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Arbitration Act 1976

LAWS OF WESTERN SAMOA

ARBITRATION ACT 1976

1976, No. 9

ANALYSIS

Title

1. Short title

PART I
General

2. Interpretation
3. Act to bind Government
4. Power to make rules
5. Submission to be irrevocable, etc.
6. Provisions implied in submissions
7. Power of Court to stay proceedings where there is a submission
8. Appointment of arbitrator or umpire
9. Power for parties to supply vacancy
10. Power of arbitrator to administer oaths, etc.
11. Witnesses may be subpoenaed
12. Arbitrator or umpire entitled to remuneration
13. Power to remove arbitrator or set aside award
14. Power of Court where arbitrator is removed or appointment of arbitrator is revoked
15. Review of arbitrator's or umpire's fees
16. Power of Court to give relief where arbitrator is not impartial or dispute referred involves question of fraud
17. Provisions on the appointment of 3 arbitrators
18. Additional powers of Court
19. Power to refer in certain cases
20. Statement of case by arbitrator or umpire

PART II
Foreign Awards

21. Effect of Foreign awards
22. Conditions for enforcement of foreign awards
23. Evidence
24. Meaning of "final award"
25. Saving

PART III
Miscellaneous

26. Power to enlarge time for making award
27. Power to remit award
28. Enforcing award
29. Interest on awards
30. Limitation of time for commencing arbitration proceedings
31. Provisions in case of bankruptcy
32. Costs
33. Repeals and saving
Schedules

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THE ARBITRATION ACT 1976

1976, No. 9

An Act to amend and consolidate the law relating to arbitration

[23 August 1976

1. Short title - This Act may be cited as the Arbitration Act 1976.

PART I
General

2. Interpretation - (1) In this Act, unless the context otherwise requires,-

"Arbitrator" includes referee and valuer:

"Authority" includes Court:

"Court" means the Supreme Court, and includes a Judge thereof:

"Rules of Court" means rules of the Supreme Court, made by the proper authority under this Act:

"Submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not, or under which any question or matter is to be decided by one or more persons to be appointed by the contracting parties or by some person named in the agreement.

(2) References in this Act to an award shall be deemed to include references to an interim award.

3. Act to bind Government - This Act shall apply to any arbitration to which the Government is a party; but nothing herein shall empower the Court to order any proceedings to which the Government is a party, or any question or issue in any such proceedings, to be tried before any arbitrator or officer without the consent of the Attorney-General.

4. Power to make rules - Rules may from time to time be made in the manner prescribed by the Judicature Ordinance 1961 for the purpose of giving effect to this Act in the Court.

5. Submission to be irrevocable, etc. - (1) A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court, and shall have the same effect in all respects as if made an order of Court.

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

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

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

6. Provisions implied in submissions - A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions specified in the First Schedule, so far as they are applicable to the reference under the submission.

7. Power of Court to stay proceedings where there is a submission - (1) If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to those legal proceedings may, at any time before filing a statement of defence or a notice of intention to defend or taking any other step in the proceedings, apply to the Court in which the proceedings were commenced to stay the proceedings; and that Court may, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.

(2) The refusal by any Magistrate's Court of an application for a stay of proceedings under this section in any action shall not affect the right of the defendant in the action to have the action transferred to the Supreme Court.

8. Appointment of arbitrator or umpire-(1) In any of the following cases:

(a) Where a submission provides that the reference shall be to a single arbitrator, and all the parties do not concur in the appointment of an arbitrator; or

(b) Where an appointed arbitrator fails to act, or is or becomes incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy; or

(c) Where the parties or 2 arbitrators are at liberty to appoint an umpire or a third arbitrator or where 2 arbitrators are required to appoint an umpire and do not appoint one; or

(d) Where an appointed umpire or third arbitrator fails to act, or is or becomes incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy,-

any party may serve the other party or the arbitrators, as the case may be, with a written notice to appoint an arbitrator or umpire or a third arbitrator.

(2) If the appointment is not made within 7 days after the service of the notice, the Court may, on application by the party who gave the notice, appoint an arbitrator or umpire or a third arbitrator who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.

9. Power for parties to supply vacancy - (1) Where a submission provides that the reference shall be to 2 arbitrators, one to be appointed by each party, then, unless the submission expresses a contrary intention,-

(a) If either of the appointed arbitrators fails to act, or is or becomes incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place; and

(b) If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for 7 days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent.

(2) The Court may set aside any appointment made in pursuance of this section.

10. Power of arbitrator to administer oaths, etc. - The arbitrators or umpire acting under a submission may administer oaths to the parties and witnesses appearing and correct in an award any clerical mistake or error arising from an accidental slip or omission.

11. Witnesses may be subpoenaed - Any party to a submission may sue out a subpoena compelling any person to testify or a subpoena compelling the production of any document, but no person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action.

12. Arbitrator or umpire entitled to remuneration - An arbitrator or umpire shall be entitled to a reasonable remuneration for his services as such arbitrator or umpire, and if the parties to the submission do not agree as to the amount to be paid, or as to the mode and time of payment, the Court may, on an application for that purpose, fix and determine all or any of such matters.

