Florida Senate - 2010 CS for SB 1114
By the Committee on Judiciary; and Senators Gelber, Lynn,
Bullard, and Wilson
590-03222-10 20101114c1
1 A bill to be entitled
2 An act relating to international commercial
3 arbitration; creating s. 684.0001, F.S.; providing a
4 short title; creating s. 684.0002, F.S.; defining the
5 scope of application of the Florida International
6 Commercial Arbitration Act; creating s. 684.0003,
7 F.S.; defining terms; providing rules of
8 interpretation for the act; creating s. 684.0004,
9 F.S.; providing intent that the act be applied and
10 interpreted with respect to its purpose; creating s.
11 684.0005, F.S.; specifying when a written
12 communication is received; creating s. 684.0006, F.S.;
13 specifying circumstances that constitute a waiver of
14 the right to object; creating s. 684.0007, F.S.;
15 limiting the ability of a court to intervene in an
16 arbitral proceeding; creating s. 684.0008, F.S.;
17 designating the circuit court in which an arbitration
18 is or will be held as the court that may take certain
19 actions authorized by the act; creating s. 684.0009,
20 F.S.; requiring a court to refer matters governed by
21 an arbitration agreement to arbitration; creating s.
22 684.001, F.S.; authorizing a court to grant an interim
23 measure of protection before or during an arbitral
24 proceeding; creating s. 684.0011, F.S.; authorizing
25 the parties to an arbitration to determine the number
26 of arbitrators; specifying the number of arbitrators
27 for a proceeding if the number of arbitrators is not
28 determined by the parties; creating s. 684.0012, F.S.;
29 specifying procedures for the appointment of an
30 arbitrator; creating s. 684.0013, F.S.; requiring a
31 person who is approached to be an arbitrator to make
32 disclosures relating to conflicts of interest;
33 authorizing the appointment of an arbitrator to be
34 challenged based on a perceived conflict of interest
35 or qualifications; creating s. 684.0014, F.S.;
36 providing procedures to challenge the appointment of
37 an arbitrator; creating s. 684.0015, F.S.; providing
38 for the termination of the mandate of an arbitrator
39 due to failure or impossibility to act; creating s.
40 684.0016, F.S.; providing a procedure for the
41 appointment of a substitute arbitrator; creating s.
42 684.0017, F.S.; authorizing an arbitral tribunal to
43 determine its jurisdiction; authorizing a court to
44 determine the jurisdiction of an arbitral tribunal;
45 creating s. 684.0018, F.S.; authorizing an arbitral
46 tribunal to grant an interim measure; creating s.
47 684.0019, F.S.; specifying conditions under which an
48 interim measure may be granted; creating s. 684.002,
49 F.S.; specifying conditions under which an interim
50 order may be granted to prevent a party from
51 frustrating the purpose of an interim measure;
52 creating s. 684.0021, F.S.; requiring a party to be
53 notified of information relating to an interim measure
54 or preliminary order; requiring that a party be given
55 an opportunity to object to a preliminary order;
56 creating s. 684.0022, F.S.; authorizing an arbitral
57 tribunal to modify, suspend, or terminate an interim
58 measure or preliminary order under certain
59 circumstances; creating s. 684.0023, F.S.; authorizing
60 an arbitral tribunal to require security as a
61 condition of granting an interim measure; requiring
62 security as a condition of granting a preliminary
63 order; creating s. 684.0024, F.S.; requiring certain
64 disclosures as a condition of granting or maintaining
65 an interim measure or preliminary order; creating s.
66 684.0025, F.S.; providing for liability and an award
67 of costs and damages; creating s. 684.0026, F.S.;
68 providing for the recognition and enforcement of an
69 interim measure by a court; authorizing the court to
70 require security under certain circumstances; creating
71 s. 684.0027, F.S.; specifying grounds under which a
72 court may refuse to enforce an interim measure;
73 creating s. 684.0028, F.S.; authorizing a court to
74 grant an interim measure; creating s. 684.0029, F.S.;
75 requiring parties to an arbitral proceeding to be
76 treated with equality and given an opportunity to
77 present their cases; creating s. 684.003, F.S.;
78 authorizing parties to an arbitration to agree to
79 arbitration procedures; providing default procedures;
80 creating s. 684.0031, F.S.; authorizing parties to an
81 arbitration to agree on the place of arbitration;
82 providing criteria to determine a default location for
83 the arbitration; creating s. 684.0032, F.S.;
84 specifying the date of commencement of an arbitral
85 proceeding; creating s. 684.0033, F.S.; authorizing
86 parties to an arbitration to agree on the language to
87 be used in the proceeding; authorizing the arbitral
88 tribunal to determine the language in the absence of a
89 decision by the parties; creating s. 684.0034, F.S.;
90 providing for the submission of claims and defenses to
91 an arbitral tribunal; creating s. 684.0035, F.S.;
92 providing for the determination of the method by which
93 evidence will be presented before an arbitral
94 proceeding; creating s. 684.0036, F.S.; specifying
95 actions that constitute a default by a party to an
96 arbitral proceeding; creating s. 684.0037, F.S.;
97 authorizing an arbitral tribunal to appoint an expert
98 and for the parties to question and present other
99 experts to the tribunal’s expert, unless otherwise
100 agreed by the parties; creating s. 684.0038, F.S.;
101 authorizing a party or an arbitral tribunal to request
102 the assistance of a court in taking evidence; creating
103 s. 684.0039, F.S.; providing for the choice of law
104 applicable in an arbitral proceeding; creating s.
