Fiji has sought to promote international arbitration as a method of dispute resolution in order to improve the climate for foreign investment. It became a party to the New York Convention in 2010 and, in 2017, enacted the International Arbitration Act of 2017 (the “Act”): a modern arbitration statute that implements Fiji’s commitments under the New York Convention, and provides a comprehensive framework for international arbitration in Fiji, in accordance with the UNCITRAL Model Law and international best practices.

We are not aware of any industries in Fiji for which international arbitration is more or less popular.

There are no arbitral institutions established in Fiji. We are aware that disputes involving parties from Fiji have been administered by the Australian Centre for International Commercial Arbitration (ACICA).

In the limited circumstances in which courts are permitted to intervene in arbitral proceedings, the Act (in the case of international arbitrations) and the Fiji Arbitration Act 1965 (in the case of domestic arbitrations) designate the High Court of Fiji as the supervisory court in matters of arbitration.

International arbitration in Fiji is governed by the Act.

The Act is based on the Model Law as amended in 2006. It also incorporates some elements of the arbitration laws of other jurisdictions, such as Australia, Hong Kong and Singapore, including:

• By defining an “arbitral tribunal” to include “an emergency arbitrator” (s 2).
• By providing for the liability and immunity of arbitrators, appointing authorities, and arbitral institutions (s 21).
• By providing, in addition to having a “full opportunity” to present their case, that the parties may also “appear in person before an arbitral tribunal” and either be self-represented or represented by a representative “of that party’s choice” (s 35).
• By providing for the confidentiality of information relating to the arbitration, the arbitral proceedings and any awards (s 45).
• By providing (or clarifying) that fraud, corruption and a breach of the rules of natural justice amount to public policy matters (s 55).

As set out above, domestic arbitration in Fiji is governed by the Fiji Arbitration Act 1965. In this guide we focus on international arbitration in Fiji.

There have not been any changes to the Act in the past year, and there is no pending legislation of which we are aware that would materially change the arbitration landscape in Fiji.

Section 11 of the Act provides that an arbitration agreement is “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not”.

An arbitration agreement shall be in writing (s 11(1)), but an arbitration agreement shall be regarded as being in writing if it is recorded “in any form”, even if it was “concluded orally” (s 11(2)).

Section 1(5) of the Act provides, consistently with the Model Law, that it shall not affect any other law of Fiji “by virtue of which certain disputes shall not be submitted to arbitration”.

We are not aware of any judgments of the Fijian courts under the Act with respect to determining the law governing the arbitration agreement. The Fijian courts would, however, likely follow the UK Supreme Court decision in Enka v Chubb [2020] UKSC 38.

The Fijian courts have taken a pro-arbitration stance and sought to enforce arbitration agreements under the Act. For example, in Housing Authority v Top Symphony Sdn. Bhd HBC No. 328 of 2018 at [49], the High Court referred to English authority and held that, under the Act, “[a]rbitration is regarded [as] an appropriate way of resolving international commercial disputes, and courts give effect to arbitration agreements wherever possible…[T]he parties may submit their disputes to be resolved in the manner they have agreed upon… The court will not lightly disregard the principle of party autonomy.”

An arbitration clause in a contract may be considered valid even if the rest of the contract in which it is contained is invalid. Section 22(1) the Act states that, for the purposes of the arbitral tribunal’s competence to rule on its own jurisdiction, “an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract”, and that “[a] decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause”. The High Court has held, consistently with Section 22(1), that “[a]n arbitration clause is a self-contained contract, collateral to the main contract. It can stand on its own notwithstanding an attack on the containing contract” (Housing Authority v Top Symphony Sdn. Bhd HBC No. 328 of 2018 at [49]).

The parties are “free to determine the number of arbitrators” (s 15(1) of the Act). Failing such a determination, the number of arbitrators shall be three (s 15(2) of the Act).

No person shall be precluded from acting as an arbitrator by reason of their nationality, unless the parties agree otherwise (s 16(1) of the Act). The parties are also “free to agree on a procedure of appointing the arbitrator or arbitrators” (s 16(2) of the Act).

If the parties’ chosen machinery for selecting arbitrators fails, then (unless the parties have agreed otherwise) at a party’s request the court shall take the necessary measures under that machinery (s 16(4) of the Act).

If the parties have not agreed any machinery, then the applicable default procedures are specified in the Act:

• If there are to be three arbitrators, then each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days, or if the two arbitrators fail to agree on a third arbitrator within 30 days, the appointment shall be made by the court upon request (s 16(3)(a)).
• If there is to be a sole arbitrator, if the parties are unable to agree on the arbitrator, a party may request the court to make the appointment (s 16(3)(b)).

