On 15 September 2017,Fiji passed the International Arbitration Act 2017 (the Act). The Act, which is based on the United Nations Commission on International Trade Law on International Commercial Arbitration 1985 (incorporating the 2006 amendments) (Model Law), implements Fiji’s commitments under the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), which Fiji ratified on 27 September 2010. It also adopts some elements of “best practice” from the laws of other leading pro-arbitration jurisdictions, including Australia, Singapore and Hong Kong. The Act not only represents an important piece of law reform for Fiji but it is also hoped that it will provide the impetus and framework for similar law reform among other Pacific Island States.
Application to international arbitrations only
The Act applies to international arbitrations only and the Fiji Arbitration Act 1965 will continue to operate in relation to domestic arbitrations. According to Section 4(3) of the Act, an arbitration is an “international arbitration” if:
- at the time the arbitration agreement was entered into one of the parties was based abroad;
- the place of the arbitration is not Fiji;
- the place where a substantial part of the obligations of the commercial relationship are required to be performed is not Fiji; or
- there is a place which is more closely connected to the subject matter of the dispute that is not Fiji.
‘Best practice’ provisions
The Fijian government was assisted in drafting of the legislation with input from individuals from UNCITRAL and the Asian Development Bank (among other advisers). Notably, the drafters have adopted some “best practice” elements of arbitration laws from recognised pro-arbitration jurisdictions, including provisions:
- that expressly provide for the confidentiality of the proceedings, subject only to some limited exceptions;
- relate to legal representation in international arbitration proceedings and ensure parties autonomy in the selection of their legal representation;
- concern the liability and immunity of arbitrators, arbitral institutions and appointing authorities; and
- which recognise the enforceability of emergency arbitrator decisions, by including a definition of “arbitral tribunal” that refers to emergency arbitrators.
Impact in the region
The Act’s purpose is to facilitate increased investment in the region. This may also lead to increased international arbitration activity in the region. As a neighbouring country with strong pro-arbitration laws, Australia may well find itself as a popular choice for the seat of international arbitrations involving Fijian parties and other Pacific Island states if, as is hoped, the Act promotes further international arbitration law reform in the region.