105 684.004, F.S.; specifying the number of arbitrators
106 who must make a decision, unless specified otherwise
107 by the parties; creating s. 684.0041, F.S.;
108 authorizing the parties to an arbitral proceeding to
109 enter into a settlement that is recorded as an award
110 by the arbitral tribunal; creating s. 684.0042, F.S.;
111 specifying the form and content of an arbitral award;
112 creating s. 684.0043, F.S.; specifying events that
113 terminate or require an arbitral tribunal to terminate
114 an arbitral proceeding; creating s. 684.0044, F.S.;
115 authorizing an arbitral tribunal to correct and
116 interpret an arbitral award or make an additional
117 award under certain conditions; creating s. 684.0045,
118 F.S.; providing judicial immunity to arbitrators
119 acting under ch. 684, F.S.; creating s. 684.0046,
120 F.S.; specifying conditions under which a court may
121 set aside an arbitral award; creating s. 684.0047,
122 F.S.; providing for the recognition and enforcement of
123 arbitral awards by a court; creating s. 684.0048,
124 F.S.; specifying grounds under which a court may
125 refuse to recognize or enforce an arbitral award;
126 repealing parts I, II, and III of ch. 684, F.S., which
127 create the Florida International Arbitration Act and
128 provide procedures for the conduct of international
129 arbitrations and authorize court proceedings in
130 connection with such arbitrations; providing an
131 effective date.
132
133 Be It Enacted by the Legislature of the State of Florida:
134
135 Section 1. Section 684.0001, Florida Statutes, is created
136 to read:
137 684.0001 Short title.—This chapter may be cited as the
138 “Florida International Commercial Arbitration Act.”
139 Section 2. Section 684.0002, Florida Statutes, is created
140 to read:
141 684.0002 Scope of application.—
142 (1) This chapter applies to international commercial
143 arbitration, subject to any agreement in force between the
144 United States of America and any other country or countries.
145 (2) This chapter, except ss. 684.0009, 684.001, 684.0026,
146 684.0027, 684.0028, 684.0047, and 684.0048, applies only if the
147 place of arbitration is in this state.
148 (3) An arbitration is international if:
149 (a) The parties to an arbitration agreement have, at the
150 time of the conclusion of that agreement, their places of
151 business in different countries;
152 (b) One of the following places is situated outside the
153 country in which the parties have their places of business:
154 1. The place of arbitration if determined in, or pursuant
155 to, the arbitration agreement; or
156 2. Any place where a substantial part of the obligations of
157 the commercial relationship are to be performed or the place
158 with which the subject matter of the dispute is most closely
159 connected; or
160 (c) The parties have expressly agreed that the subject
161 matter of the arbitration agreement relates to more than one
162 country.
163 (4) For the purposes of subsection (3):
164 (a) If a party has more than one place of business, the
165 place of business is that which has the closest relationship to
166 the arbitration agreement.
167 (b) If a party does not have a place of business, reference
168 shall be made to his or her habitual residence.
169 (5) This chapter does not affect any law that may prohibit
170 a matter from being resolved by arbitration or that specifies
171 the manner in which a specific matter may be submitted or
172 resolved by arbitration.
173 Section 3. Section 684.0003, Florida Statutes, is created
174 to read:
175 684.0003 Definitions and rules of interpretation.—
176 (1) As used in this chapter, the term:
177 (a) “Arbitral tribunal” means a sole arbitrator or panel of
178 arbitrators.
179 (b) “Arbitration” means any arbitration whether or not
180 administered by a permanent arbitral institution.
181 (c) “Arbitration agreement” means an agreement by the
182 parties to submit to arbitration all or certain disputes that
183 have arisen or may arise between them in respect of a defined
184 legal relationship, whether contractual or not.
185 (d) “Court” means a circuit court of this state.
186 (2) A provision of this chapter, except s. 684.0038, which
187 leaves the parties free to determine a certain issue, includes
188 the right of the parties to authorize a third party, including
189 an institution, to make that determination.
190 (3) A provision of this chapter which refers to the fact
191 that the parties have agreed or that they may agree to a
192 procedure refers to an agreement of the parties. The agreement
193 includes any arbitration rules referenced in that agreement.
194 (4) A provision of this chapter, other than in s.
195 684.0036(1) or s. 684.0043(2)(a), which refers to a claim also
196 applies to a counter claim, and a provision that refers to a
197 defense also applies to a defense to such counter claim.
198 Section 4. Section 684.0004, Florida Statutes, is created
199 to read:
200 684.0004 International origin and general principles.—
201 (1) This chapter shall be interpreted with regard to its
202 international origin and to the need to promote uniformity in
203 its application and the observance of good faith.
204 (2) Questions concerning matters governed by this chapter
205 which are not expressly settled pursuant to it shall be settled
206 in conformity with the general principles on which this chapter
207 is based.
208 Section 5. Section 684.0005, Florida Statutes, is created
209 to read:
210 684.0005 Receipt of written communications.—
211 (1) Unless otherwise agreed by the parties, a written
212 communication is deemed to be received if it is delivered to the
213 addressee personally or if it is delivered to the addressee’s
214 place of business, habitual residence, or mailing address. If
215 one of these locations cannot be found after a reasonable
216 inquiry, the written communication is deemed to be received if
217 it is sent to the addressee’s last known place of business,
218 habitual residence, or mailing address by registered letter or
219 any other means that provides a record of the attempt to deliver
220 it. The communication is deemed to be received on the day it is
221 delivered.
222 (2) This section does not apply to communications in court
223 proceedings.
224 Section 6. Section 684.0006, Florida Statutes, is created
225 to read:
226 684.0006 Waiver of right to object.—A party waives its
227 right to object if it proceeds with the arbitration and fails to
228 object without undue delay or within a provided time limit to:
229 (1) Noncompliance of any provision of this chapter from
230 which the parties may derogate and have not derogated; or
231 (2) Noncompliance of any requirement under the arbitration
232 agreement.