There is no default procedure that applies under the Act in the case of multiparty arbitrations.

The courts may only intervene in the selection of arbitrators upon request of a party in the circumstances set out in 4.2 Default Procedures. The court’s decision on such matter is not subject to appeal (s 16(5) of the Act).

Sections 17 and 18 of the Act govern the challenge and removal of arbitrators. An arbitrator may be challenged “only if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess qualifications agreed to by the parties”.

The parties are free to agree the procedure for challenging an arbitrator. Under the default procedure, the challenging party must send a written statement of the reasons for challenge to the arbitral tribunal within 15 days of the constitution of the tribunal or after becoming aware of the circumstances giving rise to the challenge. The arbitral tribunal shall decide on the challenge.

If the challenge is unsuccessful, the challenging party may request the High Court to decide on the challenge.

The Act has adopted the Model Law requirement that a person who is approached in connection with appointment as an arbitrator must disclose any circumstances likely to give rise to justifiable doubts as to that person’s impartiality or independence. An arbitrator also has an ongoing duty to disclose any such circumstances (s 17(1) of the Act). As set out above, an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence (s 17(2) of the Act).

Section 1(5) of the Act provides, consistently with the Model Law, that it shall not affect any other law of Fiji “by virtue of which certain disputes shall not be submitted to arbitration”.

Pursuant to Section 22(1) of the Act, an arbitral tribunal has the power to rule on whether it has jurisdiction to determine the particular dispute.

The tribunal may rule on the point as a preliminary question, or in an award on the merits (s 22(3)).

There are three circumstances in which the High Court might address the question of jurisdiction and competence of an arbitral tribunal:

• When a question of jurisdiction is referred to it after a tribunal has already ruled on the point as a preliminary question. There is no appeal from such a decision of the High Court (s 22(4) of the Act).
• When a jurisdictional ruling is given in an award on the merits, the issue of jurisdiction may be considered by the Court in connection with setting-aside or enforcement proceedings (ss 52(2)(a)(i), (iii) and 54(1)(a)(i), (iii)).
• When deciding whether to stay court proceedings to allow an arbitration to proceed (s 12).

If the arbitral tribunal rules on jurisdiction in a preliminary ruling, the parties have 30 days from notice of that decision to apply to the High Court to decide the question.

While we are not aware of any decisions of the Fijian courts on this issue, it is likely that court review of jurisdiction would be on a de novo basis.

If a party commences court proceedings in breach of an arbitration agreement, it is for the opposing party to apply to have the court proceeding stayed while arbitration is in train. Any application for stay must be made before the applicant submits its first statement on the substance of the dispute (s 12 of the Act).

Sections 12(1) and (4) of the Act provide that the High Court must stay the proceeding and refer the parties to arbitration unless it finds that the agreement is null and void or inoperative or incapable of being performed.

As set out in 3.3 National Courts’ Approach and 5.2 Challenges to Jurisdiction, the Fijian courts have confirmed that “courts give effect to arbitration agreements wherever possible” and that an arbitral tribunal “can rule upon its own jurisdiction” (Housing Authority v Top Symphony Sdn. Bhd HBC No. 328 of 2018 at [49]).

The Act does not allow an arbitral tribunal to assume jurisdiction over individuals or entities that are not party to the arbitration agreement. It would, however, be open to an arbitral tribunal to conclude that a non-signatory to the contract is nevertheless a party to the arbitration agreement (eg, on the basis of implied consent, or as a member of a group of companies or principal/agent).

The powers of an arbitral tribunal in Fiji to award preliminary or interim relief in an international arbitration are based on the Model Law, as amended in 2006, and set out in Sections 23-30 of the Act. Such relief is binding.

A court has “the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of Fiji, as it has in relation to proceedings in the court” (s 33 of the Act).

The Act includes emergency arbitrators within the definition of an arbitral tribunal. Awards by emergency arbitrators are therefore binding and can be recognised and enforced under the Act.

In relation to interim measures, the Act allows for the arbitral tribunal to require the requesting party “provide appropriate security in connection with the measure” (s 28(1)). In relation to preliminary orders, the arbitral tribunal must require security unless it would be inappropriate or unnecessary to do so (s 28(2)).

The Act governs the procedure of international arbitration in Fiji.

The Act expressly covers certain matters of procedure, including the following:

• the date of commencement of arbitral proceedings (s 38);
• the language to be used in the proceeding (s 39);
• the form and timing of statements of claim and defence and the circumstances in which they may be amended or supplemented (s 40);
• the receipt and consideration of evidence and argument by the tribunal (s 41);
• the power of the tribunal to make or authorise a request for court assistance in taking evidence (s 44);
• the powers of the tribunal in the event of default of a party (s 42); and
• the power of the tribunal to appoint an expert or experts (s 43).

