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Arbitration Act 1908

NIUE

ARBITRATION ACT 1908

Act 8 of 1908 (NZ) - 4 August 1908

Analysis

1. Short Title, etc.
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 New Zealand, and to order prisoner to attend
20. Repealed
21. Costs
22. Arbitrator or umpire entitled to remuneration
23. Power to make rules
24. Crown to be bound
25. Application of Act to references under statutory powers
Schedules

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An Act to consolidate certain enactments of the General Assembly relating to arbitration

[4 August 1908

1. Short Title, etc. - (1) The Short Title of this Act is the Arbitration Act 1908.

(2) This Act is a consolidation of the enactments mentioned in the First Schedule hereto, and with respect to those enactments the following provisions shall apply:

(a) All submissions, awards, orders, rules, reports, appointments, instruments, and generally all acts of authority which originated under any of the said enactments, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.

(b) All matters and proceedings commenced tinder any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.

2. Interpretation - In this Act, if not inconsistent with the context,-

"Arbitrator" includes referee and valuer:

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

"Rules of Court" means rules of the Court of Appeal, or 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.

Cf. 1890, No. 10, s. 3; 1906, No. 33, s. 2; Arbitration Act 1950, s. 32 (U.K.)

References by Consent Out of Court

3. Submission to be irrevocable - 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.

Cf. 1890, No. 10, s. 4; Arbitration Act 1950, s. 1 (U.K.)

As to the grounds for setting aside an award, see s. 12 (2) of this Act.

As to the effects of death or bankruptcy, see ss, 3 and 4 of the Arbitration Amendment Act 1938.

As to the power of the Court to give relief where an arbitrator is not impartial or where the dispute referred involves questions of fraud, see s. 16 of the Arbitration Amendment Act 1938.

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

Cf. 1890. No. 10, s. 5; Arbitration Act 1950, ss. 6, 8 (1), (2), 12 (1), (2), 14, 15, 16, 18 (1) (U.K.)

[5. 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 air), other step in the proceedings, apply to the Court in which the proceedings were commenced to stay tire 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 tire applicant was at the time when the proceedings were commenced, arid still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staving the proceedings.

(2) The refusal by any Magistrate's Court of an application for a stay of proceedings under this section in any action under the Magistrates' Courts Act 1947 shall not affect the right of the defendant in the action to have the action transferred to the Supreme Court under subsection one of section forty-three of that Act or, as the case may require, to apply under subsection two of that section for in order that the action be so transferred, and in any such case the time prescribed under that Act for giving notice under the said section forty-three shall not begin to run until the stay of proceedings is refused.]

Cf. Arbitration Act 1950, s. 4 (1) (U.K.)

This section was substituted for the original s. 5 by s. 2 of the Arbitration Amendment Act 1952.

As to the stay of Court proceedings in respect of matters referred to arbitration under commercial agreements, see s. 3 of the Arbitration Clause (Protocol) and the Arbitration (Foreign Awards) Act 1933.

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 air 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 two arbitrators are at liberty to appoint an umpire [or a third arbitrator] [or where two arbitrators are required to appoint an umpire] and do nor 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 seven days after the service of the notice, the Court may, on application by the party who gave the notice, appoint in arbitrator or umpire [or a third arbitrator], who shall have the like powers to act the reference and make an award as if he had been appointed by consent of all parties.

Cf. 1890, No. 10, s. 7; Arbitration Act 1950, s. 10 (U.K.)

The words "or a third arbitrator" were inserted in three places by s. 2 of the Arbitration Amendment Act 1915. These words were previously in the Arbitration Amendment Act 1890.

In subs. (1) (c) the words "or where two arbitrators are required to appoint an umpire" were inserted by s. 7 (2) of the Arbitration Amendment Act 1938.

For provisions as to tire appointment of three arbitrators, see s. 6 of the Arbitration Amendment Act 1938.

As to umpires, see s. 7 of the Arbitration Amendment Act 1938.

7. Power for parties to supply vacancy - (1) Where a submission provides that the reference shall be to two 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 seven 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.

Cf. 1890, No. 10, s. 8; Arbitration Act 1950, s. 7 (U.K.)

As to the powers of the Court where an arbitrator is removed, see s. 5 of the Arbitration Amendment Act 1938.

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 by s. 21 of the Arbitration Amendment Act 1938.

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

Cf. 1890, No. 10, s. 9; Arbitration Act 1950, ss. 12 (3), 17 (U.K.)

9. Witnesses may be subpoenaed-Any party to a submission may sue out a writ 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.

Cf. 1890, No. 10, s. 10; Arbitration Act 1950, s. 12 (4) (U.K.)

10. 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.

Cf. 1890, No. 10, s. 11; Arbitration Act 1950, s. 13 (2) (U.K.)

11. 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 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 three months after the date of the order.

Cf. 1890, No. 10, s. 12; Arbitration Act 1950, s. 22 (U.K.)

