domestic awards should only be refused where the arbitrator has committed
an error in law.138 Where there is a foreign award, enforcement should only be refused where
the requirements of the Arbitration (Recognition and Enforcement of Foreign Awards) Act
have not been satisfied.
3. Appeal against the decision granting exequatur
Leave granted in the Supreme Court to formally recognise an award may be challenged in
the Court of Appeal and beyond to the Judicial Committee of the Privy Council in
meritorious cases.
4. Appeal (and procedure) if exequatur has been refused
Where leave to formally recognise an award has been refused in the Supreme Court this may
be challenged in the Court of Appeal and beyond to the Judicial Committee of the Privy
Council in meritorious cases.
5. Procedure of enforcement
The procedure for enforcement of an award that has not been voluntarily complied with is
through the process of the Court. This is subject to the mechanism established under the
Civil Procedure Rules 2002.139
See Arbitration Act, s 2. This section has established that the Court referred to in section 13 is the Supreme Court.
Marley and Plant Limited v. Mutual Housing Services Limited, (1988) 25 JLR. 38.
139 See Supreme Court of Jamaica Civil Procedure Rules 2002, Parts 45-52.
137
138
74
VIII. Foreign awards
A. Recognition and/or enforcement of foreign awards (national law)
1. Rules according to national law
Foreign awards are enforceable under section 13 of the Arbitration Act.140 Furthermore, the
award shall be treated as binding on persons between whom it was made and they may rely
on it by way of defence, set-off or otherwise in any legal proceedings in Jamaica.141
2. Requirements to be fulfilled by the applicant
A party who makes an application to enforce a foreign award must supply: the duly
authenticated original award or a duly certified copy thereof; the original agreement with an
arbitration clause, which is signed by the parties or included in an exchange of letters of
telegrams, or a duly certified copy of the said agreement.142
The award and agreement must be in English. Otherwise, the party seeking to enforce the
award shall produce an English translation of these documents which have been duly
certified by an official or sworn translator or by a diplomatic or consular agent.143
The applicant must also satisfy the requirements of article V of the New York Convention,
which has been included in the Schedule to the Arbitration (Recognition and Enforcement
of Foreign Awards) Act.
The applicant must, for example, satisfy the Court that: the subject matter of the dispute
would have been capable of settlement under the laws of Jamaica; and recognition and
See Arbitration (Recognition and Enforcement of Foreign Awards) Act, s 4 (1).
Ibid, s 4 (2).
142 Ibid, Sch., art IV (1).
143 Ibid, art IV (2).
140
141
75
enforcement would not be contrary to the public policy of Jamaica.144
There are no prescribed time limits. However, the applicant should act in a timely manner, if
only to ensure that subsequent attempts at recovery are not frustrated by laches on his or her
part that permits the respondent to whittle away assets that could be attached or otherwise
called upon to satisfy the award.
3. Remedies against decisions granting or declining enforcement
The application to recognise as well as subsequent attempts to secure enforcement, if the
award is not voluntarily complied with, would first be made in the Supreme Court.145
A Supreme Court order to grant or decline enforcement may be taken on appeal to the
Court of Appeal and beyond to the Judicial Committee of the Privy Council.
B. Recognition and/or enforcement of foreign awards (conventions, treaties)
1. Specific bilateral or multilateral treaties
Jamaica is a contracting party to the New York Convention as well as the Washington
(ICSID) Convention.146
Jamaica is also a party to a number of bilateral investment treaties. Each includes arbitration
as a mechanism for the settlement of disputes and an aggrieved party from another signatory
state may institute arbitration under ICSID.147
Ibid, art V (2).
See Arbitration Act, s 2. This section has established that the Court referred to in section 13 is the Supreme Court.
146 Jamaica ratified the New York Convention on October 8, 2002 and the Washington Convention on October 14, 1966.
147 See CP Malcolm ‘The Settlement of Foreign Investment Disputes: Distilling some of the Considerations for Jamaican
Arbitration Practitioners’ 14 Carib. L.R. 23, 53.
144
145
76
ICSID is a delocalised arrangement and an award there is not subject to the provisions of
any particular national arbitration but is instead governed by the Regulations and Rules of
the Convention.148 Nevertheless, an award rendered under ICSID is enforceable by the
Supreme Court as if it were a judgement of that Court.149
ICSID also administers non-Convention arbitrations under Additional Facility Rules where
the Convention does not apply. These awards are capable of enforcement under the New
York Convention.
Jamaica is a member of CARICOM and the governing Revised Treaty of Chaguaramas
requires the encouragement and use of arbitration.150 Furthermore, member states should
enact appropriate legislation to ensure observance of agreements to arbitrate and for
recognition and enforcement of awards.151
Implementation of the New York Convention is deemed sufficient152 and to this extent
Jamaica has complied with its CARICOM obligation to enact appropriate arbitration
legislation.
2. Existence of a standard procedure for the enforcement of foreign awards
There is no standard procedure for the enforcement of foreign awards per se. These are
enforceable by action under section 13 of the Arbitration Act and once recognised are
subject to the same conditions that apply in relation to domestic awards.
3. Extent of examination and review of the award by the court
There are no reported decisions from which guidance may be sought as to the extent of
examination and review that the Court will undertake.
See Washington Convention, Chp IV, s 6.
See The Investment Disputes Awards (Enforcement) Act, s 3 (1).
150 See Revised Treaty of Chaguaramas, art 223 (1).
151 Ibid, art 223 (2).
152 Ibid, art 223 (3).
148
149
77
The Court must, however, be satisfied that the award in question is foreign, it having been
made outside of Jamaica.153 The award must also have been properly made in a state party to
the New York Convention and must have arisen out of a relationship which would be
considered commercial in Jamaica.154
C. Application of the New York Convention
1. Application of the New York Convention in practice
Jamaica acceded to the New York Convention on July 10, 2002 and it entered into force on
October 8, 2002.155
Since then there have been no reported decisions concerning the application of the
Convention.
2. Examples of decisions which do not apply the Convention correctly
There have been no reported decisions concerning the correct or incorrect application of the
Convention.
IX. Appendix
A. National legislation [including TEXT]
The relevant Laws – the Arbitration Act, the Arbitration (Recognition and Enforcement of
Foreign Awards) Act, the Bankruptcy Act, the Caribbean Community Act, the Companies
See Arbitration (Recognition and Enforcement of Foreign Awards) Act, Sch., art I.
Ibid, s 3 (2).
155 See Malcolm ‘The Settlement of Foreign Investment Disputes’ (n 135) 52.
153
154
78
Act, the Investment Disputes Awards (Enforcement) Act – are available at:
http://www.moj.go.jm.
B. Arbitration institutions [names, addresses, websites]
There is none really.
C. Published (and/or cited) cases / List with place of original publication
American Home Assurance Company and Eight Others v Edward Shoucair t/a S.N. Shoucair (1993)
30 J.L.R. 12.
Bentley Estates Limited v Castle Construction Limited and A. L. Richards (t/a A.L. Richards and
Associates) (1992) 29 J.L.R. 480.
Book Traders (Caribbean) Ltd. v Jamaica General Insurance Company Ltd, SCCA No: 128/2000,
Judgement Book October-December 2002, Vol. 4.
Channel Tunnel Group v Balfour Beatty Ltd. [1983] AC 334, 336.
Douglas Wright t/a Douglas Wright Associates v The Bank of Nova Scotia Jamaica Limited (1994) 31
J.L.R. 350.
Fox v PG Wellfair [1981] 19 BLR 52.
Harbour Assurance Company v Kansa [1993] 3 All E.R. 897.
Lloyd v Wright Lloyd v Wright [1983] 2 All E.R. 970.
Marley and Plant Limited v Mutual Housing Services Limited (1988) 25 JLR. 38.
National Transport Co-operative Society Ltd. v The Attorney General of Jamaica, SCCA No.
117/2004, Judgment delivered on June 8, 2008.
R v Sussex Justices, Ex parte McCarty [1924] 1 KB 256.
San Souci Limited v VRL Services Limited, SCCA No. 108 of 2004.
Soleimany v Soleimany [1997] 3 All E.R. 847.
79
D. Bibliography
JDM Lew, LA Mistelis & SM Kroll Comparative International Commercial Arbitration (KLI The
Hague 2003)
CP Malcolm ‘The Settlement of Foreign Investment Disputes: Distilling some of the
Considerations for Jamaican Arbitration Practitioners’ 14 Carib. L.R. 23
MJ Stoppi Commercial Arbitration in the Caribbean: A Practical Guide (UWI Press Kingston 2001)
Supreme Court of Jamaica Civil Procedure Rules 2002
80
ANNEX 4
ENGLISH ACT, 1996
For Text of Act see
http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960023_en_1
Or
Additional Annexes
81
ANNEX 5
UNCITRAL MODEL LAW
For Text of Model Law (as amended in 2006) see
http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf
Or
Additional Annexes
82
ANNEX 6
UNCITRAL GUIDANCE NOTES
For Text of Guidance Notes see
http://www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf
Or
Additional Annexes
83
ANNEX 7
MORGAN PAPER
The information included here is an as yet unpublished paper of Mr. Lowel Morgan. It has been made
available with his kind permission for purposes of this Workshop/Seminar and must not be cited or
otherwise referred without his express consent.
A Case for Modernising the Jamaican Arbitration Statute
Introduction
Arbitration is defined as a process used by the agreement of the parties to resolve disputes. In
arbitration, disputes are resolved, with binding effect, by a person or persons acting in a judicial manner
in private, rather than by a national court of law that woul have jurisdiction but for the agreement of the
parties to exclude it. The decision of the arbitral tribunal is usually called an award.156
This procedure for resolving disputes has been accepted internationally as a viable alternative to
litigation. The trend worldwide has been to increase its use. There are encouraging signs in Jamaica that
the commercial sector would like to see this happen also. A major problem however is the state of the
law. The principal arbitration statute in Jamaica is more than 100 years old. It is the Arbitration Act 1900
which is modelled off the United Kingdom (UK) Arbitration Act, 1889.
