HL Deb 18 March 1996 vol 570 cc1075-87

3.16 p.m.

Report received.

Clause 2 [Scope of application of provisions]:

Lord Fraser of Carmyllie moved Amendment No. 1: Leave out Clause 2 and insert the following new Clause—


(".—(1) The provisions of this Part apply where the seat of the arbitration is in England and Wales or Northern Ireland. (2) The following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—

  1. (a) sections 9 to 1l (stay of legal proceedings, &c.), and
  2. (b) section 66 (enforcement of arbitral awards).
(3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—
  1. (a) section 43 (securing the attendance of witnesses), and
  2. (b) section 44 (court powers exercisable in support of arbitral proceedings);
but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.
(4) The court may exercise a power conferred by any provision of this Part not mentioned in subsection (2) or (3) for the purpose of supporting the arbitral process where—
  1. (a) no seat of the arbitration has been designated or determined, and
  2. (b) by reason of a connection with England and Wales or Northern Ireland the court is satisfied that it is appropriate to do so.
(5) Section 7 (separability of arbitration agreement) and section 8 (death of a party) apply where the law applicable to the arbitration agreement is the law of England and Wales or Northern Ireland even if the seat of the arbitration is outside England and Wales or Northern Ireland or has not been designated or determined.").

The noble and learned Lord said: My Lords, this amendment will replace the existing text of Clause 2 in its entirety. Although the revision appears at first sight to be extensive, I hope that I can assure the House that what is intended is no more than a clarification of the original text. No essential change of policy or direction is either intended or achieved. The broad purpose of that clause is to define the circumstances in which Part I of the Bill has application so as to enable parties to international arbitrations readily to ascertain when they will and when they will not be affected by our law of arbitration and the jurisdiction of our courts. The clause as originally introduced was to have and, I think, substantially had that effect. However, it was perceived by some international jurists as purporting to have some extra-territorial effect, and therefore to confer jurisdiction on our courts which might in the case of an international arbitrate on cause conflict with the jurisdiction of foreign courts. This was never our intention and therefore we have redrafted the clause to clarify its meaning and to remove these unexpected doubts about its scope.

We have achieved this clarification largely by changing the basic principle in subsection (1), which was formerly expressed in terms of where our law applied, so that it will now be expressed in terms of the seat of the arbitration. Where the seat of the arbitration, which is defined in Clause 3, is here the whole of Part I will apply without exception. The remainder of the clause is concerned with cases where either the seat is not here or no seat has or has yet been designated or determined. The new subsection (2), which corresponds to the former subsections (3)(a) and (3)(c), ensures that our obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, will always be fulfilled.

The new subsection (3), which corresponds to the former subsections (3)(b) and (4), ensures that our courts will have power to make orders in support of an arbitration with no seat here except where to do so would be inappropriate. Subsection (4) is new. It is necessary because the focus of the clause has now changed from what is the applicable law to where is the seat of the arbitration. It gives our courts all the powers they have over an arbitration with a seat here in a case where the court is satisfied, as a matter of English law, that there is no seat elsewhere. If there is no seat elsewhere, there could be no possible conflict with other jurisdictions. In addition, these powers are only exercisable where there is a domestic connection and where it is appropriate to exercise them. A good example would be a case where an extension of time is needed, under Clause 12, to commence arbitration proceedings which, when commenced, would be likely to have a seat in this country.

Subsection (5) is new and is also necessary because of this change in focus. Even if there is no seat here, the question whether the arbitration clause is separable from the contract containing it and the question of the consequences of the death of a party are both to be determined under the relevant clauses of the Bill where our law is applicable to the arbitration agreement.

I trust that this explanation will relieve any possible anxiety that anything more is intended by the amendment than a change in presentation and clarification of what, I am sure noble Lords will agree from that explanation, is necessarily a complex subject. I beg to move.

On Question, amendment agreed to.