See s. 8 of the Arbitration Amendment Act 1938 as to the use of due dispatch, and power to make an award at any time.

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.

Cf. 1890, No. 10, s. 13; Arbitration Act 1950, s. 23 (1), (2) (U.K.)

The words "or the proceedings" were inserted in subss. (1) and (2) by s. 17 of the Arbitration Amendment Act 1938.

As to the removal of an arbitrator who does not use due dispatch, see s. 8 of the Arbitration Amendment Act 1938.

As to the powers of the Court where an arbitrator is removed, see s. 5 of the Arbitration Amendment Act 1938.

As to the powers of the Court where an arbitrator is not impartial or where a question of fraud is involved, see s. 16 of the Arbitration Amendment Act 1998.

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.

Cf. 1890, No. 10, s. 14; Arbitration Act 1950, s. 26 (U.K.)

As to the entry of judgment in terms of an award, see s. 12 of the Arbitration Amendment Act 1938.

As to the enforcement of an award (not being a foreign award) in other countries, see the Reciprocal Enforcement of Judgments Act 1934.

As to enforcing a foreign award, see s. 5 of the Arbitration Clauses (Protocol) and the Arbitration (Foreign Awards) Act 1933.

References Under Order of Court

14. Reference for report - (1) Subject to rules of Court and no any right to have particular cases tried by a jury, the Court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for inquiry or report to any official or special referee.

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

Cf. Supreme Court of judicature (Consolidation) Act 1925, s. 88 (U.K.)

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 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 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.

Cf. 1890, No. 10, s. 15; Supreme Court of Judicature (Consolidation) Act 1925, s. 89 (U.K.)

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 thereto, 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.

Cf. 1890, No. 10, s. 16; Supreme Court of Judicature (Consolidation) Act 1925, s. 90 (U.K.)

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.

Cf. 1890, No. 10, s. 17; Supreme Court of Judicature (Consolidation) Act 1925, s. 91 (U.K.)

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.

Cf. 1890, No. 10, s. 18; Supreme Court of judicature (Consolidation) Act 1925, s.92 (U.K.)

General

19. Power to compel attendance of witness in any part of New Zealand, 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 in New Zealand.

(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.

Cf. 1890, No. 10, s. 19; Arbitration Act 1950, s. 12 (4), (5) (U.K.)

20. Repealed by s. 21 of the Arbitration Amendment Act 1938.

21. 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.

Cf. 1890, No. 10, s. 21; Arbitration Act 1950, s. 28 (U.K.) See also s. 14 of the Arbitration Amendment Act 1938.

See also s. 14 of the Arbitration Amendment Act 1938.

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.

As to the taxation of an arbitrator's or umpire's fees, see s. 15 of the Arbitration Amendment Act 1938.

See also s. 8 (2) of the Arbitration Amendment Act 1938, as to arbitrators or umpires who are removed for failure to use all reasonable dispatch.

23. Power to make rules - Rules may from time to time be made in the manner prescribed by the Judicature Act 1908 for the purpose of giving effect to this Act in the Court of Appeal or the Supreme Court.

Cf. 1890, No. 10, s. 23

The manner of making rules is now prescribed by the judicature Amendment Act 1930.

See also s. 7 (3) of the Arbitration Clauses (Protocol) and the Arbitration (Foreign Awards) Act 1933.

24. Crown to be bound - This Act shall apply to any arbitration to which His Majesty, in right of the Crown, is a party; but nothing herein shall empower the Court to order any proceedings to which His Majesty 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......

Cf. 1890, No. 10, s. 25; Supreme Court of Judicature (Consolidation) Act 1925, s. 96 (U.K.); Arbitration Act 1950, s. 30 (U.K.)

The words "or shall affect the law as to costs payable by the Crown" were omitted from this section by s. 21 of the Arbitration Amendment Act 1938.

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 pursuant to 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.

Cf. 1890, No. 10, s. 26; Arbitration Act 1950, s. 31 (U.K.)

See also s. 20 of the Arbitration Amendment Act 1938.

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SCHEDULES

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Section 1 (2)

FIRST SCHEDULE

ENACTMENTS CONSOLIDATED

1890, No. 10 - The Arbitration Act 1890.
1906, No. 33 - The Arbitration Act Amendment Act 1906.

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SECOND SCHEDULE

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 two arbitrators, the two arbitrators shall appoint an umpire immediately after they are themselves appointed.]

3. Repealed by s. 21 of the Arbitration Amendment Act 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 by s. 21 of the Arbitration Amendment Act 1938.

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 any interest in land.

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

Clause 2 was substituted for the original clause 2 by s. 7 (1) of the Arbitration Amendment Act 1938.

In clause 4 the words "have allowed their time or extended time to expire without making an award, or" were omitted by s. 21 of the Arbitration Amendment Act 1938.

Clauses 10 and 11 were added by s. 9 of the Arbitration Amendment Act 1938.

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