233 Section 7. Section 684.0007, Florida Statutes, is created
234 to read:
235 684.0007 Extent of court intervention.—In matters governed
236 by this chapter, a court may not intervene except to the extent
237 authorized by this chapter.
238 Section 8. Section 684.0008, Florida Statutes, is created
239 to read:
240 684.0008 Court for certain functions of arbitration
241 assistance and supervision.—The functions referenced in ss.
242 684.0012(3) and (4), 684.0014(3), 684.0015, 684.0017(3), and
243 684.0046(2) shall be performed by the circuit court in the
244 county in which the seat of the arbitration is located.
245 Section 9. Section 684.0009, Florida Statutes, is created
246 to read:
247 684.0009 Arbitration agreement and substantive claim before
248 court.—
249 (1) A court before which an action is brought in a matter
250 that is the subject of an arbitration agreement shall, if a
251 party so requests not later than when submitting its first
252 statement on the substance of the dispute, refer the parties to
253 arbitration unless it finds that the agreement is null and void,
254 inoperative, or incapable of being performed.
255 (2) If an action described in subsection (1) has been
256 brought, arbitral proceedings may nevertheless be commenced or
257 continued, and an award may be made, while the issue is pending
258 before the court.
259 Section 10. Section 684.001, Florida Statues, is created to
260 read:
261 684.001 Arbitration agreement and interim measures by a
262 court.—It is not incompatible with an arbitration agreement for
263 a party to request from a court, before or during arbitral
264 proceedings, an interim measure of protection and for a court to
265 grant such a measure.
266 Section 11. Section 684.0011, Florida Statutes, is created
267 to read:
268 684.0011 Number of arbitrators.—
269 (1) The parties may determine the number of arbitrators.
270 (2) If the parties fail to determine the number of
271 arbitrators, the number of arbitrators shall be three.
272 Section 12. Section 684.0012, Florida Statutes, is created
273 to read:
274 684.0012 Appointment of arbitrators.—
275 (1) A person is not precluded by reason of his or her
276 nationality from acting as an arbitrator, unless otherwise
277 agreed by the parties.
278 (2) The parties may agree on a procedure of appointing the
279 arbitrator or arbitrators, subject to subsections (4) and (5).
280 (3) Failing such agreement:
281 (a) In an arbitration having three arbitrators, each party
282 shall appoint one arbitrator, and the two arbitrators thus
283 appointed shall appoint the third arbitrator. If a party fails
284 to appoint the arbitrator within 30 days after receipt of a
285 request to do so from the other party, or if the two arbitrators
286 fail to agree on the third arbitrator within 30 days after their
287 appointment, the appointment shall be made, upon request of a
288 party, by the court specified in s. 684.0008.
289 (b) In an arbitration having a single arbitrator, if the
290 parties are unable to agree on the arbitrator, the arbitrator
291 shall be appointed, upon request of a party, by the court
292 specified in s. 684.0008.
293 (4) If, under an appointment procedure agreed upon by the
294 parties:
295 (a) A party fails to act as required under such procedure;
296 (b) The parties, or two arbitrators, are unable to reach an
297 agreement under such procedure; or
298 (c) A third party, including an institution, fails to
299 perform any function entrusted to it under such procedure,
300
301 any party may request the court specified in s. 684.0008 to take
302 the necessary measure, unless the agreement on the appointment
303 procedure provides other means for securing the appointment.
304 (5) A decision on a matter entrusted by subsection (3) or
305 subsection (4) to the court specified in s. 684.0008 is not
306 appealable. The court, in appointing an arbitrator, shall have
307 due regard to any qualifications required by the arbitrator by
308 the agreement of the parties and to such considerations that are
309 likely to secure the appointment of an independent and impartial
310 arbitrator. In the case of the appointment of a sole or third
311 arbitrator, the court shall take into account the advisability
312 of appointing an arbitrator of a nationality other than those of
313 the parties.
314 Section 13. Section 684.0013, Florida Statutes, is created
315 to read:
316 684.0013 Grounds for challenge.—
317 (1) When a person is approached in connection with a
318 possible appointment as an arbitrator, the person must disclose
319 any circumstances likely to give rise to justifiable doubts as
320 to the person’s impartiality or independence. An arbitrator,
321 from the time of appointment and throughout the arbitral
322 proceedings, shall disclose any such circumstances to the
323 parties without delay, unless they have already been informed of
324 them by him or her.
325 (2) An arbitrator may be challenged only if circumstances
326 exist that give rise to justifiable doubts as to the
327 arbitrator’s impartiality or independence, or if the arbitrator
328 does not possess qualifications agreed to by the parties. A
329 party may challenge an arbitrator appointed by it, or in whose
330 appointment the party participated, only for reasons of which
331 the party became aware after the appointment was made.
332 Section 14. Section 684.0014, Florida Statutes, is created
333 to read:
334 684.0014 Challenge procedure.—
335 (1) The parties may agree on a procedure for challenging an
336 arbitrator, subject to subsection (3).
337 (2) Failing such agreement, a party who intends to
338 challenge an arbitrator shall, within 15 days after becoming
339 aware of the constitution of the arbitral tribunal or after
340 becoming aware of any circumstance described in s. 684.0013(2),
341 send a written statement of the reasons for the challenge to the
342 arbitral tribunal. Unless the challenged arbitrator withdraws
343 from his or her office or the other party agrees to the
344 challenge, the arbitral tribunal shall decide on the challenge.
