International Commercial Arbitration in Australia

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Barnaby Bond
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1 International Commercial Arbitration in Australia 1 April 2013 KLRCA - Joint Seminar Kuala Lumpur Professor Doug Jones AO President, John Wakefield Fellow,

2 Overview Australia's Legal Framework Australia and the International Arbitration Arena The Australian Centre for International Commercial Arbitration () The Australian International Disputes Centre (AIDC)

3 Australia's Legal Framework Australia is a federation of 6 states and 2 territories International Arbitration is governed by the Federal Government: International Arbitration Act 1974 (Cth) Domestic Arbitration is governed by the states and territories: Uniform Commercial Arbitration Acts Court decisions are generally followed throughout all jurisdictions

4 Australia's Legal Framework, cont. What makes Australia a safe and neutral arbitral seat? mandatory stay provisions for judicial proceedings brought when valid arbitration agreement has been established and dispute is arbitrable pro-enforcement approach of courts judicial supervision of arbitral awards and enforcement availability of tribunal-granted interim measures of protection confidentiality of the arbitral process

5 Australia and the International Arbitration Arena

6 Key Features of Australian IA Modern Legislation Supportive Judiciary Right to representation by counsel of choice Sophisticated legal profession Established facilities and logistic support Modest comparative cost

International Arbitration Act 1974 (Cth) 2010 Amendments - an investment in future growth Adopts 2006 UNCITRAL Model Law Amendments Strengthens

7 International Arbitration Act 1974 (Cth) 2010 Amendments - an investment in future growth Adopts 2006 UNCITRAL Model Law Amendments Strengthens finality of awards by limiting grounds of recourse Greater empowerment of tribunals to order interim measures Clear opt-in confidentiality regime

8 International Arbitration Act 1974 (Cth) and the High Court of Australia: TCL Air Conditioner TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia & Anor [2013] HCA 5 Arbitral award made pursuant to international arbitration conducted in Australia sought to be enforced against TCL under the Arbitration Act TCL challenged the constitutionality of the Act: institutional integrity impaired if Australian court required to enforce arbitral awards with no power to review for error (eg. award on its face contains an error of law) arbitral tribunal impermissibly vested with judicial power of the Commonwealth High Court unanimously dismissed the application and upheld validity of Act and the application of the Model Law in Australia Arbitration private and consensual Court referred to the widely shared modern policy of recognising and encouraging arbitration as a valuable method of settling disputes arising in international commercial relations as reflected in the Arbitration Act 1974 (Cth)

9 Commercial Arbitration Bill 2010 (Cth) The Commercial Arbitration Bill 2010 (Cth) introduces uniform domestic arbitration legislation in all Australian States and Territories based on the 2006 UNCITRAL Model Law Currently implemented across four Australian States and the Northern Territory and introduced in the other States This new legislation cements Australia's place as a bestpractice centre for international and domestic arbitration

10 Commercial Arbitration Act 2010 (NSW) and the Supreme Court of NSW: Ashjal In NSW - Supreme Court of NSW rejected challenge to the constitutionality of the Commercial Arbitration Act 2010 (NSW) Ashjal P/L v Alfred Toepfer International (Aus) P/L [2012] NSWSC 1306 Ashjal sought to disturb arbitral award under which it was liable to pay $119,000 Under the Act, no appeal on a question of law unless the parties agree and the court grants leave no agreement and no leave granted Ashjal argued the Act went beyond the legislative power of the NSW Parliament: Limitations on review and/or appeal power as constitutionally entrenched ; power to enforce an award required judicial analysis of its content and correctness Court upheld constitutionality of Act consensual nature of arbitration

11 Centres for Arbitration

12 Australian Centre for International Commercial Arbitration Established in 1985 In 2005 launched its own set of arbitral rules Operates in close co-operation with the Australian International Disputes Centre

13 , cont. Administrative assistance Interim measures of protection can set an appropriate fee for the arbitrator when required Expedited Rules Appointment of Arbitrators Rules 2011 Emergency Arbitrator Provisions is sole default appointing authority

14 AIDC Australian International Disputes Centre Established in 2010 Offers a premier one stop full ADR service with world class facilities and located in the heart of Sydney s business district

15 Professor Doug Jones AO John Wakefield

TCL Airconditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5: A Case Note

Journal of New Business Ideas & Trends 2013, 11(1), pp. 42-46. http://www.jnbit.org TCL Airconditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5: A Case Note Susan