Clause 38 [General powers exercisable by the tribunal]:

Lord Fraser of Carmyllie moved Amendment No. 2: Page 14, line 17, leave out ("party") and insert ("claimant").

The noble and learned Lord said: My Lords, noble Lords will recall that Clause 38(3), which deals with security for costs, was amended in Committee. In amending the subsection the term "party" was used to describe those against whom an order for security of costs could be made. It would be unjust to enable a tribunal to order security for costs against a respondent as the price for being allowed to defend himself. A defendant in litigation cannot be required to do so. Therefore we need to limit the subsection to the ordering of costs against a claimant which by virtue of Clause 82 includes a counterclaimant. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 3: Page 14, line 19, leave out ("party") and insert ("claimant"). On Question, amendment agreed to.

Clause 57 [Correction of award or additional award]:

Lord Fraser of Carmyllie moved Amendment No. 4: Page 22, line 1, leave out from ("any") to second ("the") in line 2 and insert ("claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in").

The noble and learned Lord said: My Lords, this is a small drafting change. Unless any noble Lord wishes me to elaborate on it, I beg to move.

On Question, amendment agreed to.

Clause 61 [Award of costs]:

Lord Hacking moved Amendment No. 5: Leave out Clause 61 and insert the following new Clause—


(".—(1) The parties are free to agree on the power of the tribunal as regards the award of costs. (2) Subject to the agreement of the parties, the tribunal shall determine the costs of the arbitration and decide which of the parties should bear the costs and in which proportion between the parties the costs should be borne.").

The noble Lord said: My Lords, I spoke to a similar amendment in Committee, but in a divided army. As the Minister will recall, another solicitor of the Supreme Court—I cannot detect his presence in your Lordships' Chamber—the noble Lord, Lord Byron, argued to the contrary. I beg to move the amendment again on Report because I believe it to be an important matter.

I submit that the process of arbitration in which the parties consensually agree how to resolve their dispute should be different from the process of adjudication in the law courts. In the law courts the rule is that costs follow the event. As I argued at Second Reading and in Committee, that does not always produce a fair result. One can see that it produces a fair result in a simple dispute, perhaps as regards a road accident, when the issue is whether or not a defendant is at fault. If the defendant is at fault, the order of costs should clearly be against him. If he is not at fault, and therefore in the judgment of the court the plaintiff should not have brought proceedings, it is clear that the plaintiff should bear the costs of those proceedings.

However, the commercial world is much more complicated. As has been shown in a number of cases, in the more complex cases brought before the courts, the issues can be narrowly decided in favour of one party rather than another. It is not a world of black and white but of shades of grey. In those circumstances, the rule that costs follow the event operates in an unfair way.

Having identified that the rule of costs can produce an unfair result in the court process—I produced more detailed argument at Second Reading—it is of paramount importance that the arbitrator should be free to decide costs according to his best judgment. That is the law at present. That was the proposal in the draft Bill in July produced for consultation by the committee chaired by Lord Justice Saville. Only since then has the measure been introduced into the draft Bill that the arbitrator should start on the basis of applying the rule that costs follow the event.

I submit that the arbitrator should be left free. He should not be restricted in his order for costs but should do what is fair between the parties. It may well be fair, for example, for him to make no order for costs, or to make an order for costs in certain circumstances against the winning party. He should not be tied down by the principle that costs follow the event.

It is because I feel strongly for the reasons I have advanced to your Lordships that I ask noble Lords to accept the amendment. In so doing it gives freedom to the arbitrator to award costs as he thinks fair and right.

Lord Ackner

My Lords, I resist the amendment. I do not see any provision in Clause 61 which ties the arbitrator down. Subsection (2) provides from the very outset that it is, Unless the parties otherwise agree". Therefore before embarking upon considering the discretion of the arbitrator, the parties can themselves agree how they wish the matter to occur. If they do not agree, the arbitrator is in a position to avoid an unfair result because of the exception in subsection (2). I should have thought it an advantage for parties to know at the outset what is the usual provision, unless they agree to the contrary, in regard to costs. I see no restriction which can operate unfairly, or at all, in the clause as it now stands.