345 (3) If a challenge under any procedure agreed upon by the
346 parties or pursuant to subsection (2) is not successful, the
347 challenging party may request, within 30 days after having
348 received notice of the decision rejecting the challenge, the
349 court specified in s. 684.0008 to decide on the challenge. The
350 decision of the court is not appealable. While such a request is
351 pending, the arbitral tribunal, including the challenged
352 arbitrator, may continue the arbitral proceedings and make an
353 award.
354 Section 15. Section 684.0015, Florida Statutes, is created
355 to read:
356 684.0015 Failure or impossibility to act.—
357 (1) If an arbitrator becomes de jure or de facto unable to
358 perform his or her functions or for other reasons fails to act
359 without undue delay, his or her mandate terminates if he or she
360 withdraws from office or if the parties agree on the
361 termination. Otherwise, if a controversy remains concerning any
362 of these grounds, any party may request the court specified in
363 s. 684.0008 to decide on the termination of the mandate. The
364 decision of the court is not appealable.
365 (2) If, under this section or s. 684.0014(2), an arbitrator
366 withdraws from his or her office or a party agrees to the
367 termination of the mandate of an arbitrator, such actions do not
368 imply the acceptance of the validity of any ground described in
369 this section or in s. 684.0013(2).
370 Section 16. Section 684.0016, Florida Statutes, is created
371 to read:
372 684.0016 Appointment of substitute arbitrator.—If the
373 mandate of an arbitrator terminates pursuant to s. 684.0014 or
374 s. 684.0015 or because of his or her withdrawal from office for
375 any other reason or because of the revocation of the mandate by
376 agreement of the parties or in any other case of termination of
377 the mandate, a substitute arbitrator shall be appointed pursuant
378 to the rules that applied to the appointment of the arbitrator
379 being replaced.
380 Section 17. Section 684.0017, Florida Statutes, is created
381 to read:
382 684.0017 Competence of arbitral tribunal to rule on its
383 jurisdiction.—
384 (1) The arbitral tribunal may rule on its own jurisdiction,
385 including any objections with respect to the existence or
386 validity of the arbitration agreement. For that purpose, an
387 arbitration clause that forms part of a contract shall be
388 treated as an agreement independent of the other terms of the
389 contract. A decision by the arbitral tribunal that the contract
390 is not valid does not entail ipso jure the invalidity of the
391 arbitration clause.
392 (2) A plea that the arbitral tribunal does not have
393 jurisdiction must be raised not later than the submission of the
394 statement of defense. A party is not precluded from raising such
395 a plea by the fact that the party appointed, or participated in
396 the appointment of, an arbitrator. A plea that the arbitral
397 tribunal is exceeding the scope of its authority must be raised
398 as soon as the matter alleged to be beyond the scope of its
399 authority is raised during the arbitral proceedings. The
400 arbitral tribunal may, in either case, admit a later plea it if
401 considers the delay justified.
402 (3) The arbitral tribunal may rule on a plea referenced in
403 subsection (2) as a preliminary question or in an award on the
404 merits. If the arbitral tribunal rules as a preliminary question
405 that it has jurisdiction, any party may request, within 30 days
406 after receiving notice of that ruling, that the court specified
407 in s. 684.0008 decide the matter. The decision of the court is
408 not appealable. While such a request is pending, the arbitral
409 tribunal may continue the arbitral proceedings and make an
410 award.
411 Section 18. Section 684.0018, Florida Statutes, is created
412 to read:
413 684.0018 Power of arbitral tribunal to order interim
414 measures.—Unless otherwise agreed by the parties, the arbitral
415 tribunal may, at the request of a party, grant interim measures.
416 An interim measure is any temporary measure, whether in the form
417 of an award or in another form, by which, at any time before the
418 issuance of the award by which the dispute is finally decided,
419 the arbitral tribunal orders a party to:
420 (1) Maintain or restore the status quo pending
421 determination of the dispute;
422 (2) Take action to prevent, or refrain from taking action
423 that is likely to cause, current or imminent harm or prejudice
424 to the arbitral process;
425 (3) Provide a means of preserving assets out of which a
426 subsequent award may be satisfied; or
427 (4) Preserve evidence that may be relevant and material to
428 the resolution of the dispute.
429 Section 19. Section 684.0019, Florida Statutes, is created
430 to read:
431 684.0019 Conditions for granting interim measures.—
432 (1) The party requesting an interim measure under s.
433 684.0018 must satisfy the arbitral tribunal that:
434 (a) Harm not adequately reparable by an award of damages is
435 likely to result if the measure is not ordered, and such harm
436 substantially outweighs the harm that is likely to result to the
437 party against whom the measure is directed if the measure is
438 granted; and
439 (b) A reasonable possibility exists that the requesting
440 party will succeed on the merits of the claim. The determination
441 on this possibility does not affect the discretion of the
442 arbitral tribunal in making any subsequent determination.
443 (2) With regard to a request for an interim measure under
444 s. 684.0018, the requirements in subsection (1) apply only to
445 the extent the arbitral tribunal considers appropriate.
446 Section 20. Section 684.002, Florida Statutes, is created
447 to read:
448 684.002 Applications for preliminary orders and conditions
449 for granting preliminary orders.—
450 (1) Unless otherwise agreed by the parties, a party may,
451 without notice to any other party, make a request for an interim
452 measure together with an application for a preliminary order
453 prohibiting a party from frustrating the purpose of the interim
454 measure requested.
455 (2) The arbitral tribunal may grant a preliminary order if
456 it considers that prior disclosure of the request for the
457 interim measure to the party against whom it is directed risks
458 frustrating the purpose of the measure.
459 (3) The conditions described in s. 684.0019 apply to any
460 preliminary order if the harm assessed under s. 684.0019(1)(a)
461 is the harm likely to result from the order being granted or not
462 granted.