The parties are generally free to agree on the procedure to be followed by the arbitral tribunal (s 36(1) of the Act). Failing agreement, the arbitral tribunal is authorised to conduct the arbitration in such manner as it considers appropriate, including “the power to determine the admissibility, relevance, materiality and weight of any evidence” (s 36(2)).

Any procedure adopted by the arbitral tribunal must not conflict with: (a) the requirements of equality of treatment and full opportunity to present each party’s case imposed by Section 35 of the Act; or (b) any other provision of the Act from which the parties may not derogate or the relevant public policy, which would have the effect of rendering an award susceptible to being set aside or being refused recognition or enforcement.

The Act contains the same powers and duties of arbitrators as those set out in the Model Law. However, the Act also provides that an arbitrator “is not liable for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as arbitrator” (s 21(1) of the Act).

There are no specific rules for legal practitioners acting in arbitration proceedings in Fiji.

As set out in 7.2 Procedural Steps, in the absence of an agreement between the parties to the contrary, the arbitral tribunal has the power to conduct the arbitration in the manner it considers appropriate, including “the power to determine the admissibility, relevance, materiality and weight of any evidence” (s 36(2) of the Act). The arbitral tribunal thus has the power under the Act to order discovery/disclosure, address claims to privilege, require the provision of witness statements and allow cross-examination.

As for the specific rules that apply to the collection and submission of evidence in international arbitrations, see 8.2 Rules of Evidence.

In the absence of an agreement between the parties to the contrary, the arbitral tribunal has the power to conduct the arbitration in the manner it considers appropriate, including to determine the admissibility, relevance, materiality and weight of any evidence (s 36 of the Act).

While the point does not appear to have been tested before the Fijian courts, it appears to be at least arguable that, in making such determinations, the arbitral tribunal is bound by Fiji’s Civil Evidence Act 2002, which among things contains rules regarding hearsay evidence, documentary evidence, expert and opinion evidence, and privilege. That is because the Civil Evidence Act applies to “civil proceedings”, which are defined to include “an arbitration or reference, whether or not under an enactment” (s 2(1)). Consistent with this, “court” is defined “in relation to an arbitration or reference” to mean “the arbitrator or umpire”.

On the other hand, it could be argued that international arbitrations under the Act are not “civil proceedings” because such proceedings do not include “civil proceedings in relation to which the strict rules of evidence do not apply” (s 2(1) of the Civil Evidence Act). The power conferred on the arbitral tribunal in Section 36(2) of the Act to “conduct the arbitration in such manner as it considers appropriate” is arguably an indication that “the strict rules of evidence do not apply”.

In our view, the better interpretation is that Section 36(2) does not displace the strict rules of evidence. That would require clearer words, such as those in Section 31 of the Trade Disputes Act (“A Tribunal or a Board, for the purpose of dealing with any matter referred to it under the provisions of this Act, shall be entitled to elicit all such information as in the circumstances may be considered necessary, without being bound by the rules of evidence in civil or criminal proceedings”). On the basis of Section 31, an arbitral tribunal constituted under the Trade Disputes Act held that the Civil Evidence Act “has no application to the Tribunal’s proceedings for the very reason that the strict rules of evidence do not apply” (PAFCO Employees Union v Pacific Fishing Company Ltd [2007] FJAT 76; Award 78 of 2007). Not only does the Act not contain a similar form of words, but the Civil Evidence Act expressly refers to “an arbitration”.

Arbitral tribunals do not have powers of compulsion to order the production of documents or require the attendance of witnesses. However, pursuant to Section 44 of the Act: “The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the court assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.”

Section 45 of the Act provides for the confidentiality of arbitral proceedings and their constituent parts, unless the parties agree otherwise. In particular:

• All documents and materials relating to the arbitration are confidential.
• No party may disclose information relating to the arbitral proceedings or any awards in the arbitration.
• There are, however, limits on that prohibition. Disclosure may be made to protect or pursue a legal right or interest, to enforce or challenge the award, to comply with a legal obligation to disclose information to a government or regulatory body or court or tribunal, or to a professional or other adviser.
• Disclosure may also be made pursuant to an order made by the arbitral tribunal, but such an order may only be made upon request, and after giving the parties an opportunity to be heard.

