Third South Pacific International Arbitration Conference - Presentation by Acting Chief Justice Kamal Kumar

Justice Kamal Kumar, acting chief justice of the Supreme Court of Fiji, discussed the arbitration regime in Fiji. Fiji’s International Arbitration Act 2017 took effect on 4 December 2018 and applies even to international arbitration proceedings that began prior to its effectivity. The law is a comprehensive state-of-the-art law based on the UNCITRAL Model Law on International Commercial Arbitration. It also incorporates provisions from Australia’s International Arbitration Act 1974, the Singapore International Arbitration Act, and the Hong Kong Arbitration Ordinance (Cap. 609).

Justice Kumar pointed out that under Fiji’s International Arbitration Act 2017, a court may refuse to recognize or enforce an arbitral award if doing so would be contrary to Fiji’s public policy. An interim measure or award conflicts with, or is contrary to, Fiji’s public policy if (i) the making of the interim measure or award was induced or affected by fraud or corruption, or (ii) a breach of the rules of natural justice occurred in connection with the making of the interim measure or award.[1] Justice Kumar explained that a breach of the rules of natural justice may happen if the conduct of the arbitration proceedings is considered unfair or against a Fijian law.

Since the law took effect in 2018, the Fijian judiciary has presided over two applications for a stay of court proceedings. The first—Stantec New Zealand Limited v Fiji Roads Authority [2018] FJHC 867 HBC324 of 2016 and Fiji Roads Authority v Stantec New Zealand Limited & Ors [2018] HBC227 of 2017—involves the same set of facts. The Fiji Roads Authority (“FRA”) contracted Stantec New Zealand (“Stantec”) to provide road management services in Fiji. FRA filed a case for specific performance without following the procedure laid down in their arbitration clause. Stantec filed an application for stay of court proceedings, which it then sought to amend based on the provisions of the International Arbitration Act 2017. The court ruled that the dispute relates to an agreement entered locally. So the Fiji Arbitration Act 1965, and not the International Arbitration Act, governs the dispute. The court also ruled that it has no power to compel the parties to refer their dispute to arbitration and dismissed the summons in both cases.

The second, South Pacific Fertilizer Limited (Fiji) v Allied Harvest International Pte Limited (Singapore) [2019] FJHC 400 HBC142 of 2017, involves a contract for Allied Harvest International Pte Limited (Singapore) (“Allied Harvest”) to supply South Pacific Fertilizer Limited (Fiji) (“SPFL”) with fertilizers. However, Allied Harvest did not release the fertilizers to SPFL. SPFL thus filed a case for interim mandatory injunction for the delivery of the fertilizers, despite ongoing arbitration proceedings in Singapore. Allied Harvest filed an application for stay of proceedings. The court referred the dispute to arbitration and stayed the proceedings.