156
HALSBURY’S Laws of England, Fourth Edition Reissue Volume 2 (3) p.2 para. 1
84
Since that time, arbitration law has seen many far-reaching developments. Of particular note is
the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International
Commercial Arbitration 1985 which was amended in 2006 (‘the Model Law’). Over fifty-five countries
have enacted legislation based on the Model Law. 157
The UK itself has enacted the Arbitration Acts 1889 to 1934, the Arbitration Act 1950, and the
Arbitration Act 1975 (which was enacted to give effect to the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York Convention 1958) (‘the New York Convention’), the
Arbitration Act 1979 and the Arbitration Act 1996.158 By contrast, the Jamaican Arbitration Act remains
substantially as it was enacted in 1900 as there have been no significant amendments to the statute.
One commentator has described the Act as being very basic, although it deals with the most
fundamental aspects of arbitration.159
To compensate for some of the limitations in the law, domestic arbitration practice relies on a
number of international rules, such as the International Chamber of Commerce (ICC) Arbitration Rules
and the UNCITRAL Arbitration Rules, as a matter of course160 and the common law. These Rules
however, are not incorporated into domestic law and therefore do not have the force of law. One
important exception is the New York Convention, to which Jamaica acceded on July 10, 2002, the
provisions of which are contained in the Arbitration (Recognition and Enforcement of Foreign Awards)
Act, 2001.
157
158
http://www.uncitral.org/uncitral/en/about/origin.html
Keren Tweeddale & Andrew Tweeddale, a practical approach to Arbitration Law, 1999 p. 1
159
Stephen Shelton ‘Arbitration as an Alternative Means of Dispute Resolution: An Introductory Road Map’ ,
Continuing Legal Education Seminar, Jamaica Bar Association (unpublished paper presented at the Norman Manley
Law School on June 12, 2001) p.5
160
Christopher P. Malcolm ‘ The Settlement of Foreign Investment Disputes: Distilling Some of the Considerations
for Jamaican Arbitration Practitioners’, Caribbean Law Review 2004 p.25
85
Fortunately, the Jamaican courts have taken a deferential approach to the application of the
1900 Act and have brought a modern interpretation to the Act. This is clear when one examines the
courts’ treatment of applications under the core provisions of the Act, namely, sections 5, 12(2) and 13.
The courts’ approach however cannot cure the inherent limitations of the Act and in any event, such
important matters should not be left to the discretion of judges.
There is therefore urgent need to update and modernise the Jamaican Arbitration Act. This will
have enormous benefits for the domestic and hopefully, international arbitration practice in Jamaica.
Modernisation alone will not be enough. Other steps including programmes to sensitise the public and
to train arbitrators will also be critical.
In this paper I will:
a.
examine the approach of the Jamaican courts to the application of the Act;
b.
discuss some encouraging developments on the Jamaican arbitration landscape;
c.
look at three possible models for a new Jamaican statute;
d.
suggest which model would be most appropriate;
e.
look at the benefits of modernisation; and
f.
suggest a way forward.
The Jamaican Arbitration Act, 1900
The Courts’ Approach
The courts have an inherent jurisdiction to stay legal proceedings. However, for the purposes of
arbitration reliance is placed on section 5 of the Arbitration Act.
86
Section 5
This section gives the court power to stay litigation where there is a valid arbitration agreement. It
provides as follows:
‘…If any party to a submission… commences any legal proceedings in the court against any
other person to the submission….any party to such legal proceedings may…apply to the court to
stay the proceedings, and the court or a Judge thereof…may make an order staying the
proceedings.’ (emphasis mine)
In applying this section, the Jamaican courts have adopted the principle that where the parties have
agreed to, they should be compelled to carry out that agreement.
A review of a significant number of cases which have come before the courts demonstrates that
the Jamaican courts will refuse a stay of proceedings only in exceptional cases. So for example, in a well
known case in the insurance industry, American Home Assurance Company and Eight Others v. Edward
Shoucair T/A S.N. Shoucair161 the Court of Appeal had to consider a summons filed by the appellants/
defendants to stay the arbitration proceedings while civil proceedings were on going between the
parties. The summons had been dismissed by the Supreme Court.
The facts are that the respondent submitted a claim arising out of damage caused by a fire. The
appellants made no admission of liability and the respondent filed suit on the day before the limitation
period expired claiming indemnity. The appellants admitted liability after the suit was filed. The
respondent commenced arbitration proceedings under a clause in the policy which provided that any
disputes as to quantum of any loss or damage arising from destruction of the insured property, must be
referred to arbitration. The respondent subsequently filed a statement of claim in which he abandoned
161
(1993) 30 J.L.R. 12
87
the action in respect of the indemnity but maintained the action for damages for unreasonable delay in
the settlement of the claim.
The appellants contended that where a party has filed a writ in breach of an arbitration clause
and the subject matter before the arbitrator is the same as that before the court, the party has thereby
chosen to place the matter before the court which, being the overriding authority, must proceed to
adjudicate upon the matter in the absence of an application by the other party for a stay of the court
proceedings.
Carey, J.A., the acting President of the Court of Appeal, relying on the English decision of Lloyd v.
Wright162 opined:
‘It is, I think, important to note from this case that the matter in dispute must be the same in the
arbitration proceedings as it is in the action. And as well it should be noted, that the defendant
is at liberty to invoke the provisions of the Arbitration Act which allow for the action to be
stayed. If this is so, then I do not accept that the mere filing of the action renders the arbitration
proceedings at an end.’
Carey, J.A., also felt that it would be wholly inequitable to restrain the arbitrator from proceeding to
carry out his terms of reference under the arbitration clause unilaterally imposed by the appellants, by
process initiated at the instance of the very appellants themselves. Forte, J.A., in dismissing the
appellants’ attempt to convince the court that it being seized of the matter, should not surrender its
superior jurisdiction to the arbitrator or engage in a race with the arbitrator as to a determination of the
quantum of the indemnity for which it is liable said that:
162
[1983] 2 All E.R. 970
88
‘ having regard to the condition stipulated in condition 18, i.e. that an award by an arbitrator is
a condition precedent to any right of action- the action cannot be proceeded with, until the
arbitrator’s award has been obtained.’
In another case, Douglas Wright T/A Douglas Wright Associates v. The Bank of Nova Scotia Jamaica
Limited,163 the issue involved an application for an order setting aside judgment and granting a stay of
further proceedings in the action on the ground that both parties had agreed to refer the matter to
arbitration in the event of a dispute. The judge relied on the learned authors of Mustill and Boyd on
Commercial Arbitration (2nd Edition) page 472 and said:
‘The circumstances which accompany an act may be looked at to see whether the act amounts
to an election to give up the right to stay. Thus, an application to the Court which might
otherwise amount to a step in the proceedings is deprived of this characteristic if the applicant
makes it clear- by stating that his application is without prejudice to a subsequent request for
stay or in simultaneously taking out a summons to stay- that he intends to insist on a reference
to arbitration.’
The judge accepted this as a correct statement of the law and in keeping with the authorities ruled that
the applicant by issuing a summons to set aside the judgment and applying for a stay of proceedings in
one document on the same day that execution was levied, had acted promptly and did not take any step
such as to preclude it from seeking a stay of proceedings. He said further that the dispute involved
questions of both law and fact and evidence would be needed both as to the technical terms used in the
agreement and the custom in the profession in order to construe the contract. He held that there was
no sufficient reason why the matter should not be referred to arbitration.
163
(1994) 31 J.L.R. 350
89
A similar result was arrived at in the case of Bentley Estates Limited v. Castle Construction
Limited and A. L. Richards (T/A A.L. Richards and Associates).164 Here the appellant brought an action
against the respondent contractors alleging breach of contract and in the alternative negligence. A
clause in the contract provided for disputes to be referred to arbitration. The trial Judge granted a stay
of proceedings to the respondent. The appellant appealed. The Court of Appeal held that since the
appellant had alleged a breach of contract there must be a construction of the contract and therefore
the matter was within the ambit of the arbitration clause. The court also felt that the onus lay on the
appellant to show that there was sufficient reason why the dispute should not be referred to arbitration.
Section 12 (2)
This section deals with the conduct of the arbitrator or umpire and the manner of procuring an
arbitration or award. It provides as follows:
‘Where an arbitrator or umpire has misconducted himself or an arbitration or award has been
improperly procured the court may set aside the award.’ (emphasis mine)
The court’s power to set aside the award for misconduct, includes ‘misconducting the proceedings’, in
addition to serious breaches of the nemo iudex in sua causa and the audi alteram partem maxims. These
include acting without or outside jurisdiction such as where there was no binding arbitration agreement,
where the matter in dispute fell outside the agreement, where the relief granted lay outside the
arbitrator’s powers and where he was not validly appointed.165 Parties aggrieved or dissatisfied with the
award of an arbitrator, attempt to persuade the court to set aside an award usually on the basis that
164
165
(1992) 29 J.L.R. 480
Michael Forde , Arbitration Law and Procedure, 1994 p. 23
90
there is an error on the face of the record. This is a finding that the basis of the award is some legal
proposition which is erroneous.166
How have the Jamaican courts treated with this provision?
In Book Traders (Caribbean) Ltd. v. Jamaica General Insurance Company Ltd.167, a challenge was made to
an arbitrator’s award on the basis that it was bad on the face of it because his refusal to award interest
at commercial rates was erroneous in law. The respondent alleged in response that the appellant had
demanded and accepted the payment of the award including interest. The trial judge dismissed the
appellant’s contention on a preliminary point on the basis that they were ‘approbating and reprobating.’
