Civil Engineering Reference
In-Depth Information
appearsthatsuchanapplicationwouldbevalidwherethepartiesagreethatitshould
be made but the arbitrator does not so agree. The Court must be satisfied on certain
matters which may be the subject of dispute if one of the parties wishes to make the
application with the consent of the arbitrator but the other party has no such wish.
It is difficult to see how there would be a likelihood of substantial savings in
expenses if, for example, the parties have excluded recourse to the Court on a point
of law after the arbitrator has made a decision. In certain circumstances it is likely to
be much more expensive to ask the Court to determine the question rather than have
the arbitrator determine it. Further, what does 'without delay' mean? The word delay
is not qualified by a word such as 'undue' or 'unreasonable'. In some cases, if the
application is not made as soon as the arbitration commences, there will inevitably
be some delay in making the application. It is not clear what will be regarded as a
'good reason' when the question is, should the point be determined by the Court
rather than the arbitrator? The drafting means that it is likely that these issues will be
canvassedbeforetheCourtsinduecourse.
Rule 43: Variation of time limited set by the parties: DEFAULT
The Court may on application of the tribunal or any party vary any time limit relat-
ing to the arbitration which is imposed by the arbitration ag reement or by any other
agreement between the parties. If Rule 43 applies, Rule 44, which sets out the proce-
dure and the test to be applied by the Court, is mandatory. Such a variation may be
made only if the Court is satisfied that there is no arbitral process for varying the time
limit available and that someone would suffer a substantial injustice if no variation
was made. The Court's decision on whether to make a variation is final. This was a
controversial provision because it means that the Court can re-write what the parties
have agreed.
Rule 45: Court's power to order attendances of witnesses and disclosures of
evidence: MANDATORY
This rule sets out the mechanism by which a party may ensure attendance of wit-
nesses and disclosure of evidence. The arbitrator has no power to compel attendance
ordisclosurebuttheCourtdoes.hisisaclearexampleofhowtheCourtassistsand
supports the arbitration process.
Rule 46: Court's other powers in relation to arbitration: DEFAULT
These include power:
(a) to make an order securing any amount in dispute in the arbitration; and
(b) to grant warrant for arrestment or inhibition.
The Court may only take such action with the consent of the tribunal or where the
Court is satisfied that the case is one of emergency.
