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FTAA – NEGOTIATING GROUP ON DISPUTE SETTLEMENT



QUESTIONNAIRE


TRINIDAD AND TOBAGO

1. International Agreements

a. Is the jurisdiction a party to the Convention of the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (New York Convention). If so, are there any reservations? Name the domestic law that implements these commitments.


Trinidad and Tobago acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) on 14 February 1966. The Arbitration (Foreign Arbitral Awards) Act 1996 is the domestic implementing legislation currently in force.


b. Is the jurisdiction a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, done at Washington on 18 March 1965 (ICSID Convention)? Is there a domestic implementing law? Is the jurisdiction a party to any bilateral investment treaties providing for settlement of investment disputes between a state and a national of another state?

Trinidad and Tobago ratified the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, done at Washington on 18 March 1965, on January 3 1967. There is no existing domestic law.


c. Is the jurisdiction a party to the Inter-American Convention on International Commercial Arbitration, signed in Panama on 30 January 1975 (Panama Convention)? Is there a domestic implementing law?

Trinidad and Tobago is not a party to the Inter-American Convention on International Commercial Arbitration, signed in Panama on 30 January 1975.


d. Is the jurisdiction a party to any other international agreement related to international commercial arbitration?

Trinidad and Tobago is not a party to any other agreement relating to international commercial arbitration.


2. Arbitration

a. What is the source of law for international commercial arbitration within your jurisdiction? Please cite.


The source of law for international commercial arbitration within T&T’s jurisdiction are The Arbitration Act Ch. 5:01 Laws of Trinidad and Tobago and The Arbitration (Foreign Arbitral Awards) Act 1996. The latter Act gives effect to the Convention on the Recognition and enforcement of Foreign arbitral awards 10 June 1958 or the New York Convention.


b. Does the law contain different rules for domestic and international arbitration?

The law does not contain different rules for domestic and international arbitration. According to 5:36 of The Arbitration Act 1939:-

“This Act applies in relation to every arbitration under any other written law passed before or after the coming into force of this Act as if the arbitration were pursuant to an arbitration agreement and as if that other written law were an arbitration agreement…except in so far as this Act is inconsistent with the other written law regulating the arbitration or with any rules or procedure authorized or recognized by that other written law”

Thus this legislation will apply unless the Arbitration (Foreign Arbitral Awards) Act 1996 contains different provisions, wherein these provisions will supersede the provisions of the 1939 Act.


c. Are there limitations on the types of disputes that may be arbitrated?

In the 1996 Act, there are limitations to the types of disputes that may be arbitrated. The Government of Trinidad and Tobago declares that it will apply the convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the law of Trinidad and Tobago.


d. Does the law specify rules for arbitration or do the parties have autonomy to set their rules?

The parties do have the autonomy to set their own rules to a certain extent. The parties must include in their arbitration agreements the First Schedule attached to the Arbitration Act (A) 1939. This is in accordance with Section 4AA 1939 which states:-

“An arbitration agreement, unless a contrary intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule, so far as they are applicable to the reference under the arbitration agreement”.


e. What is the role of the courts during an arbitration? May courts intervene prior to or during the arbitration process?

The Court has no role in arbitration unless any party to the arbitration seeks to enforce the assistance of the Court for reasons which are hereafter outlined.

Yes. The courts can intervene prior to or during the arbitration process:-

Section 7 AA 1939 gives the court the power to stay proceedings where there is an arbitration agreement.

Section 8 AA gives the court the power in certain cases to appoint an arbitrator, umpire or third arbitrator.

Section 11(1) AA gives the court the power to remove an arbitrator.

Section 12(1) AA gives the court the power to give relief where the arbitrator is not impartial or the dispute referred involves question of fraud.


f. Can the courts grant interim relief pending the outcome of an arbitration?

The First Schedule, Section 10 AA 1939 allows for the arbitrators or umpire, if they think fit, to make an interim award. Section 32(2) AA 1939 allows for the courts to give directions with respect to interim awards.


g. Does the law require citizenship or a particular bar membership for participation in an arbitral proceeding, as arbiter or representative of a party?

The law is not specific in terms of the requirements of an arbitrator, however given the nature of the instances where the Court may intervene in arbitration it would appear that the arbitrator should be able to give an unbiased judgment based on experience in the relevant field and knowledge or Court proceedings and the legal system would be advantageous. In the test “International Arbitration” by J.L. Simpson & Hazel Cox (1959) it is suggested that the usual practice is to have the parties choose the arbitrators. It must be established whether there would be a three-member tribunal or a single arbitrator. The parties should also agree upon at least one neutral arbitrator, that is, one who belongs to either party.


h. Does the law require that the proceedings be conducted in a particular language?

Yes. Article IV (2) Arbitration (Foreign Arbitral Awards) Act 1996, requires that the proceedings be conducted in the official language of the country in which the award is relied upon. Thus in Trinidad and Tobago, the official language for such proceedings is English.


i. Does the law have mandatory choice of law provisions?

There are no mandatory choice of law provisions save for the provision where Article 1 of the 1996 New York Conventions states that the convention will apply to:

“the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought”.


j. Does the arbitration law prescribe rules for decision making by the arbiters and the form of an award?

The arbitration law also provides rules for the form of an award under Sections 20, 21 and 22 of the AA 1939 which provide for enforcing an award, interest on awards and provision as to costs.


k. Is the confidentiality of arbitral proceedings and awards protected by law?

There is no specific provision the Act that states the confidentiality of arbitral proceedings and awards are protected by law.


l. On what grounds will the courts set aside or decline to enforce and award?

The grounds on which the court will set aside or decline to enforce an award are to be found in Sections 18, 19 Arbitration Act 1939 and Section 6 Arbitration (Foreign Arbitral) Act 1996.


m. What is the procedure for the enforcement of an award?

The procedure for the enforcement of an award is to be found in Sections 20, 21 Arbitration Act 1939 and Section 5 Arbitration (Foreign Arbitral) Act 1996.


n. Please list any institutions available within your jurisdiction that provide international commercial arbitration services. Provide internet address where available.

There are currently no institutions within Trinidad and Tobago that provide international commercial arbitration services.


3. Alternative forms of Dispute Resolution (ADR)


a. Are other forms of alternative dispute resolution (mediation, conciliation) available for the resolution of commercial disputes within your jurisdiction?

Presently, there is the Community Mediation Act (No. 13 of 1998). This Act provides an alternative to going to Court for certain Summary Offences and Civil Matters.


b. Does the law or do the courts mandate or encourage the use of ADR in commercial disputes? Are there any legal impediments to using ADR for the resolution of commercial disputes?

T&T has only recently introduced the use of ADR in our community. The law has been encouraging the use of ADR in several areas as stated in the Act – this would include the use of ADR in commercial disputes. The private sector in T&T has taken an active part in promoting mediation as an alternative means of conflict resolution. At this point, one cannot say if there are any legal impediments to using ADR for the resolution of commercial disputes.


c. Can courts enforce agreements to mediate or use other forms of non-binding dispute resolution in commercial disputes?

The courts can/cannot enforce agreements to mediate in commercial disputes.


d. Are there any organizations that specialize in ADR for commercial disputes not already mentioned?

An Alternative Dispute Resolution Centre has been established in T&T for the training of Mediators.


e. What rules govern confidentiality and admissibility of evidence in other proceedings?

 

 
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