The appeal court declined the invitation to interfere with the arbitrator’s findings and confined
its decision to the issue as to whether the acceptance of the payment by the appellant amounted to a
waiver. The court concluded that the appellant was estopped because of its conduct, from challenging
the arbitrator’s award and affirmed that the nature of an award under the Arbitration Act is of a
different character as it results from an agreement by the parties to subject the resolution of their
dispute to an arbitrator and to accept any award given by him which has no error on the face of it.
More recently, the Court of Appeal was in the case of National Transport Co-operative Society
Ltd. v. The Attorney General of Jamaica168 faced with an appeal from the judgment of trial judge Brooks
J. who set aside the award of a formidable team of arbitrators169 for a number of errors on the face of
the record. The appeal court ruled that the failure of the arbitrators to find that a Minister of
Government had no power to grant exclusive licences to transport operators was an error of law.
166
Honourable Irish Society v. Minister for Finance [1958] N I 170 at p.180
Jamaica SCCA No: 128/2000, Judgement Book October- December 2002 Vol.4,
168
Jamaica SCCA No. 117/2004, Judgment delivered on June 8, 2008
169
Former Justices of Appeal Ira Rowe & Boyd Carey and Mrs. Angela Hudson Phillips Q.C.
167
91
The court relied on the English Court decisions of Harbour Assurance Company v. Kansa170 and
Soleimany v. Soleimany 171 that a court will not enforce an arbitral award having its genesis in an illegal
contract and will set it aside on the ground of misconduct. The court found that the contract was illegal
and accordingly, the arbitrators would have been in a similar position to a court of law and would be
precluded by fundamental public policy from enforcing the contract and awarding damages. In addition,
the court found that there was ample material for the learned trial judge to conclude that the Heads of
Agreement had amended the Franchise Agreements. The arbitrators had therefore committed an act of
misconduct when they misconstrued a clause in the Heads of Agreement. These amounted to errors on
the face of the record. The decision is the subject of an appeal to Jamaica’s highest court, the Judicial
Committee of the Privy Council in the United Kingdom.172
In Marley and Plant Limited v. Mutual Housing Services Limited,173 the respondent applied to the
Supreme Court to set aside the award of the arbitrator on the ground that he did not follow one of the
terms of reference which states as follows: - (c) (he has the power) to rule on the issue set out in the
claims before him and hand down such findings as he may deem fit, based on the evidence before him.
The respondent further contended that the arbitrator had no power to award interest and that there
was an error on the face of the record. The trial judge set aside the award on the ground that in keeping
with term (c) the arbitrator ought to have made specific findings in relation to the claims.
The Court of Appeal disagreed and stated that where parties have chosen to use arbitration, the
jurisdiction of the Supreme Court to set aside an arbitration award can only be exercised in well defined
circumstances where the arbitrator has committed an error in law. Furthermore, the general law is that
save in an award in a special case, an arbitrator need not give any reason for his award. His findings of
170
[1993] 3 All E.R. 897
[1997] 3 All E.R. 847
172
The Constitution of Jamaica – section 110 gives a right of appeal to Her Majesty in Council
173
(1988) 25 J. L.R. 38
171
92
fact and law cannot be challenged unless an error of law appears on the face of the award and such
error can only be detected if there is a speaking award.
Section 13
This section deals with the manner of enforcement of an award. The section provides as follows:
‘An award on a submission may, by leave of the court or a judge, be enforced in the same
manner as a judgment or order to the same effect.’
The judge remarked that the advantages of s.13 are many but the most significant one is that once
permission is given, the award can be enforced as if it were a judgment of the Supreme Court.174
In that case, the court dismissed an application to set aside an award even though the court
found that there was a non-disclosure by the party seeking to have the judgment enforced. The judge
noted that section 13 does not state the applicable criteria when an application is being made to set
aside the permission granted to enforce an award.175 It is to be noted that a foreign award is enforceable
either by action or under this section.176
The foregoing analysis of the cases demonstrate that despite the antiquity of the Act, the courts
have not sought to control and supervise arbitrations taking place in Jamaica. Instead, the courts have
sought to provide support for the arbitration process by refusing to intervene or interfere in the process
itself, as opposed to a strict supervision of the arbitration process. The courts have adopted a minimalist
approach to arbitration and are trying to make the best use of an old Act.
174
VRL Services limited v. Sans Souci Limited Supreme Court Judgment October- December 2004, Per Sykes J.
VRL Services limited v. Sans Souci Limited
176
The Arbitration (Recognition. and Enforcement of Foreign Awards) Act, 2001, Section 4
175
93
Encouraging Developments
A number of encouraging developments have been taking place in Jamaica over the last few years which
show that there is a growing appreciation in the commercial sector for the need to modernise the
arbitration framework in Jamaica.
The Private Sector Organisation of Jamaica (PSOJ) which was established in 1967 is a national
organisation of, as the name suggests, private associations, companies and individuals working together
to promote a competitive and productive private sector. It seeks to influence national policy issues of a
political, social or economic nature.177 The Jamaica Chamber of Commerce (JCC) is a membership based
organisation, comprising businesses and professionals working together to build and promote a healthy
economy and to improve the quality of life in the country.178Both organisations have been persuaded by
Mr. Justice Hugh Small Q.C.179 to make an application to the Multilateral Investment Fund (MIF) of the
Inter-American Development Bank for funding to establish a Commercial ADR Centre. He is optimistic
that the application will succeed and has committed to supporting the project when it is established.
According to the Project Proposal submitted to the MIF:180
‘The ultimate long term goal is to assist the private sector in developing a system which will
provide efficient, flexible, effective and transparent settlement of disputes as they arise and
therefore help reduce the backlog of cases in the Jamaican court system through the
establishment of a modern alternative dispute resolution system that obviates the need to have
the Courts resolve the disputes.’
177
The Private Sector Organisation of Jamaica: www.psoj.org last visited on August 2, 2008
The Jamaica Chamber of Commerce: www.jamaicachamber.org.jm
179
A former cabinet Minister in Jamaica (Jamaica) and a retired High Court Judge in the Bahamas
180
Project Proposal made available by the kind courtesy of the PSOJ
178
94
The establishment of the Centre and the cultivation of a culture of alternative dispute resolution of
commercial disputes are expected to benefit ‘small, medium and large businesses working in the areas
of commerce, finance, manufacturing, the service sectors and professionals in construction, accounting
and law.’ In addition, the Jamaican business environment will become ‘more attractive to local, regional
and international firms that operate’ in the country. 181
The Dispute Resolution Foundation of Jamaica (DRFJ) was incorporated in 1994 to increase cooperation in the management and resolution of disputes involving business, the police, courts, social
services agencies and the people, through the controlled process of mediation. The core objectives of
the DRFJ includes the establishment of methods of resolving disputes which are supplementary,
complementary or alternative to litigation, to encourage and educate the public about using ADR
techniques to handle conflicts and to explore and establish ADR techniques as methods of resolving
commercial disputes.182 Arbitration is a major service offered by the DRFJ.
In 2007, Mr. John Bassie183 (a mediator and arbitrator) and the DRFJ came together to establish
a local arm of the Chartered Institute of Arbitrators (CIArb). In March 2008, an inaugural workshop for
certification of arbitrators as Associates of the Chartered Institute of Arbitrators was held. It is felt that
there is a demand for competent and certified arbitrators supported by a credible and respected
organisation with global influence. It is hoped that a pool of local arbitrators will eventually be identified
and that programmes will be conducted to enable persons to become certified as arbitrators.
Partners for Economic Development Limited and the University College of the Caribbean will in
November 2008 jointly stage an International Commercial Arbitration Post-graduate Certificate Course.
181
Project Proposal to the Multilateral Investment Fund to establish a commercial alternative dispute resolution
centre in Jamaica
182
Website www.disputeresolutionfoundation.com
183
Barrister and Attorney at Law and a fellow of the Chartered Institute of Arbitrators
95
The objective is to develop a cadre of local and regional arbitration practitioners who will become
members of the CIArb and who will be able to promote greater use of arbitration in settlement of
commercial disputes. The programme is accredited by the CIArb and will be endorsed by the DRFJ.
Successful completion of this programme will satisfy the examination requirements for membership in
the CIArb and thereafter enable use of the designation Member of the Chartered Institute of Arbitrators
(MCIArb). It will also enable additions to the Arbitration Panel of the DRFJ and ultimately to the panels
for Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States (OECS).
Possible models for a new Jamaican statute
A piecemeal approach towards the modernisation of the statute is not recommended. The statute is old,
limited and not user- friendly. A new comprehensive Act which takes a modern and flexible approach to
arbitral procedures is proposed.184 There is also the need to introduce international arbitration
legislation as part of a modern and complete legal framework, according to international standards.185
In crafting the new statute, the logical starting point is the UNCITRAL Model Law. Indeed this has
been recognised in the Commonwealth Caribbean where an initiative has been undertaken by the
Caribbean Law institute (CLI) to introduce the UNCITRAL Model Law on a regional rules basis. It has been
painstaking, cautious and diligent. The project commenced in September 1988 in response to requests
from legal and commercial sources. The project has been undertaken out of a realization that, at this
juncture, it is desirable that Caribbean countries should embrace international arbitration. 186
UNCITRAL Model Law
184
Andrew Bartlett, ‘The Journal of the Chartered Institute of Arbitrators,’ Volume 66, Number 1, February 2000
HEW R. Dundas, ‘ The Journal of the Chartered Institute of Arbitrators,’ Volume 73, Number 4, November 2007
186
Hugh A. Rawlins, ‘Aspects of the UNCITRAL Regimes for Procurement and for International Commercial
Arbitration and Government International Commercial Contracts in the Commonwealth Caribbean,’ Caribbean Law
Review, June 1997 p. 214
185
96
The UNCITRAL Model Law has been recognised as a model for countries without modern developed law
and practice in the field of arbitration.187 This is illustrated by a review of the countries which have based
their laws on the Model Law.
