Home | Databases | WorldLII | Search | Feedback Niue Consolidated Legislation

Arbitration Act 1908

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

ARBITRATION ACT 1908

1908/8 (NZ) – 4 August 1908

1 Short title
2 Interpretation

References by Consent out of Court

3 Submission to be irrevocable
4 Provisions implied in submissions
5 Power of Court to stay proceedings where there is a submission
6 Appointment of arbitrator or umpire
7 Power for parties to supply vacancy
8 Powers of arbitrator
9 Witnesses may be subpoenaed
10 Power to enlarge time for making award
11 Power to remit award
12 Power to remove arbitrator or set aside award
13 Enforcing award

References Under Order of Court

14 Reference for report
15 Power to refer in certain cases
16 Powers and remuneration of arbitrators
17 Court to have powers as in references by consent
18 Court of Appeal to have powers of Court

General

19 Power to compel attendance of witness in any part of Niue, and to order prisoner to attend
20 [Repealed]
21 Costs
22 Arbitrator or umpire entitled to remuneration
23 Power to make rules
24 Act binds the Government
25 Application of Act to references under statutory powers

SCHEDULES

___________________________

To consolidate certain enactments relating to arbitration

1 Short title

This is the Arbitration Act 1908.

2 Interpretation

In this Act –

"arbitrator" includes referee and valuer;

"Court" means the High Court, and includes a Judge of it;

"rules of Court" means rules of the Court of Appeal, or of the High 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 in it 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.

References by Consent out of Court

3 Submission to be irrevocable

A submission, unless a contrary intention is expressed in it, 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.

4 Provisions implied in submissions

A submission, unless a contrary intention is expressed in it, shall be deemed to include the provisions in Schedule 2 so far as they are applicable to the reference under the submission.

5 Power of Court to stay proceedings where there is a submission

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 under 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.

6 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.

7 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 does, 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.

8 Powers of arbitrator

The arbitrators or umpire acting under a submission may, unless the submission expresses a contrary intention –

(a) Administer oaths to the parties and witnesses appearing; and

(b) [Repealed]

(c) Correct in any award any clerical mistake or error arising from any accidental slip or omission.

9 Witnesses may be subpoenaed

Any party to a submission may sue out a write of subpoena ad testificandum, or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action.

10 Power to enlarge time for making award

The time for making an award may be enlarged by order of the Court, whether the time for making the award has expired or not.

11 Power to remit award

(1) In all cases of reference to arbitration the Court may remit the matters referred, or any of them, 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 the order.

12 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.

13 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.

References under Order of Court

14 Reference for report

(1) Subject to rules of Court, the Court may refer any question arising in any cause or matter (other than a criminal proceeding) for inquiry or report to an official or special referee.

(2) The report of such official or special referee may be adopted wholly or partially by the Court, and if so adopted may be enforced as a judgment or order to the same effect.

15 Power to refer in certain cases

In any cause or matter (other than a criminal proceeding by the Crown) –

(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 of matter requires any prolonged examination of documents, or any scientific or local investigation, which cannot in the opinion of the Court conveniently be made before a jury 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.

16 Powers and remuneration of arbitrators

(1) 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 to it, as the Court directs.

(2) The report or award of any arbitrator on any such reference shall, unless set aside by the Court, be equivalent to the verdict of a jury.

(3) The remuneration to be paid to any arbitrator to whom any matter is referred under order of the Court shall be determined by the Court.

17 Court to have powers as in references by consent

The Court shall, as to references under order of the Court, have all the powers conferred by this Act on the Court as to references by consent out of Court.

18 Court of Appeal to have powers of Court

The Court of Appeal shall have all the powers conferred by this Act on the Court under the provisions relating to references under order of the Court.
General 19 Power to compel attendance of witness in any part of Niue, and to order prisoner to attend

(1) The Court may order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before any arbitrator or umpire of a witness wherever he may be in Niue.

(2) The Court may also, by order in writing under the hand of a Judge, require a prisoner to be brought up for examination before any arbitrator or umpire, and such order shall operate and be obeyed in like manner in all things as a writ of habeas corpus ad testificandum issued out of the Court.

20 [Repealed]

21 Costs

Any order may be made on such terms as to costs, or otherwise, as the authority making the order thinks just.

22 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, a Judge may, on a summary application to him for that purpose, fix and determine all or any of such matters.

23 Power to make rules

Rules may be made in the manner prescribed by section 70 of the Niue Act 1966 for the purpose of giving effect to this Act in the Court of Appeal or the High Court.

24 Act binds the Government

This Act binds the Government of Niue but no arbitration involving the Government shall proceed without the consent of Cabinet.

25 Application of Act to references under statutory powers

This Act applies to every arbitration under any Act passed before or after the coming into operation of this Act as if the arbitration were under a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration, or with any rules or procedure authorised or recognised by that Act.

SCHEDULES

SCHEDULE 1
[Spent]

__________________________

SCHEDULE 2
Section 4

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 {Repealed 1938]

4 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.

5 [Repealed]

6 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.

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

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

9 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 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.

10 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 interest in land.

11 The arbitrators or umpire may make an interim award.