Lord Fraser of Carmyllie

My Lords, I have little to add to what I said on the point in Committee. Although my noble friend Lord Byron is not present, I have no reason to believe that he has departed from the strong approach he took.

In debate a number of other noble Lords pointed out that the principle that costs follow the event is well established and has stood the test of time well. The principle is followed in litigation. While in some procedural matters there is merit in making a distinction between litigation and arbitration, in this case I see no valid reason for arbitration to diverge from the courts. It seems to me entirely fair as a general principle, and that it should be stated as a general principle, that costs should follow the event.

However, as the noble and learned Lord, Lord Ackner, pointed out, the tribunal has the discretion to disapply the principle where it considers that it would be inappropriate to do so. That is spelt out expressly in subsection (2). Even more importantly possibly, if the parties really do not like the principle set out in Clause 61, they are entirely at liberty to devise some other arrangement. It would seem to me that the clause as presently drafted should be maintained within the Bill.

Lord Hacking

My Lords, at least I do not speak from a divided camp, although I do not have supporters. I shall withdraw the amendment, but I must make two comments.

First, the noble and learned Lord, Lord Ackner, referred to Clause 61(2) which states, Unless the parties otherwise agree". The reality is that parties do not start to agree on issues of costs before the proceedings have begun. In the practical world, I suggest that while there is that power of the parties otherwise to agree, they do not address that matter or come to any other agreement on costs.

Secondly, as the noble and learned Lord said, it is quite right that discretion is available to the arbitrator not to apply the general rule that costs follow the event. However, the central point I seek to make is that the process of arbitration should be different and should be seen to be different from the court process. I tabled the amendment for that reason and I still believe that I was right in tabling it. Lord Justice Saville's committee was right in the first place; the provision was not in the committee's draft which was produced last July. I was seeking to persuade your Lordships to agree with the original decision of that committee, which I suggest was right. Alas, however, I regret that I do not have support and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

Clause 66 [Enforcement of the award]:

Lord Fraser of Carmyllie moved Amendment No. 6: Page 24, line 14, leave out subsection (3).

The noble and learned Lord said: My Lords, the clause as drafted gives a non-exhaustive list of grounds on which leave to enforce an award in the same manner as a judgment shall not be given by the court. The list is non-exhaustive, but we see a danger in specifying only some of the relevant matters. Parties may be led astray by thinking that matters which are not mentioned are not covered. That is not the case.

We have given some thought to constructing an exhaustive list, but it would be difficult to be absolutely sure that all matters had been covered. On balance now we think it would be preferable to exclude the list altogether from the Bill. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 7: Page 24, line 26, at end insert("or by an action on the award").

The noble and learned Lord said: My Lords, the clause deals with the enforcement by the court of the tribunal's award. Clause 66(5) saves the position of the recognition and enforcement of an award under other enactments or rules of law. The Geneva and New York Conventions are mentioned particularly, and we think that there is merit in making it clear that parties have a right also to recognition and enforcement by means of an action on the award. I beg to move.

On Question, amendment agreed to.

Clause 74 [Immunity of arbitral institutions, &c.]:

Lord Fraser of Carmyllie moved Amendment No. 8: Page 29, line 6, after ("liable") insert(", by reason of having appointed or nominated him,").

The noble and learned Lord said: My Lords, noble Lords will be aware that Clause 74 introduces limited immunity for arbitral institutions. The purpose of subsection (2) is to prevent litigious parties who are prevented from suing an abitrator by virtue of the immunity conferred by Clause 29 from turning to the institution which appointed or nominated him.

As drafted, the clause could be interpreted to have a rather wider effect than we envisaged. The effect of the amendment is to limit the scope of the clause. We had in mind that the institution should be protected from the consequences of anything done or not done by the arbitrator simply because it had appointed or nominated him. The clause is not intended to protect the institution in a range of other circumstances. I beg to move.

