Arbitration Bill, 1954—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The Bill will supply a long felt want in our law in that it will provide a modern and effective law of arbitration. The Bill deals with four types of arbitration. Firstly, it will provide for what is called voluntary arbitration, the essence of which is that the parties to some dispute refer that dispute to a tribunal of their own choosing instead of a court of law. Secondly, the Bill deals with statutory arbitrations, that is to say, arbitrations by tribunals constituted under statute to settle particular types of disputes which arise as a result of statute. Thirdly, the Bill covers references to arbitration by the High Court, where matters of account arise in cases before that court. Finally, the Bill provides for the enforcement of foreign arbitration awards. I shall deal with these four types of arbitration separately.

Voluntary arbitration has been recognised by all developed systems of law. Unfortunately, the law in this country has remained unchanged for almost 100 years. It is not, therefore, surprising that our law is defective in many aspects. One of the main defects is that an arbitrator has no power to award costs, so that a successful party has to pay his own costs and the fees of the arbitrator or arbitrators in order to take up the award. As these costs and fees may often amount to more than the amount in dispute, there is in many instances little point in going to arbitration at all. Another important defect in the existing law is that the authority of an arbitrator may be revoked by either party unless the arbitration agreement contains a provision that the submission to arbitration is to be made a rule of court.

The Bill remedies these two defects and provides, in Part II, for various matters which arise in voluntary arbitration under arbitration agreements. The provisions in that part of the Bill are designed to give what may be called judicial cover to voluntary arbitration.

Part III of the Bill deals with statutory arbitrations. These are arbitrations under various statutes where disputes arising under the statutes are settled by particular persons designated by the statutes themselves. Senators will be familiar with cases where the value of land acquired for public purposes is settled by arbitration in accordance with the provisions of what are known as the Land Clauses Acts. The provisions of Parts I and II of the Bill, with the exception of certain sections, which are not pertinent, are applied to statutory arbitrations.

Part IV of the Bill deals with references by the High Court of matters of account arising in any particular case to an arbitrator who is deemed to be an officer of the court. This part of the Bill will re-enact and bring up to date existing provisions of the law. This type of arbitration is known as compulsory arbitration.

Part V of the Bill concerns the enforcement of foreign arbitration awards made in pursuance of an agreement, to which the Geneva Protocol of 1923 applies, between persons subject to the jurisdiction of States which are parties to the Geneva Convention of 1927. The protocol and the convention are set out in the First and Second Schedules respectively. This country is not a party to either the protocol or the convention but this will be remedied when the Bill becomes law.

So much for the main outlines of the Bill. I should now like to refer to some specific provisions.

Under Section 4 the State will be bound, and this is a reasonable and proper provision. Section 5 excludes arbitrations under agreements relating to the terms and conditions of employment. These are not arbitrations properly so called at all as the arbitrator has no power to make a final enforceable award, nor do the parties to the arbitration intend in any way that he should. Such arbitrations are informal matters. The arbitrators are really mediators who make recommendations and it is up to the parties to accept these recommendations or not to accept them as they so think fit. If, in any instance, the parties want the new Act or any of its provisions to apply to the arbitration, there is, of course, nothing to prevent them doing so.

I hope I have given the House a clear picture of what the Bill involves. Arbitration may have advantages in the settling of disputes, particularly where technical knowledge or special skill or training is required. It is regarded as cheaper than law as a general rule and it is less formal and usually more expeditious. The proposals in the Bill have been placed before the various bodies interested and their suggestions for improvement have, where possible, been incorporated.

The provisions of the Bill are generally on the same lines as the relevant British and Six Counties statutory provisions. The advantages of this to everybody concerned, and particularly to the business and commercial community, are obvious.

I recommend the Bill to the House. It is a technical Bill which may not easily be followed in detail at first glance, but any difficulties or suggestions can be dealt with on the Committee Stage.

I welcome the Bill which I think is a very desirable one. The only matter I would like to refer to is the question of the court that should have jurisdiction under the Bill. According to the Bill, the function of the court means the function of the High Court. Might I suggest to the Minister that it is only right that the Circuit Court should have jurisdiction in so far as the jurisdiction of the Circuit Court goes? The Circuit Court jurisdiction has been considerably increased in the last few years. It was increased from £300 to £600 in matters of tort and was considerably increased in the matter of probates. I suggest then, that the Circuit Court should have jurisdiction under this Bill when the matters concerned could come within the ordinary jurisdiction of the Circuit Court.

An arbitration proceeding is less technical, less formal and less frightening for witnesses than court proceedings. In addition matters could be discussed privately and for that reason an arbitration proceeding should in my mind be the most appropriate type of proceeding in many cases. Furthermore arbitrators themselves would have a better knowledge of local conditions and accordingly would be more expert than would be the judge.

In Section 49 of the Bill it is set out that in the case of dispute about any matter, the court may at any time order the whole case or any question at issue on the facts that arise to be tried by an arbitration court. If this is going to be limited to the High Court, it means cutting out the possibility that the Circuit Court could refer the matter to the county registrar or other official to take action. He is precluded from doing so in that the High Court only has jurisdiction and power to do that. As a person familiar with the conditions in rural areas, I would appeal to the Minister to include the Circuit Court in the Bill.

As a lawyer I also welcome this Bill, which is long overdue. The only Act we have in this country in the matter of arbitration is an Act passed in 1857, which is completely out of date. There was an Act passed in 1893, but for some extraordinary reason, which nobody understands, it did not extend to Ireland, and we have carried on since with our completely obsolete Act of 1857.

I think legal practitioners will all welcome the Bill. As regards the references by Senator Walsh to the courts, that obviously is a matter which should be considered. I think there may be a good deal to be said for retention of the High Court because many arbitration matters arise under contracts which might possibly be contracts with English firms or foreign firms generally, and I rather think that the High Court will probably be the most convenient and expeditious tribunal to decide such matters. That, however, is a matter for discussion on the Committee Stage.

I just wanted to know whether arbitration arising out of breaches of contracts with people of other countries will be affected by the terms of this Bill. What I am referring to is that very often there is disagreement between exporters and importers and these disagreements are quite frequently referred to the chambers of commerce who act as arbitrators in these matters. I do not know whether the chambers of commerce as such will be disfranchised or not from that duty under the Bill. I would like if the Minister would advise me as to whether the chambers of commerce will still have the right to act as arbitrators where a dispute arises in such matters.

Because in chambers of commerce, at any rate, we have to go to the courts for decisions upon matters of minor importance, which would create tremendous difficulty, particularly with those who are interested in the export trade. I am not clear about a matter, and I would like to be assured that at least the faculties which are at present exercised by the chambers of commerce in the arbitration of those difficulties, will not be affected in this Act, in any event.

I am grateful for the suggestions made by the Senator, and I can only promise, in connection with Part IV of the Bill, that the Senator's points will be considered in introducing an amendment to bring the Circuit Court into line with the High Court, if necessary.

I do not think the Minister heard me when I referred to the chambers of commerce. It is a rather important matter.

The chambers of commerce can act.

Question put and agreed to.
Committee Stage ordered for Wednesday, 1st December, 1954.