Arbitration procedures and practice in Australia: overview

A Q&A guide to arbitration law and practice in Australia.

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim.

To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool.

This Q&A is part of the global guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-guide.

Contents

Use of arbitration and recent trends

1. How is commercial arbitration used and what are the recent trends?

Use of commercial arbitration

The use of international commercial arbitration in Australia to resolve disputes has significantly increased in recent years. Commercial arbitration is frequently used in a wide range of disputes including those in the energy, resources, construction and maritime industries. Recent legislative changes, the pro-arbitration approach of the Australian courts and increased trade between Australia and Asia have assisted in expanding the use of commercial arbitration as a means of cross-border dispute resolution in Australia across a range of sectors.

Recent trends

There have been a number of recent amendments to the International Arbitration Act 1974 (Cth) (IAA) that governs international arbitration in Australia, which implement the 2006 revisions to the UNCITRAL Model Law. These amendments have resulted in a more effective and efficient arbitral process consistent with international best practice and have been reflected in recent pro-arbitration Australian court decisions. Each state and territory of Australia has also enacted uniform legislation regulating domestic arbitration based on the UNCITRAL Model Law.

The Australian national courts have demonstrated a clear move to a more arbitration-friendly stance in recent years. In addition to an increase in pro-arbitration decisions,

the Federal Court of Australia and the Supreme Courts of New South Wales and Victoria have established panels of specialist judges to adjudicate cases concerning international arbitrations. In the Supreme Court of Western Australia, all international arbitration matters are managed in a dedicated Commercial Arbitration List and referred directly to a single judge of the Supreme Court (currently the Chief Justice of Western Australia). These specialist panels provide for a more consistent and high-quality application of Australia's international arbitration laws by specialist judges aware of the developments in the field of arbitration.

The benefits of specialist judges with international arbitration experience was recently demonstrated in the Victorian Supreme Court case Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80, where the applicant sought the urgent enforcement of a foreign arbitral award in time for the applicant to be reinstated in a Formula One race that was taking place eight business days later. Taking into account the urgency of the matter, the Supreme Court of Victoria heard the matter two business days after the matter was filed and delivered a judgment enforcing the award within a further two days. The hearing was expedited to protect the effectiveness of the award.

Australian courts have adopted a restrictive interpretation of the public policy ground for refusal of enforcement of a foreign award. The Full Court of the Federal Court of Australia has held that enforcement can only be refused where the party resisting enforcement can demonstrate real practical unfairness and the award is so fundamentally offensive to the jurisdiction's notions of justice that a court could not reasonably be expected to overlook the objection (TCL Air Conditioner (ZhongShan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387). In doing so, the court recognised the dangers that judicial review of factual findings of arbitral tribunals poses to the system of international arbitration.

Australia has also seen a significant increase in the awareness and use of investor-state dispute settlement (ISDS) in recent years. The Australian Government's approach to ISDS has undergone a number of changes following the first investment treaty arbitration that was commenced against Australia by Phillip Morris in 2011 under the Hong Kong Australia bilateral investment treaty. Australia has historically adopted ISDS provisions in five free trade agreements (Chile, Singapore, Thailand, Korea and NZ-ASEAN) and 21 bilateral investment treaties (including with Hong Kong, Argentina, India, Hungary and Vietnam). However, Australia has recently signalled that it will consider including ISDS provisions in agreements on a case-by-case basis. This has led to ISDS provisions being included in free trade agreements entered into with Korea in December 2014 and reportedly also with China in an agreement signed in November 2014, but not with a recently concluded free trade agreement between Australia and Japan that entered into force on 15 January 2015.

In November 2014, the Perth Centre for Energy and Resources Arbitration (PCERA) was formally launched. Located in Perth, Western Australia, PCERA offers a range of arbitration-related services, acting primarily as an appointing authority for domestic and international arbitrations located in Perth with a focus on disputes in the energy and resources industries in Western Australia. In addition to supporting arbitrations, PCERA offers expert determination services by way of a panel of retired judges and practising senior counsel who may be appointed as experts to determine commercial disputes.

In May 2015, Australia's peak arbitration body, the Australian Centre for International Commercial Arbitration (ACICA) celebrated its 30th anniversary in Sydney. The most recent version of the ACICA Rules was updated in 2011. An exposure draft for ACICA Rules 2015 was released in 2014, which includes revised provisions on consolidation and joinder as well as expedited rules for disputes less than A$5 million. Other arbitration institutions in Australia include LEADR & the Institute of Arbitrators and Mediators Australia (LEADR & IAMA). The IAMA Arbitration Rules were amended in 2014 and also include Fast Track Arbitration Rules. The Australian International Disputes Centre and Australian Commercial Disputes Centre have also recently amalgamated as the Australian Disputes Centre (ADC) to more efficiently deliver their disputes resolution services both nationally and internationally.

Advantages/disadvantages

There are significant advantages in opting to resolve disputes through commercial arbitration rather than litigation in Australia, including that arbitration is:

  • More readily enforceable where the assets that are the subject of a dispute are located outside of Australia.

  • Neutral.

  • Conducted in private.

The advantages of seating international arbitrations in Australia are:

  • Australia's reputation as a neutral seat.

  • A stable political environment operating under the rule of law.

  • Many sophisticated arbitrators and counsel experienced in the field.

  • A legislative framework consistent with the most recent amendments to the 2006 revisions to the UNCITRAL Model Law and internationally accepted norms.

  • An independent legal and court system supportive of arbitration.

Arbitrations are conducted in private; however, documents used in private arbitrations will not be regarded as confidential for that reason alone (Esso Australia Resources v Plowman (1995) 183 CLR 10). To facilitate confidentiality in commercial arbitrations, the amendments to the IAA included specific provisions regarding confidentiality in arbitral proceedings. Sections 23C to 23G of the IAA now contain opt-in provisions providing that parties must not disclose confidential information in relation to the arbitral proceedings, except for specific cases. Parties can also incorporate confidentiality provisions in their arbitration agreement or choice of arbitral rules.

 

Legislative framework

Applicable legislation

2. What legislation applies to arbitration? To what extent has your jurisdiction adopted the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Law)?

The legislative framework governing international arbitration in Australia is set out in the International Arbitration Act 1974 (Cth) (IAA), which gives effect as law to the:

  • UNCITRAL Model Law.

  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

  • International Centre for Settlement of Investment Disputes Convention.