On Question, amendment agreed to.

Clause 80 [Notice and other requirements in connection with legal proceedings]:

Lord Fraser of Carmyllie moved Amendment No. 9: Page 31, line 23, after("periods,")insert("the extending or abridging of periods,").

The noble and learned Lord said: My Lords, the purpose of this clause is to tie together the rules of court and those provisions of the Bill which refer to legal proceedings. Certain provisions of the Bill require an application or appeal to be made to the court within a specified time. Subsection (5) makes it clear that the rules of court in relation to the reckoning of periods and the consequences of not taking a step within the period prescribed by the rules apply in such cases. The subsection also needs to cover rules of court on the extension and abridgement of periods of time. I beg to move.

On Question, amendment agreed to.

Clause 81 [Saving for certain matters governed by common law]:

Lord Fraser of Carmyllie moved Amendment No. 10: Page 31, line 38, at end insert (", in particular, any rule of law as to—

  1. (a) matters which are not capable of settlement by arbitration;
  2. (b) the effect of an oral arbitration agreement; or
  3. (c) the refusal of recognition or enforcement of an arbitral award on grounds of public policy.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 10, I wish to speak also to Amendment No. 11. These are simple amendments which are designed to change the particular rules of law which it has been decided are worthy of mention. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 11: Page 31, line 39, leave out subsection (2).

On Question, amendment agreed to.

Clause 85 [Modification of Part I in relation to domestic arbitration agreement]:

Lord Hacking moved Amendment No. 12: Leave out Clause 85.

The noble Lord said: My Lords, in addressing your Lordships on Amendment No. 12, I wish also to address Amendments Nos. 13, 14 and 15. As will be recalled from Committee, all four amendments concern the same issue. It can be simply stated: should there be a single arbitration law which is equally applicable to domestic and international arbitrations or, as now, should there be a domestic arbitration law and a separate international arbitration law? It arises in three respects: first upon the court's power to stay proceedings; secondly upon the parties' rights to go to the Court on a preliminary point of law; and thirdly upon the parties' rights to go to the Court on a question of law.

The Minister will remember the arguments that I have been advancing while the Bill has been in the House and the words which I addressed to your Lordships at Second Reading, and in Committee. The starting position is that there is no logic in having two different forms of arbitration law. I cited to my noble and learned friend the situation where an international English-based construction company is in an arbitral dispute with another English-based international construction company. In that situation the two companies in arbitration would be covered by domestic arbitration law. But the English construction industry is successful and is involved in many contracts throughout Europe and the world. Therefore, the scenario can easily arise with an arbitration clause between an English-based construction company and an overseas-based construction company. That complexity can be furthered when there are two English-based international construction companies and one foreign one. There is no logic why there should be two forms of arbitration law in such disputes.

I am sorry that the noble Lord, Lord Lester, is not here since there is also the difficulty that in the Bill we may be contravening European law. We are not giving the same rights to nationals of other member states as we give to nationals of our own member state in the European Union. As noble Lords will recall, I previously advanced the argument that the matter should be addressed while the Bill is passing through the Houses of Parliament. Indeed it should be addressed while the Bill is before your Lordships.

The use of statutory instruments does not have a happy history in arbitration matters or other statutes. In reality, what happens is that, when a matter is left for a statutory instrument to be placed before Parliament at a later stage, it goes to the bottom drawer of the arbitration reform desk or the commercial consumers desk in one of the departments of state and is laid aside. I remind noble Lords of what happened last time in an arbitration matter where a right of statutory instrument was vested in the Minister to abolish the special category cases. After a few years it became plain that there was no justification for keeping the special category disputes. There was an intention to introduce a statutory instrument under the 1979 Act, but nothing was done. Seventeen years have gone by without the statutory instrument ever being introduced. I remember the Bill being in your Lordships' House in 1979, when the specific intention was to review the position within three years. But nothing was done for 17 years. That is why I say that the use of the statutory instrument is not satisfactory. In any event, it is a matter of primary law and should be dealt with by your Lordships, who should decide whether there should be a separate regime for domestic and international arbitrations.