UNCITRAL was established by the United Nations General Assembly in 1966 (Resolution
2205(XXI) of 17 December 1966). In establishing the Commission, the General Assembly recognized that
disparities in national laws governing international trade created obstacles to the flow of trade, and it
regarded the Commission as the vehicle by which the United Nations could play a more active role in
reducing or removing these obstacles.188
The General Assembly gave the Commission the general mandate to further the progressive
harmonization and unification of the law of international trade. The Commission has since come to be
the core legal body of the United Nations system in the field of international trade law.189
The Model Law is designed to assist States in reforming and modernizing their laws on arbitral
procedure so as to take into account the particular features and needs of international commercial
arbitration. It covers all stages of the arbitral process from the arbitration agreement, the composition
and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition
and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international
arbitration practice having been accepted by States of all regions and the different legal or economic
systems of the world.190
The Model Law was adopted by the UNCITRAL on 21 June 1985 and by the UN General Assembly
on 11 December 1985. Its presentation and content is indeed ‘a model’. ‘It commences by defining an
187
Lord Mustill and Stewart Boyd, Commercial Arbitration, Second Edition, 2001 Part 1 p. 7
http://www.uncitral.org/uncitral/en/about/origin.html
189
http://www.uncitral.org/uncitral/en/about/origin.html
190
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html
188
97
international arbitration and continues in a logical order through the whole processes of arbitration
down to enforcement of arbitration awards. Its language is simple and its text short.’191
On July 7, 2006 UNCITRAL amended the Model Law in three important respects – general
principles concerning the interpretation of the Model Law, the form of the arbitration agreement and
interim measures. These amendments were made so that the Model Law would ‘conform to current
practices in international trade and modern means of contracting with regard to the form of the
arbitration agreement and the granting of interim measures.’192
General Provisions of the Model Law193
The Model Law comprises thirty-six articles divided into nine chapters. The sequence of the chapters
and articles is straight forward and logical.
Chapter I with six articles sets out the General Provisions. Article 1(1) provides that the Model
Law is applicable to international commercial arbitration. Commercial is to be given a wide
interpretation.
Article 1 (3) defines the word ‘international’ as where the parties to the arbitration agreement
have, at the time when the arbitration agreement was concluded, their places of business in different
states, or one of the parties has its place of business in a state other than that of the ‘place’ of
arbitration, or a substantial part of the contract is to be performed in a state different to where one of
the parties has its place of business.
191
Lord Hacking, ‘Arbitration law reform: the impact of the UNCITRAL Model Law on the English Arbitration Act
1996’, Arbitration, November 1997, p. 292
192
Resolution of the General Assembly dated December 4, 2006
193
Keren and Andrew Tweeddale, ‘ a practical approach to Arbitration Law’, 1999 Chapter 19 p. 320
98
Article 2A was introduced in 2006 and sets out general principles concerning the interpretation
of the Model Law. Article 4 deals with the waiver of the right to object where a party knows that any
provision of the Model Law has not been complied with and does not object within the necessary time.
Article 5 is a critical article and provides that ‘[i]n matters governed by this Law, no court shall
intervene except where so provided by this Law.’
Chapter II has three articles and deals with the Arbitration Agreement. Article 7 was amended in
2006. It now has two optional wordings. Option 1 defines arbitration agreement as an agreement to
submit disputes to arbitration ‘which have arisen or which may arise’ between the parties in respect of a
defined legal relationship, whether contractual or not. This Option which is similar to the original article
7 requires the arbitration agreement to be in writing. The definition of ‘in writing’ has been expanded
considerably by the amendment to take into account evolving practice in international trade and
technological developments.194
Option II is simply the same definition of arbitration agreement under Option I. There is no
requirement as to form. Countries are required to select the option which best suits their needs.
Article 8 states that where an action is brought before a court in a matter which is subject to an
arbitration agreement and a party so requests, the court shall refer the dispute to arbitration unless it
finds the agreement null and void, inoperative or incapable of being performed.
Article 9 provides that it is not incompatible with the arbitration agreement for a party to
request before or during the proceedings that a court provide interim measures of protection.
194
Explanatory note by the UNCITRAL secretariat on the Model Law, paragraph 4
99
Chapter III of the Model Law has six articles and deals with the composition of the arbitral
tribunal. Articles 10 & 11 deal with the composition as well as setting up of the arbitral tribunal while
Article 12 states the grounds of challenge to the arbitrator. The challenge procedure is set out in article
13.
Article 14 deals with the situation where the arbitrator becomes de jure or de facto unable to
perform his functions or fails to act without undue delay. And Article 15 deals with the appointment of
a substitute arbitrator.
Chapter IV consists of article 16 and deals with the jurisdiction of the arbitral tribunal. Article 16
is one of the cornerstones of the Model Law. It provides that the ‘arbitral tribunal may rule on its own
jurisdiction, including any objection with respect to the existence or validity of the arbitration
agreement.’
Chapter IVA comprises articles 17 to 17J and deals with interim measures and preliminary
orders. This new chapter represents the third substantive amendment made in 2006. It bears little
resemblance to the original article 17 which dealt only with the power of the arbitral tribunal to grant
interim measures.195
This new chapter, in addition to giving the arbitral tribunal the power to order interim measures, also:
195
a.
defines interim measures;
b.
sets out the conditions for granting interim measures;
c.
introduces preliminary orders;
d.
provides for the recognition and enforcement of interim measures;
e.
provides for court-ordered interim measures.
http://www.uncitral.org/uncitral/en/about/origin.html
100
According to the Explanatory Note by the UNCITRAL secretariat on the Model Law, paragraph 4:
‘The extensive revision of article 17 on interim measures was considered necessary in light of
the fact that such measures are increasingly relied upon in the practice of international
commercial arbitration. The revision also includes an enforcement regime for such measures in
recognition of the fact that the effectiveness of arbitration frequently depends upon the
possibility of enforcing interim measures.’
Chapter V has ten articles and deals with the conduct of arbitral proceedings. Article 18 provides
for the equal treatment of the parties and Article 19 gives the parties the right to determine the
procedure for the proceedings, subject to the provisions of the Model Law.
Articles 20 and 22 state that the parties can choose the place of arbitration and the language of
the arbitration, while Article 23 deals with the statement of claim and defence, article 24 with the
hearing and article 26 with the appointment of experts.
Chapter VI comprises six articles dealing with the making of the award and termination of
proceedings. Article 28 provides that the tribunal shall decide the dispute in accordance with the law
designated by the parties in relation to the substance of the dispute.
Article 29 provides that the decision–making of the arbitral tribunal shall be by majority or by
the presiding arbitrator unless otherwise agreed while Article 30 provides for the situation where the
dispute is settled during the arbitral proceedings.
Article 31 provides that an award should be in writing and signed by the arbitral tribunal or a
majority of them and Article 32 provides for the termination of the arbitral proceedings. This may occur
101
on the publication of the final award. Article 33 deals with residual powers of the arbitral tribunal after
the issue of an award.
Chapter VII consists of article 34 which deals with recourse against an award. Article 34 provides
that recourse to a court against an award can only be made by application to set aside in accordance
with the provisions of the article which lists the grounds on which the award may be set aside. The
grounds reflect those on which recognition and enforcement may be refused under the New York
Convention.
Chapter VIII, the final chapter, has two articles and deals with the recognition and enforcement
of awards. Article 35 provides for the enforcement of awards properly made. The award, irrespective of
where it is made, shall be recognised and enforced. There is therefore no need for reciprocity in
recognition and enforcement. Article 35 (2) deals with the conditions that are required before
enforcement will be allowed.
Article 36 sets out the grounds for refusing recognition and enforcement. These grounds are
identical to those in the New York Convention. Article 36 (1) (b) sets out other grounds on which the
award may be refused recognition or enforcement.196
In proceedings under the Model Law, unless the parties have agreed otherwise in writing:
a. the arbitral proceedings commence on the date that the request for arbitration is received
by the respondent;
b. the arbitral tribunal can make interim [and preliminary] orders for the protection of the
subject matter in dispute;
c. the arbitral tribunal may conduct the arbitration in such a manner as it deems appropriate;
196
Keren and Andrew Tweeddale, a practical approach to Arbitration Law, 1999
102
d. the arbitral tribunal may determine the place of the arbitration;
e. the arbitral tribunal may determine the language of the arbitration;
f.
the arbitral tribunal may seek the advice of one or more experts;
g. the award shall set out the reasons on which it is based;
h. the arbitral tribunal may order interest up to the date of the award;
i.
the arbitral tribunal may order interest from the date of award until payment;
j.
the arbitral tribunal may order costs; and
k. either party has 30 days within which to request a correction to or interpretation of the
award or to seek an additional award.
On application of a party, a stay of litigation must be ordered by a court for which the Model Law applies
unless the court finds that the arbitration agreement is null and void, inoperable or incapable of being
performed.197
There are no mandatory provisions in the Model Law.
The UK Arbitration Act 1996198
The UK Arbitration Act, 1996 (the UK Act) is the second proposed model. Its format and language were
significantly influenced by the Model Law.
Section 1 of the UK Act is very important as it sets out the guiding principles of the statute.
Regard should be had to these principles in the case of doubt in the interpretation of any section of the
statute. The section merits reproduction in full.
197
198
The Australian Encyclopaedia of Forms and Precedents, Third Edition, 2007
Keren & Andrew Tweeddale, ‘a practical approach to Arbitration Law’ ,1999 Chapters 3- 18
103
‘1.
The provisions of … Part [1 of the UK Act] are founded on the following general
principles, and shall be construed accordingly(a)
the object of arbitration is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay and expense;
(b)
the parties should be free to agree how their disputes are resolved, subject only
to such safeguards as are necessary in the public interest;
(c)
in matters governed by … Part [1 of the UK Act] the Court should not intervene
except as provided by … Part [1 of the UK Act].’