The IAA is a comprehensive legislative regime that governs all international arbitrations seated in Australia. It provides a robust framework for international arbitration to facilitate its effective progression from the early stages of seeking interim measures to the final stages of enforcing an arbitral award. Amendments were also made to the IAA in 2010 to give effect to the 2006 revisions to the UNCITRAL Model Law. In addition to implementing the 2006 revisions to the Model Law, the 2010 amendments to the IAA provide for a number of additional provisions that supplement the interim measures regime in the Model Law. For example, additional provisions in section 23J of the IAA expressly grant the arbitral tribunal the power to make orders regarding the inspection of evidence by either the arbitral tribunal or others. This section also clarifies that the provisions relating to the Model Law regarding interim measures would similarly apply to any such orders made under section 23J.

The states and territories of Australia have all also enacted uniform legislation relating to domestic arbitration based on the UNCITRAL Model Law, which has resulted in a uniform and consistent legislative structure governing commercial arbitration in Australia.

 

Mandatory legislative provisions

3. Are there any mandatory legislative provisions? What is their effect?

Under the International Arbitration Act 1974 (Cth) (IAA), the UNCITRAL Model Law mandatorily applies as the law governing the conduct of all international commercial arbitrations seated in Australia (section 16, IAA). Parties cannot opt-out of the UNCITRAL Model Law either by the express choice of a foreign arbitration law, or impliedly by the choice of arbitral rules (either institutional or ad hoc). In addition, section 21 of the IAA specifies that the UNCITRAL Model Law "covers the field" of matters relating to international arbitration. The effect of this is that if the UNCITRAL Model law applies to an arbitration, then the law of a state or territory relating to arbitration does not apply to that arbitration.

The IAA also contains optional provisions to which parties can opt-out. Importantly, the effect of the following opt-out provisions is that they will automatically apply to all international arbitrations in Australia unless the parties expressly exclude them:

  • Power to issue subpoenas: a party to arbitral proceedings may apply to a court for an order to attend for examination or to produce specified documents (section 23, IAA).

  • Failure to assist tribunal: where a party fails to assist the tribunal in the performance of its functions, the other party can apply to the court for orders requiring the offending party to attend court for examination or to produce documents (section 23A, IAA).

  • Default by party to arbitration agreement: where a party refuses or fails to attend before an arbitral tribunal for examination when required to do so under a subpoena, the arbitral tribunal may continue with the arbitration proceedings in default of appearance (section 23B(1)(a), IAA).

  • Inspection of evidence: an arbitral tribunal may make an order allowing a party to the proceedings to inspect, photograph, observe or conduct experiments on relevant evidence that is in the possession of another party to the arbitral proceedings (section 23J, IAA).

  • Security for costs: the tribunal can, at any time before the award is issued, order a party to pay security for costs (section 23K, IAA).

  • Interest up to making of award: where an arbitral tribunal makes an award for the payment of money, the tribunal may include interest for the whole, or any part, of the period between the date on which the cause of action arose and the date on which the award is made (section 25(1), IAA).

  • Interest on debt under award: where an arbitral tribunal makes an award for the payment of money by a particular date, and the amount is not paid by that date, the arbitral tribunal may direct that interest is payable for the amount not paid by the due date (section 26, IAA).

  • Costs: the costs of an arbitration are at the discretion of the arbitral tribunal (section 27, IAA).

There are also a number of opt-in provisions in the IAA that will only apply to international commercial arbitrations in Australia if the parties expressly agree to include them:

  • Disclosure of confidential information: parties must not disclose confidential information in relation to the arbitral proceedings except in specified circumstances (section 23C, IAA).

  • Circumstances in which confidential information may be disclosed: a party to arbitral proceedings or an arbitral tribunal may disclose confidential information in the specified circumstances (section 23D, IAA).

  • Arbitral tribunal may allow disclosure in certain circumstances: an arbitral tribunal may make an order allowing a party to arbitral proceedings to disclose confidential information in circumstances other than those mentioned in section 23D (section 23E, IAA).

  • Court may prohibit disclosure in certain circumstances: a court may make an order prohibiting a party to arbitral proceedings from disclosing confidential information if it is satisfied that the public interest in preserving the confidentiality of arbitral proceedings is not outweighed by other considerations that render it desirable in the public interest for the information to be disclosed (section 23F, IAA).

  • Court may allow disclosure in certain circumstances: a court may make an order allowing a party to arbitral proceedings to disclose confidential information if the court is satisfied that the public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the information to be disclosed (section 23G, IAA).

 
4. Does the law prohibit any types of disputes from being resolved via arbitration?

Australian courts have generally embraced international commercial arbitration placing few restrictions on matters capable of being arbitrated. The International Arbitration Act 1974 (Cth) (IAA) only requires an arbitration to involve the determination of a matter that is capable of being settled by arbitration (section 7(2)(b), IAA). This provision has been interpreted by the Australian courts as "any claim for relief of a kind proper for court" (Elders CED. Ltd v Dravo Corporation (1984) 59 ALR 206).

Despite this broad interpretation, it remains somewhat uncertain what matters are capable of being arbitrated in Australia, particularly those relating to bankruptcy, insolvency and anti-trust disputes.

In IBM Australia v National Distribution Services (1991) 22 NSWLR 466, the New South Wales Court of Appeal held that issues relating to consumer protection matters were capable of settlement by arbitration. Similarly, in Francis Travel Marketing v Virgin Atlantic Airways (1996) 39 NSWLR 160, the Federal Court of Australia held that disputes based on misleading and deceptive conduct in Australia's anti-trust and consumer protection legislation were also arbitrable. This position was confirmed by Justice Allsop in the Full Court of Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192 who noted the importance of "giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration" and confirmed that the words "all disputes arising out of this contract" was wide enough to include claims under Australia's anti-trust and consumer protection legislation.

In most cases, the courts have declined to rule on whether the matters are not arbitrable and have instead focused on "whether the scope of the arbitration agreement is broad enough to cover such a dispute" (ACD Trion Inc v Tridon Australia [2002] NSWSC 896).

Section 11 of the Carriage of Goods by Sea Act 1991 (Cth) states that any agreement to arbitrate outside Australia contained in sea carriage documents will be held to be invalid. This issue was the subject of a decision of the Full Federal Court in Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107 that held a voyage charter party agreement was not a sea carriage document and therefore the arbitration clause in the charter party that provided for arbitration seated in London was valid.

 

Limitation

5. Does the law of limitation apply to arbitration proceedings?

Australia imposes limitation periods in which claims may be made in international arbitration as a matter of substantive law. Each state and territory has its own statute governing limitation periods. For example, New South Wales imposes a limitation period of six years for causes of action founded on contract or tort (section 14, Limitation Act 1969 (NSW)). These Limitation Acts apply to arbitration in the same manner as court proceedings. The periods specified are dependent on the nature of the underlying cause of action, such as in contract or tort.

