Arbitration Agreement, what is it?

Chapter 2
Arbitration agreement

Definition and form of arbitration agreement

9. (1) In this Act, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in an agreement or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing where it is contained in—

1. (a)  a document signed by the parties; 
2. (b)  an exchange of letters, telex, facsimile or other means of communication which provide a record of the agreement; or
3. (c)  an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(5) A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement, provided that the agreement is in writing and the reference is such as to make that clause part of the agreement. 

Arbitration agreement and substantive claim before court

10. (1) A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds—

1. (a)  that the agreement is null and void, inoperative or incapable of being performed; or
2. (b)  that there is in fact no dispute between the parties with regard to the matters to be referred.

(2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit.

(3) Where the proceedings referred to in subsection (1) have been brought, arbitral proceedings may be commenced or continued, and an award may be made, while the issue is pending before the court. 

Arbitration agreement and interim measures by High Court

11. (1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for:

1. (a)  security for costs;
2. (b)  discovery of documents and interrogatories;
3. (c)  giving of evidence by affidavit;
4. (d)  appointment of a receiver;
5. (e)  securing the amount in dispute;
6. (f)  the preservation, interim custody or sale of any property which is the subject-matter of the dispute;
7. (g)  ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and
8. (h)  an interim injunction or any other interim measure.