This section encapsulates the main advantages of arbitration proceedings over litigation.
Section 4 provides for mandatory and non-mandatory sections of the Act. The mandatory
provisions are listed in Schedule 1 to the Act ‘and have effect notwithstanding any agreement to the
contrary.’ They are:
a. sections 9-11 - stay of legal proceedings;
b. section 12 -
power of the court to extend agreed time limits;
c. section 13 -
application of Limitation Acts
d. section 24 -
power of the court to remove arbitral tribunal
e. section 26(1) - effect of death of arbitrator
f.
section 28 -
liability of parties for fees and expenses of arbitrators
g. section 29 -
immunity of arbitrator
h. section 31 -
objection to substantive jurisdiction of tribunal
i.
determination of preliminary point of jurisdiction
section 32 -
104
j.
section 33 -
general duty of tribunal
k. section 37(2)- items to be treated as expenses of arbitrators;
l.
section 40 -
general duty of the parties
m. section 43 -
securing the attendance of a witness
n. section 56 -
power
to
withhold
an
award
in
the
case
of
non-
payment
o. section 60 -
effectiveness of agreement for payment of costs in any event
p. section 66 -
enforcement of award
q. sections 67-68 - challenging the award: substantive jurisdiction and serious irregularity
and
r.
sections 70 and 71 - supplementary provisions; effect of order of court so far as relating
to those sections;
s. section 72 -
saving for rights of person who takes no part in
t.
loss of right to object;
section 73 -
u. section 74 -
immunity of arbitral institutions, & c;
v. section 75 -
charge to secure payment of solicitor’s costs.
proceedings;
The parties are free to exclude the non-mandatory provisions of the Act by written agreement.
Section 5 provides that an arbitration agreement must be in writing. ‘Agreement in writing’ has
a wide definition. Agreement to terminate an arbitration agreement however, need not be in writing
(section 23(4)).
Section 6 (1) defines an arbitration agreement as ‘an agreement to submit to arbitration present
or future disputes (whether they are contractual or not).’ By virtue of section 82 (1) dispute includes any
difference.
105
Section 7 provides that the arbitration agreement must be treated as a distinct agreement from
the substantive agreement of which it may form a part.
Section 9 gives the court the power to stay legal proceedings in favour of arbitration. A stay will
only be granted on application.
Section 12 deals with the power of the Court to extend time limits which are set out in
contracts, not those set out in statutes. It should be read alongside section 14 which gives the parties
the freedom to agree when arbitral proceedings are to be regarded as commenced.
Under section 13, ‘[t]he Limitation Acts apply to arbitral proceedings as they apply to legal
proceedings.’ Section 14 gives the parties the right to decide when arbitral proceedings commence.
Under section 15, the arbitral tribunal may be composed of one or more arbitrators. The parties
are free to agree on the number of arbitrators to form the arbitral tribunal and whether there is a
chairman or umpire. If there is no agreement on the number of arbitrators, the tribunal shall consist of a
sole arbitrator.
Section 29 gives the arbitrator indemnity ‘for anything done or omitted in the discharge or
purported discharge of his functions as arbitrator unless the act or omission is shown to have been in
bad faith.’ Importantly, section 74 gives an indemnity to ‘an arbitral or other institution or person
designated or requested by the parties to appoint or nominate an arbitrator.’
Section 30 provides for the arbitral tribunal to rule upon its own jurisdiction. And Section 33(1)
imposes positive duties on the tribunal to:
‘(a)
act fairly and impartially as between the parties, giving each party a reasonable opportunity of
putting his case and dealing with that of his opponent; and
106
(b)
adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary
delay or expense, so as to provide a fair means for the resolution of the matters falling to be
determined.’
Section 33 which is a critical section in the UK Act should be read alongside section 1(a). Section
35 states that the parties are free to agree to consolidate one arbitral proceeding with other arbitral
proceedings or to hold concurrent hearings.
The parties are given the power to choose the law to be used to determine the dispute under
section 46. If there is no choice or agreement, the tribunal must apply conflict of law rules.
Section 47 provides that the tribunal may make more than one award at different times on
different aspects of the matters to be determined.
The parties are free to agree the powers of the arbitral tribunal in respect of awarding interest
under section 49.
Section 50 allows the parties or the arbitral tribunal to apply to the court for an extension of
time for the making of the award.
Sections 59 – 65 set out a comprehensive code for awarding costs in arbitration. And Section 66
deals with the enforcement of awards. Under sub-section (1):
‘An award made by the tribunal pursuant to an arbitration agreement may, by leave of the
court, be enforced in the same manner as a judgment or order of the court to the same effect.’
Alternatively, under sub-section (2), where leave is given ‘judgment may be entered in terms of the
award.’ This alternative is useful where registration of the judgment in a foreign court is necessary to
secure enforcement in that country or for the purpose of bringing other proceedings.
107
The court will not grant leave to enforce the award where it is shown that ‘the tribunal lacked
substantive jurisdiction to make the award.’ ‘Substantive jurisdiction’ is defined in section 82 by
reference to section 30 (1) (a) to (c) to mean:
‘(a)
where there is a valid arbitration agreement.
(b)
whether the tribunal is properly constituted, and
(c)
what matters have been submitted to arbitration in accordance with the arbitration
agreement.’
Sections 67 (1) gives a party the power to challenge any award where the arbitral tribunal lacked
substantive jurisdiction to hear the matter in the first place. The arbitral tribunal’s jurisdiction can be
challenged on questions of fact and law.
Section 68 (1) provides that an arbitral tribunal’s award may be challenged by any party on the
ground that the arbitral tribunal has committed a ‘serious irregularity.’ Sub-section (2) defines serious
irregularity to mean:
‘an irregularity of one or more of the following kinds which the court considers has caused or will cause
substantial injustice to the applicant a. failure by the tribunal to comply with section 33 (general duty of tribunal);
b. the tribunal exceeding its powers (otherwise than by exceeding its substantive
jurisdiction: see section 67);
c. failure by the tribunal to conduct the proceedings in accordance with the procedure
agreed by the parties;
d. failure by the tribunal to deal with all the issues that were put to it;
108
e. any arbitral or other institution or person vested by the parties with powers in relation
to the proceedings or the award exceeding its powers;
f.
uncertainty or ambiguity as to the effect of the award;
g. the award being obtained by fraud or the award or the way in which it was procured
being contrary to public policy;
h. failure to comply with the requirements as to the form of the award; or
i.
any irregularity in the conduct of the proceedings or in the award which is admitted by
the tribunal or by any arbitral or other institution or person vested by the parties with
powers in relation to the proceedings or the award.’
Section 69 gives a party the right to appeal to the court on a question of law arising out of an award
made in the proceedings, provided there is no agreement by the parties to the contrary.
Sections 85 – 98 constitute Part II of the UK Act and deal with domestic arbitration agreements,
consumer arbitration agreements, small claims arbitration in the county courts, appointment of judges
as arbitrators and statutory arbitration.
Part III of the UK Act comprises sections 99 – 104 which deal with the enforcement of Geneva
Convention awards and the recognition and enforcement of New York Convention awards.
Sections 105 – 110 make up Part IV of the Act which is the final Part. Under section 106, the
Crown can be a party to an arbitration agreement.
Comparison between the UNCITRAL Model Law and the UK Arbitration Act 1996199
199
Keren and Andrew Tweeddale, a practical approach to Arbitration Law, 1999 Chapter 19 p. 327 and Lord Mustill
and Stewart Boyd, Commercial Arbitration, Second Edition, 2001 Part 1 p. 37
109
The Model Law does not have an article like section 1 of the UK Act. Aspects of section 1 of the Act are
reflected in articles 5 and 19(1) of the Model Law. Article 5 provides that ‘no court shall intervene’ in
matters governed by the Law, except where so provided by the Law. This however, is stronger than
section 1 (c) in which ‘shall’ is replaced with ‘should.’ This was done to preserve the inherent jurisdiction
of the English Courts.200
Article 19(1) of the Model law provides: ‘[s]ubject 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.’
This is similar to section 1 (b) of the UK Act.
Section 5 of the Act requires that arbitration agreements be in writing. ‘[I]n writing is given a
wide definition. Before the 2006 amendment of article 7 of the Model Law, there was a wide difference
between the ‘in writing’ definition under the UK Act and the Model Law. This is no longer the case.
Indeed, in Option II of article 7 there is no requirement as to form of the arbitration agreement.
Section 6 of the Act defines “arbitration agreement.” This definition is similar to that in article 7
of the Model Law.
Section 7 of the Act, which deals with the separability of the arbitration agreement from the
substantive contract, reflects Article 16(1) of the Model Law.
Section 9 of the Act which deals with stay of legal proceedings follows Article 8 of the Model
Law. Under both, a Court is required to stay legal proceedings unless the arbitration agreement is found
to be ‘null and void, inoperative or incapable of being performed.’
200
T. Landau, ‘ New Duties and Liabilities-Party Autonomy v Powers of the Tribunal’, IBC Conference, 4 July 1996
110
Sections 30-32 of the Act deal with the jurisdiction of the arbitral tribunal. These sections follow
Article 16(1) of the Model Law to a large extent.
Section 33 follows the Model Law in part. Section 33 (1) (a) of the Act imposes an obligation on
the arbitral tribunal to ‘act fairly and impartially as between the parties, giving each a reasonable
opportunity of putting his case and dealing with that of his opponent’. Article 18 of the Model Law
provides that “[T]he parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case.” The use of the words ‘reasonable’ and ‘full’ must be noted. There
are other similar provisions in the Model Law of the UK Act.