 

Arbitration organisations

6. Which arbitration organisations are commonly used to resolve large commercial disputes?

The commonly used arbitration organisations are:

  • Australian Centre for International Commercial Arbitration (ACICA). In 2011, the Australian Government confirmed ACICA as the sole default appointing authority competent to perform the arbitrator appointment functions under the amended International Arbitration Act 1974 (Cth) (regulation 4, International Arbitration Regulations 2011 (Cth)).

  • LEADR & Institute of Arbitrators and Mediators Australia.

  • The Australian International Disputes Centre and the Australian Commercial Disputes Centre have recently merged into one brand: Australian Disputes Centre.

See box, Main arbitration organisations.

 

Jurisdictional issues

7. What remedies are available where one party denies that the tribunal has jurisdiction to determine the dispute(s)? Does your jurisdiction recognise the concept of kompetenz-kompetenz? Does the tribunal or the local court determine issues of jurisdiction?

Australia recognises the concept of kompetenz-kompetenz. An arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement (Article 16, Model Law; Stapp v Gray (1994) 34 NSWLR 474). Parties can also ask for a court determination as to whether the tribunal has jurisdiction. In accordance with Article 16(3) of the Model Law, if the tribunal rules that it has jurisdiction as a preliminary issue, any party can, within 30 days, request the courts to decide the matter.

 

Arbitration agreements

Validity requirements

8. What are the requirements for an arbitration agreement to be enforceable?

Substantive/formal requirements

Arbitration agreements must be in writing reflecting option I of Article 7 of the UNCITRAL Model Law (section 16, International Arbitration Act 1974 (Cth) (IAA)). This requires that the content of the agreement is recorded "in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means". This requirement also takes into account modern means of communications such as data messages and other electronic communications. The requirement for the agreement to be in writing does not require an exchange of writings, or signatures, but only requires that the agreement is in a recorded form, such as an e-mail that records what has been orally agreed.

Separate arbitration agreement

An arbitration agreement can be in the form of an arbitration clause in a contract or in the form of a separate agreement (section 16, IAA; Article 7(1), Model Law).

For the avoidance of doubt, a reference in a contract to any document containing an arbitration clause is an arbitration agreement, provided that the reference is such as to make the clause part of the contract (section 3(5), IAA).

For the arbitration clause to be incorporated by reference, the parties must be taken to have implicitly agreed that the arbitration clause be incorporated. An intention to incorporate the other document as a whole, or generally, is sufficient (Behmer & Wright Pty Ltd v Tom Tsiros Constructions Pty Ltd [1997] VSC 54).

 

Unilateral or optional clauses

9. Are unilateral or optional clauses, where one party has the right to choose arbitration, enforceable?

Unilateral clauses conferring a right on only one party to elect to resolve a dispute by arbitration are enforceable in Australia (ABB Power Plants Ltd v Electricity Commission (NSW) t/a Pacific Power (1995) 35 NSWLR 596).

 
10. In what circumstances can a third party that did not sign the contract incorporating the arbitral clause in question be compelled to arbitrate disputes relating to the contract in question?

There is only a very limited ability to join third parties to an arbitration. It is possible that exceptions may apply where the third party has engaged in fraud, or where the third party is a company related to the company bound by the arbitration agreement and the company structure is used to hide the real purpose of the parent company (Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 118 FCR 449).

 
11. In what circumstances is a third party that did not sign the contract incorporating the arbitral clause in question entitled to compel a party that did sign the contract to arbitrate disputes relating to the contract?

A person claiming through or under a party can apply to the court for a stay of court proceedings in favour of a valid agreement (section 7, International Arbitration Act 1974 (Cth) (IAA)). This requires that both:

  • There is a relationship of sufficient proximity between the party to the arbitration agreement and the person claiming to prosecute or defend an action through or under that party.

  • The claim or defence is derived from or vested in the party to the arbitration agreement.

There has been judicial support for sufficient proximity where the claiming party is (Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169):

  • The assignee of a debt arising out of a contract containing an arbitration clause.

  • A subsidiary of a parent company party to an arbitration agreement.

  • A parent of a subsidiary company that is party to an arbitration agreement

Section 7 of the IAA discourages a party to an arbitration agreement from evading its obligations by relying on a non-party to commence an action in court for what is essentially a claim that the parties have agreed to resolve by arbitration. It also protects a party to an arbitration agreement from having to litigate a non-party's claim.

In Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd (2014) 289 FLR 30, the Victorian Court of Appeal stayed court proceedings commenced by a third party to an arbitration agreement on the basis that that party was claiming through or under a party to that arbitration agreement. This case demonstrated that the Australian courts will give commercial affect to the relationship between parties and non-signatories to an arbitration agreement. In particular, companies within the same corporate group that conduct intra-group affairs may be subject to arbitration where one company seeks to bring a claim against an outsider in respect of dealings involving another member of the corporate group.

 

Separability

12. Does the applicable law recognise the separability of arbitration agreements?

Australia recognises the separability of arbitration agreements (Stapp v Gray (1994) 34 NSWLR 474). Unless the parties express an intention to the contrary, an arbitration clause will ordinarily be treated as separate from the main contract. Consequently, an arbitration clause is unaffected by a challenge to the main contract.

Breach of an arbitration agreement

 
13. What remedies are available where a party starts court proceedings in breach of an arbitration agreement or initiates arbitration in breach of a valid jurisdiction clause?

Court proceedings in breach of an arbitration agreement

Where there is a valid international arbitration agreement and the proceedings involve the determination of a matter that is capable of settlement by arbitration, Australian courts will enforce arbitration clauses by ordering a stay, suspending court proceedings (section 7(2), International Arbitration Act 1974 (Cth) (IAA)).

In accordance with section 7(5) of the IAA and Article 8(1) of the Model Law, a court will only refuse an application for a stay of court proceedings if it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. Article 8 requires the party making the stay application to do so no later than when submitting the first statement on the substance of the dispute.

When faced with multiple claims brought by one party, only some of which are capable of settlement by arbitration, the Australian courts have approached this issue by staying court proceedings only for those claims it considers capable of settlement by arbitration (Hi- Fert Pty Limited and Cargill Fertilizer Inc v Kiukiang Maritime Carriers Inc and Western Bulk Carriers (Australia) Limited (1998) 159 ALR 142).

Arbitration in breach of a valid jurisdiction clause

Australian courts will order a stay of court proceedings commenced in breach of a valid jurisdiction clause. Courts have also ordered a stay of proceedings brought against third parties to a contract that contained an exclusive jurisdiction clause, where those third parties were closely connected with the implementation of the contract (Global Partners Fund Ltd v Babcock and Brown Ltd (2010) 79 ACSR 383).

 
14. Will the local courts grant an injunction to restrain proceedings started overseas in breach of an arbitration agreement?