463 Section 21. Section 684.0021, Florida Statutes, is created
464 to read:
465 684.0021 Specific regime for preliminary orders.—
466 (1) Immediately after the arbitral tribunal makes a
467 determination in respect of an application for a preliminary
468 order, the arbitral tribunal shall give notice to all parties of
469 the request for the interim measure, the application for the
470 preliminary order, the preliminary order, if any, and all other
471 communications. The notice shall include a description of the
472 content of any oral communication between any party and the
473 arbitral tribunal in relation to any such request or
474 application.
475 (2) At the same time, the arbitral tribunal shall give an
476 opportunity to any party against whom a preliminary order is
477 directed to present its case at the earliest practicable time.
478 (3) The arbitral tribunal must decide promptly on any
479 objection to the preliminary order.
480 (4) A preliminary order expires 20 days after the date on
481 which it was issued by the arbitral tribunal. However, the
482 arbitral tribunal may issue an interim measure adopting or
483 modifying the preliminary order after the party against whom the
484 preliminary order is directed is given notice and an opportunity
485 to present its case.
486 (5) A preliminary order is binding on the parties but is
487 not enforceable by a court. Such a preliminary order does not
488 constitute an award.
489 Section 22. Section 684.0022, Florida Statutes, is created
490 to read:
491 684.0022 Modification, suspension, or termination; interim
492 measure or preliminary order.—The arbitral tribunal may modify,
493 suspend, or terminate an interim measure or a preliminary order
494 it has granted upon application of any party or, in exceptional
495 circumstances and upon prior notice to the parties, on the
496 arbitral tribunal’s own initiative.
497 Section 23. Section 684.0023, Florida Statutes, is created
498 to read:
499 684.0023 Provision of security.—
500 (1) The arbitral tribunal may require the party requesting
501 an interim measure to provide appropriate security in connection
502 with the measure.
503 (2) The arbitral tribunal shall require the party applying
504 for a preliminary order to provide security in connection with
505 the order unless the arbitral tribunal considers it
506 inappropriate or unnecessary to do so.
507 Section 24. Section 684.0024, Florida Statutes, is created
508 to read:
509 684.0024 Disclosure.—
510 (1) The arbitral tribunal may require any party promptly to
511 disclose any material change in the circumstances on the basis
512 of which the interim measure was requested or granted.
513 (2) The party applying for a preliminary order shall
514 disclose to the arbitral tribunal all circumstances that are
515 likely to be relevant to the arbitral tribunal’s determination
516 whether to grant or maintain the order, and such obligation
517 continues until the party against whom the order has been
518 requested has had an opportunity to present its case.
519 Thereafter, subsection (1) applies.
520 Section 25. Section 684.0025, Florida Statutes, is created
521 to read:
522 684.0025 Costs and damages.—The party requesting an interim
523 measure or applying for a preliminary order is liable for any
524 costs and damages caused by the measure or the order to any
525 party if the arbitral tribunal later determines that the measure
526 or the order should not have been granted. The arbitral tribunal
527 may award such costs and damages at any point during the
528 proceedings.
529 Section 26. Section 684.0026, Florida Statutes, is created
530 to read:
531 684.0026 Recognition and enforcement.—
532 (1) An interim measure issued by an arbitral tribunal shall
533 be recognized as binding and, unless otherwise provided by the
534 arbitral tribunal, enforced upon application to the competent
535 court, irrespective of the country in which it was issued,
536 subject to s. 684.0019(1).
537 (2) The party who is seeking or has obtained recognition or
538 enforcement of an interim measure shall promptly inform the
539 court of the termination, suspension, or modification of the
540 interim measure.
541 (3) The court where recognition or enforcement is sought
542 may, if it considers it proper, order the requesting party to
543 provide appropriate security if the arbitral tribunal has not
544 already made a determination with respect to security or if such
545 a decision is necessary to protect the rights of third parties.
546 Section 27. Section 684.0027, Florida Statutes, is created
547 to read:
548 684.0027 Grounds for refusing recognition or enforcement.—
549 (1) Recognition or enforcement of an interim measure may be
550 refused only:
551 (a) At the request of the party against whom it is invoked
552 if the court is satisfied that:
553 1. Such refusal is warranted on the grounds set forth in s.
554 684.0048(1)(a)1., 2., 3., or 4.;
555 2. The arbitral tribunal’s decision with respect to the
556 provision of security in connection with the interim measure
557 issued by the arbitral tribunal has not been complied with; or
558 3. The interim measure was terminated or suspended by the
559 arbitral tribunal or, if so empowered, by the court of the state
560 or country in which the arbitration takes place or under the law
561 of which that interim measure was granted; or
562 (b) If the court finds that:
563 1. The interim measure is incompatible with the powers
564 conferred upon the court, unless the court decides to
565 reformulate the interim measure to the extent necessary to adapt
566 it to its own powers and procedures for the purpose of enforcing
567 that interim measure and without modifying its substance; or
568 2. Any of the grounds set forth in s. 684.0048(1)(b)1. or
569 2. apply to the recognition and enforcement of the interim
570 measure.
571 (2) A determination made by the court on any ground in
572 subsection (1) is effective only for the purposes of the
573 application to recognize and enforce the interim measure. The
574 court may not in making that determination undertake a review of
575 the substance of the interim measure.
576 Section 28. Section 684.0028, Florida Statutes, is created
577 to read:
578 684.0028 Court-ordered interim measures.—A court has the
579 same power of issuing an interim measure in relation to
580 arbitration proceedings, irrespective of whether the arbitration
581 proceedings are held in this state, as it has in relation to the
582 proceedings in courts. The court shall exercise such power in
583 accordance with its own procedures and in consideration of the
584 specific features of international arbitration.
