Remarks of Michael Whitten QC

Lord Chief Justice Michael Whitten QC of the Supreme Court of Tonga presented next on Tonga’s arbitration law regime. Tonga’s International Arbitration Act entered into force on 3 March 2021—only two weeks before the conference was held. Prior to the enactment of this law, Tonga did not have a law governing domestic or international commercial arbitration. The only legislation that partially dealt with arbitration was the Reciprocal Enforcement of Judgments Act, which defined “judgment” as including arbitral awards that had become enforceable in the same manner as a judgment rendered by a court in the place where the award was made.

Lord Chief Justice Whitten talked about Fletcher Construction Co Ltd & Ors. v Montfort Bros [1995] TLR 142, which he found to be the only arbitration related case decided by the Supreme Court. Then Chief Justice Robin Maclean Webster applied the English Arbitration Act, 1950 and the applicable English rules of procedure and held that the subject arbitral award was final and binding, and thus enforceable as a judgment by the court. In 2003, Tonga abandoned its adherence to English statutes, where they had been required, but continued to rely on English common law and rules of equity to fill any gap in national legislation.

Tonga receives foreign aid, as well as bilateral and multilateral development support, from more developed donor partners in the Pacific. But, as a developing country, Tonga’s future sovereignty, economic prosperity and ability to cope with changes and challenges depend largely on two things: (i) its level of commercial and other engagement with the proximate international community; and (ii) its ability to promote trade and investment relationships built on trust and, a certain, stable and secure legal and regulatory environment. Thus, Tonga acceded to the New York Convention and enacted the International Arbitration Act to establish a more reliable and supported legal environment for the conduct of international arbitration and the enforcement of foreign arbitral awards in Tonga.

Lord Chief Justice Whitten described the International Arbitration Act as a comprehensive and cutting-edge piece of legislation. The law exceeds the minimum requirements of the New York Convention and adopts the UNCITRAL Model Law on International Commercial Arbitration. Section 8 gives a very detailed definition of an arbitration agreement. Section 19 empowers the arbitral tribunal to rule on its own jurisdiction and recognizes the separability of an arbitration clause from the main agreement. Section 9 mandates the court, seized of a matter which is the subject of an arbitration agreement, to refer parties to arbitration, unless the arbitration agreement is null and void, inoperative, or incapable of being performed. Sections 21–31 provide for the granting and enforcement of interim measures.

Tonga’s International Arbitration Act also incorporates international best practices, trends, and developments in international arbitration. It likewise integrates the rules of leading arbitration seats, such as Australia, Hong Kong, and Singapore. First, the law defines an “arbitral tribunal” as including an “emergency arbitrator” and enables parties to obtain urgent interim relief before the constitution of the tribunal. Second, it allows for representation by recognizing the parties’ freedom to choose their representatives in international arbitration proceedings and assures parties that local restrictions on representation will not be applied in such proceedings. Third, it expressly guarantees the confidentiality of arbitration proceedings, subject to defined exceptions. Lastly, it deals with the liability and immunity of arbitrators and their employees or agents, as well as of appointing authorities and arbitral institutions.

Finally, Lord Chief Justice Whitten said that the passage of the International Arbitration Act is only the first step towards implementing the New York Convention in Tonga. The Government of Tonga also needs to raise the awareness and capacity of the public and private sectors to achieve two things: (i) reap the economic benefits of commercial dealings based on the Convention, and (ii) establish the country’s reputation as having a predictable and effective arbitration legal regime.

Section 45(2) of the Tonga International Arbitration Act 2020 authorizes the publication, disclosure or communication of information relating to the arbitration proceedings or the arbitral award in five instances: (i) to protect or pursue a legal right or interest of the party; (ii) to enforce or challenge the arbitral award in legal proceedings before a court or other judicial authority in or outside Tonga; (iii) to comply with a legal obligation to make such publication, disclosure or information to a government body, regulatory body, court or tribunal; (iv) to comply with the arbitral tribunal’s order allowing a party to do so; and (v) to make such publication, disclosure or information to a professional or any other adviser of any of the parties.