Australian courts will grant an injunction to restrain proceedings started overseas in breach on an arbitration agreement. The jurisdiction to order anti-suit injunctions restraining breach of an arbitration agreement is part of Australian law as a result of the High Court of Australia's decision in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392.

 

Joinder of third parties

15. In what circumstances can a third party be joined to an arbitration or otherwise be bound by an arbitration award?

There is only a very limited ability to join third parties to an arbitration. It is possible that exceptions may apply where the third party has engaged in fraud, or where the third party is a company related to the company bound by the arbitration agreement.

Additionally, section 24 of the International Arbitration Act 1974 (Cth) (IAA) gives a party to arbitral proceedings the ability to apply to the tribunal for an order consolidating multiple arbitral proceedings. This consolidation facilitates the inclusion of additional parties.

Arbitral proceedings can be consolidated where:

  • A common question of law or fact arises in all those proceedings.

  • The rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions.

  • It is desirable that such an order be made for some other reason.

A tribunal can make the following orders under section 24 of the IAA in relation to two or more arbitral proceedings:

  • That the proceedings can be consolidated on terms specified in the order.

  • That the proceedings be heard at the same time or in a sequence specified in the order.

  • That any of the proceedings be stayed pending the determination of any other of the proceedings.

 

Arbitrators

Number and qualifications/characteristics

16. Are there any legal requirements relating to the number and qualifications/characteristics of arbitrators? Must an arbitrator be a national of, or licensed to practice in, your jurisdiction in order to serve as an arbitrator there?

Article 10 of the Model Law states that the parties are free to determine the number of arbitrators. However, failing such determination, the number of arbitrators will be three.

The Model Law does not prescribe certain qualifications or characteristics an arbitrator must have. However, parties can agree to the qualifications that an arbitrator must possess in order to determine their dispute.

Under Article 12 of the Model Law, an arbitrator may be challenged if he or she does not possess qualifications agreed to by the parties.

There is no legislative requirement that an arbitrator is a national of or licensed to practice in Australia in order to serve as an arbitrator in this jurisdiction.

Article 11(1) of the Model Law states that no person will be precluded by reason of his or her nationality from acting as an arbitrator, unless otherwise agreed by the parties.

 

Independence/impartiality

17. Are there any requirements relating to arbitrators' independence and/or impartiality?

Arbitrators must be independent and impartial.

Article 12 of the Model Law requires a potential arbitrator to disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, will without delay disclose any such circumstances to the parties.

An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence. There are justifiable doubts as to the impartiality and independence of an arbitrator only if there is a "real danger of bias" on the part of the arbitrator conducting the arbitration (section 18A(2), International Arbitration Act 1974 (Cth)). This test provides a higher threshold than merely demonstrating a reasonable apprehension of bias and instead requires that party to demonstrate that there is a real danger that the arbitrator is biased.

Article 18 of the Model Law requires the arbitrator to treat parties equally. Each party in an arbitration must be given a full opportunity to present its case.

 

Appointment/removal

18. Does the law contain default provisions relating to the appointment and/or removal of arbitrators?

Appointment of arbitrators

Article 11 of the Model Law provides the procedure for appointing arbitrators. It provides that the parties are free to agree on a procedure of appointing an arbitrator. Failing such agreement, a default appointment procedure is set out under the Model Law.

Under Article 11 of the Model Law, in an arbitration with three arbitrators, each party must appoint one arbitrator, and the two appointed arbitrators will then appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment will be made, on request of a party, by the relevant arbitral institution (if any) or the Supreme Court of the relevant State. In 2011, the Australian Government confirmed Australian Centre for International Commercial Arbitration as the sole default appointing authority competent to perform the arbitrator appointment functions under the amended International Arbitration Act 1974 (Cth) (regulation 4, International Arbitration Regulations 2011 (Cth)).

In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he or she will be appointed, on request of a party, by the relevant arbitral institution or State Supreme Court.

If problems arise during the course of the appointment procedure, a party may apply to the court to take the necessary measures. If an application is made to the court to appoint an arbitrator, the court must have regard to any qualifications required of the arbitrator by the parties' agreement and any other considerations required to secure the appointment of an independent and impartial arbitrator.

Removal of arbitrators

Article 13 of the Model Law provides a procedure for challenging arbitrators. It provides that the parties are free to agree on a procedure for challenging an arbitrator.

Failing such agreement, a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal, or after becoming aware that the arbitrator is not independent or impartial, or lacks the agreed upon qualifications, send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal will decide on the challenge.

If a challenge under any procedure agreed on by the parties or under the procedure described above is not successful, the challenging party may request, within 30 days of receiving notice of the decision rejecting the challenge, that the court decide the challenge. The court's decision is not subject to an appeal. While such a request to a court is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

 

Procedure

Commencement of arbitral proceedings

19. Does the law provide default rules governing the commencement of arbitral proceedings?

Article 21 of the Model Law provides that, unless otherwise agreed, arbitral proceedings commence on the date on which a request that the dispute be referred to arbitration is received by the respondent.

The procedure for commencing an arbitration generally depends on the arbitration agreement. It is usually necessary to deliver a notice of arbitration to commence the arbitration process. The notice is served on the opposing party or parties.

The claimant party usually nominates an arbitrator or arbitral tribunal in its notice of arbitration. It is good practice for a notice to contain full names and addresses of the parties, a summary of the nature and circumstances of the dispute, a statement of the relief sought, and a copy of the arbitration agreement forming the basis of the notice of arbitration.

If the place of arbitration has not already been determined in the arbitration agreement, the claimant should also indicate its preference in this regard.

 

Applicable rules

20. What procedural rules are arbitrators likely to follow? Can the parties determine the procedural rules that apply? Does the law provide any default rules governing procedure?

Applicable procedural rules

The procedural rules to be applied are often determined by agreement of the parties or, failing such agreement, by the arbitrator or arbitral tribunal in consultation with the parties.

The incorporation into the arbitration agreement of a set of ad hoc or institutional arbitration rules is not essential, but may save time and costs by providing a framework for conducting the arbitration. An alternative is for the arbitration procedure to be fully set out in the arbitration agreement.

Default rules

Article 19 of the Model Law provides that the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Failing such agreement, the arbitral tribunal may, subject to the provisions of the Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

The tribunal's power is subject to Article 18 of the Model Law that states that each party will be treated with equality and each party will be given a full opportunity of presenting its case. Article 24(1) of the Model Law also provides that unless the parties have agreed that no hearings will be held, the tribunal will hold hearings at an appropriate stage of the proceedings, if requested by a party. Article 24(3) of the Model Law also requires all statements, documents, expert reports and other information supplied to the arbitral tribunal by one party, are communicated to the other party.