585 Section 29. Section 684.0029, Florida Statutes, is created
586 to read:
587 684.0029 Equal treatment of parties.—The parties shall be
588 treated with equality and each party shall be given a full
589 opportunity of presenting its case.
590 Section 30. Section 684.003, Florida Statutes, is created
591 to read:
592 684.003 Determination of rules of procedure.—Subject to the
593 provisions of this chapter, the parties may agree on the
594 procedure to be followed by the arbitral tribunal in conducting
595 the proceedings. Failing such agreement, the arbitral tribunal
596 may, subject to the provisions of this chapter, conduct the
597 arbitration in such manner as it considers appropriate. The
598 power conferred upon the arbitral tribunal includes the power to
599 determine the admissibility, relevance, materiality, and weight
600 of evidence.
601 Section 31. Section 684.0031, Florida Statutes, is created
602 to read:
603 684.0031 Place of arbitration.—
604 (1) The parties may agree on the place of arbitration.
605 Failing such agreement, the place of arbitration shall be
606 determined by the arbitral tribunal having regard to the
607 circumstances of the case, including the convenience of the
608 parties.
609 (2) Notwithstanding subsection (1), the arbitral tribunal
610 may, unless otherwise agreed by the parties, meet at any place
611 it considers appropriate for consultation among its members, for
612 hearing witnesses, experts, or the parties, or for inspection of
613 goods, other property, or documents.
614 Section 32. Section 684.0032, Florida Statutes, is created
615 to read:
616 684.0032 Commencement of arbitral proceedings.—Unless
617 otherwise agreed by the parties, the arbitral proceedings in
618 respect of a particular dispute commence on the date on which a
619 request for that dispute to be referred to an arbitration is
620 received by the respondent.
621 Section 33. Section 684.0033, Florida Statutes, is created
622 to read:
623 684.0033 Language.—
624 (1) The parties may agree on the language or languages to
625 be used in the arbitral proceedings. Failing such agreement, the
626 arbitral tribunal shall specify the language or languages to be
627 used in the proceedings. This agreement or determination, unless
628 otherwise specified therein, applies to any written statement by
629 a party, any hearing, and any award, decision, or other
630 communication by the arbitral tribunal.
631 (2) The arbitral tribunal may order that any documentary
632 evidence be accompanied by a translation into the language or
633 languages agreed upon by the parties or specified by the
634 arbitral tribunal.
635 Section 34. Section 684.0034, Florida Statutes, is created
636 to read:
637 684.0034 Statements of claim and defense.—
638 (1) Within the period of time agreed by the parties or
639 specified by the arbitral tribunal, the claimant shall state the
640 facts supporting its claim, the points at issue, and the relief
641 or remedy sought, and the respondent shall state its defense to
642 the claim, unless the parties have otherwise agreed as to the
643 required elements of such statements. The parties may submit
644 with their statements all documents they consider to be relevant
645 or may add a reference to the documents or other evidence they
646 will submit.
647 (2) Unless otherwise agreed by the parties, either party
648 may amend or supplement its claim or defense during the course
649 of the arbitral proceedings, unless the arbitral tribunal
650 considers it inappropriate to allow such amendment having regard
651 to the delay in making it.
652 Section 35. Section 684.0035, Florida Statutes, is created
653 to read:
654 684.0035 Hearings and written proceedings.—
655 (1) Subject to any contrary agreement by the parties, the
656 arbitral tribunal shall decide whether to hold oral hearings for
657 the presentation of evidence or for oral argument, or whether
658 the proceedings shall be conducted on the basis of documents and
659 other materials. However, unless the parties have agreed that no
660 hearings will be held, the arbitral tribunal shall hold such
661 hearings at an appropriate stage of the proceedings, if so
662 requested by a party.
663 (2) The parties shall be given sufficient advance notice of
664 any hearing and of any meeting of the arbitral tribunal for the
665 purposes of inspection of goods, other property, or documents.
666 (3) All statements, documents, or other information
667 supplied to the arbitral tribunal by one party shall be provided
668 to the other party. Also, any expert report or evidentiary
669 document on which the arbitral tribunal may rely in making its
670 decision shall be provided to the parties.
671 Section 36. Section 684.0036, Florida Statutes, is created
672 to read:
673 684.0036 Default of a party.—Unless otherwise agreed by the
674 parties, if, without showing sufficient cause:
675 (1) The claimant fails to provide its statement of claim
676 pursuant to s. 684.0034(1), the arbitral tribunal shall
677 terminate the proceedings.
678 (2) The respondent fails to communicate its statement of
679 defense pursuant to s. 684.0034(1), the arbitral tribunal shall
680 continue the proceedings without treating such failure in itself
681 as an admission of the claimant’s allegations.
682 (3) A party fails to appear at a hearing or to produce
683 documentary evidence, the arbitral tribunal may continue the
684 proceedings and make the award on the evidence before it.
685 Section 37. Section 684.0037, Florida Statutes, is created
686 to read:
687 684.0037 Expert appointed by arbitral tribunal.—
688 (1) Unless otherwise agreed by the parties, the arbitral
689 tribunal may:
690 (a) Appoint one or more experts to report to it on specific
691 issues to be determined by the arbitral tribunal.
692 (b) Require a party to give the expert any relevant
693 information or produce or provide access to any relevant
694 documents, goods, or other property for inspection by the
695 expert.
696 (2) Unless otherwise agreed by the parties, if a party so
697 requests or if the arbitral tribunal considers it necessary, the
698 expert shall, after delivery of a written or oral report,
699 participate in a hearing in which the parties have the
700 opportunity to question the expert and to present expert
701 witnesses in order to testify on the points at issue.
