Answer ... (a) Procedure, including evidence?
The Arbitration Act provides arbitrators with very wide powers, including the power to order preliminary relief, interim relief and security for costs. In the absence of agreement between the parties, arbitrators are also empowered to determine the procedure to be followed in the proceedings.
Under Section 45 of the act, the parties are free to decide on the procedure governing the arbitration. The exact procedure to be followed will usually be that agreed between the parties under Section 45. Where there is no agreement between the parties, the arbitral tribunal can conduct the arbitration in the manner it sees fit in accordance with the terms of the act and/or the applicable rules.
The arbitral tribunal is not bound by the rules of evidence when conducting the arbitration. It may receive any evidence it considers appropriate and will decide what weight to give that evidence.
The Arbitration Act gives the tribunal wide powers to decide matters relating to evidence, including whether there will be an oral hearing for the presentation of evidence (Section 50(1)). Under Section 54, the tribunal can also:
- direct the discovery/disclosure of documents;
- direct the delivery of interrogatories;
- direct that evidence be given by affidavit;
- direct that a person attend before the tribunal in order to give evidence or produce documents; and
- administer oaths or affirmations of witnesses and examine those witnesses.
In most international arbitrations, the collection and submission of evidence will be roughly the same as in litigation. Typically, the parties will be required to disclose documents relevant to the dispute, file written statements and put witnesses up for cross-examination at the hearing of the dispute.
(b) Interim relief?
Unless otherwise agreed by the parties, the arbitral tribunal is empowered to grant interim relief pursuant to Section 33 of the Arbitration Act (which adopts Article 17 of the UNCITRAL Model Law). Interim relief is binding and can be converted into an award which is enforceable at court.
The types of interim relief that can be ordered by an arbitral tribunal prior to the issuance of the award are temporary measures to:
- maintain or restore the status quo pending determination of the dispute;
- take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
- provide a means of preserving assets out of which a subsequent award may be satisfied; or
- preserve evidence that may be relevant and material to the resolution of the dispute.
The Arbitration Act also adopts Articles 17B and 17C of the UNCITRAL Model Law, permitting a tribunal to make preliminary orders in support of interim relief (including on an ex parte basis).
Interim relief is binding and can be converted into an award which is enforceable at court. Preliminary orders, though binding on the parties, are not enforceable at court.
(c) Parties which do not comply with its orders?
Section 51 of the Arbitration Act reproduces Article 25 of the UNCITRAL Model Law and provides that if a party fails to comply with any order or direction of the arbitral tribunal, the tribunal may make a peremptory order to the same effect prescribing the timeframe for compliance that it considers appropriate. If a party fails to comply with a peremptory order, the tribunal may:
- direct that the party is not entitled to rely on any allegation or material which was the subject matter of the peremptory order;
- draw any adverse inferences from non-compliance that the circumstances may justify;
- make an award on the basis of the materials properly provided to it; and
- make any order that it thinks fit as to payment of costs.
(d) Issuing partial final awards?
Under Section 69 of the Arbitration Act, an arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined, unless otherwise agreed by the parties.
(e) The remedies it can grant in a final award?
Under Section 68 of the Arbitration Act, in deciding a dispute, an arbitral tribunal may award any remedy or relief that could have been ordered by the court if the dispute had been subject of civil proceedings in the court. Unless otherwise agreed by the parties, an arbitral tribunal has the same power as the court to order specific performance of any contract, other than a contract relating to land or any interests in land.
Pursuant to Section 78 of the Arbitration Act, unless otherwise stated, interest is payable on money awarded by the tribunal from the date of the award and order on costs. Interest is payable at the rate specified in Section 7 of the Judgments Act, which is 5% per annum. The BVI IAC rules provides for pre and post-award compound interest if the parties agree.