TRINIDAD AND TOBAGO ARBITRATION Legislation
The Arbitration Act
Generally speaking, arbitration in Trinidad and Tobago is governed by the Arbitration Act, Chap. 5:01 (“the Arbitration Act”) which is based on early English arbitration legislation.
The Arbitration Act provides that an arbitration agreement (unless a contrary intention is expressed therein) is irrevocable except by leave of the High Court and shall have the same effect in all respects as if it was an order of the Court. Unless a contrary intention appears in the arbitration agreement itself, provisions set out in the Arbitration Act will be implied into the arbitration agreement.
The High Court has extensive powers under the Arbitration Act to facilitate and promote the arbitration process, especially in circumstances where same has broken down. These powers include inter alia:
- The power of the Court to stay any alternative legal proceedings that a party may attempt to bring in breach of the arbitration agreement;
- The power in certain cases to appoint an arbitrator, umpire or third arbitrator or remove them as the case may be;
- The power, in appropriate circumstances, to remit certain matters for reconsideration by an arbitrator or umpire; and
- The power to extend limitation periods fixed under the arbitration agreement, where a time bar for the commencement of arbitration proceedings would cause undue hardship.
In addition to the above, the Arbitration Act also gives the High Court the power to set aside arbitral awards in circumstances where an arbitrator has misconducted himself or the proceedings, or an arbitration or award has been improperly procured. The scope of this power clearly implies that there must be some sort of irregularity in procuring the award or in the actual arbitration proceedings. The term “misconduct” is used in the section in its widest sense and without attempting to make an exhaustive list, has been held to include situations involving bias, irregularities in evidence and serious errors of law on the part of the arbitrator. The power of the High Court to set aside a flawed arbitral decision exists despite the parties agreeing that such award would be final and binding between them.
Apart from misconduct, the High Court has a further inherent power to set aside an award which is bad on its face as either involving an apparent error in fact or law, or as not complying with the requirements of finality and certainty. An error of law on the face of the award means that one can find in the award or documents actually incorporated thereto (for instance, a note appended by the Arbitrator stating the reasons for his judgment) some proposition which is the basis of the award and which can be challenged as being erroneous. It should however be noted that if the error of fact or law does not appear on the face of the award the arbitral award is good and the Court is very unlikely to interfere or set aside the award based on such alleged error.
Provisions in a contract seeking to exclude the High Court’s jurisdiction (apart from a “Scott v Avery Clause”, that is, a clause framed as an agreement merely to submit a matter to arbitration before taking Court action) will be void as against public policy. Further, provisions in arbitration agreements mandating that a party must in any event pay its own costs will be void. This notwithstanding, parties are free to come to such agreements on costs in relation to disputes that have already arisen at the time of their agreeing to arbitrate. It should also be noted that in the case of agreements where each party is to appoint an arbitrator and the arbitrators are to appoint a third, such third appointee shall be treated as an umpire so that, if the two arbitrators cannot agree the umpire shall make the arbitral award in their stead.
The Arbitration Act provides that an arbitral award can be enforced in the same manner as a judgment or order of the Court to the same effect and in such case a formal judgment may be entered in terms of the award. Any such award will also carry the same interest (unless otherwise directed) as a judgment debt.
The Arbitration (Foreign Arbitral Awards) Act
Trinidad and Tobago is a signatory to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (“the NY Convention”). The Arbitration (Foreign Arbitral Awards) Act, Chap. 5:30 (“the FAA Act”) gives effect in Trinidad and Tobago to the NY Convention and permits the enforcement of awards made pursuant to an arbitration agreement in a State other than Trinidad and Tobago that is a party to the NY Convention in Trinidad and Tobago either by an action or in the same manner as a judgment of the Courts in Trinidad and Tobago. This considerably accelerates the enforcement process when compared to the procedure to enforce an arbitral award under the common law.
Prior to the enforcement of a foreign arbitral award in Trinidad and Tobago, a certificate must be obtained from the Minister of Foreign Affairs showing that the State specified therein is or was at the time specified, a party to the NY Convention and same shall be conclusive proof in any proceedings that the State is or was at the time specified a party to the NY Convention. Further, a party seeking to enforce a foreign arbitral award must produce the following documents to the High Court:
- The duly authenticated original award or a duly certified copy of it;
- The original arbitration agreement or a duly certified copy of it; and
- A translation of the award or agreement certified by an official or sworn translator or by a diplomatic or consular agent, if the award or agreement is in a language other than English.
Enforcement of an award may not be refused except in limited circumstances as prescribed under the FAA Act.
Under the common law, foreign arbitral awards from States that are not signatories to the NY Convention can be enforced by action in Trinidad and Tobago provided they are (i) in accordance with an agreement to arbitrate which is valid by its governing law; and (ii) are valid and final according to the law governing the arbitration proceedings.
A Trinidad and Tobago Court whether under the FAA Act or under common law has the discretion to refuse to recognise and enforce any arbitration award that gives effect to a matter that is contrary to Trinidad and Tobago public policy. Examples include where such an award seeks to enforce clauses that qualify as a penalty or unreasonable restraint of trade under Trinidad and Tobago law. However, a Trinidad and Tobago Court will use this discretion very sparingly and only in the clearest of cases.