Commentary at the
Commercial CPD Seminar
Series
11 November 2015
Commentary to “The Role of the Courts in Australia’s Arbitration Regime” presented by
The Hon, Chief Justice James Allsop AO and The Hon. Justice Clyde Croft on 11
November 2015 at the Commercial CPD Seminar Series, a joint initiative between the
Supreme Court of Victoria, Monash University, the Law Institute of Victoria, the Victorian
Bar, the Commercial Bar Association of Victoria, the Judicial College of Victoria, and the
Centre for Commercial Law and Regulatory Studies.
Presented by Bronwyn Lincoln, Partner
Chief Justice Allsop and Justice Croft and, in their joint presentation, highlighted the
growth in international commercial arbitration in Australia, the developing infrastructure in
our cities supporting and encouraging this growth and the increase in jurisprudence
cementing Australia’s role in the global arbitration arena.
But each of the speakers has also identified the fact that if Australia is to establish itself
as a centre for international commercial arbitration (and I will come back to the definition
of ‘centre’ in that context), it must do so with due regard for international jurisprudence,
particularly from Model Law countries.
1
Chief Justice Allsop quoted from the Full Federal Court’s decision in TCL where the
court stated that:
It is not only appropriate, but essential, to pay due regard to the reasoned
decisions of other countries,
and as Justice Croft observed when discussing the ‘temptation of domesticity’,
the international provenance of Australia’s arbitration regime necessitates an
international judicial approach.
This key message is consistent with the message promulgated in other regional centres.
In opening the legal year in Singapore in January 2015, Chief Justice Sundaresh Menon
spoke of:
1
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387
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the realisation that diversity between legal systems, especially in Asia [but to
interject, one might also extend this to the Asia Pacific], can inhibit transnational
commerce at a time when boundaries continue to become increasingly porous
in matters of trade and commerce. The legal fraternity must respond to this
reality by proffering solutions that reduce avoidable legal diversity.
2
Anyone who has had the opportunity to travel and meet with international arbitration
practitioners around the world will attest to the fact that Australia is making its mark in this
area.
Foreign lawyers are often familiar with decisions of our State and Federal Courts.
They have often heard directly from Australian judges about the support of the court for
arbitration, the recognition of international commercial arbitration as a specialist practice
area and the development of jurisprudence.
Australian arbitrators are also making their mark – they are ‘household names’ in
international commercial arbitration and are well sought after.
And they play a significant role in promoting Australia.
These factors are significant; they build confidence in the international legal and business
community.
This is a key element in establishing Australia as a leading regional centre.
But the cornerstone of Australia’s future as a key player in international commercial
arbitration is without doubt the role of the Australian courts.
Without the support of the courts, neither practitioners or Australian arbitrators can
promote Australia as a seat or a place for hearing and we cannot expect respect and
encouragement from regional centres in the Asia Pacific.
2
Response by Chief Justice Sundaresh at the Opening of the Legal Year in Singapore on 5 January 2015 at:
http://www.sal.org.sg/Lists/Speeches/Attachments/125/OLY%202015%20CJ's%20Speech.pdf.
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Let me turn now to the question of Australia’s role in the region.
There is a question in my mind as to whether Australia should compete ‘head to head’
with regional hubs like Singapore and Hong Kong.
This does not mean that Australia cannot have a flourishing international arbitration
market; it does mean that it needs to seek out a different way of promoting itself.
The developments and initiatives outlined by Chief Justice Allsop and Justice Croft this
afternoon show that Australia:
a. can provide ‘best practice’ court support, administration and logistical support for
international commercial arbitration – in other words, it is an ideal place for a hearing
(irrespective of whether the seat of the arbitration is an Australian city or another
place outside of Australia);
The practice notes and civil procedure rules of the Federal Court and the Victorian
Supreme Court in particular, are second to none; they provide clear guidance to
parties as to the extent to which the courts are available to assist in arbitration
proceedings. As Chief Justice Allsop notes, they are designed … to be a user’s
guide.
b. is a ‘safe’ place for enforcement of both arbitration agreements and foreign arbitral
awards – it can be said unequivocally, that the decisions of the State and Federal
Courts in Australia demonstrate pragmatism, respect for the parties’ bargain (ie the
arbitration clause) and an approach consistent with international jurisprudence (in
particular in regard to the interpretation and application of the Model Law).
In relation to arbitration agreements, I refer specifically here to the Robotunits
decision discussed by Justice Croft.
3
3
Robotunits Pty Ltd v Mennel [2015] VSC 268
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To my mind, these are the aspects on which we must focus to reinforce Australia’s
strength in the international arbitration market.
And with this backdrop the challenge will be to change the mindset of corporates in the
Asia-Pacific region so that Australia is not seen on the outer boundary geographically, but
its capital cities are viewed as “a short flight away”.
My final comments arise in the context of Justice Croft’s observation of the need for
courts to resist the temptation to approach arbitration related matters in the context of
principles not found in these international instruments, and which may be peculiar to a
particular jurisdiction or domestic legal system.
It must be right that the application of law which arises out of international instruments
and conventions ought be effected with regard for international jurisprudence – and yet,
at a practical level, this poses a significant challenge for lawyers practising in international
commercial arbitration.
In conducting litigation in aid of arbitration, particularly in proceedings for the recognition
and enforcement of foreign arbitral awards, solicitors and counsel must now look beyond
domestic legal principles.
In some cases, it may be encumbent on the legal team to look beyond the parameters of
the common law with which we have familiarity. We must also look to the civil law and be
prepared to bring concepts within that legal system before the Australian courts.
So, to my mind, the matters which have been covered this afternoon in the keynote
presentations pose a challenge to lawyers in Australia who are practising in international
arbitration – a challenge to support the court in its international approach and in its role in
promoting Australia and its expertise globally and a challenge to play its part in, as Chief
Justice Allsop described it, ‘a cluster of high class legal centres’ in the Asia-Pacific region.
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