The new Arbitration (Guernsey) Law, 2016 - a guide to the key provisions10 May 2017
Historically, parties in Guernsey have been reluctant to use arbitration as a means of resolving a dispute, largely due to perceived shortcomings in the previous 1982 legislation. The new Law seeks to address these concerns by introducing provisions akin to those in the English Arbitration Act 1996 (which the new Law is based upon) whilst also incorporating some of the more useful elements of the UNCITRAL Model Law on International Commercial Arbitration. We set out below a summary of the key provisions and notable changes.
The agreement to arbitrate and commencement of arbitration proceedings (Part I)
The Law requires an arbitration agreement to be 'in writing' or 'evidenced in writing', albeit it need not be signed. What constitutes ‘in writing or evidenced in writing’ is broadly defined and can, in certain circumstances, include an oral agreement to arbitrate, provided that agreement is made by reference to terms which are in writing or otherwise evidenced in writing.
Certain sections of the Law apply even if the seat of the arbitration is outside Guernsey or no seat has been designated or determined, namely: sections 6 and 7 (stay of legal proceedings); section 61 (enforcement of awards); section 37 (securing the attendance of witnesses) and section 38 (court powers exercisable in support of arbitration proceedings).
Importantly, therefore, a party to a Guernsey arbitration agreement/clause can apply to the court in which proceedings have been brought for a stay of those court proceedings.
Under section 10, the parties to an agreement are free to agree when arbitration proceedings are to be regarded as having been commenced for the purposes of the Law and for the purposes of any prescription period. If there is no such agreement, the Law states that arbitration proceedings shall commence in respect of a matter when one party serves a notice in writing on the other party requiring that party either (i) to submit that matter to the arbitrator named or designated in the arbitration agreement, or (ii) to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter. Alternatively, arbitration proceedings will be deemed to commence when one party serves a notice on the designated person or institution requesting the appointment of an arbitrator.
The composition and jurisdiction of the arbitration tribunal (Part II)
In the absence of any agreement as to the procedure for appointing an arbitrator or arbitrators, including the procedure for appointing any chairman, the procedure for appointing an arbitrator is as follows:
(a) if there is a sole arbitrator the parties shall jointly appoint the arbitrator no later than 28 days after service of a request in writing by either party to do so;
(b) if there are to be two arbitrators, each party must appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so; or
(c) if there are to be three arbitrators, two must be appointed in accordance with paragraph (b) above, and those two arbitrators will jointly appoint a third arbitrator as chairman of the tribunal no later than 28 days after the day on which the last of the two was appointed.
In the absence of an agreement as to the number of arbitrators, a tribunal shall consist of one sole arbitrator.
Function of chairman
Where the parties have agreed that there is to be a chairman, they are free to agree what the functions of the chairman are to be. Section 15(2) stipulates that decisions, orders and awards are to be made by all or a majority of the arbitrators (including the chairman) and that, in the event that there is neither unanimity nor a majority in relation to a decision, order or award, the view of the chairman shall prevail. There is no longer a default requirement (as there was under the 1982 Law) for arbitrators to appoint an 'umpire' in the event that they are unable to agree. Rather, the default provision in section 16 states that decisions, orders and awards shall be made by all or a majority of the arbitrators.
The arbitral tribunal may rule on its own substantive jurisdiction as to (a) whether 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. The tribunal’s decision can be challenged by any available arbitral process of appeal or review, failing which the leave of the court will be required (section 62).
Revocation of authority and removal
The new Law enables parties to agree the circumstances in which the authority of an arbitrator may be revoked (a power which was previously reserved for the court). The default provision enables the authority of an arbitrator to be revoked by: (a) the parties acting jointly; or (b) a person or arbitral institution vested by the parties with powers in that regard.
A party may apply to the court (upon notice to the other parties and to all arbitrators) for removal of an arbitrator on any of the following grounds:
(a) that circumstances exist which give rise to justifiable doubts as to the arbitrator’s impartiality;
(b) that the arbitrator does not possess the qualifications required by the arbitration agreement;
(c) that the arbitrator is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to the arbitrator’s capacity to do so; and
(d) that the arbitrator has refused or failed -
(i) properly to conduct the proceedings, or
(ii) to use all reasonable despatch in conducting the proceedings or making an award and that substantial injustice has been or will be caused to the applicant.
Previously, the court's power to remove the arbitrator was limited to instances where an arbitrator or umpire had either misconducted himself or the proceedings or was considered not to be impartial or where there were allegations of fraud in respect of the substantive dispute.