 

Arbitrator's powers

21. What procedural powers does the arbitrator have under the applicable law? If there is no express agreement, can the arbitrator order disclosure of documents and attendance of witnesses (factual or expert)?

The arbitral tribunal does not have the power to compel a party to disclose documents; however, parties may apply to the court for a subpoena.

Under section 23 of the International Arbitration Act 1974 (Cth) (IAA), which is an additional provision to those contained in the Model Law and applies to all arbitral proceedings unless the parties agree otherwise, parties can apply to a court to issue a subpoena to require a person to either or both:

  • Attend for examination before the arbitral tribunal.

  • Produce to the arbitral tribunal the documents specified in the subpoena.

However, such an application can only be done with the permission of the arbitral tribunal (section 23(2), IAA). The court must not issue a subpoena to a person who is not a party to the arbitral proceedings unless the court is satisfied that it is reasonable in all the circumstances to do so (section 23(5), IAA).

A party to arbitral proceedings can apply to a court for orders under section 23A of the IAA if a person:

  • Refuses or fails to attend before the tribunal for examination when required to do as required by the arbitral tribunal or under subpoena.

  • Refuses or fails to produce a document required by the arbitral tribunal or under subpoena.

  • Refuses or fails to take on oath or make an affirmation or affidavit when appearing as a witness.

  • Refuses or fails to answer a question required by the tribunal to be answered when appearing as a witness.

  • Refuses of fails to do any other thing required by the tribunal in the performance of its functions.

In these circumstances the court can order the person to either (section 23A(3), IAA):

  • Attend the court for examination.

  • Produce to the court the relevant documents or to do the relevant thing.

However, a court must not make orders under section 23A(3) of the IAA to a person who is a non-party to the arbitral proceedings unless the person is given an opportunity to make representations to the court and the court is satisfied that it is reasonable in all the circumstances to make the order in relation to the person.

In addition, under Article 27 of the Model Law the arbitral tribunal or a party with the approval of the arbitral tribunal can request assistance from a court in taking evidence. The court may execute the request according to its rules on taking evidence.

 

Evidence

22. What documents must the parties disclose to the other parties and/or the arbitrator? How, in practice, does the scope of disclosure in arbitrations compare with disclosure in domestic court litigation? Can the parties set the rules on disclosure by agreement?

Scope of disclosure

The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings (Article 19(1), Model Law). Failing such agreement, the arbitral tribunal can conduct the arbitration in any manner it considers appropriate including the power to determine the relevance of any evidence.

Article 24(3) of the Model Law also requires that all statements, documents, expert reports and other information supplied to the arbitral tribunal by one party, are communicated to the other party.

In addition, a party can issue a subpoena under section 23 of the International Arbitration Act 1974 (Cth) (IAA) requiring a person to produce to the arbitral tribunal specific documents.

If the parties agree that sections 23C to 23G of the IAA will apply to the arbitration on an opt-in basis, then there are additional requirements specifying that the parties must not disclose confidential information or documents save for specific cases. Section 23E sets out circumstances in which an arbitral tribunal may allow for disclosure of confidential information or documents.

Practically, disclosure in an arbitration in Australia tends to be completed in a similar fashion to court litigation albeit usually on a more limited basis and by reference to specific documents or categories of documents and without the need for affidavits verifying discovery. However, parties are free to have a disclosure process that differs from court ordered disclosure and can expand or limit the scope of disclosure, if they so choose.

Parties' choice

The parties can agree to the rules and scope of disclosure. This can be included in the arbitration agreement. In practice, many parties and arbitrators will apply or be guided by rules (the International Bar Association Rules on the Taking of Evidence in International Arbitration) for document disclosure either through express incorporation in the arbitration agreement, or by later agreement once the arbitration has commenced.

 

Confidentiality

23. Is arbitration confidential? If so, what is the scope of that confidentiality and who is subject to the obligation (parties, arbitrators, institutions and so on)?

The 2010 amendments to the International Arbitration Act 1974 (Cth) (IAA) included specific provisions regarding confidentiality in commercial arbitral proceedings conducted in Australia. However the confidentiality provisions in sections 23C to 23G of the IAA are opt-in provisions. That is, they will not automatically apply to arbitral proceedings unless the parties expressly agree to include them in writing.

The parties and the arbitral tribunal must not disclose confidential information in relation to the arbitral proceedings unless (section 23C, IAA):

  • The consent of all of the parties to the arbitral proceedings is obtained.

  • The information is disclosed to a professional or other adviser of any of the parties to the arbitral proceedings.

  • The information is necessary to ensure that a party has a full opportunity to present the party's case.

  • The information is necessary for the establishment or protection of the legal rights of a party to the arbitral proceedings in relation to a third party.

  • The information is necessary for the purpose of enforcing an arbitral award.

  • The disclosure is in accordance with an order made or a subpoena issued by a court (sections 23D and 23E, IAA).

Before the 2010 amendments to the IAA that are set out in sections 23C to 23G, the Australian courts had taken a fairly controversial approach to the issue of confidentiality in arbitrations. The High Court of Australia's decision in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 distinguished confidentiality from privacy and held that there was no implied duty of confidentiality in arbitration.

The issue for the High Court in that case was whether a third party that was not a party to the arbitration proceedings was entitled to discovery of information and documents concerning the arbitration. The High Court held that there was no inherent duty of confidentiality in arbitral proceedings, as confidentiality is not "an essential attribute" of a private arbitration merely because these proceedings are not open to the public. In spite of this finding, the court acknowledged that the parties could agree that the proceedings and documents produced should be kept confidential. In response to the uncertainty created as a result of the Esso decision, the 2010 amendments to the IAA included specific provisions regarding confidentiality in arbitral proceedings. However, these provisions will not automatically apply to arbitral proceedings unless the parties expressly agree to include them in writing.

The scope of the opt-in confidentiality provisions in the IAA is wide. Section 15(1) of the IAA states that "confidential information" means information that relates to the proceedings or to an award made in the proceedings and includes:

  • The statement of claim, statement of defence, and all other pleadings, submissions, statements, or other information supplied to the arbitral tribunal by a party to the proceedings.

  • Any evidence (whether documentary or other) supplied to the arbitral tribunal.

  • Any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal.

  • Any transcript of oral evidence or submissions given before the arbitral tribunal.

  • Any rulings of the arbitral tribunal.

  • Any award of the arbitral tribunal.

The confidentiality provisions contained in the IAA apply to parties and the arbitral tribunal.

 

Courts and arbitration

24. Will the local courts intervene to assist arbitration proceedings seated in its jurisdiction?

Courts are generally reluctant to intervene in arbitral proceedings in Australia and will only do so when requested by a party or an arbitral tribunal to do so, or in circumstances where they are expressly granted the right to intervene as a matter of law. Article 5 of the Model Law provides that there is no scope for court intervention in arbitral proceedings, except where expressly provided for in the Model Law.