I wish to go further and issue a specific invitation to my noble and learned friend. Will he be kind enough to agree to enter into a consultation period between now and Third Reading? I am very sorry that the noble and learned Lord, Lord Mustill, is not in his place and cannot speak on the results of his inquiries. It so happens that on the very night of the Committee stage the noble and learned Lord, Lord Mustill, in his much more revered position as President of the Chartered Institute of Arbitrators (an organisation about which I believe the noble Lord, Lord Peston, now knows) and I went as guests to a dinner there. Both of us made inquiries as to whether there was any opposition to having our arbitration law applying equally between domestic and international arbitrations. Certainly my inquiries, and I understand his also, produced the result that there was no opposition.

As my noble and learned friend will recall, this particular issue did not go out to consultation under Lord Justice Saville's committee. However, the committee applied its mind to the matter in Chapter 3 of its report in February this year. The committee found no justification. It examined the particular arguments advanced in favour of keeping the distinction and found them not to be well founded. I ask my noble and learned friend to take that matter also into account.

My noble and learned friend may be concerned about the impact of my amendment on current law, in so far as it might deprive parties of rights that they now have, and will not have if the Bill becomes law with the abolition of the distinction between domestic and arbitration law. Perhaps he will be kind enough to examine the facts. The facts concerning domestic arbitration are that, currently, under our law it is not possible to contract out of the three procedures I identified to the House. There is no valid domestic arbitration agreement that has the contracting out provisions. Under current law those involved in domestic arbitration are not entitled to contract out. As for depriving parties in the future, the same logic applies. The process in which the power of the courts is removed (and I shall deal in a moment with the stay of arbitration) under preliminary points of law and questions of law is a positive process in which the parties have to agree to contract out. Therefore, if that right does not already exist in agreements, no rights are being taken away from anybody.

I therefore ask the Minister to look at the logic of the position, and at the logic of my proposal that he should carry out a consultation process between now and Third Reading. I suggest that that allows plenty of time. No large group of persons would be at a disadvantage if this measure were to be brought forward. For all the reasons advanced, I venture to think that he would find no substantive opposition to this proposal. He would therefore be able at Third Reading to advise the House, following a consultation period, that the distinction is no longer sensible. In doing so, he would give 'our arbitration law the appearance of good sense, and make it marketable to the international community. That is of great importance. I beg to move.

3.45 p.m.

Lord Fraser of Carmyllie

My Lords, some noble Lords may recollect that I gave an undertaking in Committee to reflect further on the question as to whether we should remove the special provisions on domestic arbitrations from the Bill now, or wait until we are able to consult those who would be affected.

I accept that my noble friend's arguments are finely balanced. However, taking all factors into account, I am still of the view that caution is necessary and we should wait to carry out a consultation exercise. Both noble and learned Lords, Lord Mustill and Lord Donaldson, urged caution when we last debated the issue. Notwithstanding what my noble friend said about informal consultation at a dinner which I did not attend, I believe that they are right to urge such caution.

I am concerned particularly about the impact that a move to exclude the special provisions for domestic arbitration might have on small firms. I believe it right that we should give them an opportunity to put forward their views. My noble friend should be aware that if we move now, without warning, we should deprive domestic parties of the protection they now enjoy whenever a dispute arises following the enactment of this Bill regardless of when the arbitration agreement was made. That is the effect of Clause 84. I have reservations about doing that as we could well lay ourselves open to criticism from the users of arbitration.

I note also the comments that my noble friend made in Committee and repeated this afternoon about the length of time it has taken to remove the special provisions for arbitration agreements in the insurance and other industries. I assure him that we do not intend to follow this model for the special provisions for domestic arbitration agreements.