702 Section 38. Section 684.0038, Florida Statutes, is created
703 to read:
704 684.0038 Court assistance in taking evidence.—The arbitral
705 tribunal, or a party upon the approval of the arbitral tribunal,
706 may request assistance in taking evidence from a competent court
707 of this state. The court may execute the request within its
708 competence and according to its rules on taking evidence.
709 Section 39. Section 684.0039, Florida Statutes, is created
710 to read:
711 684.0039 Rules applicable to substance of dispute.—
712 (1) The arbitral tribunal shall decide the dispute pursuant
713 to the rules of law chosen by the parties to apply to the
714 substance of the dispute. Any designation of the law or legal
715 system of a state or country shall be construed, unless
716 otherwise expressed, as directly referring to the substantive
717 law of that state or country and not to its conflict-of-laws
718 rule.
719 (2) Failing any designation by the parties, the arbitral
720 tribunal shall apply the law determined by the conflict-of-laws
721 rules that it considers applicable.
722 (3) The arbitral tribunal shall decide ex aequo et bono or
723 as amiable compositeur, only if the parties have expressly
724 authorized it to do so.
725 (4) In all cases, the arbitral tribunal shall decide in
726 accordance with the terms of the contract and shall take into
727 account the usages of the trade which apply to the transaction.
728 Section 40. Section 684.004, Florida Statutes, is created
729 to read:
730 684.004 Decisionmaking by panel of arbitrators.—In arbitral
731 proceedings having more than one arbitrator, any decision of the
732 arbitral tribunal shall be made, unless otherwise agreed by the
733 parties, by a majority of all its members. However, questions of
734 procedure may be decided by a presiding arbitrator, if so
735 authorized by the parties or all members of the arbitral
736 tribunal.
737 Section 41. Section 684.0041, Florida Statutes, is created
738 to read:
739 684.0041 Settlement.—
740 (1) If, during arbitral proceedings, the parties settle the
741 dispute, the arbitral tribunal shall terminate the proceedings
742 and, if requested by the parties and not objected to by the
743 arbitral tribunal, record the settlement in the form of an
744 arbitral award on agreed terms.
745 (2) An award on agreed terms shall be made pursuant to s.
746 684.0042 and shall state that it is an award. Such an award has
747 the same status and effect as any other award on the merits of
748 the case.
749 Section 42. Section 684.0042, Florida Statutes, is created
750 to read:
751 684.0042 Form and contents of award.—
752 (1) The award shall be made in writing and shall be signed
753 by the arbitrator or arbitrators. In arbitral proceedings having
754 more than one arbitrator, the signatures of the majority of all
755 members of the arbitral tribunal shall suffice, if the reason
756 for any omitted signature is stated.
757 (2) The award shall state the reasons upon which it is
758 based, unless the parties have agreed that no reasons are to be
759 given or the award is an award on agreed terms under s.
760 684.0041.
761 (3) The award shall state its date and the place of
762 arbitration as determined pursuant to s. 684.0031(1). The award
763 shall be deemed to have been made at that place.
764 (4) After the award is made, a copy signed by the
765 arbitrators pursuant to subsection (1) shall be delivered to
766 each party.
767 Section 43. Section 684.0043, Florida Statutes, is created
768 to read:
769 684.0043 Termination of proceedings.—
770 (1) Arbitral proceedings are terminated by the final award
771 or by an order of the arbitral tribunal pursuant to subsection
772 (2).
773 (2) The arbitral tribunal shall issue an order for the
774 termination of the arbitral proceedings when:
775 (a) The claimant withdraws its claim, unless the respondent
776 objects to the withdrawal of the claim and the arbitral tribunal
777 recognizes that the respondent has a legitimate interest in
778 obtaining a final settlement of the dispute;
779 (b) The parties agree on the termination of the
780 proceedings; or
781 (c) The arbitral tribunal finds that the continuation of
782 the proceedings has for any other reason become unnecessary or
783 impossible.
784 (3) The mandate of the arbitral tribunal terminates with
785 the termination of the arbitral proceedings, subject to ss.
786 684.0044 and 684.0046(4).
787 Section 44. Section 684.0044, Florida Statutes, is created
788 to read:
789 684.0044 Correction and interpretation of award; additional
790 award.—
791 (1) Within 30 days after receipt of the award, unless
792 another period of time has been agreed upon by the parties:
793 (a) A party, with notice to the other party, may request
794 the arbitral tribunal to correct in the award any errors in
795 computation, any clerical or typographical errors, or any errors
796 of similar nature.
797 (b) If so agreed by the parties, a party, with notice to
798 the other party, may request the arbitral tribunal to give an
799 interpretation of a specific point or part of the award.
800
801 If the arbitral tribunal considers the request to be justified,
802 it shall make the correction or give the interpretation within
803 30 days after the request. The interpretation becomes part of
804 the award.
805 (2) The arbitral tribunal may correct any error described
806 in paragraph (1)(a) on its own initiative within 30 days after
807 the date of the award.
808 (3) Unless otherwise agreed by the parties, a party, with
809 notice to the other party, may request, within 30 days after the
810 receipt of the award, the arbitral tribunal to make an
811 additional award as to claims presented in the arbitral
812 proceedings but omitted from the award. If the arbitral tribunal
813 considers the request to be justified, it shall make the
814 additional award within 60 days after the request.
815 (4) The arbitral tribunal may extend, if necessary, the
816 period of time within which it shall make a correction,
817 interpretation, or additional award pursuant to subsection (1)
818 or subsection (3).
819 (5) Section 684.0042, specifying the form and contents of
820 an award, applies to a correction or interpretation of the award
821 or to an additional award.