13. Power to remove arbitrator or set aside award - (1) Where an arbitrator or umpire has misconducted himself or the proceedings the Court may remove him.

(2) Where an arbitrator or umpire has misconducted himself or the proceedings or any arbitration or award has been improperly procured, the Court may set the award aside.

(3) The Court may remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award.

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

(5) Subject to the provisions of subsection (2) of section 27 and to anything to the contrary in the submission, an arbitrator or umpire shall have power to make an award at any time.

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

14. Power of Court where arbitrator is removed or appointment of arbitrator is revoked - (1) Where an arbitrator (not being a sole arbitrator) or 2 or more arbitrators (not being all the arbitrators) or an umpire who has not entered on the reference is or are removed by the Court, the Court may, on the application of any party to the submission, appoint a person or persons to act as arbitrator or arbitrators or umpire in place of the person or persons so removed.

(2) Where the appointment of an arbitrator or arbitrators or umpire is revoked by leave of the Court, or a sole arbitrator or all the arbitrators or an umpire who has entered on the reference is or are removed by the Court, the Court may, on the application of any party to the submission, either-

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

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

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

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

15. Review of arbitrator's or umpire's fees - (1) If in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him the Court may, on an application for the purpose, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and further that the fees demanded shall be reviewed by the Registrar of the Court and that out of the money paid into Court there shall be paid out to the arbitrator or umpire by way of fees such sum as may be found reasonable on review and that the balance of the money, if any, shall be paid out to the applicant.

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

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

16. Power of Court to give relief where arbitrator is not impartial or dispute referred involves question of fraud - (1) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to an arbitrator named or designated in the agreement and after a dispute has arisen any party applies, on the ground that the arbitrator so named or designated is not or may not be impartial, for leave to revoke the submission or for an injunction to restrain any other party or the arbitrator from proceeding with the arbitration, it shall not be a ground for refusing the application that the said party at the time when he made the agreement knew, or ought to have known, that the arbitrator by reason of his relation towards any other party to the agreement or of his connection with the subject referred might not be capable of impartiality.

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

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

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

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

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

18. Additional powers of Court - The Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of and in relation to an action or matter in the Court:

Provided that nothing in the foregoing provision shall be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters aforesaid.

19. Power to refer in certain cases - (1) In any cause or matter (other than a criminal proceeding by the Government),-

(a) If all the parties interested who are not under disability consent; or

(b) If the question in dispute consists wholly or in part of matters of account; or

(c) If the cause or matter requires any prolonged examination of documents, or any scientific or local investigation, which cannot in the opinion of the Court or a Judge conveniently be made or conducted by the Court through its other ordinary officers,-

the Court may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before an arbitrator agreed on by the parties, or before an officer of the Court.

(2) In all cases of reference to an arbitrator under an order of the Court in any cause or matter the arbitrator shall be deemed to be an officer of the Court, and shall have such authority, and shall conduct the reference in such manner, as is prescribed by rules of Court, and, subject thereto, as the Court directs.

See also the following-

Co-operative Societies Ordinance 1952, s.49 (disputes); Magistrates' Courts Act 1969, s. 61 (power to refer proceedings)

20. Statement of case by arbitrator or umpire - (1) An arbitrator or umpire may, and shall if so directed by the Court, state-

(a) Any question of law arising in the course of the reference; or

(b) An award or any part of an award-

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

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

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

PART II
Foreign Awards

21. Effect of foreign awards - (1) A foreign award shall, subject to the provisions of this Part, be enforceable in Western Samoa either by action or in the same manner as a judgment or order to the same effect.

(2) Any foreign award which would be enforceable under this Part shall be treated as binding for all purposes on the persons as between whom it was made; and may accordingly be relied on by any of those persons by way of defence, set off, or otherwise in any legal proceedings in Western Samoa, and any references in this Part to enforcing a foreign award shall be construed as including references to relying on an award.

22. Conditions for enforcement of foreign awards - (1) In order that a foreign award may be enforceable under this Part it must have-

(a) Been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed;

(b) Been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties;

(c) Been made in conformity with the law governing the arbitration procedure;

(d) Become final in the country in which it was made;

(e) Been in respect of a matter which may lawfully be referred to arbitration under the law of Western Samoa,-

and the enforcement thereof must not be contrary to the public policy or the law of Western Samoa.

(2) Subject to the provisions of this subsection, a foreign award shall not be enforceable under this Part if the Court dealing with the case is satisfied that-

(a) The award has been annulled in the country in which it was made; or

(b) The party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or was under some legal incapacity and was not properly represented; or

(c) The award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration:

Provided that, if the award does not deal with all the questions referred, the Court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit.

(3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non-existence of the conditions specified in paragraphs (a), (b), and (c) of subsection (1), or the existence of the conditions specified in paragraphs (b) and (c) of subsection (2), entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.

23. Evidence - (1) The party seeking to enforce a foreign award must produce-

(a) The original award or a copy thereof duly authenticated in manner required by the law of the country in which it was made; and

(b) Evidence proving that the award has become final; and

(c) Such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned in paragraphs (a), (b), and (c) of subsection (1) of section 22 are satisfied.