We intend to act swiftly to consult those with an interest once the order-making power in Clause 88 is available. I regret to say that I cannot properly agree to my noble friend's suggestion that the consultation period should be limited to the period that will elapse between this Report stage and Third Reading, which may be as little as 10 days. We have to allow for a greater period than that.

Although I am unable to agree with the proposal that he put forward, my noble friend may find it helpful to know that I intend to remove the distinction so far as consumer arbitration agreements are concerned. Noble Lords will be aware that the definition of "domestic" set out in Clause 85 is common to both consumer and other arbitration agreements. The House will know that, unlike small businesses, consumers already enjoy a measure of protection when they enter into arbitration agreements. For that reason I am able to act now to remove the distinction. In doing so, we shall not reduce the measure of protection that consumers enjoy at the moment.

What I have in mind is to amend the provisions of Clauses 89 to 93, both to decouple them from the definition of "domestic" in Clause 85 and to make them more user friendly. In particular, my aim is to remove the overlap between the clauses as drafted and the unfair terms in consumer contracts regulations. I regret that I have not been able to bring forward those amendments for this stage. However, I will be bringing forward an amendment within this rather narrower ambit at Third Reading. With that explanation, I hope my noble friend will feel he can withdraw his amendment.

Lord Hacking

My Lords, I confess I am not entirely happy with the response of my noble and learned friend, and I express some disappointment in it. I tried to address precisely what was the problem so far as existing arbitrations are concerned. I believe I fairly clearly identified that we were taking nothing away from anybody. On that basis it is very difficult to see why there should be any concern on the part of the Government about accepting a provision that does not take anything away from anybody under existing rights. It continues to be the right of any party, whether from overseas or from this country, not to enter into the contracting out provisions. Therefore, any party anywhere who wants to keep out those provisions is entitled to keep them out.

Turning to the stay of court proceedings, if parties have entered into a valid arbitration agreement, it is to steer everything right off course for those parties then to be entitled to go to the court, and for the court to be entitled to have a discretion. When there is an arbitration agreement which is valid, and parties entered into it on an entirely consensual basis, the court should not have a discretion as to whether to stay the proceedings. If it does exercise that discretion, the court will be intervening in an arbitration consensually agreed by the parties. That is a very unsatisfactory state of affairs and should be properly and immediately addressed.

It is addressed so far as international arbitrations are concerned, since once the court has been satisfied that there is a valid arbitration agreement, there is no right on the part of any of the parties involved in the dispute to sabotage the arbitration by entering into the court proceedings.

I shall withdraw the amendment and will not move my other amendments, but I do so in a state of some disappointment. I ask my noble and learned friend to note that the Government, some 17 years ago, were proposing to provide for a remedy in three years. Perhaps he could put a timetable to his consultations, so that in three or six months' time, I shall be able to ask him how the consultation process is progressing and whether he is able to reach a decision. If we do not have a timetable, this matter will slip to the bottom of the drawer.

I want my noble and learned friend to remain in office for many years as a Minister of State but it may be that he will not do so. What will happen then? I see indications from the other side of the Chamber that noble Lords do not think that my noble friend will stay long in his present position. I do not agree with that, but it is possible. As I say, this matter may then go to the bottom of some drawer.

Can my noble and learned friend at least give a timetable or say at least that there will be a three or six months' consultation period? I shall then be able to bring the matter back to your Lordships and we could feel that Parliament is properly involved. This is a matter for primary legislation. Too many measures are left to secondary legislation and statutory instrument. That system causes a great deal of concern and resentment, rightly in my submission, on the part of Members of all parties in both Houses.

Lord Fraser of Carmyllie

My Lords, with the leave of the House, I shall respond briefly to my noble friend. In my earlier remarks, I indicated that we intended to act swiftly. I pointed out that there is the order-making power under Clause 88. It might be said that the sooner we get on with the Bill and the sooner it is enacted, the greater is the prospect of having the amendment wished for by my noble friend.