The formal requirements for a valid arbitral award are contained in Section 49 of the Act, which follows the Model Law. The award must be in writing, signed by (a majority of) the tribunal, state reasons and include the date and place of the arbitration. The signed award must be delivered to each party after it has been made. There is no requirement that the arbitrators sign each page of the award.

Such formal requirements apply to substantive awards as well as corrections/interpretations of an award, and to any additional award made by the tribunal.

Subject to the application of the provisions of the Act on arbitrability, and the rules of setting aside or refusing recognition or enforcement of awards in conflict with public policy, the Act does not contain any limits on the types of remedies that an arbitral tribunal may award.

The Act does not specifically address interest and legal costs, but these are generally recoverable under Fijian law.

In relation to interest, the Law Reform (Miscellaneous Provisions) (Death and Interest) Act 1935 does not apply directly to arbitral tribunals, but parties could refer to this statute – which provides that judgment debts carry interest at the rate of 4% per annum from the time of entering judgment until the date of payment – in assessing the appropriate interest rate.

The Act does not provide for the appeal of an arbitral award. The only recourse available to a party that is dissatisfied with an award is to apply to set aside the award (s 52 of the Act).

The parties cannot agree to exclude or expand the grounds on which an arbitral award may be set aside. This follows from the text of Section 52(1) of the Act, which does not provide that the parties may agree otherwise, and which specifies that recourse to a court against an arbitral award “may be made only by an application for setting aside in accordance with subsections (2) and (3)”.

As set out in 11.1 Grounds for Appeal, judicial review of the merits of an arbitral award by way of an appeal is not permitted under the Act.

Fiji signed and ratified the New York Convention on 27 September 2010. The long title of the Act confirms that it is intended to give effect to the Convention.

The recognition and enforcement of awards, whether made in Fiji or elsewhere, is governed by Sections 53 and 54 of the Act, which reflect the Model Law and New York Convention requirements.

If an award has been set aside by the courts at the seat of arbitration, the Fijian courts have discretion to refuse enforcement of that award (s 54(1)(a)(v)). While the point has not yet been tested in the Fijian courts, it seems likely that awards set aside by the courts of the seat will not be enforced in Fiji, unless the set-aside decision was procured by judicial corruption.

If an award is subject to ongoing set-aside proceedings, the Fijian courts have discretion to adjourn their decision on enforcement (and may require the payment of security) (s 54(2)).

The approach of the Fijian courts to the recognition or enforcement of arbitral awards appears to be generally consistent with the policy of supporting arbitration as a method of dispute resolution. As set out in 3.3 National Courts’ Approach, the Fijian courts have confirmed that “courts give effect to arbitration agreements wherever possible” (Housing Authority v Top Symphony Sdn. Bhd HBC No. 328 of 2018 at [49]).

Section 54(1)(b)(ii) of the Act provides that recognition and enforcement of an award may be refused if it would be in conflict with the public policy of Fiji. Section 55 clarifies that an award is contrary to the public policy of Fiji if it was induced or affected by fraud or corruption, or if a breach of natural justice occurred in connection with the making of the award. While there appear to be no decisions of the Fijian courts that interpret the public policy ground for refusal of recognition and enforcement, the Report on the Fiji International Arbitration Act 2017 cited a submission of the Fiji Chamber of Commerce and Industry, which stated that “public policy” should extend to the public interest in honesty and fair dealing, but not to violating a basic notion of Fijian law.

The Act does not provide for class action or group arbitration.

There are no specific ethical rules that apply to counsel and arbitrators conducting arbitration proceedings in Fiji.

For admission to practise law in Fiji, foreign lawyers must be admitted to practice in an overseas jurisdiction which has reciprocal recognition of qualifications with Fiji. Lawyers who are admitted as a barrister or a solicitor in a Commonwealth country may be admitted to practise law in Fiji if they reside in Fiji for at least three months and have legal experience considered appropriate by the Chief Justice of Fiji.

Third-party funding in Fiji may be restricted by the doctrines of champerty and maintenance, which were part of the English common law that applied at the time of Fijian independence in 1970. The Fijian courts do not appear to have addressed these doctrines and their continued application in Fiji.

There are no rules dealing with consolidation in the Act, which reflects the Model Law in this regard. The ability to consolidate proceedings would therefore likely depend on the applicable rules of arbitration.

As set out in 5.7 Jurisdiction Over Third Parties, non-signatories may sometimes be regarded as parties to an arbitration agreement and therefore bound by any corresponding award. Third parties cannot otherwise be bound by an arbitration agreement or award.

The Fijian courts do have the ability to bind third parties in circumstances in which an arbitral tribunal cannot, eg, in making interim orders (s 33), or in making orders to assist in taking evidence (s 44).