TURKS & CAICOS Law and Practice Contributed by: Stephen M Wilson KC, Wilson Wells
3.3 National Courts’ Approach The local courts utilise the common-law choice-of-law rules to determine the law governing the arbitration agreement and its enforceability. Until recently, there was no organised system for the reporting of judicial decisions in the TCI, so it has historically been dif - ficult to research a body of case law. However, based on personal experience, the national courts are pro- enforcement of arbitration agreements. The Arbitration Act provides (at Section 3) that an arbi - tration agreement (referred to therein as a “submis - sion”) shall, unless a contrary intention is expressed therein, be irrevocable except by leave of the court and shall have the same effect in all respects as if it had been made an order of court. 3.4 Validity The rule of separability is applied in the TCI to arbitra - tion clauses, with the result that an arbitration clause might be considered valid even if the rest of the con - tract in which it is contained is invalid. 4. The Arbitral Tribunal 4.1 Limits on Selection The Arbitration Act does not provide for any limits to the parties’ autonomy to select arbitrators. 4.2 Default Procedures The Arbitration Act provides for a default procedure such that – in the event that no arbitrator, umpire or third arbitrator is appointed within 21 days follow - ing the service of a written notice by a party on the other parties or the arbitrators (as the case may be) to appoint an arbitrator, umpire or third arbitrator – pursuant to Section 6 of the Act, the Supreme Court may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator who will have the like powers to act in the reference and make an award as if they had been appointed by consent of all parties. The procedure applies regardless of the number of parties involved.
4.3 Court Intervention There is nothing contained in the Arbitration Act giving the local courts the power to intervene in the selection of arbitrators. 4.4 Challenge and Removal of Arbitrators There are no particular provisions contained in the Arbitration Act governing the challenge or removal of arbitrators, save that – pursuant to Section 16 of the Arbitration Act – the court may remove an arbitrator, umpire or referee who has misconducted themselves. 4.5 Arbitrator Requirements There are no requirements in the Arbitration Act as to arbitrator independence, impartiality, and/or disclo - sure of potential conflicts of interest and there are no arbitration institutions within the jurisdiction. As such, the common law governs the position. There is nothing in the Arbitration Act dealing with an arbitral tribunal’s ability to rule on its own jurisdiction to hear a matter. However, it is highly likely that the principle of competence-competence would be rec - ognised in the TCI, allowing the arbitral tribunal to rule on the question of its own jurisdiction. 5.2 Circumstances for Court Intervention The Arbitration Act does not deal with circumstances in which the national courts can address issues of jurisdiction of an arbitral tribunal. However, pursuant to Order 73, Rule 2 (2) of the Rules of the Supreme Court 2000, a judge may declare that an award made by an arbitrator or umpire is not binding on a party to the award on the ground that it was made without jurisdiction. 5.3 Timing of Challenge As stated in 5.2 Circumstances for Court Interven- tion , the Arbitration Act does not provide for chal - lenges to the jurisdiction of the arbitral tribunal or the court’s ability to deal with same, save for after an award has been rendered – at which time, a judge may declare the award is not binding because it was made without jurisdiction. 5. Jurisdiction 5.1 Challenges to Jurisdiction
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