I cannot give him a precise timetable. The Bill may be enacted swiftly, and given the co-operation that we have received in your Lordships' House, I see no reason why we should not pass it through both Houses in a relatively short space of time. I must stress that, as I said earlier, we do not look simply to professional arbitrators to offer an opinion on this matter. I indicated that I was concerned about the possible impact on small businesses. In the very nature of small businesses, as my noble friend will appreciate, it is not always easy to ensure that all their views are obtained in a tightly defined timetable. In any event, certainly I hope that we shall be able to complete all consultation on this matter in the course of this year.

Lord Hacking

My Lords, I withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Staying of legal proceedings]:

[Amendment No. 13 not moved.]

Clause 87 [Effectiveness of agreement to exclude court's jurisdiction]:

[Amendment No. 14 not moved.]

Clause 88 [Power to repeal or amend ss. 85 to 87]:

[Amendment No. 15 not moved.]

Clause 103 [New York Convention awards]:

Lord Fraser of Carmyllie moved Amendment No. 16: Page 39, line 20, leave out subsection (2) and insert— ("(2) For the purposes of subsection (1) and of the provisions of this Part relating to such awards—

  1. (a) "arbitration agreement" means an arbitration agreement in writing, and
  2. (b) an award shall be treated as made at the seat of the arbitration, regardless of where it was signed, despatched or delivered to any of the parties.
In this subsection "agreement in writing" and "seat of the arbitration" have the same meaning as in Part I.").

The noble and learned Lord said: My Lords, the effect of the amendment is to apply for the purposes of Part III of the Bill, which gives effect to the New York Convention, the definition of "in writing" and the concept of the award being treated as made at the seat of the arbitration, which are in Part I of the Bill. This will introduce a measure of consistency between Parts I and III of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 105 [Evidence to be produced by party seeking recognition or enforcements]:

Lord Fraser of Carmyllie moved Amendment No. 17: Page 40, leave out lines 3 to 7 and insert—

  1. ("(a) the duly authenticated original award or a duly certified copy of it, and
  2. (b) the original arbitration agreement or a duly certified copy of it.").

The noble and learned Lord said: My Lords, this particular clause specifies what evidence a party must produce when seeking recognition or enforcement of a New York Convention award. We tried to be helpful by, for example, defining the term "duly authenticated". That is not part of the New York Convention. On reflection, we feel that it is best to stick with the convention wording. The amendment achieves that. I beg to move.

On Question, amendment agreed to.

Schedule 3 [Consequential amendments]:

Lord Fraser of Carmyllie moved Amendment No. 18: Page 51, line 30, leave out from ("judge)") to ("County") in line 32 and insert ("— (a) for paragraph (2) substitute— (2) Any order, decision or determination made by a district judge under this Article (other than one made in dealing with a claim by way of arbitration under paragraph (3)) shall be embodied in a decree which for all purposes (including the right of appeal under Part VI) shall have the like effect as a decree pronounced by a county court judge."; (b) for paragraphs (4) and (5) substitute— (4) Where in any action to which paragraph (1) applies the claim is dealt with by way of arbitration under paragraph (3)—

  1. (a) any award made by the district judge in dealing with the claim shall be embodied in a decree which for all purposes (except the right of appeal under Part VI) shall have the like effect as a decree pronounced by a county court judge;
  2. (b) the district judge may, and shall if so required by the High Court, state for the determination of the High Court any question of law arising out of an award so made;
  3. (c) except as provided by sub-paragraph (b), any award so made shall be final; and
  4. (d) except as otherwise provided by county court rules, no costs shall be awarded in connection with the action.
(5) Subject to paragraph (4),").

The noble and learned Lord said: My Lords, this is a consequential amendment which applies only to Northern Ireland. I beg to move.

On Question, amendment agreed to.