The proceedings (Part III)
Codification of duties and procedures
The general duty of the arbitral tribunal to act fairly and impartially as between the parties and to adopt procedures suitable to the circumstances of the particular case is now codified at section 27, which confers a wide default discretion on tribunals to decide all procedural and evidential matters including (without limitation):
(a) when and where any part of the proceedings is to be held;
(b) the language(s) to be used in the proceedings and whether translations of any relevant documents are to be supplied;
(c) whether any, and if so what form of, written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended;
(d) whether any, and if so which, documents or classes of documents should be disclosed between and produced by the parties and at what stage;
(e) whether any, and if so what, questions should be put to and answered by the respective parties and when and in what form this should be done;
(f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;
(g) whether, and to what extent, the tribunal should itself take the initiative in ascertaining the facts and the law; and
(h) whether, and to what extent, there should be oral or written evidence or submissions.
The legislation enables the tribunal to fix the time within which any directions given by it are to be complied with and may, if it thinks fit, extend the time so fixed (whether or not it has expired). It requires all statements, documents or other information supplied to the arbitral tribunal by one party to be communicated to the other party, together with any expert reports or evidentiary documents upon which the arbitral tribunal may rely in making its decision. The legislation contains default provisions which enable the tribunal to order interim measures such as security for costs and, like its predecessor, to make an interim award (sections 32 and 33).
The general duty imposed upon the parties to do "all things necessary for the proper and expeditious conduct of the arbitration proceedings" is now set out at section 34. It requires the parties (without limitation) to:
(a) comply without delay with any determination as to procedural or evidential matters, or with any order or directions of the tribunal, and
(b) where appropriate, take without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law.
Exercise of case management powers
If any party breaches that general duty, then the new Law enables the tribunal to exercise its powers under section 35(2)(b)(iii) to make an award dismissing the claim in the event that the tribunal is satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim and that the delay (i) gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a fair resolution of the issues in that claim, or (ii) has caused, or is likely to cause, serious prejudice to the respondent.
The new Law enables a party (with the permission of the tribunal or the agreement of the other parties) to use court procedures to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence, provided the relevant witness is in Guernsey, and the arbitration proceedings are being conducted in Guernsey. Under the new law there are no formal requirements relating to how witness testimony is presented and the court has a wide discretion (absent prior agreement by the parties) to make orders about the matters listed at section 38(2) namely:
(a) the taking of the evidence of witnesses;
(b) the preservation of evidence;
(c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings -
(i) for the inspection, photographing, preservation, custody or detention of the property, or
(ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property
and for that purpose authorising any person to enter any premises in the possession or control of a party to the proceedings;
(d) the sale of any goods the subject of the proceedings; and
(e) the granting of an interim injunction or the appointment of a liquidator.
The Award (Part IV)
Form and content of the award
The Law requires disputes to be decided in accordance with either the substantive law chosen by the parties as applicable to the dispute or, if the parties so agree, in accordance with such other rules as are agreed by them or determined by the tribunal. If or to the extent that there is no such choice or agreement, the tribunal will apply the substantive law as determined by the conflict of laws rules which it considers applicable.
Unless agreed otherwise by the parties, under section 42(2), the tribunal can make a declaration as to any matter to be determined in the proceedings, order a payment of money, order a party to do or refrain from doing something, order rectification and set aside or cancel a deed or other document and award simple or compound interest from such dates, at such rates and with such rests as it considers meets the justice of the case.
The default provisions relating to form and content require any award (a) to be in writing, signed by all the arbitrators or a majority of the arbitrators provided that the reason for any omitted signature is stated in the award; (b) to contain the reasons for the award unless it is an agreed award or the parties have agreed to dispense with reasons; and (c) to state the seat of the arbitration and the date on which the award is made.
As under the 1982 Law, unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any persons claiming through or under them.
Unless the parties otherwise agree, the tribunal will award costs on the general principle that costs should follow the event except where it appears to the tribunal that in the circumstances this is not appropriate in relation to the whole or part of the costs. There is no provision equivalent to section 16(3) in the 1982 Law which prevented parties from agreeing to pay their own costs (or any part thereof) before the relevant dispute had arisen.
There are three grounds on which an award may be challenged in court. However, before applying to court, the applicant must first exhaust all available recourses from the tribunal to correct the award (pursuant to section 50, which contains default provisions enabling the tribunal (as under the 1982 Law) to correct in an award any clerical mistake or error or to make an additional award) and any available arbitral process of appeal or review.