There are some provisions of the UK Act which arise out of the peculiarity of the English law and
are therefore absent from the Model Law. These include:
section 12
- the power to extend time for commencing an
arbitration
section 21
- provisions relating to umpires;
section 23
- revocation of the arbitrator’s authority;
sections 29 and 74
- explicit immunity for arbitrators and arbitral
institutions;
section 38(8) - the power of the arbitrator to order security for
costs;
section 41(3) - the power of the arbitrator to dismiss a claim
111
for want of prosecution;
section 56
- the lien on the award for the arbitrator’s fees;
section 65
- the power of the arbitrator to impose a limit on
recoverable costs of the arbitration.
section 69
- the possibility of bringing a preliminary
question of law before the court;
Other provisions present in the UK Act but missing from the Model Law are:
sections 1(a) and 33(b) - the requirement to proceed with
dispatch;
section 1(b) - the principle of party autonomy;
section 4
- mandatory and non-mandatory
provisions;
section 28 and 64
- the liability of the parties for the fees of
the arbitrator and the limitation of those
fees to what is reasonable;
section 34(1) and (2) - disclosure of documents and evidence;
section 34(2)(g)
- the power of the arbitrator to decide the
112
extent to which proceedings should be
inquisitorial or adversarial;
section 35
- consolidation of arbitrations;
section 36
- the right to legal representation;
section 38(5)
- administration of oaths to witnesses;
section 39
- provisional awards;
section 40
- the duty of parties to comply with the
orders of the arbitrator and to do
everything necessary for the proper and
expeditious conduct of the proceedings;
section 47
- interim awards;
section 49
- awards of interest;
section 59
- awards of costs.
Finally, the Model Law is confined to international commercial arbitration. There is no such limitation in
the UK Act.
Arbitration in Australia201
201
The Australian Encyclopaedia of Forms and Precedents , Third Edition, 2007
113
The Australian situation represents an interesting option for Jamaica because it operates two separate
regimes for arbitration – one for domestic disputes and the other for international disputes. Each
regime is governed by its own legislation.
Domestic Arbitration
Each of the states and territories of Australia has enacted substantially identical legislation which
regulates the arbitration of commercial matters between the years 1984 and1986. These Acts are
known collectively as the Uniform Acts.
Salient aspects of the Uniform Acts include:
a. Unless the contrary intention appears in the agreement the arbitral tribunal will consist of a
single arbitrator.
b. The parties are required to participate in such a manner that does not delay or prevent the
making of an arbitral award.
c. Unless the contrary intention appears in the arbitration agreement, where any person refuses to
attend or give evidence or to produce a document, the arbitrator, umpire or opposing party may
seek a court order that the person comply with the arbitral procedure.
d. A rebuttable presumption arises that each party has a duty to exercise due diligence in referring
a dispute to arbitration.
e. The arbitrator may conduct the proceedings in a manner that he deems fit, subject to the other
legislative provisions and the arbitration agreement itself.
f.
Specifically, the arbitrator may conduct the arbitration without regard to the rules of evidence
and may choose whether to require oral evidence be given on oath.
g. Where certain preconditions are met the parties may be represented by legal practitioners.
114
h. The arbitrator is required to decide questions arising from the dispute according to law unless
the parties have agreed otherwise.
i.
Alternatively, the Uniform Acts allow for the arbitrator to make decisions according to notions
of general justice and fairness if this is provided for in the arbitration agreement.
j.
Unless the contrary intention appears in the arbitration agreement the arbitrator may give
interim awards.
k. Unless the contrary intention appears in the arbitration agreement, the arbitrator may order
specific performance of a contract.
l.
The award by the arbitrator must be in writing, signed and include a statement of the reasons
for the making of the award.
m. There is a rebuttable presumption that the arbitral award is final and binding on each of the
parties.
n. The authority of an arbitrator is irrevocable unless a contrary intention is expressed in the
arbitration agreement.
The procedure in arbitration will typically approximate that of litigation proceedings. Fast Track
Arbitration Rules were developed in response to a perceived demise in the utilisation of arbitration
procedures. In essence, Fast Track Arbitration expedites the resolution of disputes by limiting or
prescribing the time to be taken in completing each aspect of arbitral proceedings.
The courts have an important administrative jurisdiction in regard to the arbitral process. The
appropriate court may:
a. On application of a party to the arbitration agreement, issue subpoenas requiring a person to
attend for examination before an arbitrator or umpire, or to produce documents to the
arbitrator or umpire.
115
b. Set aside an appointment of an arbitrator and appoint a replacement.
c. On application of a party to the arbitration agreement, remove an arbitrator or umpire where
the arbitrator or umpire is guilty of misconduct. Misconduct is defined as including corruption,
fraud, partiality, bias and a breach of the rules of natural justice.
d. Set aside an award where the arbitrator is guilty of misconduct.
e. On application of a party to the arbitration agreement, remove an arbitrator or umpire where
undue influence has been exercised in relation to the arbitrator or umpire.
f.
On application of a party to the arbitration agreement, remove an arbitrator or umpire where
the arbitrator or umpire is incompetent or unsuitable to deal with the particular dispute.
g. On application of a party to the arbitration agreement, where an arbitrator or umpire has been
removed, appoint a replacement.
h. On application of a party to the arbitration agreement, where an arbitrator or umpire has been
removed, order that the arbitration agreement cease to have effect in relation to the dispute in
question.
i.
Remit an award for reconsideration by an arbitrator.
j.
On application of a party to the arbitration agreement, where there has been undue delay in the
arbitral proceedings, terminate the arbitration proceedings and remove it into the court.
k. On application of a party to the arbitration agreement, where the necessary consents are given,
determine any preliminary question of law where such a determination would produce
substantial savings in costs.
Appeals
Pursuant to section 28 of the Uniform Acts an award made by an arbitrator or umpire is final and
binding on the parties to the agreement unless the arbitration agreement states otherwise. Although
116
the court has power to review procedural directions or rulings of the arbitrator there is no general right
of appeal to the court. The court has no general power to set aside the arbitrator’s decision for an error
appearing on the face of the record.
An appeal lies to the court only for a question of law in circumstances where all of the parties
are in agreement or the court has given leave.
Stay of proceedings
The court has a discretionary jurisdiction, on application of a party to the dispute, to order a stay of
litigation proceedings. However, the court may only order a stay where there is no sufficient reason
preventing the referral of the dispute to arbitration in accordance with the parties’ agreement and it
has been shown that the applicant was ready, willing and able to participate in the arbitration at the
time the proceedings were commenced and remains so.
Enforcement of arbitral awards
Where an award has been made pursuant to an arbitration agreement, a party may apply for leave of
the court for the award to be enforced as if it were a judgment or order of the court. If leave is granted
then the court may enter judgment in the same terms as that of the arbitral award.
International Arbitration
International arbitration is governed by the International Arbitration Act 1974 (Cth). This legislation
gives effect to the UNCITRAL Model Law. Parties may agree to exclude the operation of the UNCITRAL
Model Law, in which case the Uniform Act of the state or territory where the arbitration is held will
apply.
117
Australian colonies inherited the English Arbitration Act 1697.202 The reform of the English law
on arbitration in 1979 was the catalyst for the revision of state legislation on arbitration between the
years 1984 and 1986.
Australia has adopted the Model Law only in respect of international commercial arbitration and
accordingly, English and Australian Law have departed quite significantly from each other.203
A Model for Jamaica
The main drawback with the UNCITRAL Model Law is that it was crafted to deal specifically with
international commercial arbitration. Although its provisions could be extended to cover domestic
disputes, such an exercise would be in the nature of recreating the wheel which is not desirable. In
addition, the Model Law leaves many important areas of arbitration law untouched.
Jamaica needs to modernise its statute dealing with domestic arbitration and to introduce
provisions applicable to international arbitration. The UK Act represents an attractive fusion of domestic
and international requirements.
The UK Act creates an accessible and almost complete code of conduct, embodying a consistent
vision of the arbitral process, which will in the great majority of cases take effect automatically.204
The UK Act took the existing English Law on arbitration and supplemented it with many
principles from the UNCITRAL Model Law. It radically alters the existing English Law of arbitration and at
202
Hilary Astor and Christine Chinkin, Dispute Resolution in Australia, Second Edition, 2002
D Mark Cato, ‘Is the Australian Arbitrator Disadvantaged over his UK counterpart?’ (1998) 16 (4) The Arbitrator
p. 252
204
Lord Mustill and Stewart Boyd, Commercial Arbitration, Second Edition 2001
203
118
the same time preserves many perceived benefits of English arbitration law that have developed over
centuries.205
Using English legislation as a model would be in keeping with the legal tradition of Jamaica. The
fact is that the Jamaican legal system is based on the British legal system. Jamaica was colonised by
Britain in 1655 and at that time, received the English common law to the extent suitable to its situation.
Jamaica received English statute law which was in use prior to 1728.206 Jamaica remained a colony of
Britain until 1962 when it gained its Independence.
The Independence Constitution recognises a right of appeal from the court of appeal to Her
Majesty in Council. Our final court of appeal to this day remains the Judicial Committee of the UK Privy
Council.207 Judgements from the English courts are highly persuasive authorities for Jamaican courts.
Our colonial past explains why we look to English legislation whenever there is a need to update our
legislation.
In recent times, we have also modelled our new legislation off other Commonwealth
jurisdictions and, in particular Australia. This is also due to a similar jurisprudential heritage from
Britain. In this case however, the Australian model is not attractive because it comprises two separate
regimes- domestic and international which are governed by specific statutes. One comprehensive
statute would be better suited to the needs of Jamaica. In addition, the Australian statutes pre-date the
UK Act and would therefore not include some of its innovative features.
