CHAPTER
182
ARBITRATION (FOREIGN AWARDS) |
ARRANGEMENT OF
SECTIONS |
SECTION |
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Conditions for enforcement of foreign awards. |
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Meaning of "final award". |
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SCHEDULE - Convention on the Execution of Foreign Arbitral
Awards. |
CHAPTER 182 |
ARBITRATION
(FOREIGN AWARDS) |
An Act to
give effect to a certain Convention on the Execution of Arbitral Awards. | 12 of 1931
12 of 1932
E.L.A.O., 1974
19 of 1975 |
[Commencement 28th
May, 1931] |
WHEREAS a
Convention, set out in the Schedule to this Act, on the Execution
of arbitral Awards was on the twenty-sixth day of September, nineteen hundred
and twenty-seven, signed at Geneva on behalf of His Majesty; |
AND WHEREAS It is
expedient that such provisions should be enacted as will enable the said
Convention to become operative in The Bahamas: |
1. This Act may be cited as the Arbitration (Foreign
Awards) Act. | Short title. |
2. The provisions of this Act apply to any award made
after the twenty-eighth day of July, 1924- | Application. |
(a) in
pursuance of an agreement for arbitration to which the protocol set out in the Arbitration Clauses (Protocol) Act
applies; and | Act for giving effect to the protocol. |
(b) between
persons of whom one is subject to the jurisdiction of some one of such Powers
as the Governor-General, being satisfied that reciprocal provisions have been
made, may by Order declare to be parties to the said Convention, and of whom
the other is subject to the jurisdiction of some other of the Powers aforesaid;
and |
(c) in one of
such territories as the Governor-General being satisfied that reciprocal
provisions have been made, may by Order declare to be territories to which the
said Convention applies, |
and an award
to which the provisions of this Act apply is in this Act referred to as a
"foreign award". |
3. (1) A foreign award shall, subject to the provisions
of this Act, be enforceable either by action or under the provisions of the
Arbitration Act. | Effect of foreign award. |
(2) Any foreign
award which would be enforceable under this Act 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, and any references in this Act to enforcing a foreign
award shall be construed as including references to relying on an award. |
4. (1) In order that a foreign award may be enforceable
under this Act, it must have- | Conditions for enforcement of foreign awards. |
(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 The Bahamas, |
and the
enforcement thereof must not be contrary to the public policy or the law of The
Bahamas. |
(2) Subject to the
provisions of this subsection, a foreign award shall not be enforceable under
this Act if the Supreme Court 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) of this section, or the existence of the
conditions specified in paragraphs (b) and (c) of subsection (2) of this
section, 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. |
5. (1) The party seeking to enforce a foreign award
must produce- | Evidence. |
(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 4 of this Act are satisfied. |
(2) In any case
where any document required to be produced under subsection (1) of this section
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 The Bahamas. |
(3) Subject to the
provisions of this section, rules of court may be made under section 76 of the
Supreme Court Act with respect to the evidence which must be furnished by a
party seeking to enforce an award under this Act. |
6. For the purposes of this Act, 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. | Meaning of "final award". |
7. Nothing in this Act shall- | Saving. |
(a) prejudice
any rights which any person would have had of enforcing in The Bahamas any
award, or of availing himself in The Bahamas of any award if this Act had not
been enacted; or |
(b) apply to
any award made on an arbitration agreement governed by the law of The Bahamas. |
SCHEDULE |
CONVENTION ON THE
EXECUTION OF FOREIGN ARBITRAL AWARDS [i]* |
Article 1 |
In the territories
of any High Contracting Party to which the present Convention applies, an
arbitral award made in pursuance of an agreement, whether relating to existing
or future differences (hereinafter called "a submission to
arbitration") covered by the Protocol on Arbitration Clauses, opened at
Geneva on the twenty-fourth September 1923, shall be recognised as binding and
shall be enforced in accordance with the rules of the procedure of the
territory where the award is relied upon, provided that the said award has been
made in a territory of one of the High Contracting Parties to which the present
Convention applies and between persons who are subject to the jurisdiction of
one of the High Contracting Parties. |
To obtain such
recognition or enforcement, it shall, further, be necessary: |
(a) That the
award has been made in pursuance of a submission to arbitration which is valid
under the law applicable thereto; |
(b) That the
subject-matter of the award is capable of settlement by arbitration under the
law of the country in which the award is sought to be relied upon; |
(c) That the
award has been made by the Arbitral Tribunal provided for in the submission to
arbitration or constituted in the manner agreed upon by the parties and in
conformity with the law governing the arbitration procedure; |
(d) That the
award has become final in the country in which it has been made, in the sense
that it will not be considered as such if it is open to opposition, appeal or pouvoir
en cassation (in countries where such forms of procedure exist) or if it is
proved that any proceedings for the purpose of contesting the validity of the
award are pending; |
(e) That the
