In mid-September 2017, the Parliament of the Republic of Fiji enacted the International Arbitration Act 2017, which provides a legislative framework to support the conduct of international arbitration, based on the 1985 UNCITRAL Model Law, with its 2006 amendments. The Act also implements the New York Convention 1958, which was ratified by the Republic in 2010. In essence, the Republic of Fiji gave effect to the objectives set out in its International Arbitration Bill, which was subject to review in July 2017. Namely:
- To provide for the conduct of international arbitrations based on the UNCITRAL Model Law;
- To promote uniformity of national laws pertaining to international arbitration proceedings;
- To align the administration of arbitrations in the country to the UNCITRAL Model Law;
- To give effect to the New York Convention 1958.
The Act is a verbatim adoption of the UNCITRAL Model Law, containing minor differences which are in line with the market trends. First, section 11 of the Arbitration Act includes a more detailed definition of an arbitration agreement, compared to the one contained in the 2006 Model Law and sections 23 – 33 incorporate provisions regarding the grant and enforcement of interim measures. Second, section 12 addresses the obligation of the courts to refer the parties to arbitration if they are seized with a matter arising out of or in connection with an arbitration agreement, unless the respective arbitration agreement is null and void, inoperative or incapable of being performed. Third, section 22 provides for the kompetenz-kompetenz principle, noting that the arbitral tribunal has the power to rule on its own jurisdiction.
In addition to the Model Law-based provisions, the Arbitration Act contains best practices, taking into account the trends in the arbitration community. In this sense, the Act provides for, inter alia, emergency arbitration and expressly notes the confidentiality of the proceedings. These provisions aim to address the parties’ need for urgent relief as well as the increased preference for arbitral seats and legislations that guarantee confidentiality. The Act also expressly looks at the issue of immunity of arbitrators and their liability (where appropriate), reflecting the importance of the adjudicative character of the arbitrator’s mandate.
The new legislation represents an improvement to Fiji’s arbitration framework and is likely to attract and promote foreign investment in the country. Furthermore, parties wishing to arbitrate in the Republic of Fiji can have confidence that the legislation of the seat of arbitration is in line with other popular jurisdictions, such as London, Paris and Singapore.
Sabina Adascalitei LLB, LLM, MCIArb
Research and Academic Affairs Coordinator