The three grounds are:
(a) Challenge to the tribunal’s substantive jurisdiction
The challenge may be to the substantive award on the merits, or may be a challenge to a preliminary award on the tribunal’s jurisdiction. Jurisdictional challenges can be made to the existence or validity of the arbitration agreement, the constitution of the tribunal or the scope of the arbitration agreement.
(b) Challenge on the ground of serious irregularity
An award can be challenged if there has been a serious irregularity that has caused or will cause substantial injustice to the applicant. The irregularity may relate to the tribunal, the proceedings or to the award itself. The bases for mounting such a challenge include where the tribunal failed to act fairly and impartially, caused unnecessary delay or expense, exceeded its powers, failed to conduct the proceedings in accordance with procedure agreed by the parties, failed to deal with all the issues that were put to it, the effect of the award is uncertain or ambiguous or where the award was obtained by fraud or in a way contrary to public policy.
(c) Appeal on a point of law
An appeal on a point of law can be brought with the agreement of all other parties to the arbitration or with the leave of the court. For such judicial leave to be granted, the applicant must be able to show: that a determination of the question will substantially affect its rights; that the question of law is one which the tribunal was asked to determine; that the decision of the tribunal is obviously wrong; or that the question is of general public importance and the tribunal’s decision is open to serious doubt. The court must also be satisfied that it is just and proper for the court to determine the question, notwithstanding the parties' agreement to resolve the matter by arbitration.
Subject to section 73 (power of the court to extend time limits), challenges must be brought within 28 days of the date of the award (or the correction of the award or making of an additional award) or within 28 days of notification of the outcome of any arbitral appeal or review.
Supplementary provisions (Part V) & statutory arbitrations (Part VI)
These parts set out new provisions relating to:
(a) the rights of certain persons to question (without limitation) whether there is a valid arbitration agreement and to seek from the court a declaration or injunction or other appropriate relief;
(b) the loss of a party's right to raise an objection;
(c) the immunity of persons appointing arbitrators;
(d) the service of notices and documents;
(e) the reckoning or calculating of periods of time;
(f) the power of the court to extend time limits;
(g) the constitution and application of rules of the Royal Courtwhen the court is exercising functions under the Law;
(h) notice to be given in respect of applications, appeals and other such steps;
(i) the saving of certain matters governed by customary law which are consistent with the provisions of the Law, namely -
(i) matters which are not capable of settlement by arbitration,
(ii) the effect of an oral arbitration agreement, and
(iii) the refusal of recognition or enforcement of an arbitral award on grounds of public policy;
(j) the application of prescription;
(k) the powers of the court in the event of a failure to comply with an order; and
(l) the application of the Law to consumer contracts. The Law provides that a contract which contains an arbitration clause shall not bind a consumer except where that consumer (i) has given written consent to be so bound, after the dispute in question has arisen, or (ii) has submitted to arbitration under that agreement in respect of the dispute or any other dispute arising thereunder, or (iii) where the court is satisfied that it would not be detrimental to the consumer for the dispute in question to be referred to arbitration.
Recognition and enforcement of foreign awards (Part VII)
Pursuant to section 84, Part II of the 1982 Law in relation to the enforcement of foreign awards continues to apply in relation to foreign awards which are not also New York Convention awards (Guernsey became a party to the Convention in 1985). This enables a foreign award (with leave of the court) to be enforced in Guernsey, either by action or in the same manner as the award of an arbitrator is enforceable as a judgment or order of the court to the same effect, provided the relevant conditions are met and enforcement is not contrary to the public policy or the law of Guernsey. A party seeking to enforce a foreign award must produce:
(a) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;
(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 relevant conditions for enforcement are satisfied.
There are similar requirements in respect of a New York Convention award, albeit the recognition or enforcement of an award of this kind may only be refused if enforcement is against public policy or if one of the specific circumstances set out at section 88 of the Law is met:
(a) a party to the arbitration agreement was under some incapacity;
(b) the arbitration agreement was not valid;
(c) the person challenging the award was not properly notified of the appointment of an arbitrator;
(d) the award goes beyond the scope of the submission to arbitration;
(e) the composition of the arbitral tribunal or the arbitration procedure itself was not in accordance with the agreement of the parties or was otherwise in doubt;
(f) the award has been set aside or suspended by a competent authority.