This overarching principle should be considered together with section 39 of the International Arbitration Act 1974 (Cth) (IAA), which specifies matters to which a court must have regard when exercising its power in arbitration proceedings under relevant sections of the IAA and Model Law. These matters include the fact that arbitration is an efficient, impartial, enforceable and timely method to resolve commercial disputes and that awards are intended to provide certainty and finality.

The Federal Court of Australia, along with the State or Territory (as applicable) Supreme Court of the place of arbitration, has the power to (section 18(3), IAA):

  • Make a decision on challenges to arbitrators if requested (Article 13(3), Model Law).

  • Decide on the termination of the mandate of an arbitrator (Article 14, Model Law).

  • Rule on the jurisdiction of the arbitral tribunal by request of a party where the tribunal has ruled on a plea as a preliminary question (Article 16(3), Model Law);

  • Assist in taking of evidence (Article 27, Model Law).

  • Issue a subpoena in accordance with sections 23 and 23A of the IAA.

  • Grant interim measures of protection (section 7(3), IAA; Articles 8 and 17J, Model Law).

  • Set aside an arbitral award (Article 34(2), Model Law).

The International Arbitration Regulations 2011 specify that the Australian Centre for International Commercial Arbitration is a prescribed authority (for the purposes of sections 18(1) and 18(2) of the IAA) capable of determining disputes relating to the appointment of arbitrators under Articles 11(3) and 11(4) of the Model Law. The Federal Court of Australia and the Supreme Court of Victoria have also adopted a practice of hearing disputes under Articles 11(3) and 11(4) of the Model Law.

 
25. What is the risk of a local court intervening to frustrate an arbitration seated in its jurisdiction? Can a party delay proceedings by frequent court applications?

Risk of court intervention

Australian courts are generally considered to be pro-enforcement of arbitral awards.

Where a court is considering intervening in an arbitration, section 39 of the International Arbitration Act 1974 (Cth) (IAA) requires the court to have regard to both:

  • The objects of the IAA, which include the facilitation of international trade and commerce and the recognition and enforcement of arbitral awards.

  • The fact that:

    • arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes; and

    • awards are intended to provide certainty and finality.

Delaying proceedings

As a result of the pro-arbitration stance of the Australian courts, frequent court applications are unlikely to result in a successful delay of arbitral proceedings. Further, indemnity costs may be awarded against a party commencing court proceedings in breach of a valid arbitration agreement (Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10(S)).

 

Remedies

26. What interim remedies are available from the tribunal?

Interim measures

Article 17 of the Model Law provides that an arbitral tribunal can, at the request of a party, grant interim measures in order to maintain or preserve the status quo, take action to prevent imminent harm, preserve assets or to preserve evidence.

A party requesting an interim measure must satisfy the arbitral tribunal that both (Article 17A(1) , Model Law):

  • Interim measures are necessary to prevent harm that is not adequately reparable by an award of damages and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted.

  • There is a reasonable possibility that the requesting party will succeed on the merits of the claim.

Pursuant to Article 17G of the Model Law, a party requesting an interim measure will be liable for any costs and damages caused by the measure if the tribunal later determines that the measure should not have been granted.

Ex parte

Australia has expressly excluded the right under Article 17B of the Model Law for parties to apply to an arbitral tribunal for ex parte preliminary orders.

Section 18B of the International Arbitration Act 1974 (Cth) (IAA) confirms that despite Article 17B of the Model Law, applications for preliminary orders directing another party not to frustrate the purpose of an interim measure requested are not available in Australia.

Security

Subject to any contrary provision in the arbitration agreement or other written agreement between the parties, the arbitral tribunal can at any time before the award is issued order a party to pay security for costs (section 23K, IAA). This provision will apply to any arbitral proceedings in Australia unless the parties expressly agree that section 23K will not apply.

However, the tribunal must not make such an order solely on the basis that the party (section 23K( 2), IAA):

  • Is not ordinarily a resident in Australia.

  • Is a corporation incorporated or an association formed under the law of a foreign country.

  • Is a corporation or association with its central management or control in a foreign country.

 
27. What final remedies are available from the tribunal?

In Australia, there is no statutory limitation in relation to what an arbitral tribunal can award as a final remedy, unless the parties agree, and there are no statutory time limits for the making of an award.

Subject to any contrary provision in the arbitration agreement or other written agreement between the parties, where an arbitral tribunal makes an award for the payment of money, the tribunal can direct the payment of pre and post-award interest (sections 25 and 26, International Arbitration Act 1974 ( Cth) (IAA)).

Again, subject to contrary agreement of the parties, the costs of the arbitration including the fees and expenses of the arbitrator will be in the discretion of the arbitral tribunal (section 27, IAA).

 

Appeals

28. Can arbitration proceedings and awards be appealed or challenged in the local courts? What are the grounds and procedure? Can parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitral clause itself)?

Rights of appeal/challenge

Article 34(2) of the Model Law provides limited grounds on which an application can be brought to set aside an award.

Grounds and procedure

An application may be brought under Article 34 of the Model Law in the Federal Court or in the Supreme Court of the State or Territory that is the place of arbitration to set aside an international arbitral award under section 18(3) of the International Arbitration Act 1974 (Cth) (IAA). In accordance with Article 34 of the Model Law, an arbitral award can be set aside only if:

  • A party to the arbitration agreement was under some incapacity.

  • The arbitration agreement is not valid under the law to which the parties have subjected it.

  • The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case.

  • The award deals with matters outside the scope of the arbitration agreement.

  • The composition of the tribunal or the arbitral procedure was not in accordance with the parties' agreement or the law of the seat of the arbitration.

  • The subject matter of the dispute is not capable of being arbitrated.

  • The award is contrary to public policy (for example, if the making of the award was induced or affected by fraud or corruption, or a breach of the rules of natural justice occurred in connection with the making of the award (sections 8(7A) and 19, IAA)). A breach of the rules of natural justice will only be sufficient to deny recognition of the award where there is "demonstrated real unfairness or real practical injustice" in how the dispute was resolved (TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83).

Excluding rights of appeal

The Model Law, including the grounds for setting aside an arbitral award pursuant to Article 34(2), is mandatory for all international arbitrations seated in Australia (section 21, IAA). There is no section of the IAA that contemplates that a party can waive the right to apply to set aside an award under Article 34(2) of the Model Law.

 
29. What is the limitations period applicable to actions to vacate or challenge and international arbitration award rendered?

An application to set aside an award must be made within three months from the date of receipt of the award (Article 34(3), Model Law).