Arbitration in Australia is just one process in a well-developed inter-connected system of ADR
processes. The others are negotiation, mediation, conciliation, facilitation and expert appraisal and
205
Keren and Andrew Tweeddale, a practical approach to Arbitration Law, 1999
C. Dennis Morrison, The Reception of English Law in Jamaica, West Indian Law Journal, October 1979, p.43
207
The debate continues in Jamaica as to whether the Caribbean Court of Justice should replace the Judicial
Committee of the UK Privy Council as the final appeal court for Jamaica
206
119
determination. There are also hybrid processes, namely, early neutral evaluation, med-arb, which is a
combination of mediation, conciliation and arbitration and mini-trial.208 Adoption of the arbitration
process without the other processes would be short sighted and not desirable.
Another very important factor which would support the use of the UK Act as a model is that the
Act has been in force for more than ten years. In that time a body of learning would have built up
around the Act. Jamaica would be able to benefit from that learning which would assist in crafting the
Jamaican statute. It is also important to mention the Departmental Advisory Committee on Arbitration
Law (DAC) Report on the Arbitration Bill of February, 1996. The intention is not to adopt the UK Act
wholesale but to fashion a statute suitable to Jamaica and its international needs.
The UK Act is modern and innovative. It is said to provide for swift, effective and fair resolution
of disputes.209 This is a critical feature for any new statute in Jamaica.
A modern user-friendly and updated arbitration statute should minimise the court’s
involvement in the arbitration process. The UK Act provides that feature in that it uses straightforward
and logical language to explain arbitration principles and presents them in a chronological format. A
cross referencing system is used within the Act to assist both lawyers and lay persons to find other
sections of the Act relevant to the matter in dispute.210
The UK Act also has many unique and distinctive features not present in any other arbitration
statute. These include section 42 which deals with the enforcement of a peremptory order of the
arbitral tribunal, section 44 which deals with the enforcement of interim awards, section 35(1) which
deal with multi-party arbitrations and section 68(2) which defines serious irregularities. Importantly
208
Hilary Astor and Christine Chinkin, Dispute Resolution in Australia, Second Edition, 2002
D. Mark Cato, Arbitrate don’t litigate- The Arbitration and Dispute Resolution Law Journal [1997] ADRLJ 158
210
Lord Mustill and Stewart Boyd, ‘ Commercial Arbitration’
209
120
section 33(1)(b) enables the arbitrator to adopt procedures suitable to the circumstances of the
particular case. This gives the arbitral tribunal wide discretion and the ability to avoid unnecessary delay
and expense.
The UK Act does not address the important issue of confidentiality. The position is similar in
Australia where, an expressed agreement of confidentiality is required to ensure that the proceedings
remain confidential. The High Court of Australia has ruled that arbitration is private, in that others
cannot attend, but is not confidential and the documents produced in the course of the arbitration
could be made public.211
The New Zealand Arbitration Act 1996 is unique as section 14 states:
‘ Disclosure of information relating to arbitral proceedings and awards prohibited- (1) Subject
to subsection (2), an arbitration agreement, that unless otherwise agreed by the parties, is
deemed to provide that the parties shall not publish, disclose, or communicate any information
relating to the arbitral proceedings under the agreement or to an award made in the
proceedings.’
Arbitration proceedings in New Zealand are therefore confidential.
The case law in England has developed in such a way for one to conclude that there is in fact an
implied duty of confidentiality.212 It is however recommended that the new arbitration statute in
Jamaica adopt the position taken by the New Zealand legislature. Such a clear statement would no
211
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hassneh Insurance Co. of Israel v Stuart J Mew [1993] 2 Lloyd’s Rep. 243, Ali Shipping Corp v Shipyard Trogir
[1998] 2 All E.R. 136, Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co.
[2004] 4All E.R. 746 and Redfern and Hunter, ‘ Law and Practice of International Commercial Arbitration’, Fourth
Edition p.29
212
121
doubt encourage users of commercial arbitration, in particular the private sector which places great
importance on privacy and confidentiality.
A modern arbitration statute would complement the efforts of the Jamaican Government in
modernising and improving the Jamaican justice system. As part of that effort, in September 2002, the
Civil Procedure Rules 2002 (CPR 2002) were introduced. CPR 2002 has brought about a revolution in the
conduct of civil litigation in the courts.213 It has had and continues to have an educative effect. It
introduced case management techniques and greater procedural flexibility. It places emphasis on the
idea that the legal costs and effort expended on a case should be proportionate to its importance and
the amount in dispute.214 The underlying spirit of the CPR 2002 is very much in accord with the UK Act.
Benefits from a modern arbitration statute
Modernising the arbitration statute would answer some of the criticisms levelled against the process in
Jamaica. These criticisms were summed up by one of Jamaica’s most brilliant and able counsel Gordon
Robinson who has stated repeatedly that he prefers a judge to an arbitrator because a judge comes free
of cost. In elaborating Robinson says:
‘Arbitration very much resembles court proceedings in that there is a case management
conference (preliminary meeting with the arbitrator) followed by an exchange of pleadings
(briefs to the arbitrator) and a formal hearing with cross examination of the witnesses,
submissions etc before the arbitrator hands down the award.’
Lawyers, he finds, have become a necessity at every arbitration and so the cost to the parties resembles
the cost of a lawsuit except, in the courts, the judge works for free. In arbitration proceedings, not only
213
Andrew Bartlett, Client- Friendly Arbitration, The Journal of the Chartered Institute of Arbitrators, Volume 66,
Number 1, February 2000
214
Supreme Court of Jamaica civil Procedure Rules 2002- The Overriding Objective
122
must the lawyers be paid but also the arbitrator (who charges by the hour) and the verbatim note-taker.
In addition, the premises in which the arbitration is held must be rented. Robinson continues:
‘Despite the usual ‘agreement’ in the reference that the arbitrator's decision will be final, 99%
of losing lawyers find a reason to carry the arbitrator's decision into the Supreme Court to be
quashed for some technical reason. So, the parties to an arbitration do not even have the
consolation of avoiding the costs, delays and inconveniences associated with litigation as
litigation will follow arbitration as sure as night follows day.’
Modern legislation would introduce procedural flexibility and restrict the situations in which awards can
be challenged. This would no doubt save time and expense.
In Jamaica at present, the major users of arbitration are the construction and the insurance
industries. There is a tendency to use retired judges, distinguished lawyers and senior engineers as
arbitrators. Another criticism levelled by Robinson is that ‘the upside of arbitration’ which ‘is supposed
to be that the arbitrator will likely have special technical skills in the subject matter while a judge must
be taught by way of expert evidence’ is not available in Jamaica. He says that because Jamaica is very
small, most professionals will find themselves in a conflict of duty as they will be in one camp or the
other due to the shortage of expertise and the consequential unavoidable involvement with one or the
other of the parties.
A new modern arbitration statute would assist this situation as it will enable more persons to be
trained as arbitrators thereby creating a much larger pool to choose from.
An allied benefit from modernisation is that practitioners would be able to go to one
comprehensive piece of legislation instead of having to look at different instruments, for example, the
Act, the UNCITAL Arbitration Rules and the ICC Arbitration Rules in order to deal with a dispute. This
123
should result, over time, in the greater utilisation of arbitration as a means of resolving commercial
disputes. It is fair to say that domestically, ignorance of the benefits and profits is a major problem
which has contributed to ambivalence towards arbitration.
Modern legislation would introduce a framework for international arbitration. This would be
welcomed in Jamaica having regard to the initiatives being pursued by the PSOJ and the JCC and the
DRFJ. This would enhance Jamaica’s chances of becoming the seat for arbitration, at the very least, in
the Commonwealth Caribbean. Maurice J. Stoppi,215 a well respected quantity surveyor and perhaps
Jamaica’s foremost arbitrator in the construction arena, thinks that the time is now right for Jamaica to
develop an international/regional system of commercial and/or political dispute settlement system.
The experience of countries like Singapore and Hong Kong has shown that having a modern
arbitration system adds to the attractiveness of countries to foreign investment. Modernisation should
also lead to the creation of new institutions offering arbitration services. This will increase the skills in
this area and hopefully provide quality jobs for Jamaicans.
Arbitration is unquestionably an attractive alternative for the resolution of commercial disputes.
Its increased use will reduce the burden on the court system. The expansion in the commercial sector
has shown up inadequacies in our court system. The commercial sector is interested in the resolution of
disputes in a timely and efficient manner. There have also been criticisms levelled at the judiciary whom
it is felt have little or no knowledge of commercial matters. The appointment of a specialist commercial
judge and a revenue judge has not solved these problems. Arbitration however would go a far way in
assisting.
215
Author of the book , Commercial Arbitration in the Caribbean, A Practical Guide,2001
124
Commercial contracts usually include a clause making arbitration a prerequisite to any litigation.
An ordinary arbitration clause is not a contract to oust the court’s jurisdiction and, with one
qualification, the parties to such clauses are not thereby prevented from prosecuting their claims in
court rather than by arbitration.216
The combined effect of a modern arbitration statute and the CPR 2002 will help to create the
framework for more timely resolution of commercial disputes.
The way forward
The proposed new arbitration statute must not only be modern but must suit the needs of Jamaica both
domestically and internationally. A delicate balance must therefore be achieved. This will only be
possible if a Committee similar to the DAC is established by the Government of Jamaica to conduct a
comprehensive study of the arbitration needs and to recommend the necessary changes to the law. A
similar strategy was employed in Australia. Following the reform of the English law in 1979 a number of
State Reform Commissions were set up to examine arbitration law in Australia and to recommend the
revision of state legislation. The recommendations of the Commissions led to the passing of similar but
not identical Commercial Arbitration Acts during the period 1984 – 1986.217
The study must include the Arbitration (Recognition and Enforcement of Foreign Awards) Act
and any treaty obligations which the country may have. Of particular importance is the Caribbean
Community (CARICOM) connection. CARICOM has commenced the establishment of a single market and
economy called the CARICOM Single Market and Economy (CSME).