(2) In any case where any document required to be produced under subsection (1) is in a foreign language, it shall be the duty of the party seeking to enforce the award to produce a translation certified as correct by a diplomatic or consular agent of the country to which that party belongs, or certified as correct in such other manner as may be sufficient according to the law of Western Samoa.

(3) Subject to the provisions of this section, rules of Court may be made in accordance with the Judicature Ordinance 1961 with respect to the evidence which must be furnished by a party seeking to enforce an award under this Part.

24. Meaning of "final award" - For the purposes of this Part an award shall not be deemed final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.

25. Saving - Nothing in this Part shall-

(a) Prejudice any rights which any person would have had of enforcing in Western Samoa any award or of availing himself in Western Samoa of any award if this Part had not been enacted; or

(b) Apply to any award made on an arbitration agreement governed by the law of Western Samoa.

PART III
Miscellaneous

26. Power to enlarge time for making award - The time for making an award may from time to time be enlarged by order of the Court, whether the time for making the award has expired or not.

The Limitation Act 1975 applies to arbitrations; see s. 27 (1) of that Act.

27. Power to remit award - (1) In all cases of reference to arbitration the Court may from time to time remit the matters referred, or any of their, to the reconsideration of the arbitrators or umpire.

(2) Where an award is remitted the arbitrators or umpire shall, unless the order otherwise directs, make their award within 3 months after the date of order.

28. Enforcing award - An award on a submission may, by leave of the Court, be enforced in the same manner as a judgment or order to the same effect; and judgment may be entered in terms of the award.

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

30. Limitation of time for commencing arbitration proceedings - Where the terms of an agreement to refer future disputes to arbitration provide that any claims to which the agreement applies shall be barred unless notice to appoint an arbitrator is given or an arbitrator is appointed or some other step to commence arbitration proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may, on such terms, if any, as the justice of the case may require, but without prejudice to the foregoing provisions of this section, extend the time for such period as it thinks proper.

31. Provisions in case of bankruptcy - (1) Where it is provided by a term in a contract to which a bankrupt is a party that any differences arising thereout or in connection therewith shall be referred to arbitration, the said term shall, if the Official Assignee adopts the contract, be enforceable by or against him so far as relates to any such differences.

(2) Where a person who has been adjudged bankrupt had before the commencement of the bankruptcy become a party to a submission and any matter to which the submission applies requires to be determined in connection with or for the purposes of the bankruptcy proceedings, then, if the case is one to which subsection (1) does not apply, any other party to the submission or the Official Assignee may apply to the Court having jurisdiction in the bankruptcy proceedings for an order directing that the matter in question shall be referred to arbitration in accordance with the submission, and that Court may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order, accordingly.

32. Costs - Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just.

33. Repeals and saving - (1) To the extent that they form part of the law of Western Samoa, the enactments set out in the Third Schedule are hereby repealed.

(2) The repeal of those enactments shall not affect any document, proceedings, submission, reference, appointment, or other act or thing done under the provisions so repealed, and every such document, proceedings, submission, reference, appointment, act or thing, so far as it subsists at the time of repeal, shall continue to have effect as if it had been made or done under the corresponding provisions of this Act.

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SCHEDULES

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FIRST SCHEDULE

Section 6

PROVISIONS TO BE IMPLIED IN SUBMISSIONS

1. If no other mode of reference is provided, the reference shall be to a single arbitrator.

2. If the reference is to 2 arbitrators, the 2 arbitrators shall appoint an umpire immediately after they are themselves appointed.

3. If the arbitrators have delivered to any party to the submission, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.

4. The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire on oath in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, or documents within their possession or power that may be required or called for, and do all such other things as during the proceedings on the reference the arbitrators or umpire may require.

5. The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath.

6. The award made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively.

7. The cost of the reference and award shall be in the discretion of the arbitrators or umpires, who may direct to and by whom and in what amount those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client.

8. The arbitrators or umpire shall have the same power as the Court to order specific performance of any contract other than a contract relating to land or any interest in land.

9. The arbitrators or umpire may, if they think fit, make an interim award.

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Section 18

SECOND SCHEDULE

MATTERS IN RESPECT OF WHICH THE COURT MAY MAKE ORDERS

(1) Security for costs.

(2) Discovery of documents and interrogatories.

(3) The giving of evidence by affidavit.

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

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

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

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

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

(9) The payment into Court or otherwise securing of any money made payable by an award where application is made to set the award aside.

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Section 33(1)

THIRD SCHEDULE

ENACTMENTS REPEALED

1908, No. 8: The Arbitration Act 1908 (New Zealand).
1915, No. 13: The Arbitration Amendment Act 1915 (New Zealand).
1933, No. 4: The Arbitration Clauses (Protocol) and Arbitration (Foreign Awards) Act 1933 (New Zealand).
1938, No. 6: The Arbitration Amendment Act 1938 (New Zealand).
1952, No. 27: The Arbitration Amendment Act 1952 (New Zealand).
1957, No. 44: The Arbitration Clauses (Protocol) and the Arbitration (Foreign Awards) Amendment Act 1957.

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The Arbitration Act 1976 is administered in the Department of Justice.