 

Costs

30. What legal fee structures can be used? Are fees fixed by law?

Restrictions on permissible fee structures (for example, contingency/conditional costs agreements) vary between jurisdictions in Australia.

Given the different regime governing costs agreements in each state and territory, it is advisable that a party seeks specific advice in relation to the relevant jurisdiction that it intends to instruct lawyers to act in the arbitral proceedings.

 
31. Does the unsuccessful party have to pay the successful party's costs? How does the tribunal usually calculate any costs award and what factors does it consider?

Cost allocation

Section 27 of the International Arbitration Act 1974 (Cth) (IAA) provides that the costs of the arbitration, including the fees and expenses of the arbitrator will be at the discretion of the arbitral tribunal.

Section 27 is an opt out provision and automatically applies to an arbitration unless the parties otherwise agree in their arbitration agreement or otherwise in writing.

Cost calculation

The tribunal can (section 27, IAA):

  • Direct to whom and in what manner costs will be paid.

  • Tax or settle the amount of costs to be paid.

  • Award costs to be taxed or settled as between party and party or as between solicitor and client.

  • Limit the amount of costs that a party is to pay to a specified amount.

To the extent that costs are not taxed or settled by the arbitral tribunal, costs are taxable in either the Federal Court or the Supreme Court of the state or territory that was the place of arbitration (sections 18(3) and 27(3), IAA).

Factors considered

Costs are in an arbitrator's discretion. However, the general position in Australia is that costs follow the event and successful parties will recover at least some portion of their costs.

 

Enforcement of an award

Domestic awards

32. To what extent is an arbitration award made in your jurisdiction enforceable in the local courts?

In Australia, awards made in an international arbitration seated in Australia may be enforced on application to the Federal Court or a State court pursuant to Article 35 of the Model Law as if the award was a judgment of the court (Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Company Limited (2012) 201 FCR 209; Rizhao Steel Holding Group Company Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50). Enforcement of an award made in an international arbitration seated in Australia can be resisted only on the limited grounds set out in Article 36 of the Model Law, which replicate those that apply for setting aside an award under Article 34(2) of the Model Law and also include a situation where the award has not yet become binding on the parties or has been set aside or suspended.

For purely domestic (non-international) arbitrations, applications for enforcement can be made to the State or Territory Supreme Courts pursuant to the relevant State's Commercial Arbitration Act. Enforcement can only be resisted on the same limited grounds that apply in regard to international arbitrations.

A party applying for enforcement must supply the original award or a copy of it to the court.

 

Foreign awards

33. Is your jurisdiction party to international treaties relating to recognition and enforcement of foreign arbitration awards, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention)?

Australia acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) on 26 March 1975. The convention was ratified and implemented without reservation into Australian law as Schedule 1 to the International Arbitration Act 1974 (Cth) (IAA).

Although there are no formal reservations to the New York Convention, sections 8(1) and 8(4) of the IAA differ from Article 35 of the Model Law in that they provide that a foreign award will only be recognised and enforceable in Australia:

  • When the award was made in a New York Convention country.

  • If the award was not made in a New York Convention country, when the party seeking enforcement is either domiciled or ordinarily resident in Australia or another New York Convention country.

Australia has also ratified the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965.

 
34. To what extent is a foreign arbitration award enforceable?

Foreign international arbitral awards may be enforced on application to the Federal Court or State or Territory courts pursuant to section 8 of the International Arbitration Act 1974 (Cth) (IAA) as if the award was a judgment or order of the court (sections 8(2) and (3), IAA).

Consistent with Article IV of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), a party seeking recognition and enforcement of an arbitral award in Australia must, at the time of the application, supply both (section 9, IAA):

  • The duly authenticated original award or a duly certified copy.

  • The original arbitration agreement under which the award was made, or a duly certified copy.

However, in addition to these requirements, there is authority to suggest that a party seeking to enforce an award in Australia must also establish that the award debtor and creditor are parties to the arbitration agreement: IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248.

The courts may refuse to enforce a foreign award on the limited grounds set out in sections 8(5) and 8(7) of the IAA (which replicate the grounds under Article V of the New York Convention: sections 8(3A) and 20 IAA), which are as follows:

  • A party to the arbitration agreement was under some incapacity.

  • The arbitration agreement is not valid under the law to which the parties have subjected it.

  • The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case.

  • The award deals with matters outside the scope of the arbitration agreement.

  • The composition of the tribunal or the arbitral procedure was not in accordance with the parties' agreement or the law of the seat of the arbitration.

  • The award has not yet become binding on the parties or has been set aside or suspended.

  • The subject matter of the dispute is not capable of being arbitrated.

  • To enforce the award would be contrary to public policy.

 
35. What is the limitations period applicable to actions to enforce international arbitration awards rendered outside your jurisdiction?

Different limitation periods apply across the various states and territories to actions to enforce an arbitral award and vary depending on the form of the underlying arbitration agreement (whether made by deed or otherwise).

 

Length of enforcement proceedings

36. How long do enforcement proceedings in the local court take, from the date of filing the application to the date when the first instance court makes its final order? Is there an expedited procedure?

Australian courts have adopted a pro-enforcement attitude. Save, and except for, when a party resists enforcement of an award, or applies to set aside an award, enforcement can be a relatively quick process.

The Federal Court, and the Supreme Courts of New South Wales, Victoria and Western Australia, have dedicated arbitration lists to encourage expedited enforcement of arbitral awards. Particularly:

  • In the Federal Court, all applications to enforce arbitral awards will be referred to the Arbitration Coordinating Judge at the particular registry in which the application is filed.

  • The court adopts a de facto two-step process: if the court is satisfied to a prima facie level that there is an arbitral award and an arbitration agreement, the award debtor must discharge the onus that the award should not be enforced.

  • In New South Wales, all applications to enforce arbitral awards are entered onto the Commercial Arbitration List. There is a specified procedure for the party seeking enforcement to file summaries of the facts and law, and for the award debtor to respond within 14 days, so that the enforcement proceedings can be heard and determined quickly.

  • In Victoria, a two-step process for enforcement of awards is mandated. Applications for leave to enforce awards are made ex parte, and if leave is granted, then an order is made to effect the award as a judgment of the court, staying enforcement of the judgment to allow the award debtor the opportunity to apply to set aside that order (stage two). Unless an application is made by the judgment debtor, then stage two (which involves an inter partes hearing of the application to set aside the award) does not proceed.

  • In Western Australia, all arbitration enforcement matters are referred directly to a single judge of the Supreme Court (currently the Chief Justice of Western Australia) with a view to the enforcement proceedings being quickly resolved.