recognition or enforcement of the award is not contrary to the public policy or
to the principles of the law of the country in which it is sought to be relied
upon. |
Article 2 |
Even if the
conditions laid down in Article 1 hereof are fulfilled, recognition and
enforcement of the award shall be refused if the court is satisfied: |
(a) That the
award has been annulled in the country in which it was made; |
(b) That the
party against whom it is sought to use the award was not given notice of the
arbitration proceedings in sufficient time to enable him to present his case;
or that, being under a legal incapacity, he was not properly represented; |
(c) That the
award does not deal with the differences contemplated by or falling within the
terms of the submission to arbitration or that it contains decisions on matters
beyond the scope of the submission to arbitration. |
If the award has
not covered all the questions submitted to the arbitral tribunal, the competent
authority of the country where recognition or enforcement of the award is
sought can, if it thinks fit, postpone such recognition or enforcement or grant
it subject to such guarantee as that authority may decide. |
Article 3 |
If the party
against whom the award has been made proves that, under the law governing the
arbitration procedure, there is a ground, other than the grounds referred to in
Article 1(a) and (c) and Article 2(b) and (c), entitling him to contest the
validity of the award in a Court of Law, the Court may, if it thinks fit,
either refuse recognition or enforcement of the award or adjourn the
consideration thereof, giving such party a reasonable time within which to have
the award annulled by the competent tribunal. |
Article 4 |
The party relying
upon an award or claiming its enforcement must supply, in particular: |
(1) The
original award or a copy thereof duly authenticated, according to the
requirements of the law of the country in which it was made; |
(2) Documentary
or other evidence to prove that the award has become final, in the sense
defined in Article 1(d), in the country in which it was made; |
(3) When
necessary, documentary or other evidence to prove that conditions laid down in
Article 1, paragraph 1 and paragraph 2(a) and (c), have been fulfilled. |
A translation of
the award and of the other documents mentioned in this Article into the
official language of the country where the award is sought to be relied upon
may be demanded. Such translation must be certified correct by a diplomatic or
consular agent of the country to which the party who seeks to rely upon the
award belongs or by a sworn translator of the country where the award is sought
to be relied upon. |
Article 5 |
The provisions of
the above Articles shall not deprive any interested party of the right of
availing himself of an arbitral award in the manner and to the extent allowed
by the law or the treaties of the country where such award is sought to be
relied upon. |
Article 6 |
The present
Convention applies only to arbitral awards made after the coming into force of
the Protocol on Arbitration Clauses, opened at Geneva on the twenty-fourth
September 1923. |
Article 7 |
The present
Convention, which will remain open to the signature of all signatories of the
Protocol of 1923 on Arbitration Clauses, shall be ratified. |
It may be ratified
only on behalf of those Members of the League of Nations and non-Member States
on whose behalf the Protocol of 1923 shall have been ratified. |
Ratifications
shall be deposited as soon as possible with the Secretary-General of the League
of Nations, who will notify such deposit to all the signatories. |
Article 8 |
The present
Convention shall come into force three months after it shall have been ratified
on behalf of two High Contracting Parties. Thereafter, it shall take effect, in
the case of each High Contracting Party, three months after the deposit of the
ratification on its behalf with the Secretary-General of the League of Nations. |
Article 9 |
The present
Convention may be denounced on behalf of any Member of the League or non-Member
State. Denunciation shall be notified in writing to the Secretary-General of
the League of Nations, who will immediately send a copy thereof, certified to
be in conformity with the notification, to all the other Contracting Parties,
at the same time informing them of the date on which he received it. |
The denunciation
shall come into force only in respect of the High Contracting Party which shall
have notified it and one year after such notification shall have reached the
Secretary-General of the League of Nations. |
The denunciation
of the Protocol on Arbitration Clauses shall entail, ipso facto, the
denunciation of the present Convention. |
Article 10 |
The present
Convention does not apply to the Colonies, Protectorates or territories under
suzerainty or mandate of any High Contracting Party unless they are specially
mentioned. |
The application of
this Convention to one or more of such Colonies, Protectorates or territories
to which the Protocol on Arbitration Clauses, opened at Geneva on the
twenty-fourth September 1923, applies, can be effected at any time by the means
of a declaration addressed to the Secretary-General of the League of Nations by
one of the High Contracting Parties. |
Such declaration
shall take effect three months after the deposit thereof. |
The High
Contracting Parties can at any time denounce the convention for all or any of
the Colonies, Protectorates or territories referred to above. Article 9 hereof
applies to such denunciation. |
Article 11 |
A certified copy
of the present Convention shall be transmitted by the Secretary-General of the
League of Nations to every Member of the League of Nations and to every
non-Member State which signs the same. |