822 Section 45. Section 684.0045, Florida Statutes, is created
823 to read:
824 684.0045 Immunity for arbitrators.—An arbitrator serving
825 under this chapter shall have judicial immunity in the same
826 manner and to the same extent as a judge.
827 Section 46. Section 684.0046, Florida Statutes, is created
828 to read:
829 684.0046 Application to set aside as exclusive recourse
830 against arbitral award.—
831 (1) Recourse to a court against an arbitral award may be
832 made only by an application to set aside an arbitral award
833 pursuant to subsections (2) and (3).
834 (2) An arbitral award may be set aside by the court
835 specified in s. 684.0008 only if:
836 (a) The party making the application furnishes proof that:
837 1. A party to the arbitration agreement defined in s.
838 684.0003(1)(c) was under some incapacity; the arbitration
839 agreement is not valid under the law to which the parties have
840 subjected it; or failing any indication thereon, under the law
841 of this state;
842 2. The party making the application was not given proper
843 notice of the appointment of an arbitrator or of the arbitral
844 proceedings or was otherwise unable to present its case;
845 3. The award deals with a dispute not contemplated by or
846 not falling within the terms of the submissions to arbitration,
847 or contains decisions on matters beyond the scope of the
848 submission to arbitration. However, if the decisions on matters
849 submitted to arbitration can be separated from those not so
850 submitted, only that part of the award which contains decisions
851 on matters not submitted to arbitration may be set aside; or
852 4. The composition of the arbitral tribunal or the arbitral
853 procedure was not in accordance with the agreement of the
854 parties, unless such agreement was in conflict with a provision
855 of this chapter from which the parties may not derogate, or,
856 failing such agreement, was not in accordance with this chapter;
857 or
858 (b) The court finds that:
859 1. The subject matter of the dispute is not capable of
860 settlement by arbitration under the law of this state; or
861 2. The award is in conflict with the public policy of this
862 state.
863 (3) An application to set aside an arbitral award may not
864 be made after 3 months have elapsed after the date on which the
865 party making that application receives the award or, if a
866 request had been made under s. 684.0044, after 3 months have
867 elapsed after the date on which that request had been disposed
868 of by the arbitral tribunal.
869 (4) The court, when asked to set aside an award, may, if
870 appropriate and so requested by a party, suspend the proceedings
871 to set aside the award for a period of time determined by it in
872 order to give the arbitral tribunal an opportunity to resume the
873 arbitral proceedings or to take such other action as in the
874 arbitral tribunal’s opinion will eliminate the grounds to set
875 aside the award.
876 Section 47. Section 684.0047, Florida Statutes, is created
877 to read:
878 684.0047 Recognition and enforcement.—
879 (1) An arbitral award, irrespective of the country in which
880 it was made, shall be recognized as binding and, upon
881 application in writing to the competent court, shall be enforced
882 subject to this section and s. 684.0048.
883 (2) The party relying on an award or applying for its
884 enforcement shall supply the original or copy of the award. If
885 the award is not made in the English language, the court may
886 request the party to supply a translation of the award.
887 Section 48. Section 684.0048, Florida Statutes, is created
888 to read:
889 684.0048 Grounds for refusing recognition or enforcement.—
890 (1) Recognition or enforcement of an arbitral award,
891 irrespective of the country in which it was made, may be refused
892 only:
893 (a) At the request of the party against whom it is invoked,
894 if that party furnishes to the competent court where recognition
895 or enforcement is sought proof that:
896 1. A party to the arbitration agreement defined in s.
897 684.0003(1)(c) was under some incapacity; the arbitration
898 agreement is not valid under the law to which the parties have
899 subjected it; or failing any indication thereon, under the law
900 of the country where the award was made;
901 2. The party against whom the award is invoked was not
902 given proper notice of the appointment of an arbitrator or of
903 the arbitral proceedings or was otherwise unable to present its
904 case;
905 3. The award deals with a dispute not contemplated by or
906 not falling within the terms of the submission to arbitration,
907 or it contains decisions on matters beyond the scope of the
908 submission to arbitration. However, if the decisions on matters
909 submitted to arbitration can be separated from those not so
910 submitted, that part of the award which contains decisions on
911 matters submitted to arbitration may be recognized and enforced;
912 4. The composition of the arbitral tribunal or the arbitral
913 procedure was not in accordance with the agreement of the
914 parties or, failing such agreement, was not in accordance with
915 the law of the country where the arbitration took place; or
916 5. The award has not yet become binding on the parties or
917 has been set aside or suspended by a court of the country in
918 which, or under the law of which, that award was made; or
919 (b) If the court finds that:
920 1. The subject matter of the dispute is not capable of
921 settlement by arbitration under the laws of this state; or
922 2. The recognition or enforcement of the award would be
923 contrary to the public policy of this state.
924 (2) If an application for setting aside or suspension of an
925 award has been made to a court referenced in subparagraph
926 (1)(a)5., the court where recognition or enforcement is sought
927 may, if it considers it proper, adjourn its decision and may
928 also, on the application of the party claiming recognition or
929 enforcement of the award, order the other party to provide
930 appropriate security.
931 Section 49. Parts I, II, and III of chapter 684, Florida
932 Statutes, consisting of sections 684.01, 684.02, 684.03, 684.04,
933 684.05, 684.06, 684.07, 684.08, 684.09, 684.10, 684.11, 684.12,
934 684.13, 684.14, 684.15, 684.16, 684.17, 684.18, 684.19, 684.20,
935 684.21, 684.22, 684.23, 684.24, 684.25, 684.26, 684.27, 684.28,
936 684.29, 684.30, 684.31, 684.32, 684.33, 684.34, and 684.35, are
937 repealed.
938 Section 50. This act shall take effect July 1, 2010.