It is difficult to accurately assess how long enforcement proceedings will take, given the differing approaches across jurisdictions. However, in a recent decision of the Supreme Court of Victoria, Giedo van der Garde BV & Giedo Gijsbertus Gerrit van der Garde v Sauber Motorsport AG [2015] VSC 80, the Court, after granting ex parte orders, heard the application to set aside the award, which was refused, and the appeal from that decision, which was also refused, in one week. This highlights the pro-enforcement attitude being adopted in this jurisdiction.

 

Reform

37. Are any changes to the law currently under consideration or being proposed?

The legal framework for arbitration has been recently reformed with the harmonisation of the procedures for resolution of domestic commercial disputes across the various Australian jurisdictions with the procedures applicable for resolution of international commercial disputes under the International Arbitration Act 1974 (Cth).

There is unlikely to be further significant amendment in the next few years.

*The following HSF lawyers also contributed to this publication: Edwina Kwan, Annie Leeks, Stewart McWilliam, Scott Ivey, Tim Goyder, Sarah Slater, Erin Christlo and Jessica Ji.

 

Main arbitration organisations

Australian Centre for International Commercial Arbitration (ACICA)

Main activities. ACICA supports and facilitates international arbitration in Australia. Appointment and administration body for all forms of alternative dispute resolution. It provides model arbitration and mediation rules and model arbitration and mediation clauses. It offers facilities to host parties to any ADR process. Administers international arbitrations under the ACICA Arbitration Rules incorporating the Emergency Arbitrator Provisions (2011), the ACICA Expedited Arbitration Rules (2011) and ad hoc arbitrations. ACICA is the sole default appointing authority competent to perform the arbitrator appointment functions under the International Arbitration Act 1974 (Cth).

W www.acica.org.au

LEADR & Institute of Arbitrators and Mediators Australia (LEADR & IAMA)

Main activities. LEADR & IAMA conducts arbitrations in accordance with its own arbitration rules, or other procedural rules agreed on by parties. It assists organisations develop effective dispute resolution processes. It also provides rooms for hire in Sydney central business district (CBD).

W www.leadriama.org

Chartered Institute of Arbitrators Australia (CIArb)

Main activities. CIArb provides education, training and accreditation for arbitrators, mediators and adjudicators. It acts as an international centre for practitioners, policymakers, academics and businesspersons.

W www.ciarb.net.au

Australian Disputes Centre (ADC)

Main activities. ADC offers a range of ADR options to businesses, professionals, governments and communities. It provides rooms for hire in Sydney CBD. It offers case management services and guidance on drafting ADR clauses. ADC also issues guidelines and rules to provide a framework to govern the relevant dispute resolution process.

W https://disputescentre.com.au



Online resources

ComLaw

W www.comlaw.gov.au

Description. ComLaw is the official source of primary and secondary legislation of the Commonwealth Government. It is maintained regularly by the Office of Parliamentary Counsel.

Australasian Legal Information Institute (AustLII)

W www.austlii.edu.au

Description. AustLII is an unofficial compilation of judgments and legislation of the federal, state and territory courts of Australia. It is maintained by the Faculties of Law at the University of Technology, Sydney and the University of New South Wales.



Contributor profiles

Leon Chung, Partner

Herbert Smith Freehills

T +61 2 9225 5716
M +61 407 400 291
F +61 2 9322 4000
E leon.chung@hsf.com
W www.hsf.com.com

Professional qualifications. Australia, Lawyer

Areas of practice. International arbitration and transnational litigation; international investments and cross-border transactions; corporate responsibility compliance including compliance with anti-foreign corruption regimes and international sanction regimes.

Non-professional qualifications. Bachelor of Commerce and Bachelor of Laws (Honours), University of Sydney

Recent transactions

  • Advising multinational trading houses and global resources companies on investment risks when investing in overseas jurisdictions including in emerging economies in Asia, Africa, South America and Eastern Europe.
  • Acting for Peabody, the world's largest private sector coal company in arbitral proceedings.
  • Acting in multiple international arbitration and transnational litigation proceedings.
  • Advising and acting for major energy and resources companies on foreign corruption practices and sanctions regimes including responding to regulatory investigations and preparing compliance programmes.

Languages. English

Professional associations/memberships. Director of the Australian Centre for International Commercial Arbitration.

Publications

  • Articles on international dispute resolution and international contracting issues in The Australian Financial Review, Asian Dispute Review Journal and Australian Construction Law Newsletter.
  • International Joint Ventures, Before You Tie the Knot: Commercial issues in joint venture law.

Elizabeth Macknay, Partner

Herbert Smith Freehills

T +61 8 9211 7806
M +61 409 367 672
E elizabeth.macknay@hsf.com
W www.hsf.com.com

Professional qualifications. Australia, Lawyer

Areas of practice. Mining and energy; international arbitration; regulatory investigations and litigation; corporate crime and investigations.

Non-professional qualifications. Bachelor of Arts degree in History and Psychology, University of Western Australia; Bachelor of Laws degree with honours, Murdoch University

Recent transactions

  • Advising in litigation and arbitration.
  • Advising Australian and international clients in the mining and resources sectors.
  • Acting for a Swiss company with operations in the Philippines in UNCITRAL arbitration proceedings in Singapore concerning termination of a coal supply contract with an Indonesian counterparty.
  • Acting for a railway owner in rail access arbitrations.
  • Acting for an ASX listed mining company in arbitration proceedings commenced against it by a customer for alleged breaches of its contractual obligations.
  • Acting for Mount Gibson Iron Limited in three significant arbitration proceedings against customers who failed to take delivery of iron ore during the GFC, which resulted in a settlement and arbitral awards of US$25 million, US$23 million and US$114 million respectively.

Languages. English

Professional associations/memberships. Member of the Australian Institute of Company Directors, the Australian Mining and Petroleum Law Association, Transparency International and Australian Corporate Lawyers Association; trustee of the Committee for Economic Development of Australia; elected member of the Legal Practice Board of Western Australia since April 2009.

Elizabeth Poulos, Partner

Herbert Smith Freehills

T +61 7 3258 6575
M +61 448 303 277
F +61 7 3258 6666
E elizabeth.poulos@hsf.com
W www.hsf.com.com

Professional qualifications. Australia, Lawyer

Areas of practice. International arbitration; regulatory investigations and litigation; constructions disputes and litigation.

Non-professional qualifications. Bachelor of Economics and Bachelor of Laws (Honours), University of Sydney

Recent transactions

  • Advising and acting for a wide range of clients across a number of industries, focussing on the mining, energy and resources, infrastructure and banking and financial services industries.
  • Acting for a range of global mining and energy and resources companies on disputes with contractors and joint venture partners arising from various operations and projects.
  • Acting for and advising a range of major financial institutions on disputes and investigations.
  • Acting in international arbitration proceedings.

Languages. English

Professional associations/memberships. Member of the Queensland Chapter of Transparency International.


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