216
217
Lew, Mistelis and Kroll, Comparative International Commercial Arbitration, March 2003
Hilary Astor and Christine Chinkin, Dispute Resolution in Australia, Second Edition, 2002
125
A programme to sensitise the public would contribute to more widespread use of arbitration
and possibly erase or at least ease the well entrenched mindset by Jamaicans that only a court can bring
about finality to legal proceedings. The tradition of resolving disputes by way of litigation in the courts of
law rather than by arbitration is very deeply rooted in the legal culture of Caribbean countries.218 Even if
it is not possible to completely change this mindset and tradition, the availability of a modern arbitration
process would provide a very useful option to Jamaicans.
In tandem with the modernisation of the legislation, there is an urgent need to train arbitrators.
A cadre of highly qualified and experienced arbitrators must be available if Jamaica is serious about
becoming the seat of arbitration in the Caribbean.
The teaching of arbitration as a core subject in our Universities must be seen as a matter of
urgency. Lawyers should also be encouraged to develop specialist arbitration practices in order to
increase the pool of arbitrators in the short term.
A strong judicial policy favouring arbitration as in the UK219 is critical. This ought not to be
difficult as the courts already seem to be favourably disposed to arbitration. The establishment of a
specialist court would also support the process. And on an international level, there must be a
commitment to membership to other international arbitral tribunals and institutions.
Conclusion
Jamaica needs a comprehensive, modern, innovative, user-friendly arbitration statute. The UK Act has
all those features and therefore presents the best model. Adjustments would have to be made to take
218
Hugh A. Rawlins, ‘Aspects of the UNCITRAL Regimes for Procurement and for International Commercial
Arbitration and Government International Commercial Contracts in the Commonwealth Caribbean,’ Caribbean Law
Review, June 1997 p. 214.
219
Fiona Trust & Holding Corporation v Privalov [2007] EWCA 20; [2007] UKHL 40
126
into account Jamaica’s specific needs and circumstances. In addition, to ensure a successful
implementation of the process, supporting activities including widespread consultation, public
education and training would be necessary. If these are achieved, I anticipate an exciting future for
arbitration in Jamaica.
127
Bibliography
1.
Hilary Astor and Christine Chinkin, Dispute Resolution in Australia Second Edition, 2002
2. Andrew Bartlett, Client- Friendly Arbitration, ‘The Journal of Chartered Institute of Arbitrators’,
Volume 66, Number 1, February 2000
3. D. Mark Cato, ‘Arbitrate don’t litigate’- The Arbitration and Dispute Resolution Law Journal
[1997] ADRLJ 158
4. HEW R. Dundas, ‘The Journal of the Chartered Institute of Arbitrators’, Volume 73, Number 4,
November 2007
5. Lord Hacking, ‘Arbitration law reform: the impact of the UNCITRAL Model Law on the English
Arbitration Act 1996’, Arbitration, November 1997, p. 292
6. Bruce Harris, Rowan Planterose & Jonathan Tecks, The Arbitration Act 1996, A Commentary,
Fourth Edition, 2007
7. Martin Hunter and Toby Landau, The English Arbitration Act 1996 Text and notes, February 1998
8. Christopher P. Malcolm, ‘ The Settlement of Foreign Investment Disputes: Distilling Some of the
Considerations for Jamaican Arbitration Practitioners’, Caribbean Law Review 2004 p. 25
9. Robert Merkin, Arbitration Act 1996, Third Edition, 2005
10. C. Dennis Morrison, ‘The Reception of English Law in Jamaica’, West Indian Law Journal, October
1979 p. 43
11. Lord Mustill and Stewart C Boyd QC, Commercial Arbitration Second Edition, 2001 Companion
12. Hugh A. Rawlins, ‘Aspects of the UNCITRAL Regimes for Procurement and for International
Commercial Arbitration and Government International Commercial Contracts in the
Commonwealth Caribbean.’ – Caribbean Law Review, June 1997 p. 214
128
13. Alan Redfern and Martin Hunter with Nigel Blackaby and Constantine Partasides, Law and
Practice of International Commercial Arbitration, Fourth Edition, 2004
14. Stephen Shelton, ‘Arbitration as an Alternative Means of Dispute Resolution: An Introductory
Road Map’, Continuing Legal Education Seminar, Jamaica Bar Association (unpublished paper
presented at the Norman Manley Law School on June 12, 2001)
15. Peter Spiller, Dispute Resolution in New Zealand, 1999
16. Ercus Stewart S.C., Arbitration: Commentary and Sources March 2003
17. M.J. Stoppi, Commercial Arbitration in the Caribbean: A Practical Guide 2001
18. Supreme Court of Jamaica Civil Procedure Rules (2002)
19. The Australian Encyclopaedia of Forms and Precedents, Third Edition, 2007
20. The Arbitration Act, 1996 (New Zealand)
21. The Uniform Acts (Australia)
22. The Arbitration Act, 1996 (UK)
23. Keren Tweeddale and Andrew Tweeddale, A Practical Approach to Arbitration Law, 1999
24. UNICTRAL MODEL LAW on International Commercial Arbitration
25. AAP Willy, Arbitration in New Zealand Second Edition, 2003
129
ANNEX 8
Elements that are to be considered in Drafting Instructions for the modernisation of the
regime for Arbitration in Jamaica and thereafter included in supporting legislation.
1.
Modernisation of the Jamaican regime for arbitration should include the implementation of
revised or new legislation with adequate provision for domestic as well as international dispute
settlement.
2.
The new framework should require the establishment of arbitration as a recognised professional
discipline and include appropriate mechanisms for its supervision and control.
3.
The new framework should also establish ethical standards for arbitration practitioners and
require the implementation of a special regulatory regime.
4.
The overarching structure of the new framework should be based on international best practice
but must be sufficiently adapted for local circumstances, including that Jamaica intends to
become an international arbitration centre.
5.
The establishment of this new framework could build on the institutional/administrative
arrangements which now exist under the Dispute Resolution Foundation and the Chartered
Institute of Arbitrators – Caribbean Branch.
6.
The new framework will also seek to build on any institutional or other arrangements that have
been or are now being pursued by the PSOJ and other bodies.
7.
In considering model selection, the UNCLITRAL Model Law as well as the English Arbitration Act,
1996 could provide guidance. However, the Review Committee is of the opinion that the
UNCLITRAL Model Law is more suitable for adoption.
8.
In designing the new framework, the following are some of the questions that will require
careful consideration. The answers should determine the policy, design and detail. The content
in brackets suggests outline answers as well as sources for guidance.
(a)
What is the current framework for arbitration in Jamaica? [Annex 3]
(b)
Is the current framework effective? [No]
(c)
Can the current framework support further growth and development, including the
establishment of Jamaica as a credible destination for international arbitration? [No]
(d)
When is the intended outcome to be achieved? [Modernisation requires urgent
attention and a new framework should now be implemented now]
130
9.
(e)
Who are the critical persons to be involved if the intended outcome of modernisation is
to be achieved? [Policy-makers, practitioners, end-users, courts, domestic and
international institutions]
(g)
How will the new regime be implemented? [This will be achieved by legislation and
supporting regulations.]
(h)
What are the likely constitutional or other impediments? [Anticipated resistance will
come from practitioners, business community, other interested service providers.
However, the main challenge would be inadequate or lack of political support for
implementation.]
(i)
How will these be resolved? [Negotiation and public discourse]
(j)
How will the new framework be funded? [Initial set-up costs could be funded from
budgetary or other allocations. Thereafter, the recurrent expenditure will be met from
this Fund as well as through user fees]
(k)
How will accountability be secured? [In-built mechanisms and peer control]
(l)
How will disputes/complaints be resolved? [In-built mechanisms and possible court
action]
(o)
How will enforcement be secured? [In-built mechanisms, possible court action]
Among other areas, an ideal new law should specifically include provisions dealing with:
(a)
The essential content of the arbitration agreement;
(b)
The form of the arbitration agreement;
(c)
Incorporation of an arbitration clause contained in general terms and conditions;
(d)
The law applicable to the interpretation of arbitration clauses;
(e)
The effect of arbitration clauses on third parties, such as assignees and guarantors;
(f)
Multiparty arbitration – joinder, constitution of the tribunal, etc;
(g)
Termination of agreement by a party;
(h)
Subjective and objective arbitrability;
(i)
Competence-Competence;
131
(j)
Enforcement of arbitration agreement within or by court proceedings;
(k)
Number and qualification of arbitrators;
(l)
Appointment of arbitrators – party autonomy, default authority;
(m)
Implications of a party refusal to cooperate in the constitution of tribunal;
(n)
Circumstances and valid reasons for resignation of an arbitrator;
(o)
Challenge and replacement of arbitrators;
(p)
General principles as to conduct of arbitration – party autonomy to determine
procedure, rules to be applied, nature of hearings, power of tribunal to make procedural
orders, party representation, etc;
(q)
Place of arbitration – how to be determined in absence of party agreement, importance
and legal effect of seat;
(r)
Submissions, deadlines and default – content and form of submissions, deadlines (set
by law or determined by tribunal) and effect of non-compliance, notifications during
arbitration, effect of insolvency;
(s)
Facts and Evidence – burden and standard of proof, power of tribunal to determine
admissibility and weight of evidence;
(t)
Witnesses, documents and expert evidence;
(u)
Interim measures of protection;
(v)
Court assistance;
(w)
(x)
The Award – type, formal requirements, applicable substantive law, consent of parties,
cost, publication, amendment and challenge, liability or arbitrator, enforcement and
recognition of domestic and foreign awards;
Application of New York Convention.
132
The overriding objective will be to ensure that party autonomy is secured to the highest extent possible
without undermining the legal system more generally and its obligation to serve the best interest of
justice. Furthermore, if there is real intention to develop Jamaica as a credible international arbitration
centre then best international practice must be observed in the design and implementation of any new
law.
133
ANNEX 9
PROPOSED TIMETABLE
This will be determined after further consultation.
134